Last week, the Senate Environment Committee approved legislation to overturn the Environmental Protection Agency’s denial of California’s request for a waiver of preemption of the Golden State’s regulation of greenhouse gas emissions from new motor vehicles sold in the state. As I have discussed before, under the language of the Clean Air Act, the EPA’s decision was legally justified (even if debatable on policy grounds). The agency had no legal obligation to grant California’s request for permission to impose the nation’s first GHG emission controls. If members of Congress disagree with EPA’s choice – and some clearly do – legislation revising the Act or granting the waiver is the proper recourse.
As the waiver legislation advances, so too does California’s legal challenge to the waiver denial -- though it is not clear where the lawsuit will (or should) be heard. California would like to press its case in the U.S. Court of Appeals for the Ninth Circuit. The EPA and the auto industry, on the other hand, believe proper jurisdiction lies in the U.S. Court of Appeals for the D.C. Circuit. At the same time, there is a dispute over what, precisely, California is challenging: the EPA’s letter to California giving notice of its decision, or the subsequent formal Federal Register notice. Resolution of these questions could determine the outcome of the suit.
Some background: On December 19, EPA Administrator Stephen Johnson sent California Governor Arnold Schwarzenegger a letter informing him that EPA would deny the waiver. California then filed suit in the Ninth Circuit. According to California, the case belongs in the Ninth Circuit because the waiver request concerns California (even though many other states wish to adopt California’s regs), and Johnson’s letter failed to include language indicating that the decision was “nationally applicable” or “based on a determination of nationwide scope or effect.” Had such language been included, the Ninth Circuit would have no jurisdiction over the suit. Under CAA Section 307(b), challenges to such “national” regulatory decisions must be made in the D.C. Circuit.
Then, on February 29, EPA Administrator Johnson signed the agency’s formal Notice of Decision denying California’s waiver request. This notice contained a more detailed explanation for the EPA’s decision and, unlike Administrator Johnson’s December letter, included boilerplate language indicating that the decision was “a final action of national applicability for purposes of section 307(b)(1),” as were past wavier decisions. It was published in the Federal Register on March 6.
Since the March Federal Register notice, things have gotten interesting. Aware that the notice’s 307(b) determination could defeat the Ninth Circuit’s jurisdiction over the case, California filed another challenge to the EPA’s decision in the D.C. Circuit, so as to preserve its claim. In both Circuits, California has argued that the “real” decision subject to judicial review is the December letter, rather than the Federal Register notice. The EPA had made its decision by the time the letter was issued, California argues, so the notice was just a post-hoc justification. This argument seems to prove too much, however, as an agency administrator will always make his or her decision well before the publication of a Federal Register notice, if for no other reason that it takes time to write and publish the notice. Even if California were successful with this argument, however, it would have to contend with the EPA’s claim that prior waiver determinations, all of which dealt with more localized pollutants, were deemed to be “national’ decisions subject to review in the D.C. Circuit.
Meanwhile, the EPA and auto industry both filed motions to dismiss California’s claims in the Ninth Circuit. The auto industry also filed a motion under the All Writs Act seeking to bar California from pursuing its claims in the Ninth Circuit, as such claims would oust the D.C. Circuit of its proper jurisdiction. The EPA also filed a motion in the D.C. Circuit seeking to dismiss California’s claims, on the grounds that California, in challenging the December letter, did not challenge a “final agency action” subject to review. According to the EPA, California could only properly challenge the actual decision, i.e. the Federal Register notice.
The current action is back in the Ninth Circuit. On April 10, Ninth Circuit Appellate Commissioner Peter L. Shaw denied the EPA’s and auto industry’s motions to dismiss California’s claims for lack of subject matter jurisdiction, without prejudice to their ability to raise jurisdictional claims in their merits briefs. Later that month, both EPA and the autos filed motions to reconsider, arguing that resolution of the jurisdictional question is necessary to avoid potentially duplicative and wasteful litigation. In particular, they argue that the continuation of proceedings in the Ninth Circuit challenging the December letter could delay, and potentially prejudice, proceedings in the D.C. Circuit challenging the Federal Register notice, over which the D.C. Circuit indisputably has exclusive jurisdiction.
As I understand the state of play, these motions to reconsider are pending before the Ninth Circuit’s motions panel. Not being a Ninth Circuit maven, I don’t know how long the motions panel can sit on these latest motions, or what the role of the Appellate Commissioner is at this point. [I find it odd that the Commissioner, on his own (i.e. without the participation of a motions panel of Article III judges), can rule on a motion to dismiss.] The merits briefs are due in the coming weeks, however, so I would expect a decision soon.
How these motions are resolved could help determine the ultimate outcome of the waiver litigation. California clearly chose to file its challenge in the Ninth Circuit because of the Ninth Circuit’s reputation as a more “green-friendly” court. In many areas, the Ninth Circuit has adopted greater scrutiny of federal regulatory agency decisions alleged to be insufficiently protective of the environment. By the same token, the EPA and auto industry believe the D.C. Circuit would be more willing to uphold the agency’s determination, in part because the D.C. Circuit has more experience with the CAA generally, and challenges involving waiver petitions in particular. So stay tuned, as this little procedural determination could have a substantial substantive effect.
Related Posts (on one page):
- Ninth Circuit Dismisses California Waiver Suit:
- Jurisdictional Jousting in California Waiver Suit:
i realize it would be bad for the car companies and i actually support the epa as protecting Californians from needless regulation-but at the same time im a federalist and i also don't believe in fighting battles that are both worth little and uphill
But the EPA Administrator's informal Dec. 19 letter to Gov. Schwarzenegger indicated that it was not a final ruling -- the letter said that more documents would be forthcoming. The letter said,
How could California sue the EPA when the state did not yet have all the reasons for the EPA's decision?
Also, 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:
Since the date of publication in the Federal Register cannot be foreseen in advance, the words "filed within sixty days from" can only mean "filed within sixty days after."
This is crazy.
Dave Hardy said,
That is an interesting point. Art. III sec. 2 says,
However, IMO strict adherence to that provision would be impractical -- it would mean that original jurisdiction would be assigned to the Supreme Court each time a state is a party in a federal case.
These suits over denial of a waiver for greenhouse-gas emissions standards could be the first time that California is a party or a regular party in a California waiver lawsuit. The US EPA is normally the main governmental party -- as a defendant (respondent) -- in such suits, though California could have intervenor status (which would really make the state a full party to the suit).
Also, in Mass. v. EPA, where several states and private parties sued the EPA over greenhouse gases (though the suit was not a California waiver suit), original jurisdiction was assigned to the DC Circuit court of appeals, not the Supreme Court. So that provision of Art. III sec. 2 is not strictly followed.
Space Weather
If the sun is the driver of climate we may be in trouble. We may be adding costs to our economy without benefit.
Is that dealt with in the lawyering? Or the law making?
2. The planet's atmosphere is at the very low end of CO2 concentration historically. A doubling of CO2 would be greatly beneficial to plants and animals, with no adverse effects.
3. The premier Bovine Fecal Purveyance Specialist, Al Gore, is getting enormously rich by brokering "carbon credits" through his wholly-owned company.
Any questions? I can provide peer-reviewed documentation of the statements above if anyone likes.
You write in your post that normally there's a gap between the time of the agency decision and publication in the Federal Register. That's of course true. But what happened here is different. Normally, the agency releases what will become the Federal register notice simultaneously with the decision. What is distinctive here is that, arguably, the agency made the decision without the text of the federal register notice. The normal gap between agency decision and publication in the federal register thus does not seem relevant.
I'm a little skeptical of the claim that the agency' action is not nationally applicable, given that the agency's decision in effect bars states other than California from adopting its greenhouse gas regulations.
I neglected to thank you, as I should have, for the very informative posting.
You say:
Which prior DC Circuit CAA and waiver decisions, or what principles coming from these decisions, do you think would make industry and the EPA optimistic about their chances there?
My sense is that this case will likely turn on the way the court treats the "compelling &extraordinary" requirement: does that refer to the whole regulatory program (as previous EPA waivers have stated) or to each waiver (as the EPA has now said, really for the first time, in supporting this waiver denial)? Why would the DC circuit's past history interpreting (and upholding) CAA waivers make it more likely to accept the EPA's determination that the "compelling &extraordinary" test should be applied differently here that the way the agency has applied it in the past?
As I wrote: "an agency administrator will always make his or her decision well before the publication of a Federal Register notice, if for no other reason that it takes time to write and publish the notice." It is not as if entire FedReg notices can be written without knowing the outcome, and drafting and revising the notice can take weeks (if not longer). So the fact that the Administrator had made his decision before a full explication of his reasoning was committed to paper by agency staff does not seem particularly problematic.
Courtwatcher --
I've addressed these concerns in my prior posts and writings on the California waiver (linked above). Prior decisions make clear that the EPA is due substantial deference in its decisions. Further, while the EPA has considered prior emissions controls as part of a larger program in the context of waiver decisions, each program has been aimed at regionalized pollutants.
JHA
With all due respect, only a lawyer could write a sentence like that.
And only a lawyer would actually try to parse it.
In other words, "Huh?"
California passed a law to regulate greenhouse gas emissions from new motor vehicles sold in the state. The Clean Air Act ordinarily preempts state air quality standards (meaning that they are not valid), but California is allowed to apply to the US Environmental Protection Agency (EPA) for a waiver of this preemption. California requested a waiver of federal preemption in order for its law to take effect. The EPA denied the waiver request. (EPA has never denied a waiver request in full before, and has granted many over the years. As Prof Adler notes, he believes that this waiver request is different from the others in ways that matter. Others disagree.) And last week, the Senate Environment Committee approved legislation thave would allow California to implement its law, overturning the EPA's denial. The full Senate has not addressed the issue yet.
Nonetheless, if you have not been following the story before today, you would be better off reading Prof Adler's linked posts, or other sources he links to both above and in those other posts.
It only seems that way because prior decisions have ruled that California's waiver requests -- not the EPA's decisions -- are due substantial deference and until now the EPA happened to grant each of those requests entirely or mostly. An article says,
Oren said (5.29.2008 1:41pm) --
I don't know if it is normal for the EPA to give advance notice of its decisions on California waiver requests. I think advance notice was given in this case because California was very uptight about the EPA's long delay in issuing a ruling on the greenhouse-gas waiver request. I think that the GHG waiver request was first made in 2005. First there was a long wait for the courts to decide -- in Mass. v. EPA -- whether the EPA would be allowed or required to regulate GHG's. Then the EPA continued to drag its feet -- the public comment period on the GHG waiver request ended last June. California even sued the EPA -- under a "citizen suit" law -- for excessive delay in issuing the decision. Anyway, as I noted above, 42 USC §7607(b)(1) says that court challenges to California waiver decisions must be filed within the 60-day period after the decision is published in the Federal Register, and also the informal December letter said that explanatory documents were forthcoming.
Craig Oren also said,
Another reason that the EPA has given for national applicability is that the California waiver decisions affect manufacturers outside the 9th Circuit. Indeed, the plaintiffs (petitioners) in many of the challenges to California's waiver decisions have been located outside the 9th Circuit.
Also, other states are only allowed (or supposedly are only allowed) to adopt the entire California emissions standards package, not just parts of those standards (e.g., GHG standards). Adopting only part of the California standards could have the effect of creating an illegal "3rd vehicle" (e.g., a vehicle different from both federally-certified and California-certified vehicles).
courtwatcher said,
I don't know if there is federal preemption of air quality standards. There is federal preemption of emissions standards for motor vehicles, and the California waiver provision of federal law applies to that preemption. One of the main reasons for federal preemption of motor vehicle emissions standards is that motor vehicles are mobile, hence stringent state standards cannot give adequate protection to states with bad air quality. Also, federal preemption of motor vehicle emissions standards applies to standards set by the EPA as well as standards set by Congress (as in the Clean Air Act).
As I said before, IMO the California waivers should be abolished -- they have outlived their usefulness.
California's petition in the DC Circuit challenged -- at least originally -- the December informal letter instead of the Federal Register notice!
I believe that under 9th Circuit rules, a decision by a full panel of judges is required only for decisions that are dispositive of the case. Since the denial of the motion to dismiss was not dispositive, a full panel of judges was not required. Sometimes even the court clerk is allowed to make motion decisions that are not dispositive -- that happened in one of my lawsuits. The court clerk's decision did, however, set up my lawsuit to be dismissed by judges. Also, collusion between the court clerk and the government attorney was obvious, as filing of the motion was deliberately delayed until after the deadline for a required ruling on the motion had passed. That was done solely for the purpose of intimidation and those crooks should have been strung up by the *&@#$&^.