Home Forums Legal Issues Following California and/or Lexington, phase-out and rights balancing

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    • rickr
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      Now that California has passed a law phasing out SOREs (Small Off-Road Engines, see https://ww2.arb.ca.gov/2021-assembly-bill-1346-berman-marc-small-road-engines-chaptered) the question is who will follow California? The history of the Clean Air Act is that action began in California. It earned that special role of being the only state that was not preempted from setting standards for motor vehicles. It had to be someone, because preempting all states to make things easier for vehicle manufacturers would have left us all with only one tool for forcing the evolution of cleaner technology, the federal government. With California we all benefit from having a state that can move forward when the federal government doesn’t. The deal the other states get is that they can follow California. So the manufacturers get a manageable regulatory system – not fifty systems to contend with – and the citizens avoid the terrible stasis that could follow if there was only one public protector and it got tied up in politics, as that federal one has. Trump opposed the California role and asked, capitalizing on people’s ignorance of the history, why does California get such a special deal? It’s a deal for all of us.

      But the logic of SORES is different. While it was in the national interest not to get too much in the way of making cars and trucks, why is the small engine so important that we must take away the right of a state or a community to protect its citizens when those engines are causing great damage? The logic of preemption is not the same. One might say the logic that applied to vehicles does not apply to gas-powered leaf-blowers. The balance of rights has subtly shifted somehow to protecting commerce in these things and away from people’s right to clean air, freedom from excessive noise, worker protection, and the living things in the lawn, blasted with industrial force. This shift happened slowly and now to shift to something else is jarring. Communities have a hard time telling people who have become accustomed to the use of powerful gas-burning devices, who like them, that they can’t or shouldn’t use them anymore. It seems unfair, and it is unfair when the rules of the game change suddenly. There have been big fights and the claim is made that freedoms are being limited.

      We shouldn’t have let this happen, and we do have to act to right the balance of rights. The freedom to pollute and irritate – maybe even disturb extremely – is not infinite. The phase-out idea is useful. Lexington, MA, just finished a process that began with people having lost their patience with these devices, more becoming angry as they learned about the release of poisons and all the kinds of damage they cause, and as in many towns, proposals to just ban them. Luckily the conversation matured into one about a phase-out and armed with the approach of balancing rights, seeing both sides, telling land-care companies they will have to change, and giving them time, showing them alternatives (the town DPW uses electrical equipment and has hosted demonstrations by the American Green Zone Alliance) the ordinance passed. The phase-out period is a recognition that it isn’t right to just suddenly change the rules, but it also isn’t right to keep on doing things that are damaging and can be avoided. These things are very damaging and can be avoided. The state representative for Lexington, Michelle Ciccolo, has a bill to get aid to companies and towns to make the transition to quieter, safer equipment, and people in town have increased their efforts to educate residents about “living landscapes”, so that even electrical blowers will not have to be used, and the pollinators and insects the birds eat will not be blasted away. Help and education, help and education, but at the back of it, a requirement to phase out. This looks like a winning strategy.

      So what states will follow California? What municipalities will follow Lexington?

      When the California Air Resources Board acts, then other states ought to be able to follow them and institute similar regulations, that preemption under they Clean Air Act is supposed to be lifted if they do it just like California. And will EPA follow California? These small devices emit disproportionate amounts of toxic air pollutants, and EPA has a duty to try to curtail those. The action on toxic air pollutants is overdue. These are the questions I have and would love to hear if anyone is thinking about what California has done, or has noticed what Lexington has done, and is using the phase-out and the “balancing of rights” approach to find the consensus that people can live with?

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