(Cross-posted from Warming
Law,
which focuses on covering and analyzing the fight against global warming
from a legal perspective.)
by Tim Dowling
“EPA Likely To Lose Suit.”
So said EPA, or at least
EPA’s legal staff, when it briefed
Administrator Johnson on the legal ramifications of a waiver denial. The
quoted language comes from a powerpoint slide used during that briefing.
As the Washington Post
reports,
Johnson’s waiver denial flew in the face of “the unanimous
recommendation of the agency’s legal and technical staff.”
California’s legal challenge to the waiver denial will be filed in the
U.S. Court of Appeals for the D.C. Circuit, and one large reason for
believing EPA will lose can be found in the
D.C. Circuit’s opinions in previous waiver cases. Unlike Administrator
Johnson, the D.C. Circuit clearly recognizes the special, leading role
California plays under the Clean Air Act with respect to controls on
tailpipe emissions.
For example, in Motor & Equipment Mfrs. Ass’n v. Nichols, 142 F.3d
449, 543 (D.C. Cir. 1998), the D.C. Circuit ruled that waiver process is
designed “to afford California the broadest possible discretion in
selecting the best means to protect the health of its citizens and the
public welfare.” (quoting the House Report).
In a more comprehensive discussion in Engine Mfrs. Ass’n v. U.S. EPA,
88 F.3d 1075 (D.C. Cir. 1996), the court explained:
Congress recognized that California was already the “lead[er] in the
establishment of standards for regulation of automotive pollutant
emissions” at a time when the federal government had yet to promulgate
any regulations of its own. California’s Senator Murphy convinced his
colleagues that the entire country would benefit from his state’s
continuing its pioneering efforts, California serving as “a kind of
laboratory for innovation.” This function was enhanced by the 1977
amendments, which permitted other states to “opt in” to the California
standards by adopting identical standards as their own. Thus, motor
vehicles must be either “federal cars” designed to meet the
EPA’s standards or “California cars”
designed to meet California’s standards. Rather than being faced with
51 different standards, as they had feared, or with only one, as they
had sought, manufacturers must cope with two regulatory standards
under the legislative compromise embodied in § 209(a). Id. at 1079-80
(citations and footnotes omitted).
The D.C. Circuit also examined the waiver process in Motor & Equipment
Mfrs. Ass’n v. EPA, 627 F.2d 1095 (D.C. Cir. 1979), an unsuccessful
industry challenge to EPA’s waiver grant for
California rules concerning in-use maintenance of motor vehicles.
Tracking the language of the statute, the court observed that
EPA must grant a waiver request unless it
makes one of the three findings set forth in Section 209(b)(1)(A)-(C).
Id. at 1106. The issue is emphatically NOT
whether the California rules are a good idea as a matter of policy, but
whether EPA discharged its duties under the
CAA. Id. at 1105.
Johnson’s bogus concern that a waiver grant here would create a
“confusing patchwork” simply cannot be reconciled with the Clean Air Act
and the applicable precedents that construe the waiver provisions in
Section 209. Expect the D.C. Circuit to make short work of it.