When Judge Anthony W. Ishii postponed yesterday's anticipated hearing in the California clean cars case, he cited the need for more time to consider an ex parte application filed by the plaintiffs only several days earlier. The auto industry sought permission to file a supplemental response to the state's counter-motion for summary judgment, despite the deadline for revising their brief having been December 20, 2006, when Judge Ishii initially heard arguments related to motions and counter-motions for dismissal.
Plaintiffs are attempting to have the judge consider additional depositions by California Air Resources Board official Michael Scheible and Michael D. Jackson, an expert on alternative fuels. Both filed declarations of support for the state's case for summary judgment back in December 2006, and the latter has been retained by the defense as an expert witness, but the industry claims that additional depositions from them might support its claim that California's emissions regulations are pre-empted by federal fuel economy standards.
The state and its environmental allies, for their part, have responded that the industry deposed Scheible and Jackson prior to the December 20th hearing and referred "liberally to this deposition testimony during the December 20th hearing before Judge Ishii. The defendants also note that the plaintiffs' proposed supplemental refers "only sparingly to testimony obtained after the hearing," and that regardless, plaintiffs had ample opportunity to ask for leave to file supplemental papers over the course of the last nine months.
In an amusing email exchange included in the plaintiffs' submission, David Bookbinder of the Sierra Club adds te rejoinder to Plaintiffs that "one lesson they should have learned from the Vermont trial is that chances of litigation success are not improved merely by submitting more paper."
Bookbinder is right that in the long run, plaintiffs' supplemental submission is unlikely to have any impact on the outcome of the case. But if the goal was to simply put off a hearing before Judge Ishii, then it has already achieved the desired effect.