Suit aims to force EPA hand on emissions law

State officials want to hold agency to promise of a decision by year's end.

California officials plan to sue the U.S. Environmental Protection Agency today for allegedly stalling the review of a 2002 state law that requires automakers to slash tailpipe emissions of greenhouse gases from new cars starting next year.

The legal challenge could be short-lived, however, if EPA chief Stephen Johnson follows through on a promise to issue a ruling by Dec. 31 on Assembly Bill 1493, which requires automakers to cut emissions of greenhouse gases from new California vehicles 30 percent by 2016.

Johnson can grant or deny the state the right to enforce the law as written, or allow the state to implement a watered-down version.

State officials say the suit will hold Johnson – and by extension the Bush administration – to the promise of a decision by the end of the year. The suit was expected to be filed two weeks ago, but the wildfires in Southern California delayed any action.

"We can't assume anything," said Aaron McLear, a spokesman for Gov. Arnold Schwarzenegger, who is scheduled to hold a news conference today announcing the filing. "We've been waiting for almost two years. The governor believes that the responsible thing to do is to take every action that we can to get this waiver."

Johnson's decision, whenever it comes, is not likely to settle the years-old conflict involving California, the Bush administration and the world's automakers over the right to regulate climate-warming emissions from vehicles.

Environmental groups backing the state say they'll sue the EPA if Johnson rules against California. Ann Carlson, a professor of environmental law at UCLA, said she expects the auto industry to do the same if the ruling favors the state.

Charles Territo, spokesman for the Alliance of Automobile Manufacturers, declined to say what the industry's response would be. But automakers already have sued California in federal court over the law.

Automakers contend the standards would be impossible to meet and would drive up sticker prices. They say the law amounts to a poorly disguised scheme to improve fuel economy, violating the federal law giving Washington sole power to regulate gas mileage.

"Enhancing energy security and improving fuel economy are priorities to all Americans, but a patchwork quilt of regulations at the state level is not the answer," said Dave McCurdy, chief executive of the Alliance of Automobile Manufacturers, in a statement.

Under the Clean Air Act, California has the unique authority to set its own air pollution standards – if it can convince the federal EPA that the state faces "compelling and extraordinary conditions" that require especially strict pollution controls. If the EPA agrees, it issues the state a waiver, opening the door for other states to enforce similar regulations.

Already, 11 other states have passed laws copying AB 1493, and governors in five more have announced plans to follow suit.

California applied in December 2005 for a waiver to implement AB 1493, marking the first time the state had asked to regulate greenhouse gases as air pollutants.

For 16 months, the EPA took no action on the waiver, maintaining that it lacked the authority to regulate greenhouse gases. Then, in April, the U.S. Supreme Court rejected that position in a case involving a Massachusetts law. While the court's decision didn't address the California waiver, it did prod the EPA to launch the public review process for the request.

The EPA has received more than 100,000 public comments on the issue, according to Deputy Press Secretary Jessica Emond. Earlier this week, Emond reiterated Johnson's promise to issue a decision on the waiver by the end of the year.

The federal government has 60 days to respond to today's suit, after which a judge would decide whether it would go to trial.

In the past, the EPA has approved about 40 waiver requests from California. The agency has never rejected a request outright, though it has several times issued a "partial waiver," giving the state only part of what it sought.

Mary Nichols, chairman of the state Air Resources Board, said discussions between state officials and EPA staff members have indicated that the federal agency's technical staff members generally support California's position. However, there appears to be entrenched opposition elsewhere in the agency, she said.

EPA officials have declined to comment on the reasons for the delay.

Still, Nichols said she's optimistic that in the long run, California will prevail. "I cannot think of a legitimate legal ground on which they could deny us a waiver."

Source: Sacramento Bee
November 8, 2007

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