After EPA rejects California, emissions court battle looms

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

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.

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.

But some sources suspect that a key factor in the EPA's new position is the Bush administration's concern – echoed by industry groups – that granting California a waiver to regulate auto emissions could quickly lead to greenhouse-gas regulations for other industries.

Wednesday's decision appears opposite to the EPA's apparent position in an internal White House debate last week, reported by the Monitor last week. In that discussion, Johnson of the EPA told White House officials unequivocally that his agency intended to issue a forceful "endangerment finding" for carbon-dioxide emissions, a prerequisite for a finding that CO2 is a pollutant, according to one source familiar with the discussion, who asked not to be named because he was not permitted to speak to the press.

Once CO2 was so designated, the EPA would be empowered to regulate greenhouse-gas emissions across a range of industries, not just cars.

"It looks as though the strict constructionists won out," according to this source. "They're worried that regulating CO2 will spill over from cars into the rest of the economy."

Environmental lawyers say the EPA's position on the California waiver won't hold up under court challenges, only delay it.

"The main argument Administrator Johnson used in justifying his decision has already been repudiated by the Supreme Court," says Jim Marston, a senior attorney with Environmental Defense. "The courts have said expressly that the existence of [fuel-economy standards] does not in any way prohibit or restrict EPA and states from having separate standards on greenhouse emissions. There's no conflict."

There are also indications that the position the EPA announced may have been contrary to an internal position recommended by the agency's own lawyers.

The Washington Post reported Thursday that a slide presentation by agency lawyers had said that if the EPA granted the waiver and California sued, the "EPA [is] likely to lose suit." At the same time, if the auto industry sued the agency over granting California a waiver, the "EPA is almost certain to win."

A Dec. 7 letter to the US Senate by industry groups and the US Chamber of Commerce warned that federal greenhouse-gas regulation could produce the "unintended triggering of an expansive and costly stationary [greenhouse-gas] source control program" and that "over 300,000 facilities would potentially become regulated stationary sources."

Johnson's decision was met with disbelief. California Gov. Arnold Schwarzenegger, state officials, and environmental groups promises to sue the agency quickly.

"We are deeply disappointed that the administrator has chosen to deny our waiver and we are even more discouraged that he did it on such flimsy grounds," said Mary Nichols, chairwoman of the California Air Resources Board, in a press teleconference. "We are not happy and intend to pursue our legal remedies. We will sue and sue and sue and sue until we get our legal rights."

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