Waiver Denial Challenge: 9th Circuit vs. D.C. Circuit

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

Comments

[Larry Fafarman]

Tim Dowling said,

--"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."--

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Challenges to the EPA's California waiver determinations have traditionally been filed in the DC circuit court of appeals. Did those waiver determinations that were challenged in the DC circuit have that "boilerplate" language about the determinations being national in scope? If not, then according to California's present reasoning, those challenges were filed in the wrong court.

Anyway, 11 other states have adopted the California auto emissions standards package and 5 other states plan to do so. Most of those states are outside the 9th circuit -- the ones in the Northeast are far outside the 9th circuit -- and so the effect of all California waiver determinations is national in scope. In fact, most of those other states under the California standards are joining California's lawsuit.

Filing this lawsuit in the 9th circuit court of appeals is a very bad (or should I say very good) example of judge-shopping.

IMO the California waivers should be abolished altogether, for the following reasons:

(1) California plus the states that have adopted and plan to adopt the California auto emissions standards package have over half of the US population, so we might as well just have one national set of emissions standards.

(2) One of the main purposes of the California waivers was to use California as a "testing area" for new emissions control equipment and technologies. Emissions control technologies have matured and this is no longer a valid reason for having the California waivers.

(3) The California waivers impose a big burden on automakers. For example, a stupid EPA ruling -- upheld 2-1 by the appeals court -- that prohibits the sale of California-certified vehicles in states not under the California standards is probably still in effect. This ruling is a great burden on the marketing of the vehicles.