WESTERN OIL GAS ASSOCIATION v. ORANGE COUNTY AIR POLLUTION CONTROL DISTRICT

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Court of Appeal, Fourth District, Division 2, California.

WESTERN OIL & GAS ASSOCIATION, et al., Plaintiffs and Respondents, v. ORANGE COUNTY AIR POLLUTION CONTROL DISTRICT et al., Defendants and Appellants.

Civ. 13466.

Decided: July 10, 1974

Adrian Kuyper, County Counsel, and John F. Powell, Deputy County Counsel, Santa Ana, for defendants and appellants. Evelle J. Younger, Atty. Gen., Robert H. O'Brien, Asst. Atty. Gen., Nicholas C. Yost, C. Foster Knight and Jan E. Chatten, Deputy Attys. Gen., as Amici Curiae on behalf of defendants and appellants. McCutchen, Black, Verleger & Shea, Philip K. Verleger, Jack D. Fudge, and David A. Destino, Los Angeles, for plaintiffs and respondents.

OPINION

In October 1971, the Orange County Air Pollution Control District (‘District’) adopted Rule 74. The purpose of the rule was to eliminate the lead content in gasoline sold in Orange County over a three year period commencing July 1, 1972 and ending July 1, 1975.1

In March 1972, Western Oil and Gas Association, a non-profit corporation, and several of the major oil companies doing business in California filed suit in the superior court seeking declaratory and injunctive relief against enforcement of the rule.

In July 1973, the case came on for trial on stipulated facts, stipulated exhibits and depositions. The court held that the primary purpose and effect of the rule was to control the emissions of lead from motor vehicles; that under section 39012 of the Health and Safety Code, county districts are authorized to control ‘. . . air pollution except for the emissions from motor vehicles'; that Rule 74 is null and void and its enforcement is enjoined. The District challenges this ruling.

California is the only state which had adopted an ambient air quality standard for lead. (Cal.Admin.Code, tit. 17, § 70200.) The standard is 1.5 micrograms of lead per cubic meter as a 30 day average. This standard was adopted in November 1970 by the California Air Resources Board to protect public health. The State Department of Public Health found that concentrations of lead above 1.5 micrograms per cubic meter are associated with increased storage of lead in human bodies which, in turn, produces detectable metabolic effects.

Thirty day average lead levels as high as 8.2 micrograms per cubic meter have been measured in Los Angeles County. Orange County measurements of 30 day averages show as high as 6 micrograms per cubic meter.

The major source of lead in California's air is the emission of lead from motor vehicles due to the combustion of lead and anti-knock compounds in gasoline. More than 90 percent of the gasoline sold in the state is for highway vehicular use.

The California Air Resources Board has determined that an 80 percent reduction in lead emissions from motor vehicles is necessary to attain the statewide ambient air quality standard for lead.2

The most effective way to reduce lead emissions from motor vehicles is to reduce or eliminate the lead content in gasoline. While there are other ways of reducing lead emissions, such as requiring the installation of lead trap devices on motor vehicles, the effectiveness of these types of structural alterations is debatable.

This appeal raises the single issue of whether the District can validly regulate the lead content of gasoline used in automobiles or other motor vehicles.

Controlling the resolution of this question is the principle that the District, as a regulatory agency, can regulate only what the Legislature says it can regulate, and can do so only in the manner prescribed by the Legislature. It has no authority to enact rules or regulations which enlarge the terms of the legislative enactments which give it existence and power. (California Sch. Employees Assn. v. Personnel Commission, 3 Cal.3d 139, 89 Cal.Rptr. 620, 474 P.2d 436; Morris v. Williams, 67 Cal.2d 733, 63 Cal.Rptr. 689, 433 P.2d 697; Ellis v. Board of Education, 27 Cal.2d 322, 164 P.2d 1; Whitcomb Hotel, Inc. v. Cal. Emp. Com., 24 Cal.2d 753, 151 P.2d 5; Environmental Defense Fund v. California Air Resources Bd., 30 Cal.App.3d 829, 106 Cal.Rptr. 598; People v. Harter Packing Co., 160 Cal.App.2d 464, 325 P.2d 519.) From this it follows that, in order to define the limits of the District's power, we must inspect the statutes which spell out those boundaries.

The trial court rested its decision primarily on section 39012 of the Health and Safety Code. This measure in question, enacted in 1967, is one of the prefatory sections of the Mulford-Carrell Air Resources Act. It pronounces the policy which the Legislature proposed to follow in fighting the evils of air pollution. It provides: ‘Local and regional authorities have the primary responsibility for the control of air pollution except for the emissions from motor vehicles. Theses authorities may control emissions from nonvehiclular sources. . . .’

It is difficult to imagine a plainer statement of what a state-created agency can and cannot do. It is to the litigant District and to similar agencies that the term ‘local and regional authorities' refers (see § 39009.5). With the District specifically in mind, the Legislature has said that such entities ‘may control emissions from non-vehicular sources' to whatever extent they deem advisable. What they may not do is to deal with ‘emissions from motor vehicles.’ So much is clearly the ‘substance contained’ in section 39012 (Code Civ.Proc. § 1858). But this apparently is not clear to the District.

It is the contention of the District that its rule does not fall under the ban of section 39012 because it does not control automobile emissions; it ‘merely’ regulates fuel content. While this proposition is offered in all seriousness, it is not a serious argument. The parties have stipulated that ‘the only significant effects of regulating the lead content of . . . gasoline sold for highway vehicle use are to reduce from highway vehicles the emission or discharge of lead into the atmosphere and to extend the life of catalytic afterburners in automobiles . . .’ (which are themselves emission control devices). Given that the only significant effect of controlling lead content is the control of exhaust emissions, it is specious to argue that Rule 74 is anything but an attempt to do what the higher authority of section 39012 forbids to be done.

Taking another tack, the District contends that it does have the power to regulate fuel, after all, regardless of what section 39012 says. This claim is based upon the language of a 1957 enactment, section 24263.7 of the Health and Safety Code, which provides: ‘The air pollution control board by regulation may: (a) Establish standards of performance for any article, device, equipment, or method specifically designed or intended for installation or use upon or in any motor vehicle as defined in the Vehicle Code, for the purpose of eliminating, reducing or controlling the issuance of air contaminants. [¶] (b) Prohibit the sale, offering for sale or installation of any article, device, equipment or method specifically designed or intended for installation or use upon or in any motor vehicle as defined in the Vehicle Code to eliminate, reduce, or control the issuance of air contaminants, unless such article, device, equipment or method is or a type which has been submitted to and approved by the air pollution control officer as meeting the minimum standard of performance as authorized in this section. Upon approval the air pollution control officer shall issue a permit authorizing the sale, offering for sale or installation of any said approved article, device, equipment or method referred to in this section.’ (Emphasis added.) We cannot agree that this statute empowers the District to control gasoline content. It is abundantly clear that gasoline is in no sense an ‘article, device, equipment or method specifically designed or intended’ to ‘eliminate, reduce, or control the issuance of air contaminants.’ It is fuel, pure and simple; far from reducing air pollution, fuel causes it; and fuel is not what this piece of legislation is concerned with. The statute parcels out power to control standards, sales, and installations of what, in the parlance of air pollution control, is referred to as ‘hardware’—structural additions to or modifications of motor vehicle parts. Since section 24263.7 has nothing to do with what goes into gasoline, it cannot be used to sustain Rule 74.3

Trying essentially the same approach, but using a different piece of legislation, the District asserts that its rule is a valid one because based on section 24262 of the Health and Safety Code. This states: ‘Whenever the air pollution control board finds that the air in the air pollution control district is so polluted as to cause any discomfort or property damage at intervals to a substantial number of inhabitants of the district, the air pollution control board may make and enforce such orders, rules, and regulations as will reduce the amount of air contaminants released within the district.’ At first glance, the statute seems to do everything the District says it does. It is as broad and flexible as the ‘elastic clause’ of the United States Constitution. But it is also dead letter. Regardless of what the Legislature may have intended in 1947, when section 24262 was enacted, it can no longer be considered the law in light of the subsequent enactment of section 39012, which gives the air pollution control districts a more limited role in the battle against air contamination. It is a familiar proposition that, where the Legislature passes contradictory statutes, the later in time controls. (County of Ventura v. Barry, 202 Cal. 550, 262 P. 1081; People v. Dobbins, 73 Cal. 257, 14 P. 860.) The passage of section 39012 repealed section 24262 by implication.

But, argues the District, the decision in Environmental Defense Fund v. California Air Resources Bd., supra, 30 Cal.App.3d 829, 106 Cal.Rptr. 598, changes all this. In that case, the court held that the California Air Resources Board had no authority, under any provision of the Air Resources Act of 1967 or the Pure Air Act of 1968, to regulate the lead content of gasoline. Had the Legislature known that this was going to happen to the statewide board, contends the District, it would at the very least have left the 1947 powers of the local air pollution control districts untouched when it passed the Air Resources Act (of which section 39012 is a part) in 1967. While this may be true (as it may also be false), this court is unaware of any authority for importing the principle of dependent relative revocation from the law of wills into the rules of statutory interpretation. Our touchstone here is the intent of the Legislature. (Code Civ.Proc. § 1859; People v. Superior Court, 70 Cal.2d 123, 74 Cal.Rptr. 294, 449 P.2d 230.) We are concerned with analysis of what the Legislature did do, not with attempts to predict what would have happened in a hypothetical past had the Legislature enjoyed powers of prevision. We decline to indulge in this sort of speculation.

The actual intent of the Legislature as to what the power of the air pollution control districts shall be is discernible from more sources than simply section 39012. In measure after measure of the Air Resources Act, the power handed out to the District and its fellow agencies is confined to jurisdiction over the nonvehicular portion of the state's pollution sources—a domain smaller than what the District lays claim to, but sizeable nonetheless. Such limits are found, for example, in section 24260 of the Health and Safety Code which restricts the powers of the pollution control boards to the promulgation and enforcement of rules, regulations, and orders necessary or proper to achieve the purpose of curbing ‘nonvehicular sources of air contaminants.’ Similar provisions, sections 24224 an 24355.2, similarly circumscribe the duties and powers of APCD control officers. More obliquely, but nonetheless clearly, sections 39057 and 39078 et seq. limit the power of the local districts to create emission standards for lead and other air pollutants to those having nonvehicular sources.

As a final argument, the District submits the proposition that the Attorney General and the California Air Resources Board have consistently adhered to the view that the regulation of the lead content of gasoline is within the authority of the air pollution control districts. This is the interpretation which these authorities have put upon the provisions of the Air Resources Act (Health & Saf.Code, § 39000 et seq.). The District maintains that, under the authority of Rivera v. City of Fresno, 6 Cal.3d 132, 140, 98 Cal.Rptr. 281, 490 P.2d 793, the opinions of the Attorney General and of the Board must be given great weight in the resolution of this appeal, inasmuch as it turns upon the interpretation of the same statutes. While this may be so, the fact remains that these opinions do not constitute controlling authority in the disposition of this case. That authority rests in the statutes themselves; and their meaning and effect, as developed earlier in this opinion, is clearly the contrary of what the Attorney General and the Air Resources Board hold. Our obligation is not to imitate their error, but to correct it.

In the case at bar, we are invited to sustain a rule which is unsupported by the language of any statute or the decision of any court, and against which is ranged the entire weight of all existing authority. In such a case, there can be but one result.

The judgment is affirmed.

FOOTNOTES

1.  Rule 74 states, in part:‘B. 1. No retailer shall sell any gasoline having an octane number of 96 or more containing lead exceeding the following: on or or after July 1, 1973, 2.0 grams per gallon; on or after July 1, 1974, 1.0 grams per gallon; on or after July 1, 1975, traces.‘2. No retailer shall sell any gasoline having an octane number of less than 96 containing lead exceeding the following: on or after July 1, 1972, 0.5 grams per gallon; on or after July 1, 1973, 0.1 grams per gallon; on or after July 1, 1974, traces.‘3. Every manufacturer of gasoline and every retailer of gasoline shall sell at least one grade of gasoline having an octane number of not less than 90 and containing lead not exceeding the following: on or after July 1, 1972, 0.5 grams per gallon; on or after July 1, 1973, 0.1 grams per gallon; on or after July 1, 1974, traces.“Retailer,' as used in this Rule means any person possessing a valid motor fuel pump license issued pursuant to the California Business and Professions Code Section 20767.'

2.  In December 1973, the Environmental Protection Agency promulgated regulations concerning lead additives in gasoline. (38 Fed.Reg. 33734.) By the terms of the Clean Air Act, the promulgation of these regulations by EPA preempted the field of leaded gasoline regulation throughout the United States except for the State of California. (42 U.S.C.A § 1857f–6c(c)(4)(B).)

3.  It is, in any event, doubtful whether section 24263.7, while still on the books, is still in effect. The enactment of the Air Resources Act of 1967 (Health & Saf.Code, § 39000 et seq.) appears to repeal it sub silentio, and to transfer the powers therein created to the Air Resources Board. In light of our construction of the statute, however, we need not reach the question of its continuing force.

KERRIGAN, Acting Presiding Justice.

GABBERT,* and KAUFMAN, JJ., concur.