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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.

byomtov (mail):
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,

Could you clarify? If the EPA lacked authority to regulate greenhouse gases then why would CA need a waiver?
11.9.2007 5:38pm
John Burgess (mail) (www):
Applying pressure for the sake of applying pressure is a tactic only a lawyer could love. Normal humans get pissed off when others go to court just to get them to keep moving.

As bureaucrats are human beings, at least some of the time, CA's tactic will ensure that those same bureaucrats will find all lawful means to stall to make it even more difficult for CA to achieve its ends.

CA isn't challenging the EPA here; it's putting out markers for its eventually recognition as a sovereign nation.
11.9.2007 6:31pm
therut:
I bet if you let the rest of the Citizens have a National Referrendum they could leave peacefully. I would vote YEY!!!
11.9.2007 10:04pm
Houston Lawyer:
There are people out there that have been trying to get decisions out of regulatory agencies for decades. I'd give them about 25 years to do a proper study.
11.10.2007 2:12am
Nate F (www):
"Could you clarify? If the EPA lacked authority to regulate greenhouse gases then why would CA need a waiver?"

I could be wrong, but as I understand it, California needs a waiver anytime it wishes to change the way it regulates auto emissions, regardless of what type of emissions it seeks to regulate and of whether they fall within the scope of the other CAA regulatory provisions. It's almost 3 am though and I am not going to pull up the document to confirm it, so somebody correct me if I'm mistaken.
11.10.2007 2:52am
Craig Oren (mail):
Nate is essentially right. Under the Clean Air Act, the states are generally pre-empted from regulating emissions from new motor vehicles. California, though, can obtain a waiver of pre-emption from EPA if California can show extraordinary conditions. Other states can then adopt the California standards, something that has been increasingly happening in the Northeast.

Over the years, California has been routinely granted waivers. On another list, Bill Funk, a professor of environmental law at Lewis &Clark, questions how California will be able to show that its global warming problems are extraordinary, so this might not be as routine.

Craig
11.10.2007 11:16am
Jonathan H. Adler (mail) (www):
Just to clarify a little bit: The Clean Air Act only preempts states from adopting vehicle emission standards for pollutants subject to the Clean Air Act. So, the outcome of Mass v. EPA would have a bearing on whether a waiver would be required. Since California maintained that the CAA did apply to GHGs, it applied for a waiver. Yet since the EPA did not believe the CAA applied to GHGs, it did not begin to act on the waiver request until after Mass v. EPA was decided.

All that said, as Craig notes, there are reasons to question whether California is entitled to this waiver. I outline some of those reasons in my prior posts and the paper linked above.

JHA
11.10.2007 12:01pm
byomtov (mail):
Thanks for the clarifications.

I suppose EPA said, in response to the waiver request, "We don't regulate GHG. Do what you want."

And CA said, "You do too regulate GHG. Give us a waiver."

Odd sequence of events.
11.10.2007 7:32pm
Craig Oren (mail):
Jon, I'm not sure I agree with you. The first sentence of 42 U.S.C. 7543 (CAA section 209) prohibits any state or political subdivision from adopting or attempting to enforce "any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part." That could be read as saying that the states are pre-empted from regulating even pollutants that are unregulated by the federal government. That broad reading would make sense; otherwise a state could force manufacturers to make a separate line of cars for that state simply by couching its regulation in terms of an unregulated air pollutant. Similarly, there is nothing about the waiver provision in (b) that seems to confine it to pollutants being regulated by the federal government. So it seems to me that, even before Mass. v. EPA, the agency should have been considering the California waiver request.
11.10.2007 9:12pm
M. Simon (mail) (www):
The atmosphere is not a greenhouse.

It is a heat pipe.
11.11.2007 7:48am
Jonathan H. Adler (mail) (www):
Craig --

I agree that the language of Section 209(a) is somewhat ambiguous, but I disagree with your reading of Section 209(b). Specifically, 209(b)(1) requires California to make a determination that its standard is "at least as protective of public health and welfare as applicable Federal standards" when it applies for a waiver. This requirement makes no sense applied to pollutants that are not subject to regulation by the EPA under Title II of the Act. This is reinforced by the "comparable federal standard" language of 209(b)(2) and (b)(3). Therefore, as I read it, California could only obtain a waiver of preemption under the Act if GHGs are subject to federal regulation -- so there was no reason for the EPA to consider the waiver request until resolution of the Mass v. EPA litigation.

JHA
11.11.2007 10:09am
Craig Oren (mail):
John,

I guess we'll never find out who is right, given the result in Mass. v. EPA. I think the language you quote is not convincing. All it means to me is that, insofar as the state regulates gases that are covered by federal standards ("applicable standards") they have to be at least as protective. I don't read this as barring a state from deciding to regulate a pollutant that is not covered by EPA standards. If that's what Congress had wanted, it could easily have said so. To me, a state standard for a pollutant that is not covered by EPA is ipso facto "at least as protective. . . as applicable Federal standards."
11.11.2007 8:03pm
Larry Fafarman (mail) (www):
Jonathan Adler wrote,

Specifically, 209(b)(1) requires California to make a determination that its standard is "at least as protective of public health and welfare as applicable Federal standards" when it applies for a waiver. This requirement makes no sense applied to pollutants that are not subject to regulation by the EPA under Title II of the Act.

You need to understand exactly why that language was put in the law. At one time in the history of the development of auto emissions controls (it is not true now), there was a tradeoff between NOx control and CO control -- efforts to decrease NOx emissions increased CO emissions and vice-versa. California wanted to prioritize NOx control because NOx is an ingredient in photochemical smog formation, so the California waiver law was rewritten to allow California to ease up on the federal CO standard in order to make the California NOx standard more stringent than the federal NOx standard. That is why the words "at least as protective" and "in the aggregate" were added to the law: "if the State determines that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards." 42 USC §7543(b)(1). "At least as protective" meant that the benefits of less photochemical smog were required to at least offset the harm of more CO emissions. "In the aggregate" meant that California could have emissions standards that were both more and less stringent than the federal standards. Mystery explained.

California is eligible to apply for waivers from the following federal pre-emption law, 42 USC §7543(a):

(a) Prohibition
No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.

Even conceding that CO-2 emissions may be considered a pollutant, I assert that the above law is still not applicable here. California is seeking a waiver for the purpose of regulating the average CO-2 emissions of all light motor vehicles sold in California whereas the above law applies only to federal preemption of emissions standards for individual vehicles. California is trying to use this law for a purpose other than the law's intended purpose.

Also, 42 USC §7543(b) says,

No such waiver shall be granted if the Administrator finds that —

(A) ---

(B) such State does not need such State standards to meet compelling and extraordinary conditions, or

(C) --

California's vulnerability to global warming is not "extraordinary."

I am not saying that fighting global warming is bad -- I am just saying that this is not a legal way to do it.
11.12.2007 2:46am
Ralph Phelan (mail):
"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."

This feeds back into last weeks discussion of measuring "judicial activism" by counting how often federal bureaucracies get overruled. I hypothesized that the results would tend to be skewed leftward by cases pursued not in a serious attempt to win but for the political benefit of being seen to file the case. Here is an example of exactly that.
11.12.2007 2:08pm
Larry Fafarman (mail) (www):
Also, a lot of people have the misconception that the provision for California waivers of federal preemption of auto emissions standards was intended to allow California -- and the other states that later adopted the California standards -- to permanently or indefinitely have auto emissions standards that are more stringent than the federal standards (this misconception helped cause the flagrantly unconstitutional $300 California "smog impact fee" on federally certified vehicles brought into the state). Because of the high mobility of motor vehicles and air pollution, very stringent emissions standards are needed on new vehicles sold anywhere in the USA. One of the purposes of the California waivers was to use California as a "testing area" for new emissions standards and control technologies. The California waivers were useful during the period of rapid development of auto emissions control technologies but have outlived their usefulness now that those technologies have matured. I would just as soon see the California waivers abolished.
11.13.2007 3:14am
Larry Fafarman (mail) (www):
Something else that really bugs me about California is that the state has claimed that it needs the emissions waivers while maintaining financial disincentives for ownership of newer motor vehicles, which tend to have lower emissions than older vehicles. One disincentive is the much higher annual registration fees for newer vehicles, amounting to hundreds of dollars per year. Another disincentive has been auto insurance redlining (which has been reduced by Prop. 103 but not completely eliminated) -- the cost of comprehensive and collision insurance is of course higher for newer vehicles. Perversely, this effect of redlining has been greatest where low emissions have been needed most -- in the inner city of Los Angeles. To encourage ownership of newer cars, the state should even eliminate sales tax on new cars and reduce the sales tax on late-model used cars purchased from dealers.

And please don't get me started on California's grossly unconstitutional $300 "smog impact fee" on federally certified vehicles brought into the state.
11.13.2007 2:44pm