So much for cooperative federalism. The way it's supposed to work, the way the Clean Air Act was written and designed, the way it always has worked, is that the federal government sets national minimum clean air standards and California, and other states following their lead, can join in. That was the deal struck in the Clean Air Act in 1970 and it's been the rule ever since. EPA has NEVER, EVER, flat-out denied a waiver request. Never, that is, until now. We've just learned that EPA has denied California's request for a waiver for it's global warming emissions rule.
We here at Warming Law will be dissecting the EPA's ruling over the coming hours and days: as of yet, we have not even seen the ruling. All we have to go on is this AP which quotes EPA Administrator Stephen Johnson: "The Bush administration is moving forward with a clear national solution - not a confusing patchwork of state rules . . . I believe this is a better approach than if individual states were to act alone." Industry couldn't have said it better, and readers of Warming law know what we think of this tired and inaccurate "patchwork quilt" argument. Johnson better hope his lawyers have found a better argument than this, because the Clean Air Act mandates the precise division of federal/state authority sought by California here.
For now, we want to focus on what happens next. The first thing, already promised by California Governor Arnold Schwartznegger, is a suit by California and its allies seeking to overturn the ruling in the DC Circuit Court of Appeals. As we've covered before, California has already filed suit in the DC Circuit claiming unreasonable delay by EPA in acting on their waiver, so the State may be able to simply amend that suit. (Those closely following developments here will recall that the unreasonable delay suit was filed in both district court and the DC Circuit because of some uncertainty over the appropriate court -- there's no such uncertainty here). California will almost certainly seek an expedited decision so that it can begin enforcing its program in 2009.
A more interesting question is what will happen to the appeals of the decisions in Vermont and California dismissing industry preemption challenges to the California program. These suits were brought by industry under the assumption that EPA would grant the waiver. Industry may now seek to have these rulings vacated as moot. The state and environmental defendants will presumable seek a stay pending their challenge to EPA's waiver decision.
Two other possibilities warrant mentioning at this point. Congress always has the option of overturning EPA's decision legislatively and nothing prevents a future president from revisiting this EPA decision. But hopefully, the DC Circuit will act quickly and make such measures unnecessary.