FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE NATIONAL ASSOCIATION OF
HOME BUILDERS,
Plaintiff-Appellant,
v.
THE SAN JOAQUIN VALLEY UNIFIED No. 08-17309
AIR POLLUTION CONTROL DISTRICT;
D.C. No.
THE GOVERNING BOARD OF THE SAN
JOAQUIN VALLEY UNIFIED AIR 1:07-cv-00820-LJO-
DLB
POLLUTION CONTROL DISTRICT,
Defendants-Appellees, OPINION
and
ENVIRONMENTAL DEFENSE; SIERRA
CLUB,
Defendant-intervenors-Appellees,
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued December 11, 2009
Submitted December 7, 2010
San Francisco, California
Filed December 7, 2010
Before: Betty B. Fletcher, Sidney R. Thomas, and
N. Randy Smith, Circuit Judges.
Opinion by Judge B. Fletcher;
Partial Concurrence and Partial Dissent by
Judge N.R. Smith
19529
19532 NAHB v. SAN JOAQUIN VALLEY UAPCD
COUNSEL
Duane J. Desiderio, Washington, DC, Robert C. Horton and
Paul S. Weiland, Nossaman LLP, Irvine, California, for
plaintiff-appellant The National Association of Home Build-
ers.
Philip M. Jay and Catherine T. Redmond, San Joaquin Valley
Unified Air Pollution Control District, Fresno, California, for
NAHB v. SAN JOAQUIN VALLEY UAPCD 19533
defendant-appellee The San Joaquin Valley Unified Air Pol-
lution Control District and the Governing Board of the San
Joaquin Unified Air Pollution Control District.
Paul Cort and Gregory Cahill Loarie, Earthjustice, Oakland,
California, for defendant-intervenor-appellee Environmental
Defense and Sierra Club.
Lisa Trankley, Office of the Attorney General, Sacramento,
California, for amicus curiae State of California.
Peter McVeigh, U.S. Department of Justice Environment and
Natural Resources Division, Washington, DC, for amicus
curiae Environmental Protection Agency.
OPINION
B. FLETCHER, Circuit Judge:
In response to levels of pollution that violated national air
quality standards, the San Joaquin Valley Unified Air Pollu-
tion District adopted “Rule 9510,” which requires develop-
ment sites to reduce the amount of pollutants they emit. The
National Association of Home Builders (NAHB) sued the
District, claiming that Rule 9510 is preempted by the Clean
Air Act. The district court held that Rule 9510 is not pre-
empted. We affirm.
I.
A.
The residents of the San Joaquin Valley breathe “an air that
kills.”1 The air in the Valley contains dangerous levels of par-
1
A.E. Housman, A Shropshire Lad 57 (1903).
19534 NAHB v. SAN JOAQUIN VALLEY UAPCD
ticulate matter and ozone pollution, substances that every year
cause the deaths of many Americans, not to mention much
cardiorespiratory disease. See, e.g., National Ambient Air
Quality Standards for Ozone, 73 Fed. Reg. 16,436, 16,448
(Mar. 27, 2008); National Ambient Air Quality Standards for
Particulate Matter, 71 Fed. Reg. 61,144, 61,154 (Oct. 17,
2006).
Under the Clean Air Act (often “Act”) and California law,
Defendant San Joaquin Valley Unified Air Pollution Control
District (“District”) promulgates and enforces regulations to
meet national air quality standards set by the Environmental
Protection Agency (EPA). When the District began develop-
ing Rule 9510, the regulation at issue in this appeal, the Dis-
trict’s air quality fell significantly short of federal standards
in three areas: ozone, particulate matter under 10 microns in
diameter (“PM10”), and particulate matter under 2.5 microns
in diameter (“PM2.5.”). Because the air in the District fell
short of federal standards, the District had a duty under the
Clean Air Act to develop implementation plans outlining how
it would attain and maintain national standards. 42 U.S.C.
§ 7509(d) (2006). This duty is enforceable by sanctions. Id.
§ 7509(b).
In developing its implementation plans for PM10 and
ozone, the District’s studies found that construction and
development sites contribute significantly to the Valley’s
emissions of PM10 and nitrogen oxides (“NOx”). NOx can be
a chemical precursor to both ozone and particulate matter.
The District found that due to the Valley’s projected growth
in population, emissions from construction and development
would only grow. The District also projected that during the
period from 2006 to 2010, construction equipment working
on new development in the Valley would increase NOx emis-
sions by 21.3 tons per day. That figure outstrips even the
increase in motor vehicle emissions that the population
growth was expected to cause. During this same 2006-2010
period, construction equipment was predicted to increase
NAHB v. SAN JOAQUIN VALLEY UAPCD 19535
PM10 emissions by 1.4 tons per day. Vehicles associated with
new development would stir up road dust, further increasing
PM10 emissions by 5.2 tons per day. To forestall these pro-
jected increases, and to prevent “backsliding” once national
air quality standards were satisfied, the District developed
Rule 9510, which regulates emissions from development proj-
ects.
The Rule applies only to certain development projects.2
When the developer of one of these projects applies for
approval, the District or the developer makes an “Air Impact
Assessment,” using an approved computer model to deter-
mine how much NOx and PM10 the development will pro-
duce if its emissions are not mitigated. These “baseline”
emissions are of two sorts. The first are “construction equip-
ment emissions,” emissions of NOx and PM10 that come
from construction equipment of greater than 50 horsepower
“used or associated with the development project.” The sec-
ond sort of emissions are “operational emissions,” which, as
the name suggests, are those emissions that come from a
development once it is up and running. In this appeal NAHB
challenges only the Rule’s regulation of construction equip-
ment emissions, not its regulation of operational emissions.
Rule 9510 requires the District’s or developer’s computer
model to measure the baseline level of construction equip-
ment emissions by assessing the emissions that average Cali-
fornia construction equipment would emit if it were used to
complete the development. This baseline level can be adjusted
if the model’s usual assumptions about the development site
are shown to be incorrect — if, for example, the construction
2
The Rule applies to any development that includes 50 residential units,
2,000 square feet of commercial space, 25,000 square feet of light indus-
trial space, 100,000 square feet of heavy industrial space, 20,000 square
feet of medical office space, 39,000 square feet of general office space,
9,000 square feet of educational space, 10,000 square feet of government
space, 20,000 square feet of recreational space, or 9,000 square feet of
space that does not fit one of the other categories.
19536 NAHB v. SAN JOAQUIN VALLEY UAPCD
will take a shorter than usual time to complete or if the size
of the construction itself is smaller than the model assumed.
From that baseline calculation, Rule 9510 requires a 20%
reduction in NOx emissions and a 45% reduction in PM10
emissions. A developer can submit information to the District
on the construction equipment it will use at the site in order
to refine the estimate of how much pollutant the site’s con-
struction equipment will actually emit. If the estimate shows
that the construction equipment the developer plans to use at
the site will already reduce NOx emissions by 20% and PM10
emissions by 45% from the baseline calculation, the devel-
oper need do no more. If the development site, under the esti-
mate, cannot meet the required emissions reductions, a
development may reduce its emissions by using add-on con-
trols, cleaner fuels, or more advanced equipment. Alterna-
tively, instead of reducing emissions, a development may
simply pay fees that the District then uses to fund emissions
reductions elsewhere.3
B.
On June 6, 2007, NAHB filed a complaint in federal court
asserting, among other claims, that the Clean Air Act pre-
empts the provisions of Rule 9510 that address emissions
from construction equipment. The district court allowed the
Environmental Defense Fund and the Sierra Club
(“Intervenors”) to intervene to defend Rule 9510 along with
the District. On cross-motions for summary judgment, the dis-
trict court granted summary judgment to the District and
Intervenors and denied it to NAHB.
3
The Rule also requires a development to reduce by 33.3% its baseline
operational emissions of NOx, and by 50% its baseline operational emis-
sions of PM10. As with construction equipment emissions, a developer
may comply with the operational emissions requirement by reducing on-
site emissions, by paying fees, or any combination of the two. As we have
noted, NAHB does not challenge this part of the Rule.
NAHB v. SAN JOAQUIN VALLEY UAPCD 19537
NAHB timely appealed. The district court had original
jurisdiction under 28 U.S.C. § 1331, see, e.g., Indep. Living
Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1047, 1048-49 (9th
Cir. 2008), and we have appellate jurisdiction under 28 U.S.C.
§ 1291.
II.
A.
The Clean Air Act divides regulatory authority between the
states and the federal government. The EPA sets national air
quality standards, but the states have the responsibility to
adopt state implementation plans, or SIPs, to achieve the
national standards. SIPs are then submitted to the EPA for its
approval. Generally speaking, the Act gives the states the job
of regulating stationary sources of pollution, but the EPA, and
with the EPA’s permission California, are responsible for reg-
ulating emissions from motor vehicles and other mobile
sources. See generally Engine Mfrs. Ass’n v. EPA, 88 F.3d
1075, 1078-80 (D.C. Cir. 1996).
The District adopted Rule 9510 under section 110(a)(5) of
the Act, a provision addressing “indirect sources,” which do
not fit neatly into the categories of stationary source and
mobile source. See Sierra Club v. Larson, 2 F.3d 462, 468
(1st Cir. 1993) (noting that “the ‘indirect source’ provision
. . . blur[s]” the Act’s general division of regulatory author-
ity). Section 110(a)(5) authorizes the states to adopt “any indi-
rect source review program.”4 42 U.S.C. § 7410(a)(5)(A)(i)
4
A state may, but is not required to, include such a program in its SIP.
42 U.S.C. § 7410(a)(5)(A)(i) (2006). If the EPA approves the SIP, the
indirect source review program takes on the status of federal law. Trs. for
Alaska v. Fink, 17 F.3d 1209, 1210 n.3 (9th Cir. 1994).
Rule 9510 was submitted to the EPA for approval in December 2006.
Remarkably, the EPA did not issue a notice of proposed rulemaking on
Rule 9510 until May 2010. Revisions to the California State Implementa-
19538 NAHB v. SAN JOAQUIN VALLEY UAPCD
(2006). An “indirect source review program” means “the
facility-by-facility review of indirect sources of air pollution,
including such measures as are necessary to assure, or assist
in assuring, that a new or modified indirect source will not
attract mobile sources of air pollution” that would contribute
to the exceedance of national air quality standards or would
prevent the maintenance of those standards. Id.
§ 7410(a)(5)(D). An “indirect source” is itself defined as
a facility, building, structure, installation, real prop-
erty, road, or highway which attracts, or may attract,
mobile sources of pollution. Such term includes
parking lots, parking garages, and other facilities
subject to any measure for management of parking
supply . . . , including regulation of existing off-
street parking but such term does not include new or
existing on-street parking. Direct emissions sources
or facilities at, within, or associated with, any indi-
rect source shall not be deemed indirect sources for
the purpose of this paragraph.
Id. § 7410(a)(5)(C). The District believes Rule 9510 is an
indirect source review program because it regulates the emis-
sions from construction sites, an indirect source.
NAHB, on the other hand, dismisses Rule 9510 as a ruse
adopted simply to regulate emissions from nonroad vehicles,
a task that the Act prevents California from attempting with-
out first securing the EPA’s approval. NAHB relies on section
209(e) of the Act, which reads in pertinent part:
(e) Nonroad engines or vehicles
tion Plan, San Joaquin Valley Unified Air Pollution Control District, 75
Fed. Reg. 28,509 (May 21, 2010). In its notice of proposed rulemaking,
the EPA proposed to approve Rule 9510. It has not, however, yet taken
final administrative action on Rule 9510. Accordingly, we lift our stay of
this matter, entered on May 20, 2010.
NAHB v. SAN JOAQUIN VALLEY UAPCD 19539
(1) Prohibition on certain State standards
No State or any political subdivision
thereof shall adopt or attempt to enforce
any standard or other requirement relating
to the control of emissions from either of
the following new nonroad engines or non-
road vehicles subject to regulation under
this chapter—
(A) New engines which are used in con-
struction equipment or vehicles or used
in farm equipment or vehicles and which
are smaller than 175 horsepower.
(B) New locomotives or new engines
used in locomotives.
....
(2) Other nonroad engines or vehicles
(A) In the case of any nonroad vehicles
or engines other than those referred to in
subparagraph (A) or (B) of paragraph
(1), the Administrator shall, after notice
and opportunity for public hearing,
authorize California to adopt and enforce
standards and other requirements relating
to the control of emissions from such
vehicles or engines if California deter-
mines that California standards will be,
in the aggregate, at least as protective of
public health and welfare as applicable
Federal standards.
42 U.S.C. 7543(e).
19540 NAHB v. SAN JOAQUIN VALLEY UAPCD
Section 209(e)(1) expressly prohibits any state from “adop-
t[ing] or attempt[ing] to enforce any standard or other require-
ment relating to the control of emissions” from “[n]ew
engines” smaller than 175 horsepower “which are used in
construction equipment or vehicles.” Section 209(e)(2)
creates a zone of implied preemption. It requires the EPA’s
authorization before California can “adopt and enforce stan-
dards and other requirements relating to the control of emis-
sions” from “any nonroad vehicles or engines” other than
those referred to in section 209(e)(1). Any such standard or
requirement that the EPA has not duly authorized, therefore,
is impliedly preempted by section 209(e)(2). Pac. Merchant
Shipping Ass’n v. Goldstene, 517 F.3d 1108, 1113 (9th Cir.
2008).
NAHB contends that section 209(e)(1) expressly preempts,
and section 209(e)(2) impliedly preempts, Rule 9510’s regula-
tion of construction equipment.5 We disagree and hold that
Rule 9510 is preempted under neither provision.
III.
[1] Section 209(e)(1) of the Act preempts only those stan-
dards or requirements relating to the control of emissions
from “new” construction equipment. The Act does not define
what the word “new” in that provision means, but the EPA
has interpreted section 209(e)(1)’s use of the word “new” to
mean “showroom new,” that is, never sold. See 40 C.F.R.
§ 1074.5 (2009). Under this interpretation, section 209(e)(1)
would not preempt Rule 9510 because none of the construc-
tion equipment that Rule 9510 regulates could possibly be
“showroom new.”
[2] About a decade and a half ago, the D.C. Circuit
5
Section 209(e)(1)’s express preemption would only extend, of course,
to construction equipment with engines of less than 175 horsepower. 42
U.S.C. § 7543(e)(1)(A).
NAHB v. SAN JOAQUIN VALLEY UAPCD 19541
deferred to the EPA’s definition of “new” under Chevron
U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S.
834 (1984). See Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075,
1084-87 (D.C. Cir. 1996). After observing that the word
“new” in section 209(e)(1) lacked a specific statutory defini-
tion, the D.C. Circuit noted that the EPA’s definition made
the use of “new” in section 209(e)(1) consistent with the
word’s use elsewhere in the Act. See 88 F.3d at 1085-86; see
also Erlenbaugh v. United States, 409 U.S. 239, 243-44
(1972) (recognizing in pari materia as a logical and well
established canon of statutory construction). Nor did the
EPA’s definition render any provision of the Act a “nullity,”
88 F.3d at 1086, or fly in the face of the legislative history,
id. at 1086-87. Thus the EPA had not ignored the unambigu-
ously expressed intent of Congress and had based its defini-
tion on a permissible construction of the statute. Id. at 1087.
We agree with the D.C. Circuit, and NAHB has offered us no
reason to think otherwise and so create a circuit split. Section
209(e)(1) is inapplicable to Rule 9510 and cannot preempt it.
IV.
[3] Section 209(e)(2) impliedly preempts “standards and
other requirements relating to the control of emissions” from
“any nonroad vehicles or engines other than those referred to
in [section 209(e)(1)].” 42 U.S.C. § 7543(e)(2)(A) (2006).
The District and Intervenors do not dispute that the construc-
tion equipment regulated by Rule 9510 qualifies as “nonroad
vehicles or engines” under section 209(e)(2). The definitions
of “nonroad engine” and “nonroad vehicle” in section 216 of
the Act are comprehensive enough to include construction
equipment, see id. § 7550(10)-(11), and section 209(e)(2)’s
phrase “other than those referred to in [section 209(e)(1)],”
id. at 7543(e)(2)(A) (emphasis added), shows that the engines
and vehicles referred to in section 209(e)(1), which include
construction equipment, do count as nonroad engines and
vehicles.
19542 NAHB v. SAN JOAQUIN VALLEY UAPCD
In NAHB’s view, section 209(e)(2) preempts Rule 9510
because the Rule “adopt[s] and enforce[s] standards and other
requirements relating to the control of emissions from” con-
struction equipment. Id. § 7543(e)(2)(A). Relying on Engine
Manufacturers Ass’n v. South Coast Air Quality Management
District, 541 U.S. 246 (2004), and Pacific Merchant Shipping
Ass’n v. Goldstene, 517 F.3d 1108 (9th Cir. 2008), NAHB
argues that Rule 9510 sets “standards and other requirements”
because it commands developers to use construction equip-
ment that reduces “baseline” emissions by a particular per-
centage, on pain of paying fees. Developers can comply with
Rule 9510 in several different ways — by using cleaner fuels,
or by buying newer equipment, or simply by paying fees —
but whether Rule 9510 sets “standards” or “other require-
ments” is analytically separate from how those standards or
requirements are enforced. Rule 9510 establishes standards or
other requirements, NAHB contends, no matter how much
regulatory flexibility it allows developers in complying with
them.
[4] We agree with NAHB’s premise that under section
209(e)(2) the existence of “standards” or “other requirements”
is a question separate from how the standards or requirements
are enforced. As we shall explain, however, NAHB’s claim of
preemption does not follow from its premise. Even if Rule
9510 establishes standards or requirements, those require-
ments do not relate to the control of emissions from construc-
tion equipment.
In so holding, we think it crucial that the District adopted
Rule 9510 under the Act’s “indirect source review program”
provision, section 110(a)(5). But the parties dispute whether
section 110(a)(5) actually authorizes Rule 9510. We therefore
examine first whether Rule 9510 fits within the terms of sec-
tion 110(a)(5). We then turn to the authorities, that, according
to NAHB, require us to hold Rule 9510 preempted.
NAHB v. SAN JOAQUIN VALLEY UAPCD 19543
A.
NAHB argues that Rule 9510 cannot qualify as an indirect
source review program under section 110(a)(5) because the
Rule is directed at construction equipment and not the con-
struction site itself. While there is surprisingly little precedent
interpreting section 110(a)(5) and seemingly no case law illu-
minating the precise question presented here, we think the
plain language of the statute disposes of NAHB’s argument.
[5] NAHB correctly observes that Rule 9510 is ultimately
directed at emissions that come from construction equipment.
This fact by itself, however, cannot mean that Rule 9510 falls
outside the bounds of section 110(a)(5)’s “indirect source
review program.” Emissions from any indirect source come
from the direct sources located there; that is precisely what
makes an indirect source indirect. Every regulation of the
emissions from an indirect source, then, will ultimately regu-
late direct sources. If an indirect source review program were
not allowed in some circumstances to impute direct sources of
emissions to an indirect source as a whole, there could be no
regulation of the emissions from indirect sources and no indi-
rect source review program could exist.
NAHB relies heavily on the proviso in the statute reading,
“Direct emissions sources or facilities at, within, or associated
with, any indirect source shall not be deemed indirect sources
for the purpose of this paragraph.” 42 U.S.C. § 7410(a)(5)(C).
According to NAHB, because Rule 9510 regulates emissions
from a direct emissions source — construction equipment —
the Rule institutes a program of reviewing direct sources, not
indirect ones.
The statutory proviso on which NAHB relies only makes
sense if it is read to prohibit an indirect source review pro-
gram from targeting direct sources “at, within, or associated
with, any indirect source” apart from the program’s regula-
tion of an indirect source. If the proviso were read to prohibit
19544 NAHB v. SAN JOAQUIN VALLEY UAPCD
a regulatory effect on direct sources while they are at an indi-
rect source, there could be no indirect source review pro-
grams. As we have explained, regulation of emissions from an
indirect source necessarily regulates emissions from direct
sources.
[6] We cannot conclude that Rule 9510 comes within sec-
tion 110(a)(5)’s “direct emissions sources” proviso, for the
simple reason that Rule 9510 does not target direct sources
apart from its regulation of the indirect source as a whole. The
Rule, after all, measures the emissions it regulates by refer-
ence to a particular development site. The “baseline” amount
of emissions, and the required reduction in emissions from
that baseline, are both calculated in terms of the development
as a whole. The Rule and the emissions reductions it requires
are site-based rather than engine- or vehicle-based. See 42
U.S.C. § 7410(a)(5)(C) (requiring that an indirect source
review program be a “facility-by-facility” review). It regulates
an indirect source as a whole.
That Rule 9510 targets sites rather than equipment can also
be seen by its scope of application. By its terms, the Rule’s
restrictions apply to certain kinds of developments, rather than
to certain kinds of construction equipment. See supra p.
19535 & n.2. Whether the Rule’s mandates reach certain con-
struction equipment depends not on the character of construc-
tion equipment but the character of the site where the
equipment happens to be located.
[7] Far from prohibiting Rule 9510, the plain language of
section 110(a)(5) affirmatively authorizes it. A development
site easily qualifies as “real property,” or a “facility,” “struc-
ture,” or “installation.” 42 U.S.C. § 7410(a)(5)(C). By mea-
suring emissions by, and requiring emission reductions from,
development sites as a whole, the Rule qualifies as a “facility-
by-facility” review of indirect sources. Id. Finally, the Rule’s
clear purpose is “to assure, or assist in assuring” that these
sites “will not attract” construction equipment that would con-
NAHB v. SAN JOAQUIN VALLEY UAPCD 19545
tribute to the exceedance of, or the failure to maintain,
national air quality standards in the San Joaquin Valley.6 Id.
Rule 9510 is authorized by section 110(a)(5) of the Act.
B.
Because the plain language of the Act’s “indirect source
review program” provision, section 110(a)(5), authorizes Rule
9510, we must cautiously examine the Act before we con-
clude that another of its provisions, section 209(e)(2), pre-
empts Rule 9510. It would be odd if the Act took away from
the states with one hand what it granted with the other.
“[W]here possible, provisions of a statute should be read so
as not to create a conflict.” La. Pub. Serv. Comm’n v. FCC,
476 U.S. 355, 370 (1986) (discussing the scope of preemption
under the Communications Act of 1934).
[8] Preemption would be an especially strange result given
the history of the Act. Congress added section 110(a)(5) to the
Act in 1977 after the EPA had tried to force the states to regu-
late indirect sources of pollution. See Manchester Envtl. Coal.
v. EPA, 612 F.2d 56, 57-58 (2d Cir. 1979). When the states
had not regulated indirect sources to the EPA’s satisfaction,
the EPA began to promulgate its own rules for indirect
sources. Id. at 58. The EPA’s move “drew heavy criticism
because [it] represented a significant federal intrusion into the
traditionally local domain of land use control.” Id. (citations
omitted). In response to the EPA’s actions, a 1977 amend-
ment to the Act “severely limit[ed] the EPA’s authority” over
6
We note that the California Court of Appeal recently came to the same
conclusion in parallel state litigation about Rule 9510. Cal. Bldg. Indus.
Ass’n v. San Joaquin Valley Air Pollution Control Dist., 100 Cal. Rptr. 3d
204 (Ct. App. 2009). The court concluded that the District had the author-
ity to promulgate and enforce Rule 9510 under section 110(a)(5) and a
state regulation that is materially indistinguishable from section 110(a)(5).
Id. at 218. “The District’s definition of ‘indirect source,’ ” the court noted,
“is not only reasonable but is also the only logical way to interpret the
term.” Id.
19546 NAHB v. SAN JOAQUIN VALLEY UAPCD
indirect sources, id., but “left largely to the states” the matter
of “whether and how to regulate” indirect sources, Sierra
Club v. Larson, 2 F.3d 462, 467 (1st Cir. 1993). In light of the
underlying purpose of section 110(a)(5) — to return power to
states and localities — it would be surprising if the Act never-
theless preempted a local rule that qualified as an indirect
source review program under section 110(a)(5).
C.
Keeping in mind that Rule 9510 is a proper indirect source
review program under section 110(a)(5), we proceed to exam-
ine the arguments NAHB makes, and the authorities it
advances, in favor of preemption.
1.
NAHB contends that Rule 9510 establishes a “standard[ ]”
within the meaning of section 209(e)(2) and is therefore pre-
empted. It relies heavily on South Coast, a Supreme Court
case concerning section 209(a) of the Act, which preempts
states from adopting or attempting to enforce “any standard
relating to the control of emissions from new motor vehicles
or new motor vehicle engines.” 42 U.S.C. § 7543(a). The
question in South Coast was whether this provision preempted
local rules requiring certain fleets of vehicles — street sweep-
ers, airport taxicabs, and solid waste collection vehicles,
among others — to purchase or lease certain low-emissions
vehicles when adding or replacing vehicles in their fleets.
South Coast, 541 U.S. at 249-51.
[9] Looking to the dictionary, the Court held that “stan-
dard” in section 209(a) meant “that which ‘is established by
authority, custom, or general consent, as a model or example;
criterion; test.’ ” Id. at 252-53 (quoting Webster’s Second
New International Dictionary 2455 (1945)). The South Coast
district’s six rules were standards within the meaning of sec-
tion 209(a) because they required fleet operators to buy vehi-
NAHB v. SAN JOAQUIN VALLEY UAPCD 19547
cles with certain emissions characteristics. It did not matter
that the rules were directed at purchasers rather than manufac-
turers. How a standard is enforced or complied with, South
Coast held, is different from whether there is a standard at all.
Id. at 253. A standard itself is simply that which requires a
“vehicle or engine” not to “emit more than a certain amount
of a given pollutant, . . . be equipped with a certain type of
pollution-control device, or . . . have some other design fea-
ture related to the control of emissions.” Id.
[10] NAHB argues that, like the rules in South Coast, Rule
9510 establishes a “standard[ ],” in this case, one “relating to
the control of emissions” from construction equipment. 42
U.S.C. § 7543(e)(2)(A). It does not matter that a developer
can comply with Rule 9510 in several different ways, because
South Coast teaches that “the means of enforcing standards”
should not be confused with whether or not a standard exists.
541 U.S. at 253. Rule 9510 is a standard simply because it
requires construction equipment not to “emit more than a cer-
tain amount of a given pollutant.” Id.
NAHB also appeals to Pacific Merchant Shipping, in which
we held that section 209(e)(2) preempted California rules
requiring the auxiliary diesel engines on certain ocean-going
vessels not to emit more than a certain amount of pollutants.
517 F.3d at 1114-15.7 In that case, we reasoned that the Cali-
fornia rules were “standards” or “other requirements” because
they “require[d] that engines ‘not emit more than’ the amount
of [pollutants] they would emit if using the specified [low-
sulfur] fuels.” 517 F.3d at 1114 (quoting South Coast, 541
U.S. at 253). It did not matter that the rules allowed vessel
operators to use certain fuels to meet the standard. Nor, says
NAHB, should it matter here that developers can meet the
mandates of rule 9510 through cleaner fuels or other alterna-
7
The parties agreed that the regulated vessels qualified as nonroad vehi-
cles under section 209(e)(2). 517 F.3d at 1113.
19548 NAHB v. SAN JOAQUIN VALLEY UAPCD
tive means. As in South Coast, “the means of compliance are
irrelevant.” Id. (citing South Coast, 541 U.S. at 253).
[11] Neither South Coast nor Pacific Merchant Shipping is
on point. Both cases addressed rules that regulated emissions
from vehicles. Rule 9510 does not target vehicles or engines.
It targets emissions, and requires emissions reductions, from
a development site as a whole. It does not require “a vehicle
or engine” not to “emit more than a certain amount of a given
pollutant,” 541 U.S. at 253 — it requires a development site
not to do so. In other words, the dispositive question is not
whether Rule 9510 establishes a standard or other require-
ment. The question is whether it establishes a standard or
other requirement “relating to the control of emissions from
[nonroad] vehicles or engines,” i.e., construction equipment.
42 U.S.C. § 7543(e)(2)(A) (emphasis added). Because Rule
9510 is targeted at a development site as a whole, its standard
or requirement relates to emissions from an indirect source,
not from nonroad vehicles or engines.
NAHB scorns this distinction, characterizing it as artificial
and pointing out that the emissions from a development site
during its construction phase come from construction equip-
ment. But the distinction NAHB deprecates comes from the
Clean Air Act itself. The Act, by allowing states to regulate
indirect sources of pollution, necessarily contemplates imput-
ing mobile sources of pollution to an indirect source as a
whole. If an indirect source review program could not attri-
bute the emissions from mobile sources, while they are sta-
tioned at an indirect source, to the indirect source as a whole,
states could not adopt any indirect source review program.
What allows Rule 9510 to qualify as an indirect source review
program under section 110(a)(5) is precisely what allows the
Rule to avoid preemption under section 209(e)(2): its site-
based regulation of emissions. In this way, the two sections do
NAHB v. SAN JOAQUIN VALLEY UAPCD 19549
not conflict, but rather fit together neatly like two interlocking
puzzle pieces.8 See La. Pub. Serv. Comm’n, 476 U.S. at 370.
2.
Relying on a number of regulations, NAHB argues that sec-
tion 209(e)(2) preempts states from regulating the emissions
from groups of construction equipment just as much as it pre-
empts state regulation of emissions from individual pieces of
equipment. According to NAHB, Rule 9510 merely regulates
groups of, rather than individual, vehicles and engines.
[12] Under its delegated power to adopt and enforce “stan-
dards applicable to the emission of any air pollutant from any
class or classes of new motor vehicles or new motor vehicle
engines,” 42 U.S.C. § 7521(a)(1) (emphasis added), the EPA
has promulgated regulations that require manufacturers to
produce vehicles that — on average — meet a particular
emissions limit. See, e.g., 40 C.F.R. § 86.1811-04(d). Thus a
manufacturer may make one model that emits more pollutants
than the “fleet-average” standard, but still complies with the
standard because it makes another model that emits fewer pol-
lutants than the fleet-average standard. If an emissions limit
gauged by reference to a fleet of vehicles as a whole qualifies
as a “standard,” NAHB argues, then an emissions limit
gauged by reference to the “fleet” of vehicles operating at a
particular site is also a standard. In fact, the EPA itself has
stated that section 209(e)(2) preempts states from enforcing
their own fleet-average standards against nonroad vehicles
8
Compare South Coast, which noted that section 246 of the Act, 42
U.S.C. § 7586, mandates purchase restrictions for fleet vehicles, but only
“under federal standards designed precisely for federally required clean-
fuel fleet vehicle programs — which programs, in turn, must be federally
approved as meeting detailed federal specifications.” 541 U.S. at 257.
Section 110(a)(5), by contrast, is a grant of power to the states and does
not require compliance with specific federal specifications. Perhaps most
importantly, the district in South Coast did not defend its rules as being
authorized by section 246. Id. at 254.
19550 NAHB v. SAN JOAQUIN VALLEY UAPCD
like construction equipment.9 The fact that Rule 9510 regu-
lates groups of construction equipment rather than individual
vehicles or engines is therefore irrelevant.
[13] We agree that Rule 9510 escapes preemption not
merely because Rule 9510 affects groups of construction
equipment rather than individual engines or vehicles. An
emissions limit calculated by reference to a fleet of engines or
vehicles is as much a “standard” as an emissions limit calcu-
lated by reference to an individual engine or vehicle. Rather,
Rule 9510 escapes preemption because its regulation of con-
struction equipment is indirect. Rule 9510 does not measure
emissions by fleets or groups of vehicles; it measures emis-
sions on a “facility-by-facility” basis. 42 U.S.C.
§ 7410(a)(5)(D). Its unit of measurement is the indirect
source, not the fleet. It regulates development sites directly,
but as the term “indirect source” implies, it regulates mobile
emissions only indirectly. For that reason, the fleet-based reg-
ulations are not analogous to Rule 9510.
V.
[14] Rule 9510 is an indirect source review program that
is not preempted by section 209(e) of the Clean Air Act. The
district court’s judgment is therefore affirmed.
AFFIRMED.
9
See EPA, Response to the Petition of American Road and Transporta-
tion Builders Association to Amend Regulations Regarding the Preemp-
tion of State Standards Regulating Emissions from Nonroad Engines 14
(Aug. 21, 2008), Docket No. EPA-HQ-OAR-2004-0008-0921.
NAHB v. SAN JOAQUIN VALLEY UAPCD 19551
N.R. SMITH, Circuit Judge, concurring in part and dissenting
in part:
Though I agree with the majority opinion that § 209(e)(1)
of the Clean Air Act (“Act”), 42 U.S.C. § 7410 et seq., does
not preempt Rule 9510 promulgated by the San Joaquin Val-
ley Unified Air Pollution Control District (“District”), I
respectfully dissent from Parts IV and V. In my view, Rule
9510 is preempted by § 209(e)(2) of Act because (1) the regu-
lation does not qualify as an “indirect source review program”
under § 110(a)(5), since it directly regulates construction
equipment (which are direct emissions sources); and (2) the
regulation creates an emissions control “standard” for con-
struction equipment that has not been approved by the Envi-
ronmental Protection Agency (“EPA”).
I.
The Act authorizes states regulatory agencies to adopt local
“implementation plans” to effectuate national air standards set
by the EPA. Id. § 7410(a). As a general matter, states regulate
stationary sources of pollution while the EPA regulates
mobile sources of pollution. See Engine Mfrs. Ass’n v. EPA,
88 F.3d 1075, 1078-80 (D.C. Cir. 1996).
Pursuant to § 110(a)(5) of the Act, the District adopted
Rule 9510, which addresses “indirect sources” of pollution
that do not fit clearly into the categories of stationary or
mobile sources. See Sierra Club v. Larson, 2 F.3d 462, 467
(1st Cir. 1993). An “indirect source review program” is “the
facility-by-facility review of indirect sources of air pollution,
including such measures as are necessary to assure, or assist
in assuring, that a new or modified indirect source will not
attract mobile sources of air pollution” that would contribute
to the exceedance of national air quality standards. 42 U.S.C.
§ 7410(a)(5)(D).
The Act defines an “indirect source” as
19552 NAHB v. SAN JOAQUIN VALLEY UAPCD
a facility, building, structure, installation, real prop-
erty, road, or highway which attracts, or may attract,
mobile sources of pollution. Such term includes
parking lots, parking garages, and other facilities
subject to any measure for management of parking
supply . . . . Direct emissions sources or facilities at,
within, or associated with, any indirect source shall
not be deemed indirect sources for the purpose of
this paragraph.
Id. § 7410(a)(5)(C) (emphasis added).
Absent EPA approval, the District is prohibited from “ad-
opt[ing] and enforc[ing] standards and other requirements
relating to the control of emissions” from “any nonroad vehi-
cles or engines,” other than certain new vehicles and engines
referred to in section 209(e)(1). 42 U.S.C. § 7543(e). Any
standard relating to the control of nonroad vehicle emissions
that the EPA has not authorized is impliedly preempted by
section 209(e)(2). Pac. Merch. Shipping Ass’n v. Goldstene,
517 F.3d 1108, 1113 (9th Cir. 2008).
As it relates to this case, Rule 9510 requires developers,
applying for certain construction permits, to create an “air
impact assessment” using an approved computer model to
determine how much Nitrous Oxide (“NOx”) and particulate
matter under 10 microns in diameter (“PM10”) the develop-
er’s “construction equipment” would ordinarily produce. The
computer model measures the baseline level of emissions by
assessing the emissions that average California construction
equipment would emit if it were used to complete the devel-
opment.
From this baseline calculation, Rule 9510 requires that “ex-
haust emissions for construction equipment greater than [50]
horsepower used or associated with the development project”
be reduced by 20 percent for NOx emissions and by 45 per-
cent for PM10 emissions. If the developer cannot meet the
NAHB v. SAN JOAQUIN VALLEY UAPCD 19553
reductions, he must find alternative means of compliance or
pay a fine.
II.
Reasoning that Rule 9510 does not target direct sources
apart from its regulation of a development site as a whole, the
majority holds that the “plain language” of the Act affirma-
tively authorizes Rule 9510 as an “indirect source review pro-
gram.” Maj. Op. at 19545. I disagree.
Though an indirect source review program can certainly
regulate direct emission sources incident to a broader regula-
tory scheme, Rule 9510 facially targets direct sources by lim-
iting the emissions of construction equipment separate from
its regulation of development sites. The “General Mitigation
Requirements” under Rule 9510 provide separate NOx and
PM10 emission reduction standards for (1) “construction
equipment greater than fifty (50) horsepower used or associ-
ated with the development project” during construction, Rule
9510 § 6.1.1.1 (emphasis added); and (2) “the project’s opera-
tional baseline” during ongoing operations, id. § 6.2 (empha-
sis added). Thus, Rule 9510 treats emissions from
“construction equipment”—rather than all emissions from a
development site as a whole—as the relevant unit of regula-
tion during the initial phases of development.
Further, the Act unequivocally provides that “[d]irect emis-
sion sources . . . at, within, or associated with, any indirect
source shall not be deemed indirect sources . . . .” 42 U.S.C.
§ 7410(a)(5)(C). If this provision has any meaning at all, it
mandates that states cannot isolate direct emissions sources
associated with an indirect source and deem them “indirect
sources” subject to special regulation apart from the indirect
source in the aggregate. Yet, this is precisely what Rule 9510
does—construction vehicles (direct emissions sources) are a
subset of the “project” site (the indirect source). Construction
vehicles do not fit the definition of an indirect source—“a
19554 NAHB v. SAN JOAQUIN VALLEY UAPCD
facility, building, structure, installation, real property, road, or
highway which attracts, or may attract, mobile sources of pol-
lution,” id.—so they cannot be regulated apart from the devel-
opment project as a whole.1
The majority defends the Rule by arguing that the “base-
line” and reduced emissions standards are calculated in terms
of the development as a whole. But this ignores the fact that
the reduced emissions standard is then imposed exclusively on
“construction equipment”—not on the “site” or “development
project.” Regardless of how the standard is calculated, the Act
plainly proscribes regulation of direct emission sources apart
from indirect sources. The only part of Rule 9510 that applies
an emissions standard to “the project,” as a whole, is section
6.2, which regulates ongoing “project” emissions. But even if
section 6.2, standing alone, could qualify as an indirect source
review program, section 6.1.1.1 clearly does not.
Similarly, it makes no difference that the Rule applies only
to “certain kinds of developments, rather than to certain kinds
of construction equipment.” Maj. Op. at 19544. There are no
exceptions to 42 U.S.C. § 7410(a)(5)(C) in the Act for pro-
grams that limit the universe of regulatory possibilities to only
certain kinds of development projects. The bottom line is that
the exhaust emissions of construction equipment on a devel-
opment site that is subject to Rule 9510 will be isolated and
separately regulated in violation of § 7410(a)(5)(C)’s “direct
emissions sources” proviso. I agree that a development site—
in contrast to a fleet of construction equipment at a develop-
ment site—qualifies as an indirect source under
§ 7410(a)(5)(C). But, by imposing emissions reduction stan-
dards separately on construction equipment located on that
1
If Rule 9510 § 6.1.1.1 simply provided for the regulation of “the
exhaust emissions [from the development project],” rather than from “con-
struction equipment greater than fifty (50) horsepower used or associated
with the development project,” I would find no problem with the regula-
tion.
NAHB v. SAN JOAQUIN VALLEY UAPCD 19555
site, Rule 9510 does exactly what the Act proscribes—
regulate direct sources by deeming them indirect sources.
III.
The Act also preempts Rule 9510, because the Rule creates
an emissions control “standard” that has not been approved by
the EPA.2 As the majority acknowledges, section 209(e)(2)
creates a zone of implied preemption for “standards and other
requirements relating to the control of emissions” from “any
nonroad vehicles or engines.” Pacific Merchant, 517 F.3d at
1113 (9th Cir. 2008).
In Engine Manufacturers Ass’n v. South Coast Air Quality
Management District, 541 U.S. 246 (2004), the Supreme
Court held that the Clean Air Act preempted a local rule
requiring certain fleet operators—e.g., street sweepers, airport
taxicabs, and solid waste collectors, among others—to pur-
chase or lease designated low-emissions vehicles when
adding or replacing vehicles in their fleets. 541 U.S. at 249-
55. Since the federal government alone may establish specific
emissions standards for particular vehicles, the local rule
could not establish a “standard” requiring fleet operators to
buy vehicles with certain emissions characteristics. The Court
explained that a “standard,” for purposes of the Act, is that
which requires a “vehicle or engine” not to “emit more than
a certain amount of a given pollutant, . . . be equipped with
a certain type of pollution-control device, or . . . have some
other design feature related to the control of emissions.” Id.
at 253. In Pacific Merchant, we later held that a California
2
The EPA is currently reviewing Rule 9510, but has not yet taken final
action to approve or disapprove the regulation. See Approval and Promul-
gation of Implementation Plans: 1-Hour Ozone Extreme Area Plan for San
Joaquin Valley, CA, 74 Fed. Reg. 33,933, 33,937 tbl. 2 (July 14, 2009).
A decision from the EPA would render our review unnecessary. As such,
I would have preferred to allow that federal agency (tasked with managing
indirect source review programs) to determine whether Rule 9510 com-
ports with the relevant provisions of the Act before deciding this appeal.
19556 NAHB v. SAN JOAQUIN VALLEY UAPCD
regulation requiring marine vessels not to use auxiliary diesel
engines “which emit levels of diesel PM, NOx, and SOx in
exceedance of [specified] emission rates” established a “stan-
dard” under the definition articulated in South Coast. 517
F.3d at 1114 (internal quotations and alterations omitted).
No meaningful distinction exists between the regulations at
issue in South Coast and Pacific Merchant, and Rule 9510.
Like the regulation in Pacific Merchant, Rule 9510 fixes an
ascertainable limit on vehicle or engine emissions. While the
former required emissions “not to exceed [rates] . . . that
would result had the engine used [certain specified] fuels,”
Pacific Merchant, 517 F.3d at 1112, (internal quotations omit-
ted), the latter requires emissions not to exceed a rate calcu-
lated by subtracting certain reduction targets from the
statewide average emissions rate.
Further, Rule 9510 requires emissions reductions specifi-
cally from vehicles or engines falling within their regulatory
purview—not from a variety of emissions sources tradition-
ally associated with “indirect sources.”3 Just as the regulation
in Pacific Merchant affected any auxiliary diesel engine on an
ocean-going vessel within twenty-four miles of California’s
coast, 517 F.3d at 1109, Rule 9510 specifically affects con-
struction equipment over 50 horsepower located on or associ-
ated with a regulated development site. The majority ignores
the plain language of Rule 9510 in concluding otherwise—in
its view, the Rule “does not target vehicles or engines. It
requires emissions reductions, from a development site as a
whole.” Maj. Op. at 19548. Yet, section 6.1.1.1 unequivocally
3
I reiterate that “indirect sources” include facilities, structures, real
property, roads, and even parking lots that attract mobile sources of pollu-
tion, but are not themselves mobile or direct emissions sources. 42 U.S.C.
§ 7410(a)(5)(C). While an indirect source such as a construction site
would ordinarily include a variety of direct emissions sources—large and
small nonroad construction equipment, temporary or permanent facilities,
generators, road vehicles, etc.—the statute only provides for their regula-
tion in the aggregate.
NAHB v. SAN JOAQUIN VALLEY UAPCD 19557
requires a reduction in “exhaust emissions for construction
equipment . . . used or associated with [a] development proj-
ect.” The applicable unit of regulation here is the fleet of vehi-
cles rather than the “site.”
It makes no difference that the regulation in Pacific Mer-
chant dealt with individual engines while Rule 9510 regulates
fleets of vehicles. There are no limiting caveats in either
Pacific Merchant or South Coast that would permit a state
regulator to do to a small group of vehicles what it could not
do to a single vehicle. Indeed, the regulation struck down in
South Coast for establishing a “standard” under section 209
regulated fleets of vehicles.
Moreover, Rule 9510 effectively regulates construction
vehicles individually. Since the permitted emission rate under
section 6.1.1.1 is not divided among a variety emissions
sources at the development site—as it would be had it tar-
geted aggregate project emissions—this section of the Rule
affects only “construction vehicles.” Sections 6.1.1.1 and
6.1.1.2 then impose maximum emission standards calculated
as a percentage of average construction emission rates in Cali-
fornia. Because the estimation model accounts for “the num-
bers and types of construction equipment that will be used,”
the reduction standard necessarily affects every vehicle
involved in the development project.
Lastly, the notion that states can regulate fleets of vehicles
also runs afoul of the entire Clean Air Act regime. From the
Act’s inception, Congress has delegated regulation of station-
ary emissions sources to the states, while reserving (since the
late 1960s) regulation of mobile emissions sources to federal
province.4 Engine Mfrs. Ass’n, 88 F.3d at 1079-80. Indeed,
4
Only California is permitted to promulgate its own emissions standards
for mobile sources under certain circumstances, but Rule 9510 was not
promulgated pursuant to this authority. See Motor & Equip. Mfrs. Ass’n,
Inc. v. EPA, 627 F.2d 1095, 1109 n.26 (D.C. Cir. 1979).
19558 NAHB v. SAN JOAQUIN VALLEY UAPCD
Congress explicitly preempted state regulation of mobile
emissions sources when “the possibility of 50 different state
regulatory regimes ‘raised the spectre of an anarchic patch-
work of federal and state regulatory programs, a prospect
which threatened to create nightmares for the manufactur-
ers.’ ” Motor & Equip. Mfrs, 627 F.2d at 1109 (citation omit-
ted).
Though Congress delegated additional regulatory authority
to states over “indirect sources” that fit into neither the sta-
tionary nor mobile categories, see Sierra Club, 2 F.3d at 467,
it did not upset its longstanding policy of setting only national
standards for mobile emissions sources like construction
equipment. Had Congress intended to delegate its authority to
regulate mobile emitters, it could have said so. The Act
defines “indirect sources” by their very propensity to “attract
. . . mobile sources of pollution.” Yet, nowhere do I find
authority to regulate those mobile sources directly—that is,
apart from an indirect source. Quite the contrary, Congress
prohibited states from “adopt[ing] and enforc[ing] standards
and other requirements relating to the control of emissions”
from “any nonroad vehicles or engines,” other than certain
vehicles referred to in section 209(e)(1). 42 U.S.C. § 7543(e).
It also exempted “direct sources” (a much broader category of
emitters) from the purview of state indirect source review pro-
grams. Id. § 7410(a)(5)(C). Because large construction vehi-
cles are both “nonroad vehicles” and “direct sources,” Rule
9510 squarely contradicts the structure and express provisions
of the Clean Air Act.