Waiver Denial Suit: What happens if....? A response to a reader's inquiry

Posted by Tim Dowling

In the comments section, one of our readers asks:  "If the legal challenge to the EPA's waiver denial is dismissed by the 9th circuit due to it being 'nationwide in scope,' could this prevent the state from re-filing with the D.C. circuit?"

(more after the jump)

This is an excellent question, particularly give the filing deadline under the Clean Air Act.  There are strong arguments that the Ninth Circuit should entertain the appeal, but what happens if it dismisses?  At some point before the deadline expires, California and its allies might well file a "protective appeal" in the D.C. CIrcuit, an insurance policy against the possibility of a Ninth CIrcuit dismissal.  Then if the 9th CIrcuit does dismiss, the protective appeal remains active and the challenge is then pursued in the federal appeals court in D.C.

The same reader, Bryan Diemer, adds:  "I regularly read warminglaw with great interest but without any education in law, and I sincerely appreciate your forum."  Thanks for the kinds words, Bryan.  We're glad you and others find our blog helpful.

Comments

[Larry Fafarman]

--"This is an excellent question, particularly give the filing deadline under the Clean Air Act."--

I presume you are referring to the provision in 42 USC §7607(b) requiring that petitions for review be filed within 60 days after the publication of a decision in the Federal Register. To my knowledge the denial of the waiver has not been published in the Federal Register yet and it's been over a month since EPA Administrator Johnson sent Gov. Schwarzenegger the letter announcing the decision to deny the waiver. Publishing the decision is long overdue because the public comment period ended in June, as I remember. The 9th Circuit suit is premature in any event because the denial of the waiver has not yet been published in the Federal Register. Also, California's so-called "citizen suit" (pursuant to 42 USC §7604) against the EPA for excessive delay in publishing a decision in the Federal Register is probably still active.

--"There are strong arguments that the Ninth Circuit should entertain the appeal, . . . "--

I disagree. The decision is national in scope because several states outside the Ninth Circuit have adopted the California emissions standards package. Also, challenges to California waiver decisions have traditionally been filed in the DC Circuit.

--"At some point before the deadline expires, California and its allies might well file a "protective appeal" in the D.C. CIrcuit, an insurance policy against the possibility of a Ninth CIrcuit dismissal. "--

I agree. In Hallstrom v. Tillamook County, 493 US 20 (1989), the Supreme Court ruled -- insanely, in my opinion -- that a federal district court lacked jurisdiction over the original filing of a "citizen suit" because (1) the plaintiff failed to give environmental agencies a required 60 days advance notice of intent to sue and (2) that later giving this notice did not correct the error, but the SC also ruled that the plaintiff could refile the suit. However, in the case of a missed deadline, the courts might not allow refiling a suit.