As expected, California has wasted no time in starting off the new year with a challenge to the the EPA's recent Clean Air Act waiver denial, filing a petition for review in the 9th Circuit Court of Appeals today. The lawsuit has been joined by fifteen other states or state agencies. In his statement on the case, California Attorney General Jerry Brown emphatically dismissed the December 19 letter to Governor Arnold Schwarzenegger that marks EPA Administrator Stephen Johnson's formal denial of the petition:
"The denial letter was shocking in its incoherence and utter failure to provide legal justification for the administrator's unprecedented action," California Attorney General Brown said. "The EPA has done nothing at the national level to curb greenhouse gases and now it has wrongfully and illegally blocked California's landmark tailpipe emissions standards, despite the fact that sixteen states have moved to adopt them."
One interesting legal wrinkle is that the case has been filed in the 9th Circuit-- not in the DC Circuit, as many (including ourselves) had suggested. In the wake of EPA's decision, LA Times writer David Savage presciently noted that the DC Circuit might not be naturally inclined to California's arguments. While the state's case for a waiver was undoubtedly strengthened by the Supreme Court's decision on standing in Massachusetts v EPA, it was the DC Circuit that had previously sided with the EPA's position (this rationale is strongly mirrored in the EPA's current claim that global warming doesn't pose a unique threat to California). The state's arguments based on statutory text and the weight of Supreme Court precedent would probably have held up in any court, but its tactical filing move certainly seems, on the surface, to bolster its odds.
As we learn more about the state's filing, we'll be keeping readers posted with further analysis, as well as continued coverage of some other interesting legal developments that have taken place over the holidays.