Important news out of the 9th Circuit, where the state of California recently moved to have an expedited hearing of its lawsuit seeking to overturn the EPA's Clean Air Act waiver denial (EPA opposed this action). On Friday afternoon, the court ruled to grant the state's request in part, allowing the case to move forward at its current pace but constraining EPA's ability to delay the process.
Under the current briefing schedule, the state's opening brief is due on March 24, with EPA's response due at the end of April and the state having the option of countering within a month. In other words, the earliest the court might hear arguments is this summer.
The good news for California was that the court declared that Circuit rule 31-2.2(b, rather than 31-2.2(a), would apply to this case-- meaning that any requests to extend briefing deadlines must be made in writing, follow strict procedures, and be received at least a week prior to an approaching deadline. This determination was added to by the court's apparent warning that it intends to be judicious in granting extensions ("Any motion...must demonstrate extraordinary circumstances exist to warrant additional time to file the brief") indicating that any attempts to drag the matter out will face an uphill climb.
Still, anyone hoping for a hasty resolution of this legal matter and the swift enactment of California's global warming emissions standards should certainly realize that short of legislative intervention, nothing is likely to happen this year.
This is ridiculous. Why doesn't the 9th Circuit just say that it lacks jurisdiction because the challenge to the waiver denial is supposed to be filed in the DC Circuit instead? The suit is national in scope because several states that have adopted the California standards are outside the 9th Circuit. Also, challenges to California waiver denials have traditionally been heard by the DC circuit. Also, the EPA's Federal Register notice of its decision -- which should have been published by now -- is going to declare the decision to be national in scope. California should instead be pressing its "citizen suit" (42 USC ยง7604) to get the EPA to publish its decision. And how can the 9th Circuit set a date for California's opening brief (March 24) when EPA's decision has not been published yet?
Posted by: Larry Fafarman | February 23, 2008 at 09:40 AM
My preceding comment said,
--"Also, challenges to California waiver denials have traditionally been heard by the DC circuit. "--
Sorry, that statement was an error. This is the first California waiver "denial" -- my statement should have said "California waiver decisions."
Posted by: Larry Fafarman | February 25, 2008 at 01:59 PM