UPDATE, 4:30 PM: A source close to the case informs us that DOJ's filing asking for more time indicates (as we'd suspected) that, "The Office of the Solicitor General is currently considering whether to authorize such a filing in this case, and no decision has been made yet." In other words, the Bush administration has laid down the necessary legal boilerplate to file a brief and clearly would like to get involved, but still needs a formal go-ahead from Solicitor General Paul Clement before proceeding. Clement has red-flagged questionable administration legal gambits before, including the White House's recent intervention to weaken EPA's proposed ozone limits, but it remains to be seen whether he'll put on the brakes in this instance.
While much of our focus lately has been on the fallout from EPA's decision to improperly stand in the way of California's clean cars program, the reality has always remained that other, related legal matters were still potentially ripe for the administration's obstructionist agenda. One particular case we've been following, which we noted in the immediate aftermath of the waiver denial, is the auto industry's appeal in Green Mountain Chrysler-Dodge v. Crombie-- the lawsuit against Vermont's clean cars law that was decided in the state's favor back in September 2007.
Even though the EPA's decision makes the industry's preemption lawsuits a (temporarily) moot point, as all parties agree that the states can't move forward without a waiver, the industry is still slowly moving forward with its appeal to the Second Circuit. They've indicated that they're potentially willing to take this issue to the Supreme Court. And by signaling extent to join the case via a forthcoming amicus curiae brief, the Bush administration seems to agree with the industry that the issues here are still worthy of legal debate.
The docket isn't explicit as to which side the Department of Justice is taking. But based on the administration's past statements and actions regarding preemption of state-based efforts to combat global warming, we're prepared to let readers make an educated guess...
Warming Law has also obtained the industry's opening briefs in this appeal (the state's response is not due until June 12), and we'll certainly write more once we've given them a good read. The same goes for the administration's forthcoming brief, which DOJ asked the court for an extension on last Monday.