Today's Sacramento Bee contains this discussion of the decision by California and its allies to filed their legal challenge to EPA's waiver denial in the federal appeals court for the 9th Circuit, as opposed to the D.C. Circuit:
The lawsuit filed Wednesday was no surprise, but the decision to file it in San Francisco's 9th Circuit Court of Appeals was somewhat unusual.
Generally, decisions by federal agencies must be challenged in the District of Columbia [Circuit] Court of Appeals, which tends to be more conservative than the 9th Circuit.
But lawyers backing California argue the state isn't constrained to file in Washington, D.C., because the Dec. 19 ruling left out key language stating that the decision was "of national scope and impact."
"They did not put that boilerplate in, so we can challenge it anywhere," said attorney David Bookbinder of the Sierra Club, which has worked with the state to defend the emissions law.
The requisite "boilerplate" language that David Bookbinder mentions is set forth in Section 307 of the Clean Air Act. Section 307 provides that a legal challenge to "nationally applicable" final agency actions must be filed in the D.C. Circuit, while a legal challenge to a final agency action that is "locally or regionally applicable" must be filed in federal appeals court "for the appropriate circuit" (here the Ninth Circuit, which covers California and other western states). Section 307 also provides that, notwithstanding the ability to file outside D.C. for locally or regionally applicable actions, a legal challenge must be filed in the D.C. Circuit where, in taking the action, the EPA Administrator "finds and publishes" that the "action is based on a determination of nationwide scope or effect." Because the waiver denial failed to contain any such finding or determination, California and its allies filed in the Ninth Circuit.
The same article reports that other observers are predicting that EPA will move to have the case dismissed on the ground that, notwithstanding the failure to include the requisite finding, the waiver denial is in fact nationwide in scope and therefore must be challenged in the D.C. Circuit.
Posted by Tim Dowling