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California Sues EPA for Waiver Decision:

Yesterday, California sued the U.S. Environmental Protection Agency for failing to rule quickly enough on the Golden State's request for a waiver of Clean Air Act preemption of its greenhouse gas emission standards for new motor vehicles sold in the state. The state's complaint is here. As a legal matter, there is not much to the suit. Politically, however, the suit makes sense as an effort to maintain pressure on the Bush Administration to approve California's waiver request.

California's legal claim is that the EPA has unreasonably delayed action on the waiver request. Yet the Bush Administration has pledged the EPA will make a decision by the end of the year -- in less than two months. Assuming the EPA keeps to this schedule, the suit will be rendered moot by EPA action. Yet even were the EPA not about to act, there would be little force to California's claim.

Suppose, for instance, the Administration had not set a deadline for the EPA's decision, would California's claim be any stronger? I don't think so -- at least not yet. As a general matter, it is very difficult to prevail in an "unreasonable delay" suit. Unless an agency had failed to meet a specific statutory deadline, courts are reluctant to order them to act. If an agency can offer a plausible reason for failing to act more promptly, and the delay has not been excessive, judicial review will be fairly deferential.

In this particular case, California would have a difficult claim to make because the EPA has an explanation for its delay. Specifically, the EPA could argue that, until earlier this year, the agency was awaiting resolution of the Massachusetts v. EPA litigation concerning the applicability of the Clean Air Act to greenhouse gases. As the EPA had maintained it lacked authority to regulate greenhouse gases under the Act, and that this view could have precluded the agency from issuing a waiver of preemption, it can argue that it has only had several months to consider the petition, and public comment, in light of the Supreme Court's Massachusetts decision. Given the somewhat glacial pace of agency action, it is hard to argue that seven months is an unreasonable delay justifying judicial intervention.

Does this mean the lawsuit is pointless? Not at all. As I suggested above, filing suit is a way for California to increase political pressure on the Bush Administration to approve the waiver. Given that approval is likely (but not certain, for some of the reasons I discussed in these posts and this paper), it is simply smart politics for California to place pressure on the Administration. Also, if for some reason the EPA does not meet the announced timetable -- an eventuality which could strengthen California's legal hand -- the suit will already be in motion. Indeed, by filing now, California makes it more difficult for EPA to let the timetable slip.

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