George W. Bush's EPA today announced it is turning down the State of California's request for a "waiver" that would have forced the automobile industry to take new steps to limit greenhouse gas emissions.
California's Attorney General Jerry Brown and Governor Arnold Schwarzenegger announced they will "sue at the earlier possible moment" to try to force the E.P.A. to allow the state to set emissions standards.
How successful are they likely to be?
If there aren't good chances at success in the courts, how about the Congress? Barbara Boxer said she was "prepared to take all measures to overturn this harmful decision." "All measures" that will survive a veto by the Fire-Man-in-Chief? Hah!
Perhaps the only effective reaction to this latest contribution to global heating (it's not just warming) will be a strong political reaction -- hitting the Bush Administration over the head with their in-the-pocket-of-big oil decision as we work up to the November 2008 elections. But I will examine the likely success of California's lawsuit anyway. First, some background.
California Originated Control of Air Pollution
The first government in the world to tackle the problem of pollution from automobiles was California, which started mandating standards for newly produced automobiles more than 40 years ago. The automobile industry lobbied for national standards and a law that would block individual states from regulating automobile design. The prospect of numerous states with differing standards drove Detroit nuts.
Although all other states were preempted from having their own standards, California was able to hang on to its legal right to act as a leader in forcing the development of new technology. The Clean Air Act specifically granted them this right. In 1977 the Act was amended to allow other states as well to adopt standards stricter than the national standards -- as long as they were the ones that California was imposing on the industry. In that way there would be two sets of standards in the U.S. -- the more progressive California standards and the laggard EPA standards. It was a good solution.
EPA Can Veto California's Automobile Standards - sometimes
But the law also gave EPA the power to veto the California-and-others set of standards. Section 209 of the Clean Air Act says that EPA should not grant a waiver for separate California-and-other standards unless they are needed "to meet compelling and extraordinary conditions."
On Wednesday, EPA Administrator Steve Johnson said (in the EPA press release):
Greenhouse gases are fundamentally global in nature, which is unlike the other air pollutants covered by prior California waiver requests. These gases contribute to the challenge of global climate change affecting every state in the union.
In other words, global warming (heating) is not "compelling" or "extraordinary" because it is national and global. Wow!
EPA also said:
Previous waiver petitions covered pollutants that predominantly impacted local and regional air quality.
The case will turn on a question of administrative law (something in which I now specialize -- having previously been in charge of EPA's legal department dealing with clean air during the beginning of the Carter Administration . . . but that's another story).
Administrative Law 102 - Who Interprets the Laws?
The question is this: Who interprets the laws passed by Congress -- the courts or the executive branch?
I regret to tell you that the answer from court precedents is not clear. Or rather, when the law is clear, the answer is clear: the courts do the interpreting. But when is not clear, the courts give the executive branch (in this case, EPA) a shot at interpreting it, although only if the executive branch's interpretation is "permissible" (reasonable).
A case in 1984 titled Chevron v. NRDC established a two-step test for answering the question of who gets to interpret the law. Step One: if the law is clear, the courts interpret it (or, shall we say, just apply it and overturn the federal agency). Step Two: if the law is not clear, the courts "defer" to the interpretation by the administrative agency as long as it is permissible (reasonable). The best way to win is in Step One. If the court goes to Step Two, it often upholds the agency.
The Real Question: Who Appointed the Judges?
So you might ask about Step One of Chevron, "Is the Clean Air Act clear about 'compelling and extraordinary circumstances'"? Uhhh. Actually, the answer depends in large part on whether the judges who hear the case are appointed by Republicans or Democrats. (Yes, it's true. Judges have political outlooks. Big secret, now revealed.) But there are some tools to be used.
Tools for Judges to Decide Whether the Law Is "Clear"
A case decided by the Supreme Court several years ago on whether the FDA could regulate cigarettes, FDA v. Brown & Williamson, said that the courts could use not just the words of the statute to determine whether it is clear, but also "legislative history" (committee reports, other background material).
Although I have not dug out the old 1965, 1970 and 1977 committee reports on the California-and-others waiver provision, consider this: Congress in 1977 allowed all States -- not just California -- to adopt the California standards. Doesn't this show that the waiver decision in section 209 of the Clean Air Act is not limited to just local or regional "compelling and extraordinary circumstances," as EPA's Administrator claimed today?
Ultimately, that's a question for federal judges, who are not likely to rule quickly.
Anyway, I'm not a federal judge -- just a law professor and former EPA official (from the good old days), who is fed up with this Administration's using every possible tactic to repay its buddies from the corporate oil suites.
Maybe The Answer Has to Be Political, Not Legal
Courts take some time to rule. The planet doesn't have much time. But George Bush doesn't either.
George Bush's Administration is fiddling while the planet burns. That needs to be made into the real issue -- a political issue, not a legal one. On that ground, we might just win -- less than a year from now.
So start shouting.