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Related Practices

California Sues US EPA Over Vehicle Emissions Decision

Beveridge & Diamond, P.C., November 9, 2007

In a precedent setting lawsuit, the state of California filed a complaint yesterday in federal district court in Washington D.C. against the US Environmental Protection Agency (EPA) to force the agency to take action on California’s request to adopt its own more stringent limits on automobile greenhouse gas emissions. To view a copy of the state’s complaint, please click here.

Under the Clean Air Act (CAA), California can adopt environmental standards that are stricter than federal rules, if the state obtains a waiver from the EPA. California seeks such a waiver to implement its 2002 emissions law, known as the Pavley bill or AB 1493, which requires automakers to cut greenhouse gas emissions starting with the 2009 model year by 25 per cent from cars and light trucks and by 18 per cent from sport utility vehicles.  Sixteen other states -- Arizona, Colorado, Connecticut, Florida, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, and Washington -- have adopted, or are in the process of adopting, California’s standard, and can begin upholding it as state law once the waiver is granted. Last September, a federal district court in Vermont upheld Vermont’s version of law. 

According to EPA Administrator Stephen Johnson, EPA’s delay in responding to California’s waiver request is the result of the agency working on similar regulations at the national level, which are due by the end of 2008. But California and the other states want the emissions reductions enforced sooner.  California submitted its waiver application in December 2005, while Johnson maintains he will not issue his decision until the end of this year.

Significantly, the federal district court only has jurisdiction on the procedural issue of whether EPA must make a decision on granting a waiver.  Under the CAA, jurisdiction to resolve a challenge to the merits of an EPA waiver decision rests with the United States Court of Appeals for the District of Columbia.  The state's action in district court was filed here under the citizen's suit provision of the CAA, 42 U.S.C. § 7604(a), and seeks an order declaring that EPA has "unreasonably delayed" and "compelling" it "to decide California's application for waiver of federal preemption."  It can take a year or more for a case to proceed from the district court and then on appeal to the court of appeal. California apparently seeks to accelerate this process, as it also filed a petition for review of the EPA's action (or its non-action) in the DC Court of Appeals under 42 U.S.C. § 7607(b).  To view a copy of the state’s petition, please click here.  It is not clear how the courts will handle the simultaneous filings.

For a printable PDF of this article, please click here.

For more information, please contact Nicholas van Aelstyn at