Another important aspect of the auto industry's potential setback in U.S. District Court that stands out to us is growing evidence that the industry's case is running out of gas beyond the impact of Massachusetts v. EPA. In presenting their case yesterday, it seems that industry attorneys mostly offered
hyperbolic sweeping and defensive-sounding legal arguments (to be sure, an improvement on simply making things up when spining to the public) about the need for preemption and the purported economic disaster that might result from California's regulations:
Although federal law allows California to take a lead role in reducing air pollution, Congress never "intended a single state to have such sweeping authority to unilaterally set national fuel economy policy ... and profoundly affect a vital national industry," said Raymond Ludwiszewski, lawyer for a trade group of international automakers.
The regulation would mandate more than a 50 percent improvement in fuel economy over the next eight years," said Andrew Clubok, lawyer for the Association of Automobile Manufacturers and other plaintiffs. "It is undisputed that this regulation would lead to job losses."
Deputy Attorney General Marc Melnick replied that Congress has authorized California to adopt more stringent air-pollution standards - with EPA approval - even if one effect is higher gas mileage.
It's not surprising to see this kind of overreach coming from the automakers even inside the courtroom. During a recent seminar on global warming litigation (which included CRC's own Doug Kendall) AIAM attorney Charles Haake essentially conceded the weakness of his clients' foreign-policy preemption arugment (which claims that state standards undercut the Bush administration's foreign policy on climate change).
The essential weakness of the industry's case is definitely a sign that the legal landscape is continuing to move under its feet in the wake of the Vermont ruling and last week's invalidation of industry-backed federal mileage standards. The notion that California standards are impossible to meet, which features so prominently here, was, after all, thoroughly dissected by Judge Sessions' opinion in the Vermont suit (which dedicated 90 of its 240 pages to that argument).
Looking at the broader legal and regulatory landscape, a negative ruling by the EPA on California's application to start enforcing its regulations really is starting to look like the industry's best hope for a temporary victory. Their desperate, surreptitious (and incompetent) behind-the-scenes lobbying campaign to sway EPA indicates that the industry and its allies within the Bush administration might well agree.