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Comments

Larry Fafarman

I just can't believe this. California and the 9th circuit are insane. 42 USC §7607 says that only California waiver decisions published in the Federal Register are final for purposes of judicial review. California had no business filing a petition for review in the 9th circuit (the only basis for filing in the 9th circuit was that the informal letter did not state that the decision was national in scope). The 9th circuit had no business setting a briefing schedule. And California had no business filing that DC circuit "protective petition" that challenged the informal letter instead of the decision that was published in the Federal Register. The Federal Register decision is far more detailed than the informal letter and should be the basis of review.

I can see now why I lost my federal lawsuits against California's grossly unconstitutional smog impact fee on incoming out-of-state vehicles (the fee was eventually overturned by the state courts). Our court system is just crazy. I wish I knew then what I know now -- I would not have bothered.

Tim Dowling

Larry -- You state: "42 USC §7607 says that only California waiver decisions published in the Federal Register are final for purposes of judicial review."

Not true. 7607 says you have 60 days from Fed Reg publication to file the appeal. It doesn't say that Fed Reg publication is the final agaency action. In fact, in the normal course there typically is a delay between final agency action and Fed Reg publication.

Larry Fafarman

Tim Dowling said,

--"Not true. 7607 says you have 60 days from Fed Reg publication to file the appeal. It doesn't say that Fed Reg publication is the final agaency action. In fact, in the normal course there typically is a delay between final agency action and Fed Reg publication. "--

That is just nitpicking pettifoggery. The intent of Congress is clear. Final actions are published in the Federal Register so that everyone can see them and have the opportunity to challenge them in court. The letter that Johnson sent to Gov. Schwarzenegger was just a personal and private letter, even if it was widely publicized. Also, California filed the petition for review in the 9th circuit prior to the publication of the notice in the Federal Register, whereas 42 USC §7607(b)(1) indicates that a petition for review is supposed to be filed within 60 days after the publication of the notice in the Federal Register ( 42 USC §7607(b)(1) says only "within 60 days from" and does not specify "after," but the only reasonable interpretation is "after" because the date of publication of the notice cannot be foreseen).

Also, 42 USC §7607(b)(1) says,
--"Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and *publishes* that such action is based on such a determination. "--

The Administrator published in the Federal Register a statement that the action is based on a determination of nationwide scope and effect, and a petition for review must therefore be filed in the DC circuit.

Tim Dowling

Larry -- Pick up any issue of the Fed. Reg. You will find numerous examples of final agency actions that have signature dates prior to the Fed. Reg. publication date. The final agency action occurs as of the date of the agency's final decision (often the signature date), not necessarily the Fed. Reg. publication date. This isn't nitpicking; it's Administrative Law 101. Whether a particular agency letter constitutes final agency action is determined on a case-by-case basis, but it's simply wrong to assert that you never have final agency action for purposes of judicial review until Fed. Reg. publication. Sometimes Fed. Reg. publication constitutes the final action action, but not always (as you suggest). The Act gives you 60 days from Fed Reg publication to file an appeal, but the final agency action can, and often does, occur earlier.

Larry Fafarman

--"The Act gives you 60 days from Fed Reg publication to file an appeal, but the final agency action can, and often does, occur earlier. "--

That may be true where the final agency actions affect only particular private entities. And I presume that in many or all of those cases, the published final ruling is the same as the preliminary final ruling-- but here the Federal Register ruling is much more detailed than the Dec. 19 informal letter sent to Gov. Schwarzenegger. And it is obvious that the EPA and the auto companies do not accept California's reasoning that the informal letter is acceptable as a reviewable final ruling. And was EPA Administrator Johnson aware of this little loophole when he sent that informal letter to Gov. Schwarzenegger?

There should be just one final ruling here, the ruling published in the Federal Register. There should not be one final ruling for California and another final ruling for everyone else.

Also, I raised two issues that you did not address:

(1) California filed suit before the publication in the Federal Register, not during the 60-day period afterward as required by 42 USC §7607(b)(1).

(2) The Federal Register ruling declared that the ruling is of national scope and effect, meaning that the petition for review must be filed in the DC circuit.

California made an even bigger mess of things by filing a DC circuit "protective petition" that challenged the informal letter instead of the Federal Register ruling! What kind of "protective petition" is that? It looks like California is playing games here. Does California have a strong case or not?

Another big issue is that time that the courts waste on the big, high profile cases takes time away from the little unknown cases -- I know that from unfortunate personal experience.

Larry Fafarman

One more thing --

--"Expect California to show in response that the December 19 EPA action was not simply an announcement of some future action, but rather a firm, final decision that speaks in the present tense, makes clear that as of Dec. 19 EPA had denied the waiver, and thus is final agency action subject to judicial review. "--

Re: ". . . was not simply an announcement of some future action . . . ."

As I remember, the Dec. 19 letter said that the final ruling would be published later in the Federal Register.

I just can't understand what is going on here.

Larry Fafarman

Originally I thought that the reason why California originally filed in the 9th circuit instead of the DC circuit was that California expected the 9th circuit judges to be more sympathetic. But now I think a more important reason is that the Dec. 19 informal letter has a lot less detail than the Federal Register ruling and hence is easier to attack.

Larry Fafarman

Here is what the Dec. 19 letter said:

"I have decided that EPA will be denying the waiver and have instructed my staff to draft appropriate documents setting forth the rationale for this denial in further detail and to have them ready for my signature as soon as possible."
http://www.epa.gov/otaq/climate/20071219-slj.pdf

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