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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.

Originally posted to oregondem on Wed Dec 19, 2007 at 08:42 PM PST.

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Comment Preferences

  •  Tip jar (8+ / 0-)

    If you like this and think that it will be useful to others, I won't turn away any "tips"!

    •  Good diary! (4+ / 0-)

      I have always appreciated California's more progressive standards.

      I was reading a Wall-Street Journal Op Ed (don't judge me please) and the writer was complaining that California's decisions would 'force' the nation and automakers to spend more on cars because of the higher standards. The guy argued that California was so large that as goes CA goes the US. My thought was "so what"? California is a huge state, both in size and economy. It is the 6th largest economy in the world, and a huge source of US tax revenue. Let CA keep doing what has made it successful. How about state's rights? Or does that mean "you do what we state is right?

      The only time it bugged me was when I needed to get CARB compliant parts in Virginia for a car that was built for the California market. Apparently O2 sensors are tricky things...

      I think we should start pointing out the "state's rights" hypocrisy here...Perhaps republicans (the saner ones) will support California too?

    •  Superb diary. (1+ / 0-)
      Recommended by:
      RonRaunikar

      Based on the general lack of interest in anything other than whether Obama is god and Hillary is the devil, and the general unwillingness to think hard about legal issues on this siter (I've tried with habeas issues here) though, I doubt it will get much attention.

      But thanks a heck of a lot for this.  Excellent work.

      "Terror is nothing other than justice...; it is ... the general principle of democracy applied to our country's most urgent needs." M. Robespierre

      by Bartimaeus Blue on Thu Dec 20, 2007 at 08:02:48 AM PST

      [ Parent ]

  •  Schwarzenegger responds (5+ / 0-)

    in this press release:

    "It is disappointing that the federal government is standing in our way and ignoring the will of tens of millions of people across the nation. . . . [N]ow we will sue to overturn today's decision and allow Californians to protect our environment."  

    How good are the California standards?

    By implementing these standards, California would be eliminating greenhouse gases equivalent to taking 6.5 million cars off the road by the year 2020.  If all the other states with similar plans follow through, that figure would grow to nearly 22 million vehicles and would cut gasoline consumption by an estimated 11 billion gallons a year.

    And here are the states that are screwed today by George Bush:

    States that have adopted, or are in the process of adopting, California's strict automobile emissions standards are: Arizona, Colorado, Connecticut, Florida, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Utah, Vermont and Washington.

  •  Waxman hearings already announced (6+ / 0-)

    Bush/Cheney have clearly broken the law at will as the unitary executive, but this one goes way beyond the absurd.  It took Waxman no longer than 2 hous to announce Congressional hearings into the blatant disregard of statuatory requirements.  

    FOR IMMEDIATE RELEASE                    

    FOR MORE INFORMATION, CONTACT:
    Karen Lightfoot:  (202) 225-5051

                                                                                                 

    Chairman Waxman's Statement on EPA Denial of California Waiver Request  

    WASHINGTON, DC — Chairman Henry A. Waxman released the following statement today in response to EPA's denial of California's waiver request:

    "EPA's decision ignores the law, science, and commonsense.  This is a policy dictated by politics and ideology, not facts.  The Committee will be investigating how and why this decision was made ."

    # # #

    "It was important for people to know the facts as we see them" G.W.Bush

    by oregonj on Wed Dec 19, 2007 at 08:54:33 PM PST

    •  Yes, and one of my former law students (2+ / 0-)
      Recommended by:
      FishOutofWater, RonRaunikar

      is Waxman's chief environmental lawyer.

      I would expect no less of Henry Waxman!

      But what about the Dem Presidential candidates?

      •  Don't look to most of them for leadership. (0+ / 0-)

        "Terror is nothing other than justice...; it is ... the general principle of democracy applied to our country's most urgent needs." M. Robespierre

        by Bartimaeus Blue on Thu Dec 20, 2007 at 08:07:45 AM PST

        [ Parent ]

        •  Clinton and Edwards have good energy plans (1+ / 0-)
          Recommended by:
          RonRaunikar

          Kucinich seems more to have the "plan" none of yus are good people coz you don't bicycle to work like me.Obama goes along with good energy legislation but doesn't think of it (and stumbled on coaltogas before correction by us). Obama and Clinton have good voting records in this congress on environment. So, all will be ok, but its who they pick, and how fast, that will determine policy shift. I think an important question is, can a new EPA administrator be sworn in as soon as Jan 30?

          How fast does it work when an admin changes?
          (I know they have an entire infrastructure DOJ etc to replace.)

  •  Sadly ... (6+ / 0-)

    this is likely to wait for the next EPA Administrator for action ... although, perhaps this will be part of "First 100 Minutes" agenda for the next President.  A tall stack of paper requiring signature.

    As per Bush Admin tramples states rights, again, Congressman Waxman's response is pretty good:
    Congressman Henry Waxman’s response:

    EPA’s decision ignores the law, science, and commonsense. This is a policy dictated by politics and ideology, not facts. The Committee will be investigating how and why this decision was made.

    Yet another investigation ... sigh ...

  •  The executive can simply ignore the law (3+ / 0-)
    Recommended by:
    bincbom, Gravedugger, GoracleFan

    and force the state to go back to court to try to have it enforced.

    Once impeachment is off the table, how can any law be enforced if the executive branch writes a signing statement?

    "It's the planet, stupid."

    by FishOutofWater on Wed Dec 19, 2007 at 09:01:16 PM PST

  •  sigh ... when (0+ / 0-)

    will the Bush admin. be gone? ...

    Time for California to secede ...

  •  The EPA's lawyers think they won't win (2+ / 0-)
    Recommended by:
    RonRaunikar, The Pump Handle

    Today's Washington Post article mentions several times that the EPA's own lawyers think they will lose:

    The decision set in motion a legal battle that EPA's lawyers expect to lose....

    In a PowerPoint presentation prepared for the administrator, aides wrote that if Johnson denied the waiver and California sued, "EPA likely to lose suit."

  •  Question: Is EPA taking a preemption positon? (0+ / 0-)

    That is, that CA and he other states were preempted by teh recent energy bill from setting new standards?  That's my very cursory impression.

    "Terror is nothing other than justice...; it is ... the general principle of democracy applied to our country's most urgent needs." M. Robespierre

    by Bartimaeus Blue on Thu Dec 20, 2007 at 08:04:24 AM PST

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