While President Bush was dissembling on global warming Wednesday afternoon, Justice Department attorneys were busy putting the final touches on that friend-in-the-court brief we warned about. As expected, DOJ defends the auto industry's argument-- smacked down by District Court Judge William Sessions in September 2007-- that federal energy law preempts Vermont's clean cars law. Its amicus brief chides the lower court for not giving extreme deference to the administration's finding of preemption in the CAFE regulations issued in 2006, and strongly hints that forthcoming CAFE rules responding to December's congressional energy bill will reiterate that position.
Yet rather than support the industry's appeal outright, the administration is asking that the Second Circuit declare the entire case "not justiciable" on ripeness grounds; it's preferred solution is for the court to toss Sessions' ruling, and then remand the case to him for outright dismissal. DOJ argues that Sessions was wrong to hear the case while the EPA had yet to rule on California's waiver application, and so long as that waiver's denial remains in effect-- which all parties agree currently pre-empts California from moving forward, and Vermont and a dozen other states from following suit-- a ruling here would serve as a mere "advisory opinion."
Vermont Attorney General William Sorrell tells the AP, in response, that, "there's a long way that the Bush administration has to go before they uphold the validity of that waiver." Nevertheless, delaying legal judgment on the EPCA argument until later might well be the administration's aim in suddenly asserting a lack of ripeness several years after this suit was filed. Were the courts to adopt the administration's position in this case, then following an EPA loss in court (which the agency's lawyers warned would be inevitable), the industry could simply assert its other preemption claims anew.
Of course, by that time, Bush might be out of office, and the new administration might well reverse its legal accord with the auto industry. But seeing as passing the buck on climate change is a pursuit that this administration has proved rather adept at, why should this case be any different?