Breaking: Automaker suit against Calif. greenhouse-gas regulations may be dismissed as early as tomorrow afternoon

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Posted by David Roberts at 11:21 PM on 03 Apr 2007

Read more about: green living | cars | politics | litigation | California

The lawsuit filed by automakers against states that have adopted California's greenhouse-gas restrictions on vehicles may be dismissed as early as tomorrow (Wed.) afternoon.

When the Supreme Court ruling in Mass. vs. EPA was announced, the judge handling the automakers' lawsuit -- Judge William K. Sessions III of the U.S. District Court of Vermont -- summoned the lawyers in the case to his chambers for a discussion in light of the ruling. Check out the court's schedule for tomorrow morning.

If the suit is dismissed, it will be, in practical terms, a much more significant consequence of Mass. v. EPA than any regulations EPA is likely to pass during Bush's presidency. It will set the stage for California and eight other states -- possibly soon more -- to implement tough greenhouse-gas regulations on vehicles.

That would be the automakers' worst nightmare: CAFE standards or no CAFE standards, state air-pollution standards would force them to start making fuel-efficient vehicles.

Some background:

As most Grist readers know, in 2002 California passed what's known as its Pavley law (AB 1493, named after California Assemblywoman Fran Pavley), instructing the California Air Resource Board (CARB) to develop and implement greenhouse-gas restrictions on new vehicles, beginning with the 2009 model year. In 2004, CARB approved such regulations, which would require around a 30% reduction of greenhouse gas emissions by vehicles by 2016. Those regulations have since been adopted by eight other states (two more states are considering them).

Automakers responded by filing a half-dozen lawsuits in several of those states.

They made several claims, but the primary claim was that by restricting GHG emissions specifically for vehicles, California was in effect setting its own fuel-economy standards. By law, no state is permitted to set fuel-economy standards more strict than those set by the federal Dept. of Transportation. (By contrast, the Clean Air Act does allow states to set air pollution standards more strict than federal standards, as long as they get a waiver from the EPA.)

In Jan. 2007, a federal judge put the case on hold, pending a ruling in Mass vs. EPA, wherein the Supreme Court would address just that claim, among others. Whatever it decided would apply to lower courts as well.

As it turn out, the ruling in Mass. v. EPA utterly destroyed the claim (as reported by NYT's Felicity Barringer). The crucial bit is on p. 29 of the majority ruling (PDF):

EPA finally argues that it cannot regulate carbon dioxide emissions from motor vehicles because doing so would require it to tighten mileage standards, a job (according to EPA) that Congress has assigned to DOT. See 68 Fed. Reg. 52929. But that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public's "health" and "welfare," 42 U. S. C. �7521(a)(1), a statutory obligation wholly independent of DOT's mandate to promote energy efficiency. See Energy Policy and Conservation Act, �2(5), 89 Stat. 874, 42 U. S. C. �6201(5). The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.

In other words: air-pollution standards, including standards regarding GHGs, are independent of fuel-economy standards.

This leaves the automaker lawsuits against the states with Pavley regulations essentially baseless. Which is why the judge is likely to toss them.

Once that happens, expect to see California quickly get its CAA waiver from the EPA. Once that happens, expect to see Pavley regulations keep spreading, and possibly get boosted by ambitious states.

Never mind CAFE standards. This is what's finally going to force automakers to start making fuel-efficient vehicles. Thanks, SCOTUS!

For story: Breaking: Automaker suit against Calif. greenhouse-gas regulations may be dismissed as early as tomorrow afternoon
8 Comments | Post a Comment

some droning words of caution

I hope David's right, and Judge Sessions does dispose of the Vermont lawsuit tomorrow. I'm optimistic, but my optimism is tempered by a few things.

First, the preemption provision of the Energy Policy and Conservation Act (which creates the CAFE program) only apply to the states. While the Supreme Court's statement (quoted by David above) provides excellent ammunition for Vermont, it does not necessarily dispose of the issue altogether.

I'd be surprised if the Judge acts immediately. Courts tend to like issues to be thoroughly briefed before they make up their minds.

Second, the automakers were very crafty when they filed separate lawsuits against California, Vermont, and Rhode Island. Each of these states lies within a different court of appeals (the First, Second, and Ninth for those of you counting). While a Pavley win in Vermont may create some legal momentum, each court will decide their cases for itself . . . and then, of course, there's three different appeals to deal with.

Having said that, I remain highly optimistic. However, I expect it'll take a bit more time than David suggests.

I know I sound like a downer - but that's what they teach you in law school. I guess I learned my lessons well.

by Justin Pidot at 6:07 AM on 04 Apr 2007

State Waiver

I would not expect the current administration to give any state a waiver for greenhouse gas regulations.

by ffletcher at 9:13 AM on 04 Apr 2007

Plug In Hybrids

Cars that make hybrids look like gas guzzlers

"Plug-in versions can go 100 miles on a gallon of gasoline"

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/03/ ...

Kramer hired EnergyCS to convert his Prius and reported on a typical day of driving. He traveled 51 miles, mostly on the highway, at fuel efficiencies of 124 mpg of gas and about a penny's worth of electricity per mile. Compared with driving his Prius before the conversion, he used 61 percent less gas and spewed out two-thirds less greenhouse gases at a total cost of $1.76 for electricity and gasoline, instead of the $3.17 it would have required on gasoline alone.

by jabailo at 9:23 AM on 04 Apr 2007

Ffletcher,

you may be right. This from Mercury News:

If California wins the lawsuit, which now seems likely, one hurdle would remain. The Clean Air Act requires the state to gain the federal EPA's approval for its new rules. In years past, for other rules, such waivers have been a formality. Despite requests from Gov. Arnold Schwarzenegger during the past two years, the Bush administration has refused to grant the waiver for the greenhouse rules.
"I am very encouraged by the U.S. Supreme Court's decision today that greenhouse gases are pollutants and should be regulated by the federal government," the governor said Monday. "We expect the U.S. EPA to move quickly now in granting our request for a waiver, which will allow California and 13 other states that have adopted our standards to set tougher vehicle emissions levels."

You can't ever underestimate the jackassery of this administration.

grist.org

by David Roberts at 9:46 AM on 04 Apr 2007

Whistling past General Motors and Ford

Cassandra plans to trade in her Prius Hybrid for a Prius lithium plug-in hybrid when available. She predicts American car companies will go broke pushing ethanol and liquid coal automobiles.

The jackassery of this insane administration will be the coup de grâce for our brain-dead automobile manufacturing industry.

by sunflower at 10:03 AM on 04 Apr 2007

query

If the new rules aren't set to take effect until 2009, does it matter whether this administration grants a waiver prior to that date? I assume CA EPA will spend the next year developing the necessary policy framework to be ready to roll out the minute a new, less jackassy president is sworn in.

by eriqa at 10:33 AM on 04 Apr 2007

timing of waiver

Eriga, I think there is some importance of timing.

If the Bush Administration refuses to act on California's waiver request, it may be difficult to convince the next administration (even if it's much more concerned about global warming), that it is reasonable to require the automobile industry to redesign vehicles by 2009. Under the waiver provisions, EPA may have some ability to consider whether the California program gives manufacturers enough time before it comes into effect.

California itself gave manufactures 7 years between the time that Pavley was enacted and the time it was to have legal consequences. If the Feds don't consider ratifying it until 2008, the industry will forcefully argue that 1 year is simply not enough time.

That may not seem too convincing, after all, they've known about the law since 2002. However, until EPA grants a waiver, the law doesn't have legal significance.

by Justin Pidot at 11:26 AM on 04 Apr 2007
[ Parent ]

Plug-Ins

Sunflower sez:
Cassandra plans to trade in her Prius Hybrid for a Prius lithium plug-in hybrid when available. She predicts American car companies will go broke pushing ethanol and liquid coal automobiles.

I think that what jabailo was talking about was converting an existing car to plug-in power. It'll run you a few bucks (I've heard that it's about $2,000 per 100 miles of range), but it would pay itself off within a few years. On the DVD of Who Killed the Electric Car?, they show a regular internal-combustion car being converted to all-electric. It can be done, and without scrapping your faithful mechanical friend. The manufacturers don't particularly like it when you do this, but I've never heard of them trying to do anything about it. If I ran Toyota, I'd take the approach TiVo takes to product hacking: "It'll void your warranty, but here's a cool website showing you how to do it."

The way I see it, ethanol, liquid coal, and hydrogen are just further methods of stalling. While they pretend to work on making their phony sustainable fuels, we'll be pumping the world's wildlife refuges dry. It's not "brain-dead" at all; it's very cleverly calculated to keep us on the hook for as long as possible. That's why foreign car companies were the first to employ hybrid engines to create significant gains in efficiency.

Taking accounting to the extreme since 2004.

by akbeancounter at 12:03 PM on 04 Apr 2007
[ Parent ]

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