Just when makers of cross-linked polyethylene pipe thought the proverbial wind was turning in their direction, the state of California has dealt another blow.
Makers of PEX pipe thought they had a second chance to get the material accepted into the state's 2001 plumbing code without environmental review when the Court of Appeals in Los Angeles on Dec. 15 agreed to rehear the case its judges ruled on in November. In November, it was an unpublished decision, which essentially means that it was not precedent and it could not be cited in future court cases.
But within hours of the Dec. 15 decision to rehear the case, the appeals court overturned the lower court ruling. It reissued its original November decision, making it a published decision that will stand as precedent in the state.
``We haven't decided on whether or not we're going to appeal,'' said Kevin Eckery, spokesman for PEX manufacturers.
The Dec. 15 decision, in effect, broadens the California Environmental Quality Act. It now means that building, plumbing and fire codes are ``projects'' under CEQA and that any changes or updates to those codes requires environmental review, according to a news release from the Plastic Pipe and Fittings Association of Glen Ellyn, Ill.
``If anyone continues to wonder why California has a reputation as an anti-jobs, anti-business state, yesterday's ruling by a California appeals court clearly illustrates why,'' PPFA Executive Director Dick Church said in a Dec. 16 statement.
``Obviously, it was disappointing to see the lower court ruling ordering PEX into the 2001 California Plumbing Code overturned, but the appeals court had foreshadowed that in an unpublished decision last month and we hadn't expected any change,'' Church said.
``But the court's published decision yesterday goes way beyond that, and holds that any change in California fire and building codes qualifies as a project under [CEQA], triggering the need for an EIR [Environmental Impact Report] or other form of environmental review,'' he said.
The three-judge panel's published decision supports the position of many groups, including the California State Pipe Trades Council, Sierra Club and California Professional Firefighters Association.
``We were not concerned about grant of rehearing. It would have been remarkable for the court to reverse itself, given the initial decision,'' Dan Cardozo, lawyer for PEX opponents, said in a Dec. 21 telephone interview.
``PEX manufacturers were attempting, through litigation, to force the state to approve their product,'' he said. ``The PEX manufacturers were asking for special treatment. As a result of conducting those reviews and by acting conservatively, the state agencies have protected Californians from the harm that has befallen other jurisdictions without pre-approval studies.''
Cardozo said there is a need to review PEX in order to avoid such problems as those that occurred with polybutylene and chlorinated PVC pipe.
PEX pipe producers went to court because they were trying to protect their rights, officials for PEX said. In California, 180 cities and counties have approved use of the product.
``This is a product that has been approved,'' Eckery said. ``It has been tested by the national testing laboratories. The lower courts found that PEX manufacturers had been treated arbitrarily and wrong. We remain optimistic about PEX being in the 2004 plumbing code.''