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After EPA rejects California, emissions court battle looms

The agency's legal argument on greenhouse-gas emissions is weak, analysts say.

By Staff writers of The Christian Science Monitor, Daniel B. WoodStaff writers of The Christian Science Monitor / December 21, 2007

Boston and Los Angeles

The Environmental Protection Agency's decision to refuse California's request to regulate greenhouse-gas emissions from automobiles is all but certain to provoke lawsuits that could tie the matter up in court, potentially delaying action to curb those emissions for years.

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But the move might be struck down – or an injunction granted – in months, if courts find the EPA acted against the advice of its own lawyers, legal experts say. The decision also holds potential for Congress to become involved as debate over climate-change legislation accelerates.

In the surprise announcement Wednesday, EPA administrator Stephen Johnson said that fuel-economy standards in the brand-new energy law would cut greenhouse-gas emissions nationwide and thus make unnecessary sometimes contradictory state regulations.

"The Bush administration is moving forward with a clear national solution – not a confusing patchwork of state rules," Mr. Johnson said. "President Bush and Congress have set the bar high, and, when fully implemented, our federal fuel economy standard will achieve significant benefits by applying to all 50 states."

But in denying California – and 16 other states poised to adopt nearly identical regulations – the right to regulate tailpipe greenhouse-gas emissions, the EPA acted against the agency's own well-established regulatory precedent, legal analysts say, and reportedly may also have acted against the advice of its own lawyers.

"This decision baffles me – it makes no legal sense at all," says Bruce Buckheit, a lawyer and former director of the air-enforcement division of the EPA until he retired in 2003.

In a detailed legal analysis of California's waiver request for a private client, he says he found no conflict under the Clean Air Act between the EPA and California regulatory authority. The new energy law, which governs fuel-mileage standards, is also not a legal substitute for greenhouse-gas regulation, he adds.

California has received more than 40 waivers under the Clean Air Act.

In order to justify denying a waiver on greenhouse gases, the EPA would have to make a far broader finding that the Golden State no longer needs any independent air-pollution control program under the Clean Air Act, he says. "It would not be just limited to one rule."

The EPA, however, says global greenhouse gases like carbon dioxide are different from local pollutants. California's request was "distinct from all prior requests," the agency said in a press release. "Greenhouse gases are fundamentally global in nature, which is unlike the other air pollutants covered by prior California waiver requests."

The US Supreme Court in April found that the EPA did have authority to regulate carbon dioxide. President Bush in May issued an executive order for the EPA to begin working on a new rulemaking process to reduce carbon from auto emissions – and to work closely with the Department of Transportation and other agencies.