California filed suit against the Environmental Protection Agency challenging the EPA's denial of a waiver of preemption under the Clean Air Act for the state's greenhouse gas emission regulations. Here's coverage in the Washington Post and New York Times.
One interesting aspect of the suit, discussed here on the Warming Law Blog, is that California filed suit in the U.S. Court of Appeals for the Ninth Circuit, rather than in the D.C. Circuit. Most assume the Ninth Circuit would be more receptive to California's arguments, but most also assumed the suit would be filed in D.C., so what gives? According to the Sacremento Bee:
Generally, decisions by federal agencies must be challenged in the District of Columbia Court of Appeals, which tends to be more conservative than the 9th Circuit.Was this a deliberate choice by the EPA or an oversight? A third option: EPA legal staff working who drafted the Administrator's letter to EPA knowingly left it out, and none of the political appointees caught it. In any event, seeing this suit in the Ninth adds an interesting twist.But lawyers backing California argue the state isn't constrained to file in Washington, D.C., because the Dec. 19 ruling left out key language stating that the decision was "of national scope and impact."
"They did not put that boilerplate in, so we can challenge it anywhere," said attorney David Bookbinder of the Sierra Club, which has worked with the state to defend the emissions law.
Related Posts (on one page):
- California Sues EPA Over Waiver Denial:
- Does It Matter EPA Staff Opposed Waiver Decision?
- What Next for Federal GHG Emission Rules?
- Alternative Views of the EPA Waiver Decision:
- EPA's Decision to Deny California's Waiver Request:
- EPA Denies California's Waiver Request:
- California Sues EPA for Waiver Decision:
I vote oversight. I've had plenty of cases in which government agencies (mostly state, but some federal) blew trivially simple points of administrative procedure and I can't believe that their staffers are sitting around trying to help out my clients by creating grounds for them to challenge the decisions. I attribute it mostly to the fact that courts typically bend over backwards to avoid letting parties defeat administrative agencies on technicalities, so that eliminates a lot of the incentive for careful work on the agency staffers' part.
Or perhaps it should be clear in the law where the case needs to be filed and not have it depend on whether or not some staffer remembered to include a bit of boilerplate.
Interestingly, that is very closely related to the substantial point that the suit is about: can California's waiver rights for special local conditions be applied to greenhouse gases, which are not local in effect?
If you think the issue is whether California's statutory special status is being unfairly overruled, the issue is local in impact. If you think the issue is California trying to illegitimately use its special status to hijack what should be a national level decision, it's national in impact.
This should be fun to watch.
Also, can anyone explain why these lawsuits never seem to be decided by a jury? Instead, they seem to be settled with a wink and a nod between the plaintiff, the defendant, and the presiding judge.
Where's the jury?
The idea that court decisions should be made based on "magic words" is a bad one.
But that is not the real issue here, the issue is who gets to decide whether it is of national import, and how it is decided. You could allow the plaintiff to decide, you can allow the EPA to decide, or you can allow the court to decide (thru litigation). Apparently the EPA gets to decide this, which I think is a sound method, as it generally avoids litigating a fairly irrelevant issue, and the EPA has the best expertise to make this decision. It makes this decision by including boilerplate, which you criticize as being "magic words". Certainly they are in a way, as these mere words decide the correct forum. But these mere words avoid expensive litigation to determine the correct forum, all on the taxpayers dime... except of course, when the EPA forgets these words and then later decides they intended to use them (which is presumably what will happen here).
Now that the EPA forgot them, California has brought the suit in the 9th circuit, quite understandable, because the EPA has basically declared it the correct jurisdiction by not including the boilerplate. Should the EPA now have the power to dismiss this action and require California to refile in the DC circuit, because of its own mistake? To give the EPA this power can allow for alot of gamesmanship and needless expense, but if the EPA is held to its error, you can be certain it will not make the same mistake in the near (and probably distant as well) future.
California did not have to jump at the chance to exploit a good-faith oversight and if it incurs an expense for having done so, tough.
Rather than arguing what the right policy should be while both sides are strongly infulnced by the particular case, I think the real question is: what's the general rule for dealing with boneheaded ommissions of this sort? This isn't the first time a lawyer forgot something, so there must be standard procedures and criteria for when you get to fix a typo and when you're told "That's what you handed in, tough luck." What law and precedent govern in this case?
Not exactly sure what you intended the phrase "these lawsuits" to encompass, but assuming this suit is brought pursuant to the Adminstrative Procedure Act, there's no right to a jury trial. See Mayes v. EPA, Case No. 05-CV-478, 2006 U.S. Dist. LEXIS 67602 (E.D. Tenn. Sept. 20, 2006) ("Judicial review of a federal agency decision such as the EAB's order is a review of the agency's administrative record pursuant to the APA. 5 U.S.C. § 706. Such claims are not subject to trial by jury and therefore plaintiff's request for a jury trial will be stricken."). If you have a problem with that, it's Congress' fault not the courts'.
The perverse incentive might work either way. It's possible that California could bring the suit in California, lose, and then argue that no California court had jurisdiction in the first place. Thus, its possible that either side might try to get two bites at the apple. (BTW, I'm not familiar enough with the underlying statutes to know if they are simply matters of venue, or jurisdictional.)
Where's the jury?
Just Dropping By gave the specific answer, but there's a more general one as well: whether EPA violated the Clean Air Act appears to be entirely a question of law (I seriously doubt there are any disputed facts here, though I may be wrong). As a general principle, questions of law are questions for the judge, while questions of fact are for the jury. If the only question is one of law, there's no need for a jury.
(Note also that I seriously doubt either the EPA or California *wants* a jury to hear this case, so neither would ask for a jury in the first place.)
Armen writes: How can someone sue at the 9th Circuit? And the article doesn't say they sued in a district within the 9th, it outright says they sued in the 9th.
I'm pretty sure they actually sued in the 9th. Under § 307(b)(1) of the Clean Air Act, a petition for review of EPA's actions regarding national standards can be filed *only* in the United States Court of Appeals for the District of Columbia, while petitions of review for actions regarding other standards can be filed *only* in the United States Court of Appeals for the appropriate (i.e., local) circuit.
(Note that because EPA didn't include the magic words about national impact, the text of the CAA actually appears to prohibit filing a challenge in the DC Circuit. It's seems to be that it's stretch to say that California is "judge shopping." They're surely awfully happy, though.)
"Seems to me," of course. And I've had my head buried in my law review note for so long that I forgot Duffy Pratt's obvious point about the 6th Amdt, which negates a lot of my response. I think I'll go back to double-checking my citations, since I seem to be better at that. ;)
Duffy Pratt- I'm pretty sure estoppel would prevent California from making that argument.
The administrator's reason for denying the waiver certainly took national climate-change policy into account, but that doesn't make the denial of California's request a nationally important action appealable to the DC Circuit only.
If its a question of subject matter jurisdiction, then it goes to the power of the court, and no party can be estopped. If it's a matter of venue, that's a different question.
Just Dropping By gave the specific answer, but there's a more general one as well: whether EPA violated the Clean Air Act appears to be entirely a question of law (I seriously doubt there are any disputed facts here, though I may be wrong). As a general principle, questions of law are questions for the judge, while questions of fact are for the jury. If the only question is one of law, there's no need for a jury.
While there may be no question of fact, there probably remains a question of correct scientific interpretation of the facts or (observations of data) Unfortunately, we will probably have an eventual decision similar to Mass v EPA, with judges without scientific credentials making the decision.
Also, as stated above:No kidding! A jury would decide based on the case -- not on which particular axe they need to grind.
We can't allow common sense to trump this pseudo-science now, can we?
I don't suppose you could provide a link to Section 307?
I know Congress has the power to determine lower court's jurisdiction. Can it delegate that power to an agency? I doubt anyone is looking at the issue, but I don't ever recall seeing a case on it. I mean, should a court under Chevron really defer to an agencie's determination of whether that court has jurisdiction? Why cant they just keep these things simple?
Also, under the "EPA decides" interpretation, it might turn out that EPA gets to let California decide which forum is best, and then reject it out of hand. Even if Congress wanted to let agencies have this kind of veto power over forum choice, at first blush it seems pretty peculiar and probably unfair.
The relevant text that grants the EPA the power to decide jurisdiction "a petition for review ... may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination."
Now whether or not it is jurisdiction or forum or venue or whatever, its clearly granting the EPA the power to decide where the game is going to be played. I don't really think its that unfair for the EPA to decide forum, if the EPA abuses this power, eventually it will just be taken away (hopefully anyways), the EPA should theoretically have the expertise to decide what is national and what is local better then a court, and its cheaper on the taxpayer. That said, if you're going to give the EPA this power, they shouldn't be able to change to one forum after they have already picked the other. That would really screw potential litigants.
I do agree that it's a bit odd to delegate the power to determine a federal courts jurisdiction to an agency, but I can't see why it would be unconstitional.
It looks to me like California filed the appeal the only place they could. It clearly says that a petition can be filed only if there has been a determination made about national import.
And strangely enough, it also looks like this statute gives original jurisdiction to the 9th Circuit. Very weird.
One slight possibility, is that the EPA might have the stones to argue that this case has national scope within the meaning of the first sentence, so that the only court that could hear the case is D.C. Circuit. But that it had not made the determination of national import as later required, so the case could not be filed in D.C. (or anywhere else). And further, that the Court should defer to this interpretation under Chevron. A literal reading of the statute (which is terribly written) would make this possible.
Duffy- Regarding the link, be careful what you wish for. Anyways, as I've been saying all along it'd be a bit crazy for a court to give the EPA the ability to change the court after suit is brought. The EPA already got to decide where the case in brought... now it can change its mind and have the whole case dismissed? Also I think a court can easily avoid Chevron deference here. The statute says DC jurisdiction is based on a determination by the Administrator AND the Administrator finds and publishes such determination. Thus, even if there is "national import", the case is still local unless the Administrator publishes that it is of national import. In this case, the case clearly didn't meet the requirements for DC jurisdiction (there is no published determination of the Administrator), so theres no reason for the court consider whether there is "national import" at all.
Tim Dowling
Community Rights Counsel / Warming Law
Anyway, 11 other states have adopted the California auto emissions standards package and 5 other states plan to do so. Most of those states are outside the 9th circuit -- the ones in the Northeast are far outside the 9th circuit -- and so the effect of all California waiver determinations is national in scope. In fact, most of those other states under the California standards are joining California's lawsuit.
Filing this lawsuit in the 9th circuit court of appeals is a very bad (or should I say very good) example of judge-shopping.
(1) California plus the states that have adopted and plan to adopt the California auto emissions standards package have over half of the US population, so we might as well just have one national set of emissions standards.
(2) One of the main purposes of the California waivers was to use California as a "testing area" for new emissions control equipment and technologies. Emissions control technologies have matured and this is no longer a valid reason for having the California waivers.
(3) The California waivers impose a big burden on automakers. For example, a stupid EPA ruling -- upheld 2-1 by the appeals court -- that prohibits the sale of California-certified vehicles in states not under the California standards is probably still in effect. This ruling is a great burden on the marketing of the vehicles.
Just Dropping By said (1.3.2008 3:53pm) --
California's lawsuit against the EPA is governed by 42 USC §7607, not 5 USC §506 from the APA (Administrative Procedures Act). 42 USC §7607(d) says,
And "this subsection" applies specifically to formal EPA rulemaking with publication in the Federal Register, a formal public comment period, etc. --
So 5 USC §706 from the APA applied to Mayes v. EPA because Mayes was apparently not a challenge to the above kind of formal rulemaking decision. The issue of a jury trial could be raised because the suit was initially filed in a federal district court, not a federal appeals court as required by 42 USC §7607.
When I sued California and the US EPA over the grossly unconstitutional $300 California "smog impact fee" on federally certified vehicles brought into the state, I didn't know that I could have sued under 5 USC §706. Those sleazebags at the EPA kept beating me over the head with the requirements of 42 USC §7607 and 42 USC §7604 ("citizen suits"), neither of which applied. This abominable fee was finally thrown out by the state courts.
Duffy Pratt said,
Amendment VI is for criminal cases, not civil cases. The amendment that applies to civil cases is Amendment VII, which says:
So to be constitutionally guaranteed a trial by jury, the relief sought must have some monetary value.
Maybe the denial of trial by jury in Mayes v. EPA had something to do with the facts that (1) the APA guarantees standing to sue only if no monetary relief is sought and that (2) if no monetary relief is sought, then Amendment VII does not guarantee a right to trial by jury --
So apparently the USA cannot be sued for money unless the USA gives consent to be sued for money -- it is part of an outdated idea that they call "sovereign immunity," which I thought was thrown out a long time ago. If the USA does give consent to be sued for money, then maybe trial by jury is available.
Anyway, I think that we can forget about the idea of a trial by jury for California's complaint against the US EPA.
In my post of 1.5.2008 1:25am, I incorrectly stated, "California's lawsuit against the EPA is governed by 42 USC §7607, not 5 USC §506" -- that should have been 5 USC §706.
The complete third sentence of 42 USC §7607(b)(1) is:
"Such sentence" in the phrase "any action referred to in such sentence" must refer to the "preceding sentence," and the preceding sentence has no specific mention of 42 USC §7543(b), the California waiver provision. The preceding sentence does have a general category, "or any other final action of the Administrator under this chapter . . . . . which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit," but I assert that a California waiver determination is not just locally or regionally applicable, because states under the California standards are scattered all over the USA from the west to the east coasts. The 9th circuit court of appeals might have been appropriate for appeals of California waiver determinations back when California was the only state under the California standards, but not now when several states under the California standards are far outside the 9th circuit. Indeed, several states outside the 9th circuit are joining California's appeal.
Also, California's petition may be premature. California's petition is based on just a letter from the EPA administrator, whereas 42 USC §7607(b)(1) says that a petition for review is supposed to be filed after the EPA's decision is announced in the Federal Register:
I don't know why the EPA administrator chose to initially announce his decision by letter rather than a Federal Register notice -- maybe it's because this is the first time that the EPA has completely denied a California waiver request. Anyway, when the EPA announces the decision in the Federal Register, the EPA can correct its "mistake" of not officially stating that the determination has nationwide scope or effect.
Why do you think Congress needs to 'find' a 'commerce' link as part of legislating on so many topics? Even the "Gun Free Schools" law was technically reinstated after Lopez; in revised form with the proper incantation.
EPA Administrator Stephen Johnson's letter to Gov. Schwarzenegger said,
So Johnson said that his letter was not the final document. Also, as I said, 42 USC 7607(b)(1) says that a petition for review is supposed to be filed after the decision is reported in the Federal Register.
It has been reported that his staff opposes the waiver denial, so maybe Johnson should write the final documents himself.
The letter also said,
80 people testified in person? Wow. Presumably a lot of those people traveled a great distance to testify in person.
Here is the original Federal Register notice of the above hearings and public comment period, 72 FR 21260.
This notice should have noted the following facts:
(1) Several other states have adopted or plan to adopt the California standards (and listed those states).
(2) The California standards are supposed to be an all-or-nothing package deal. States are not supposed to be allowed to pick and choose which California standards they want to follow.
The notice asked,
The EPA should have more specifically asked, "should the waiver be denied on the grounds that (1) the global warming problem is global rather than local in nature and/or (2) that granting the waiver would have a very small effect on California and other states under the California standards?"
The notice asked,
This of course is a reference to Massachusetts et al. v. EPA.
The notice said,
Wrong. For a time before widespread usage of 3-way catalytic converters, the California standards were less stringent on CO control than the federal standards while being more stringent on NOx control. That is allowed by the language in 42 USC §7543(b) stating that the California standards need only be "in the aggregate, at least as protective of public health and welfare as applicable Federal standards."
As I said, IMO the California waivers should be abolished.
What Congress should have said is, "The 'State' (i.e., California) may ease up on the federal CO standards in order to tighten the NOx standards 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." Then at least people would understand why that provision was put in the law. All of this bullshit started when the original California waiver provision did not identify California by name but instead expressed the provision as a "grandfather clause." Congress should stop beating around the bush and cut the malarkey and get to the point.
Still, though, federal appeals court judges are supposed to be chosen at random and the 9th Circuit has 28 judges while the DC Circuit has 12 judges, so theoretically you shouldn't know who you are going to get. Maybe California has an insider in the 9th Circuit's court clerks' office who will steer the case to judges likely to be friendly. In my lawsuits against the grossly unconstitutional $300 California "smog impact fee," it was obvious that a judge and a court clerk in the 9th Circuit colluded with the EPA. The scumbags made the collusion very obvious because they were trying to intimidate me.
BTW, IMO that is not a good reason for ruling that the action is of national applicability, because manufacture of the vehicles outside of California is not a reason why the action affects air quality and emissions regulations outside of California. What really makes the action of national applicability is that several states outside the 9th Circuit have adopted the California emissions standards.
I think that the prohibition on selling California-certified vehicles in states not under the California standards is traceable to that stupid EPA ruling around 1979 that was upheld 2-1 by the appeals court. I think the case is Motor &Equip. Mfrs. Ass'n, Inc. v. EPA, 627 F.2d 1095, (D.C. Cir. 1979) -- I am not positive because I can't bring up the opinion on my computer. The reason for the ruling was that the California standards then were less stringent on CO than the federal standards while being more stringent on NOx (California prioritized NOx control because NOx is a component in smog formation) and the EPA and the court arbitrarily assumed that the California standards were in aggregate less protective of public health than the federal standards in states not under the California standards. However, a Congressional report accompanying the legislation in question said that studies had determined that the California CO standard was adequate for the entire country!
Again, here is what I propose:
(1) Abolish the California waivers.
(2) Require states to remove the following disincentives for ownership of newer vehicles, which tend to be cleaner vehicles: (1) higher registration fees for newer vehicles, (2) sales taxes on vehicles, (3) auto-insurance redlining, and (2) local property taxes on vehicles (I paid these taxes in Connecticut).
As Jonathan Adler reported, California recently filed a lawsuit to compel the EPA to issue a ruling on the state's waiver request (this lawsuit was filed before EPA Administrator Johnson announced his decision by letter). The lawsuit was based on the following provision of the Clean Air Act's "citizen suit" section (I suppose that California qualifies as a "person" for purposes of this section) --
So citizen suits to compel agency action referred to in 42 USC §7607(b) must be filed in a federal district court instead of a federal appeals court. California chose the District Court for the District of Columbia, claiming (page 3) --
As we know, in its 9th Circuit suit over Johnson's letter, California claimed the opposite -- that the GHG regulation is just locally or regionally applicable.
Regarding the statement about "multiple states that have adopted the same regulation under 42 USC §7507": The California standards are supposed to be an all-or-nothing package deal. States are not allowed to pick and choose which California standards they want to adopt. 42 USC §7507 prohibits states from creating or tending to create "third" vehicles, i.e., vehicles that are not completely based on either the California standards or the federal standards. So if California adopts a standard, then the standard automatically applies to the other states that are under the California standards.
IMO the EPA has unreasonably delayed in issuing a ruling on California's waiver request. The public comment period on the waiver request closed in June, EPA Administrator Johnson's letter announcing the decision was finally sent in December, and the EPA still has not formally reported the decision in the Federal Register.