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Alternative Views of the EPA Waiver Decision:

My interpretation of the Act and relevant language places me at odds with some of the folks cited in this Washington Post story about the EPA's decision to deny California a waiver of Clean Air Act preemption. For example:

"By refusing to grant California's waiver request for its new motor vehicle standards to control greenhouse gas emissions, the administration has ignored the clear and very limited statutory criteria upon which this decision was to be based," said S. William Becker, executive director of the National Association of Clean Air Agencies, which represents officials in 48 states. "Instead, it has issued a verdict that is legally and technically unjustified and indefensible."

EPA's lawyers and policy staff had reached the same conclusion, said several agency officials familiar with the process. In a PowerPoint presentation prepared for the administrator, aides wrote that if Johnson denied the waiver and California sued, "EPA likely to lose suit."

If he allowed California to proceed and automakers sued, the staff wrote, "EPA is almost certain to win."

That advocates on one side of the issue seek to spin the statutory language in one way or the other does not surprise me. Industry and environmental advocates do this all the time, particularly when they expect the issue to end up in court. Hyperbolic assertions ab out "clear" statutory text are common in this context.

I am also not troubled by the reference to internal agency conclusions. In my experience, the legal judgments of the career attorneys in the Justice Department's Environmental and Natural Resources Division tend to be more objective than those in the agency itself. The EPA's record in federal court is not a particularly good one, in either this administration or its recent predecessors. The agency has a long record of adopting legal interpretations that do not hold up in court, despite the assurances of career agency personnel. In this case, I suspect the agency staff thought the waiver should be approved, perhaps because they had approved so many waiver requests from the past and seek greater regulation of greenhouse gases, and allowed this view to color their interpretation of the Act.

As I noted in my other post, however, my argument is not that the agency will necessarily win when this decision is challenged in federal court. It is possible that the agency did not adequately defend what is an utterly defensible legal conclusion. It is also possible that a reviewing court will get the question wrong, perhaps due to the atmospherics created by other recent climate change decisions, including the Supreme Court's rejection of EPA's position on climate change in Massachusetts v. EPA. I will not make an actual prediction until I've read the EPA's formal decision and the legal briefs filed for and against the decision.

For a slightly different take on the EPA's decision, and eventual legal challenge, See John Bonine's Daily Kos diary and Jamison Colburn's post on Dorf on Law. For other views contrary to mine, be sure to check out the numerous relevant posts on the Warming Law blog as well.