At first glance, it made little or no sense for California and 16 other states to file their well-publicized lawsuit challenging the federal Environmental Protection Agency's refusal of the waiver needed before this state and the others can begin forcing carmakers to build vehicles that produce less carbon dioxide (CO2) and other greenhouse gases.
After all, in just a matter of months, there will be a new president, a new head of the EPA and - if campaign rhetoric about climate change means anything - an almost instant issuing of that waiver. So why bother going to court when there's a good chance the lawsuit will become moot long before it ever reaches the U.S. Supreme Court, where it's eventual outcome surely will be decided?
Looking just a bit more deeply at this, there are plenty of good reasons that go well beyond the political grandstanding of both Republican Gov. Arnold Schwarzenegger and Democratic state Attorney General Jerry Brown that accompanied the lawsuit's filing.
"For one thing, since 17 states are involved, this is plainly an urgent matter, and the courts can rule pretty quickly in urgent cases," says Mary Nichols, the Schwarzenegger-appointed chief of the state Air Resource Board, a member of that same smog-fighting board 30 years ago while Brown was governor. Nichols was also the No. 2 official at EPA through most of the 1990s.
"In addition to speed and timing, it is also vital to establish a legal precedent to prevent other bad decisions from EPA in the future," she added.
There's little doubt this was a bad decision. It was made by Administrator Stephen Johnson against the technical advice of the EPA's large and widely-admired staff and with logic that left a lot to be desired. Plus, there's the matter of state's rights.
None of that was new for the George W. Bush Administration, which argued for years that greenhouse gases are not air pollutants and so government can't force anyone to prevent or reduce such emissions. The Supreme Court struck down that argument last year and two lower court judges later threw out automaker lawsuits aimed at dumping the California regulations, which the other 16 states involved had already adopted as their own.
What was new was the waiver refusal itself, supplemented a few weeks later by federal fuel economy rules explicitly purporting to pre-empt anything California and the other states might do.
The 1970 Clean Air Act, signed into law by President Richard Nixon, allows California to make stricter smog laws than the federal government's and then permits other states to copy them. All that's needed is EPA permission to deviate from federal standards. In more than 50 cases over 38 years, no previous such request has ever been denied. Approvals usually come within a matter of weeks from when they're requested, but this time the EPA delayed its decision for years.
So, as Nichols suggests, it's important to set a legally binding precedent that future waivers can only be denied with solid cause. There's always the possibility some future president might be as troglodytic as Bush. Or that a future president might be so beholden to car companies that, like Bush, he causes his EPA administrator to favor them over the public interest.
Make no mistake, there was no solid cause for denying this waiver. Not only did Johnson provide no technical data to back up his move, but the logic he did employ was flawed as can be.
The EPA chief argued that a federal standard lower than the California one is "preferable" to a "patchwork" of state rules. This ignores the long history of coexisting "California cars" and "49-state cars." But this time the logic is even worse, because there would be no 49-state cars. The 17 states wanting the California rule make up more than half the new-car sales market in America, hardly a patchwork. Chances are carmakers would simply build all their cars to these standards once the California rules become effective, since the majority of vehicles built and sold will have to meet them anyway.
Then there was the argument that fuel efficiency standards in the new federal energy bill would yield even better results than the California rules. Wrong again. The California law cuts CO2 emissions from new cars and trucks nearly 30 percent by 2016 and even more by 2020, about double what the federal law and its supplementary rules will do.
So this was not just a bad decision in terms of the public interest in doing whatever is possible to mitigate climate change and global warming, but it is based on the most specious of logic.
An appeals court ruling to nix that decision has the potential to prevent equally lousy rulemaking in the future. That's a precedent worth setting.
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