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Thursday, May 17, 2012
Feature: July 2008
Breath Freshener
Builders could face expensive regulations from air-quality districts
Story by Josh Brodesky
If ever there was a place made for bad air, it was the River City.
With each ocean breeze, the Bay Area pushes its smog onto Sacramento, filling the valley’s air with a layer of not-so neighborly pollution. Once there, the smog sits above the region baking in the sun, hemmed in by the Sierra Nevada.
But the pollution isn’t all from out of town. Vehicle emissions also contribute to heightened levels of ozone, which can lead to asthma and bronchitis. Wood burning stoves, fireplaces or construction projects add fine particles of soot and dust into the air, leading to various forms of heart and lung disease.
And with the region’s surging population projected to hit more than 5 million by 2050, the emissions and smog are going to keep coming with the people.
“Seventy percent of our ozone problem here in the Sacramento area is due to vehicle emissions,” says Christina Ragsdale, spokeswoman for the Sacramento Air Quality Management District. “But we don’t have any regulatory power over that.”
And there lies one of the greatest challenges for the Capital Region: how to meet state and federal air quality standards in a region with a booming population, growth-based economy and geography that traps smog.
Because the air quality district has no control over tailpipe emissions, its efforts have largely focused on indirect measures: clean-air campaigns, requiring clean-air building permits for polluting businesses and industries and preventing residents from using fireplaces on smoggy days.
All of these efforts have helped to spare the air a bit, but they will never be enough to meet state and federal requirements. That’s why local air quality officials have their sights set on development.
The district is planning to impose fees on new developments, while requiring builders to offer alternative forms of transportation such as biking, walking or easy access to public transit. There are also plans to require builders to use newer construction equipment with cleaner emissions.
“That would be another way to go after vehicle emissions,” says Kathy Pittard, legal counsel for the Sacramento region’s air quality district. “We can control emissions by changing and reducing routes.”
The planned regulation, known as an indirect source review, is modeled after one recently put in place in the nearby San Joaquin Valley — one of the few destinations in the U.S. with worse air than Sacramento.
“Basically, our challenge here in the San Joaquin Valley may be much like that of the Sacramento Valley, however, worse,” says Anthony Presto, spokesman for the San Joaquin Valley Air Pollution Control District.
The San Joaquin Valley is also experiencing tremendous population growth. One of the most fertile regions in the U.S., the valley’s mighty agricultural industry along with tailpipe emissions, contributes to the bad air.
“If they took just private cars and said no one could drive in the San Joaquin Valley, that will not solve their problem,” says Holly Doremus, an environmental law professor at UC Davis. “What they have to do is take pretty much a deep cut from pretty much every sector.”
To spare the air, the San Joaquin Valley relied on a number of community awareness programs as well as regulation and incentive programs for almost all industrial sectors. But officials realized even with these programs the district wasn’t going to meet federal deadlines for air quality for ozone and particulate matter.
So the district turned its attention to development. “Local air districts have been fairly reluctant to get too heavily involved in land-use permitting and the processes for basically suburban and residential development,” says Dave Owen, a law professor at the University of Maine and former San Francisco attorney. Owen closely followed the San Joaquin district in the ’90s while living and working in the Bay Area.
“They’ve preferred to focus on transportation planning and regulating industries — and they are now — because they have accomplished much of what they can accomplish with those other sources. They are starting to look at land-use planning and land-use development,” he says.
The San Joaquin Valley passed its indirect source review in 2005, despite intense opposition from the building industry that led to a lawsuit.
The new regulation essentially targets any large commercial and residential developments of 50 units or more, giving builders an option to either build in a way that reduces projected emissions from the development or pay a fee for each residential unit that goes toward reducing emissions from other sources of pollution like farming equipment.
The building industry sued, arguing there was no established link between housing development and air pollution. But in February, Fresno County Superior Court Judge Donald Black ruled in favor of the district, opening the door for other districts to adopt similar rules.
Pittard, legal counsel for Sacramento’s air quality district, says Sacramento had been waiting for that ruling in order to move forward with its own indirect source review. Still, she says she expects a similar legal challenge when the rule goes into effect. “We anticipate that we may get a similar challenge to our rule, and we will prepare for that,” she says.
Despite numerous requests, the North State Building Industry Association wouldn’t comment, but officials with the Building Industry Association of Central California have said they are considering an appeal to Judge Black’s ruling.
One of the ripple effects of the ruling is that every district in the state will now have to, at least, consider adopting rules similar to those in the San Joaquin Valley. “State law requires they have to consider every feasible measure that any other air district has adopted in the state,” says Kathryn Phillips, an air quality expert for Environmental Defense Fund, a nonprofit advocacy group with an office in Sacramento. “That automatically means that every other district has to consider an indirect source rule.”
Phillips says the San Joaquin Valley’s air quality regulations are the most thorough in the country, but still, they are not perfect.
For example, the projected emissions for new development plans are based on 10 years and not the lifetime of a development, which she says should be a minimum of 30 years. And the fees developers can opt to pay — instead of making improvements — are nominal compared to the cost of a home, averaging about $600 per residential unit.
“It’s a very small piece of the cost of any house,” she says. “But the thing is it makes the developer at least think.”
Right now, there are about 50 residential and commercial developments that fall under the umbrella of the San Joaquin Valley’s indirect source rules, but Phillips says most developers are opting to pay the fees because it’s cheaper than the alternatives: making the necessary improvements to their own projects or choosing to build in infill instead of new-growth areas.
This is both bad and good, Phillips says. On one hand, by paying the fees there is no direct, immediate impact on planned developments. But the fees do go to reducing emissions and improving air quality, and eventually the less expensive fees will be bought up, raising the average fee.
“Over time, you will probably find that the cheap reductions have been bought, so they will get more expensive over time. That would make those things on site look more attractive,” Phillips says.
And while officials with Sacramento’s air quality district are bracing for a lawsuit when the new development fees and requirements come into play, Phillips is skeptical. “I don’t think there are going to be any more lawsuits,” she says. “I think they are going to be a waste of time. Frankly, what is a reality is you can’t have really attractive communities if people can’t breathe. Developers want to attract buyers, and they want to make their housing choices as attractive as possible.”
Regulations and penalties aside, this notion of a greener, cleaner Sacramento is probably the biggest selling point for changing how development is carried out in the region.
Although the region’s poor air quality has serious environmental and health consequences — some estimates say the poor air costs the region $1,000 per person in terms of lost productivity and health problems — the River City is flush with quality of life intangibles. Some of Sacramento’s major selling points compared to the nearby Bay Area are its affordability of homes, relative lack of congestion and scenic beauty.
To build in a way that accents those qualities is a key to the River City’s future, and Phillips says she can see the pending new regulations being tied to the broader goal of planning the region’s future transportation and development.
“That’s one of the most exciting things in my mind, the idea that the Sacramento air district is looking to develop an indirect source rule. Because there is this community-embraced planning process, this can support that process.”
But the clock is ticking. One of the reasons why Sacramento is in such a bind is that it, along with the San Joaquin Valley, has repeatedly sought extensions to meet deadlines for federal standards.
This has provided more time, but it’s come with the cost of more stringent air quality requirements. For example, back in 2004 the Environmental Protection Agency deemed the Sacramento region as a “serious” nonattainment area for ozone standards. The attainment deadline was 2013, but the region asked to be reclassified as a “serious to severe,” which set a deadline for 2019.
“The valley has basically taken advantage of every downgrading and extension that it has, and it’s run out of rope and still has not achieved its standards,” says Owen, the University of Maine law professor. For this reason, Owen and others say focusing on development is almost a required move for Sacramento and the San Joaquin Valley. And with new planned regulations at the state and federal level that will be designed to address climate change, Owen says focusing on development, driving patterns and commute times is the only way to go.
“We could be talking decades, but if the Central Valley were eventually able to shift to a transportation system that is not so heavily dependent on gasoline — hybrids and solar energy — you would have dramatic changes in air quality, and I think it will happen because we are going to have to deal with climate change,” he says. “I am cautiously optimistic.”
