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California Sues EPA Over Waiver Denial:

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.

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.

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.

Just Dropping By (mail):
Was this a deliberate choice by the EPA or an oversight?

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.
1.3.2008 11:35am
Dave N (mail):
And just because the Sierra Club believes the lack of language allows them to sue anywhere, that doesn't mean the federal judiciary will agree.
1.3.2008 11:37am
Adam J:
Dave N- That may be true, but there really is something to be said for holding the EPA to their mistake. Otherwise, dumb errors like this just lead to alot of pointless litigation costing taxpayers extra expense that would have been avoided in the first place if the EPA was competent.
1.3.2008 12:04pm
Duffy Pratt (mail):
This way, it can get litigated all the way to the Supreme Court, who will then dismiss the whole thing without prejudice, and require it to be refiled in D.C. Your tax dollars at work.
1.3.2008 12:20pm
Craig Oren (mail):
Since EPA has not issued a decision, it is hard to know whether EPA will certify that the decision is of national impact. Indeed, it seems to me that the lawsuit might be premature insofar as the Clean Air Act requires that a suit be brought not later than sixty days after publication in the Federal Register. See section 307(b), 42 US.C. 7607(b)
1.3.2008 12:52pm
Armen (mail) (www):
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. The article borders on retarded when it comes to understanding the court system. For example, "California sued the federal government in the U.S. District Court of Appeals..." WTF is the U.S. District Court of Appeals? This sounds like a horrible wheel of fortune "before &after" puzzle. Does anyone know in which district California filed the suit? E.D. Cal?
1.3.2008 1:19pm
KeithK (mail):

...there really is something to be said for holding the EPA to their mistake. Otherwise, dumb errors like this just lead to alot of pointless litigation costing taxpayers extra expense that would have been avoided in the first place if the EPA was competent.


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.
1.3.2008 1:25pm
Adam J:
Craig- Unless I'm very confused the waiver denial is a decision issued by the EPA. Also, , 307(b) is a statute of limitations for bringing a suit, which defines when a lawsuit is past mature, not when a lawsuit is premature.
1.3.2008 1:26pm
Dave N (mail):
[P]erhaps 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.
[I]t can get litigated all the way to the Supreme Court, who will then dismiss the whole thing without prejudice
Together, what these two prescient comments mean is that some time around 2011 or 2012, the Supreme Court will decide EPA v. Sierra Club and determine the necessity of inclusion of boilerplate language in federal administrative decisions before the D.C. Circuit (and the D.C. District Court) have exclusive jurisdiction over them.
1.3.2008 1:42pm
Oren:
More likely, the ninth circuit will rule for Sierra and then the Clinton EPA will opt not to appeal to the Supremes.
1.3.2008 1:51pm
Oren:
Keith, the law is pretty clear and makes a fair bit of sense. National issues should be decided by the DCC, local issues should be decided by the local circuit. The only ambiguous part is whether the denial of waiver is nationally relevant or only locally relevant.
1.3.2008 1:56pm
Adam J:
KeithK - I don't understand your argument... you're saying that the law is unclear? It seems pretty much crystal clear, the lawsuit is brought locally (California in this case) if it's not of national import, something that the EPA itself gets to decide (or at least gets Chevron deference). The EPA apparently doesn't even have to justify its decision as to why its of national import, it only needs to include boilerplate in its decision. That seems like a very simple and very clear law to me. Parties lose their rights all the time by failing to raise them in the first instance.
1.3.2008 2:05pm
Ralph Phelan (mail):
The only ambiguous part is whether the denial of waiver is nationally relevant or only locally relevant.


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.
1.3.2008 2:08pm
Smokey:
Please excuse a non-lawyer for reading this...
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.
...and seeing that the Sierra Club is blatantly "judge shopping."

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?
1.3.2008 2:16pm
John (mail):
Why can't the EPA withdraw its earlier decision and issue a new one with the magic words?
1.3.2008 2:21pm
KeithK (mail):
AdamJ, I don't think it's unclear that this is a case of national import. But whether or not you agree, the question shouldn't be decided based on whether the EPA included boilerplate language in it's denial. it's not the boilerplate that makes the issue of national import, but the substance.

The idea that court decisions should be made based on "magic words" is a bad one.
1.3.2008 2:27pm
Adam J:
Smokey- It's not Sierra club, it's California bringing the lawsuit. And it's not exactly "blatant" forum shopping (you can't pick the judge, just the forum), when California brings a lawsuit in the 9th Circuit, whose jurisdiction encompasses California. What's California to do, say "well apparently the EPA didn't think the case is of national import in their waiver denial, but I'll bring a suit in the DC Circuit anyways."
1.3.2008 2:30pm
Adam J:
KeithK- I think theres a very strong argument that its of national import, probably stronger than any argument that can be made that its only local.

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.
1.3.2008 2:45pm
Adam J:
John - because then California gets screwed for the EPA's mistake, California's case gets dismissed and they have to refile- which gives the EPA a perverse incentive to continue making the mistake.
1.3.2008 3:07pm
Ralph Phelan (mail):
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?
1.3.2008 3:38pm
Just Dropping By (mail):
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.

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'.
1.3.2008 3:53pm
Duffy Pratt (mail):
The 6th amendment applies only to cases at common law. Cases brought under the APA are not common law cases, so there is no right to a jury trial unless Congress creates it by statute. That's why there's no jury.
1.3.2008 4:00pm
Duffy Pratt (mail):
Adam J:

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.)
1.3.2008 4:03pm
U.Va. 3L:
Smokey writes: 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?


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.)
1.3.2008 4:09pm
U.Va. 3L:
seems to be

"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. ;)
1.3.2008 4:11pm
Adam J:
Ralph Phelan- Right, and if your adversary in litigation accidently gives you privileged evidence, you should return it without looking at it, and if you do look you should be punished. Oh wait... that's a bad idea too. The best solution in litigation is generally not to punish the party that exploits a mistake, but rather to punish the mistake. If you punish the party that exploits a mistake, then you will have plenty of parties that "accidently" make a mistake with the hopes that the other party will be punished for exploiting it.

Duffy Pratt- I'm pretty sure estoppel would prevent California from making that argument.
1.3.2008 4:27pm
pjohnson (mail):
It's not so obvious that the specific action for which review is sought is an action of national import. It's a denial of a waiver by a single state of certain vehicle emission standards. Presumably, granting it would have resulted in a revision to the California SIP, which is applicable only in California.

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.
1.3.2008 4:36pm
Duffy Pratt (mail):
Adam J:

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.
1.3.2008 4:42pm
JOe:


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.
1.3.2008 4:47pm
Smokey:
U.Va.3L, Adam J, Duffy Pratt: Thanks for the explanations.

Also, as stated above:
I seriously doubt either the EPA or California *wants* a jury to hear this case...
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?
1.3.2008 4:51pm
Adam J:
Duffy- Interesting point, that possibility does present a bit of a wrinkle in my theory. Section 307 of the Act (the relevant statute) is quite unclear whether this is a matter of subject matter jurisdiction or not. If the matter is subject matter jurisdiction, then my whole argument is somewhat moot as the court should pick up the issue on its own right from the get-go. That of course presents a wierd question of whether the EPA should now be allowed to argue against subject matter jurisdiction when it already basically granted to the court subject matter jurisdiction. Anyways, it seems pretty clear to me that California wouldn't be able to win the argument that the 9th circuit doesn't have jurisdiction if the EPA was opposing it, since the statute basically says the EPA determines the jurisdiction.
1.3.2008 5:24pm
Duffy Pratt (mail):
Adam J:

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.
1.3.2008 8:32pm
Adam J:
Here's the link

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.
1.3.2008 11:11pm
A Guest:
If a person growing pot for himself in his own yard for his own medical use is "interstate commerce," then isn't anything generating emissions that end up in the air definitionally of national concern?
1.4.2008 1:28am
Duffy Pratt (mail):
Thanks for the link, I guess. I'm not really sure I needed to read that.

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.
1.4.2008 8:08am
Adam J:
A Guest- nobody is arguing about whether there's a commerce clause jurisidictional hook, everyone has conceded this. "National Import" is a different animal, it merely determines which federal court the case is brought in.

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.
1.4.2008 10:36am
Tim Dowling (mail):
Jonathan -- Thanks (once again) for linking to Warming Law. Although it's not directly relevant to the venue issue raised by the post, VC readers might be surprised to learn that Ron Paul supports California's request for a waiver.

Tim Dowling
Community Rights Counsel / Warming Law
1.4.2008 11:29am
Larry Fafarman (mail) (www):
Challenges to the EPA's California waiver determinations have traditionally been filed in the DC circuit court of appeals. Did those waiver determinations that were challenged in the DC circuit have that "boilerplate" language about the determinations being national in scope? If not, then according to California's present reasoning, those challenges were filed in the wrong court.

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.
1.4.2008 7:34pm
Larry Fafarman (mail) (www):
IMO the California waivers should be abolished altogether, for the following reasons:

(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.
1.4.2008 7:51pm
Larry Fafarman (mail) (www):
For starters, one very big reason why there can't be a trial by jury is that federal appeals courts do not have juries.

Just Dropping By said (1.3.2008 3:53pm) --
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.").

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,

The provisions of section 553 through 557 and section 706 of title 5 shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies.

And "this subsection" applies specifically to formal EPA rulemaking with publication in the Federal Register, a formal public comment period, etc. --

In the case of any rule to which this subsection applies, notice of proposed rulemaking shall be published in the Federal Register, as provided under section 553 (b) of title 5, shall be accompanied by a statement of its basis and purpose and shall specify the period available for public comment

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,
The 6th amendment applies only to cases at common law. Cases brought under the APA are not common law cases, so there is no right to a jury trial unless Congress creates it by statute. That's why there's no jury.

Amendment VI is for criminal cases, not civil cases. The amendment that applies to civil cases is Amendment VII, which says:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . .

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 --

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and . . .5 USC §702

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.
1.5.2008 1:25am
Larry Fafarman (mail) (www):
Error correction --

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.
1.5.2008 2:21am
Larry Fafarman (mail) (www):
California's petition to the 9th Circuit court of appeals simply says,

The document did not make a finding of "nationwide scope or effect" as provided for in the third sentence of section 307(b)(1) of the Clean Air Act, 42 U.S.C. §7607(b)(1).

The complete third sentence of 42 USC §7607(b)(1) is:

Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence 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.

"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:

Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise.

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.
1.5.2008 5:52am
Larry Fafarman (mail) (www):
Oops -- I forgot to mention in my preceding comment that IMO the 3rd sentence of 42 USC §7607(b)(1) does not apply at all, because neither (1) does the preceding sentence specifically mention the California waiver provision (42 USC §7543(b)) nor (2) do California waiver determinations fall under the preceding sentence's general category of "final actions" which are "locally or regionally applicable" (because states under the California standards are scattered all over the country). I assert that the applicable sentence is the first one, which says, ". . . .or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia." Though California waiver determinations are not nationally applicable in the sense of applying to every state, they are national in applying to different regions of the country and -- more importantly -- to different federal circuits. The only reason for filing appeals of waiver determinations in the 9th circuit is that California, which makes the waiver requests, is there. As I said, appeals of California waiver determinations have traditionally been filed in the DC circuit court of appeals.
1.5.2008 7:42am
juris_imprudent (mail):
The idea that court decisions should be made based on "magic words" is a bad one.

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.
1.5.2008 11:42am
Larry Fafarman (mail) (www):
The recent passage of the Energy Independence and Security Act (EISA) by Congress has greatly changed the picture and therefore IMO new public hearings on California's waiver request should be held. However, proponents of the waiver are of course opposed to new hearings because the passage of EISA greatly weakens the arguments for the waiver.

EPA Administrator Stephen Johnson's letter to Gov. Schwarzenegger said,

I have decided that EPA will be denying the waiver and have instructed my staff to draft appropriate documents setting forth the rationale for this denial in further detail and to have them ready for my signature as soon as possible.

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,
As you know, EPA undertook an extensive public notice and comment process with regard to the waiver request. The agency held two public hearings: one on May 22, 2007 in Washington, D.C. and one in Sacramento, California on May 30, 2007. We heard from over 80 individuals at these hearings and received thousands of written comments during the ensuing public comment process from parties representing a broad set of interests, including state and local governments, public health and environmental organizations, academia, industry, and citizens. The agency also received and considered a substantial amount of technical and scientific material submitted after the close of the comment deadline on June 15, 2007.

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,

(1) Given that the regulations referenced in the December 21, 2005, request letter relate to global climate change, should that have any effect on EPA's evaluation of the criteria, and if so, in what manner

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,
(2) whether the United States Supreme Court's decision, issued on April 2, 2007 (549 U.S. --------(2007)), regarding the regulation of emissions of greenhouse gases from new motor vehicles under Title II of
the Clean Air Act, is relevant to EPA's evaluation of the three criteria, and if so, in what manner

This of course is a reference to Massachusetts et al. v. EPA.

The notice said,
To be consistent, the California certification procedures need not be identical to the Federal certification procedures. California procedures would be inconsistent, however, if manufacturers would be unable to meet the state and the Federal requirements with the same test vehicle in the course of the same
test. See, e.g., 43 FR 32182 (July 25, 1978).

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.
1.5.2008 5:55pm
Larry Fafarman (mail) (www):
BTW, regarding the clause in 42 USC §7543(b)(1) that says, "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" --

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.
1.6.2008 5:57pm
Larry Fafarman (mail) (www):
The Warming Law blog explains why California prefers the 9th Circuit to the DC Circuit:

One interesting legal wrinkle is that the case has been filed in the 9th Circuit-- not in the DC Circuit, as many (including ourselves) had suggested. In the wake of EPA's decision, LA Times writer David Savage presciently noted that the DC Circuit might not be naturally inclined to California's arguments. While the state's case for a waiver was undoubtedly strengthened by the Supreme Court's decision on standing in Massachusetts v EPA, it was the DC Circuit that had previously sided with the EPA's position (this rationale is strongly mirrored in the EPA's current claim that global warming doesn't pose a unique threat to California).

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.
1.6.2008 10:53pm
Larry Fafarman (mail) (www):
Just out of curiosity, I looked at a California waiver determination published in the Federal Register, and the "boilerplate" language about national applicability is there:

My decision will affect not only persons in California but also the manufacturers outside the State who must comply with California's requirements in order to produce motor vehicles for sale in California. For this reason, I hereby determine and find that this is a final action of national applicability.

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.
1.7.2008 5:19am
Larry Fafarman (mail) (www):
Here is an example of the kind of bullshit I am talking about when I say that the California waivers should be abolished:
A story by Lawrence Ulrich on MSNBC over the weekend made a claim I think we need to explore a bit here on AutoblogGreen. Ulrich writes about driving a very clean six-cylinder gasoline engine 2008 Honda Accord, then says the car is only available in certain states:

You can't actually buy this ultra-green Accord, or the four-cylinder version that also produces near-zero pollution. That is, unless you live in California, New York or six other northeast states that follow California's tougher pollution rules. Only there can you buy this Accord, or the roughly two dozen other models that meet so-called Partial Zero Emissions Vehicle standards, PZEV for short.

Not only can't you buy one, but the government says it's currently illegal for automakers to sell these green cars outside of the special states. Under terms of the Clean Air Act -- in the kind of delicious irony only our government can pull off -- anyone (dealer, consumer, automaker) involved in an out-of-bounds PZEV sale could be subject to civil fines of up to $27,500.

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).
1.7.2008 2:34pm
Adam J:
Larry - I think you're wandering a bit off topic, but I think you are right that the letter probably doesn't qualify as a final determination, and therefore California is jumping the gun by not waiting until the ruling is published in the Federal Registrar (which will presumably include the boilerplate regarding national import and thus fix jurisdiction in DC).
1.7.2008 5:41pm
Larry Fafarman (mail) (www):
OK, I will stay more on-topic.

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) --

The district courts of the United States shall have jurisdiction to compel (consistent with paragraph (2) of this subsection) agency action unreasonably delayed, except that an action to compel agency action referred to in section 7607 (b) of this title which is unreasonably delayed may only be filed in a United States District Court within the circuit in which such action would be reviewable under section 7607 (b) of this title. In any such action for unreasonable delay, notice to the entities referred to in subsection (b)(1)(A) of this section shall be provided 180 days before commencing such action.
-- from 42 USC §7604(a)

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) --

Venue in this court is proper as the GHG Regulation is "nationally applicable" by reason of the multiple states that have adopted the same regulation under 42 USC §7507 and because the regulation applies to automobile manufacturers residing outside the jurisdiction of the Court of Appeals for the Ninth Circuit.

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.
1.7.2008 9:07pm