(The following story by Michael Gardner of Copley News Service appeared on the Daily Breeze website on July 22.)
SACRAMENTO — Stunned by a public backlash, California Air Resources Board directors Thursday promised to take a hard look at their staff’s secret pact to regulate rail yard emissions that threatens to intercept tougher standards sought by Los Angeles smog fighters and some lawmakers.
But the directors’ intervention may carry consequences. The major railroads involved — Union Pacific and Burlington Northern Santa Fe — could walk away from the voluntary agreement, costing the state an opportunity to reduce locomotive diesel exhaust by 20 percent over three years statewide.
The extraordinary — and unanimous — intervention calls for a series of public workshops in August followed by a Sept. 22 vote on the merits of the deal.
More broadly, the air board also moved to strip the executive officer of the power to strike similar deals in private. From now on, public notice must be given at the outset of negotiations followed by board review and approval.
However, air board members took great pains to make it clear that the response was not meant to be critical of the specifics of the deal and should not be taken as any signal that the agreement with the railroads will not be ratified.
And the board refused to act immediately to delay implementation of the pact that went into effect June 30.
The statewide deal calls for railroads to regulate idling, make an early switch to cleaner-burning diesel fuel and undertake health-risk assessments in nearby neighborhoods.
In Los Angeles, the South Coast Air Quality Management attacked the agreement as a ploy to ward off its efforts to tighten local standards. If the railroads win, other polluters, such as cruise lines, will be encouraged to press similar strategies, regulators warned.
“One of our concerns is they’re liable to duplicate this process and come up with a weak agreement,” said Barry Wallerstein, executive director of the AQMD.
Wallerstein said the agreement includes a so-called “poison pill” that would allow the railroads to walk away if an agency like the AQMD or the Legislature implements tougher standards than those folded into the accord.
“The poison pill provision is meant as a deterrent from legislation or any future regulatory action,” Wallerstein claimed.
Legislation is pending, including a measure that would extend the local air district’s authority to impose mitigation fees for environmental harm caused by locomotives and rail yards.
A nagging problem for South Coast, however, is whether it has legal jurisdiction over an industry that crosses state lines.
Wallerstein argued that the AQMD is on solid legal footing, but the railroads disagree vehemently. Nevertheless, the industry supports an in-state agreement that provides for uniform regulation.
Kirk Marckwald, a San Francisco consultant helping railroads in the negotiations, said he is confident the public will embrace the plan once it receives a full airing.
“Breathers in and around rail yards are going to be better off for it,” he said. The deal will help bring about change “further and faster,” he added.
Marckwald didn’t convince those asking the board to reverse course.
“Have consideration for the kids,” urged neighborhood activist Leonard Mendoza of Commerce, whose group sides with the AQMD.
Several officials told of being shocked upon learning of the secret deal going into effect without public review.
“This caught us by complete surprise. We felt shut out,” said Todd Campbell, a Burbank city councilman and policy director for the Coalition for Clean Air.
Some air board members themselves were unaware a deal was in the works.
Riverside Mayor Ron Loveridge, a member of the state air board and an AQMD director, called the process “disappointing,” “dismaying” and “upsetting.”
Cindy Tuck, chairwoman of the state air board, pointed out that this was only the fifth time staff had used its authority to cut similar arrangements with industry.
“It’s not like staff has been adopting these things every month,” she said. Thursday, however, was the first time a board had intervened in any way.
Tuck, appearing to embrace the argument that federal regulations would supersede state authority, called the voluntary steps “an important tool for getting additional emission reductions, particularly from federal sources that are subject to federal pre-emption. … The goal is to do good things for clean air.”
Board member Sandra Berg, president of Los Angeles-based Ellis Paint Co., suggested that the pact is a good deal for California air quality despite the controversy over how it was put together.
“We are not going to be able to satisfy all of the community needs and keep the voluntary participant at the table,” Berg said.
Later, she added: “We’re not going to get everything we want, but we’re getting more than we had.”