Today the state of California joined with 15 others to sue the federal government over the EPA’s decision to deny the granting of a waiver to the state to regulate their own greenhouse gas emissions under Fran Pavley’s 2004 tailpipe law.  The odds are absolutely in favor of California winning this lawsuit.  Never since the passage of the Clean Air Act in 1970 has the EPA ever denied such a waiver, and the legal justifications are extremely cloudy.  However, the government has succeeded in delaying implementation, which is really all they’ve set out to do.  So expect this to be a long and drawn-out fight that will probably not be resolved until after the choosing of a new President in November.

Arnold Schwarzenegger and Jerry Brown went right to work Tuesday, preparing to sue the federal government “at the earliest possible moment” for the EPA’s denial of a waiver to let California implement Fran Pavley’s AB1493, the law regulating auto tailpipe emissions that was to begin with model year 2009.  The regulations, which sought to control greenhouse gases and not just boost auto efficiency standards, would have had the effect of an increase in MPG to roughly 43, far above the 35MPG by 2020 just mandated in the federal energy bill.  Indeed, the EPA in its decision noted the passage of the energy bill as a reason to deny California’s request, claiming that there should be one standard and that the new bill pre-empted California’s authority.  So much for state’s rights conservatives.

The lawsuit is about as close as you can get to a slam dunk.  The case law is already enormously in favor of California.  They have been granted every waiver they’ve ever requested from the EPA since the passage of the Clean Air Act in 1963, and the “compelling and extraordinary conditions” of the state’s topography, climate, and number of cars on the road has always been specifically cited.  That hasn’t changed.  In addition, federal lawsuits in California and Vermont have upheld the standards set out in AB1493 as fully legal.  And just this year, the Roberts Supreme Court has ruled in Massachusetts v. EPA that the federal government can regulate greenhouse gas emissions, writng that:

“Judged by any standard, U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations.”

Sadly, it’s true that the Bush Administration probably has the ability to put up enough of a fight in the courts to make implementation virtually impossible so long as he remains in office.  And so this is likely to come down to a decision for the next President to make.  So you would think that the media, knowing this, knowing the potential of global warming to impact all of our lives, would bother to ask a question about it.  But so far in 2007, out of 2275 questions asked of the Presidential candidates on the Sunday chat shows, 3 mentioned global warming.  Here’s a news peg, Russert, Stephanopoulos, Blitzer, Wallace and Schieffer.  Have at it!

The New York Times has more on this.

(bumped with new info. – promoted by David Dayen)

Barbara Boxer and Henry Waxman are expecting defeat in the fight to get the EPA to grant a waiver to the state so it can implement Fran Pavley’s landmark tailpipe emissions law.

In a gathering with reporters Tuesday, Sen. Barbara Boxer, D-Calif., said she has “very little hope” that the EPA will grant the waiver, which would open the door to California and more than a dozen other states imposing emission standards more stringent than federal requirements […]

Asked whether she thought the decision would be made by the EPA or at the White House, Boxer said: “If you look at everything done on the environment, a lot of this leads back to the vice president’s office.”

“Politics is alive and well in relation to this waiver,” said Boxer, chair of the Senate Environment and Public Works Committee.

It’s difficult to understate how abnormal this would be.  The EPA has never denied a waiver to California allowing them to regulate their own emissions.  

The EPA Administrator, Stephen Johnson, has claimed there will be a decision on the waiver by the end of the year, but he’s ducking requests for meetings with Boxer, and ignoring letters from Waxman.  The handwriting is on the wall.  I don’t know if the lawsuit prepared by the state demanded that a decision be made on the waiver or that the waiver be granted.  Either way, expect some legal recourse as a result of the expected denial.  And expect little movement on implementation of a law central to California’s efforts to curb emissions until the swearing in of a new President.

UPDATE: They denied the waiver.

The Environmental Protection Agency on Wednesday slapped down California’s bid for first-in-the-nation greenhouse gas limits on cars, trucks and SUVs, denying a request for a waiver that would have allowed those restrictions to take effect.

“The Bush administration is moving forward with a clear national solution _ not a confusing patchwork of state rules _ to reduce America’s climate footprint from vehicles,” EPA Administrator Stephen L. Johnson said in a statement.

Expect a flurry of lawsuits.

UPDATE II: Waxman:

EPA’s decision ignores the law, science, and commonsense.  This is a policy dictated by politics and ideology, not facts.  The Committee will be investigating how and why this decision was made.

Let’s turn Calitics into Court TV for a little while, shall we?  In addition to Debra Bowen suing ES&S, Jerry Brown has made the strongest move to date against companies who profited from toxic toys made in China, suing Mattel, Toys “R” Us and about 20 other companies for “knowingly” selling the products with illegal amounts of lead.

The suit, filed in Alameda County Superior Court, alleges the companies knowingly exposed children to lead and failed to provide warning of the risk, which is required under the Safe Drinking Water and Toxic Enforcement Act of 1986, known as Proposition 65.

If the suit is successful, the companies could pay a $2,500 fine for each violation, according to the complaint […]

The suit, which was joined by the Los Angeles city attorney’s office, also named as defendants Wal-Mart, Target, Sears, KB Toys, Costco Wholesale and others.

That could add up in a hurry, when you consider the millions of lead-filled toys in California that have been sold.

Meanwhile, the state isn’t the only with prosecuting attorneys, as the auto industry is challenging the state’s global warming law in a Fresno District Court.

Lawyers for car manufacturers, dealers and trade associations said California’s 2002 law, the model for statutes in 11 other states, amounted to a requirement for higher gas mileage, a subject that only the federal government can regulate.

Although federal law allows California to take a lead role in reducing air pollution, Congress never “intended a single state to have such sweeping authority to unilaterally set national fuel economy policy … and profoundly affect a vital national industry,” said Raymond Ludwiszewski, lawyer for a trade group of international automakers.

But U.S. District Judge Anthony Ishii suggested that the industry’s argument had been undercut by a U.S. Supreme Court ruling in April upholding the federal government’s authority to limit emissions of greenhouse gases.

The district judge will follow precedent here; this lawsuit is frivolous.  But the point is to buy time.  Meanwhile, the EPA is still foot-dragging on granting a waiver that would put the 2002 tailpipe emissions law into effect, and the state has sued the federal government over that.

It was scheduled to happen the week of the SoCal wildfires, but events intervened.  Now, California is poised to sue the federal government over the EPA’s failure to grant a waiver to regulate greenhouse gas emissions.

Schwarzenegger and Brown plan to file a lawsuit asking a federal court to order the Bush administration to decide whether to approve California’s landmark law requiring automakers to gradually reduce tailpipe greenhouse gas emissions linked to global warming.

“California has a long and proud history of leadership in reducing pollution and fighting for clean air for our residents,” Schwarzenegger said in a statement yesterday. “And we are upholding that tradition by filing a lawsuit against the federal government that takes a big step forward in the battle against global warming.”

Under federal law, California must receive an EPA waiver to implement emissions standards tougher than federal levels.

But even if they prevail in court, California leaders are pessimistic that they will secure the waiver from the Bush administration, which has been slow to acknowledge warnings that human-caused global warming is a serious threat to the planet.

“Realistically, we think the chances are slim,” said Mary Nichols, chairwoman of the California Air Resources Board. “We’ve made the case on the merits. We’re right on the law. Somehow or the other politics will intervene. We just don’t know where or how.”

The strategy here has been to slow-walk the decision to avoid the negative consequences of disallowing broadly popular legislation.  It should be noted that the EPA has NEVER in its history failed to grant a waiver of this kind for tighter air pollution control laws.  There’s not even any standing for denying the waiver under the Clean Air Act, which only should occur if the regulations are not “technologically feasible.”  Considering that people are making 150mpg conversions in their garages, that’s just patently absurd.  Automakers in this country are killing themselves slowly by refusing to adapt to the needs and desires of consumers.  If they persist, states should be allowed to recognize the impact on their own air quality and demand a shift.

This is going to be a long fight, but eventually, we will get this law.

Jerry Brown’s effort to sue automakers for the production greenhouse gas emissions through their vehicles, a holdover from Bill Lockyer’s tenure, has been thrown out of court.

In its lawsuit filed last year, California blamed the auto industry for millions of dollars it expects to spend on repairing damage from global-warming induced floods and other natural disasters.

But District Judge Martin Jenkins in San Francisco handed California Attorney General Jerry Brown’s environmental crusade a stinging rebuke when he ruled that it impossible to determine to what extent automakers are responsible for global-warming damages in California. Many culprits, including other industries and even natural sources, are responsible for emitting carbon dioxide.

“The court is left without guidance in determining what is an unreasonable contribution to the sum of carbon dioxide in the earth’s atmosphere, or in determining who should bear the costs associated with global climate change that admittedly result from multiple sources around the globe,” Jenkins write.

The judge also ruled that keeping the lawsuit alive would threaten the country’s foreign policy position.

I didn’t know that judges were responsible for managing foreign policy decisions, but Jenkins also did say that it’s the responsibility of lawmakers and not the courts to “determine how responsible automakers are for global warming problems.”  To that end, another lawsuit that would allow lawmakers to do just that, to hold automakers responsible by mandating a curtailing of the greenhouse gas emissions their vehicles spew, has won a major victory (over):

A federal judge in Vermont gave the first legal endorsement yesterday to rules in California, being copied in 13 other states, that intend to reduce greenhouse gases emitted by automobiles and light trucks.

Ruling in a lawsuit against Vermont’s standards on those heat-trapping gases, the judge, William K. Sessions III, rejected a variety of challenges from auto manufacturers, including their contention that the states were usurping federal authority.

The ruling follows a decision by the United States Supreme Court in April that the Environmental Protection Agency has the authority to regulate heat-trapping gases like carbon dioxide as air pollutants. The ruling in Vermont explicitly endorses the idea that California has the right to set its own regulations on the gases, and that other states, like Vermont, have the right to follow its lead.

The Vermont ruling merely follows the Supreme Court precedent, albeit to devastating effect.  The California case is pending, but it would be hard to see how the ruling could be any different.  Now it’s time for the EPA to allow the waiver that would enable the tailpipe emissions law to go into effect.  With even the White House Science Adviser acknowledging the man-made causes of global warming, it’s beyond time for the Cheney-Bush Administration to give states back the ability to manage their own air quality standards and contribution to climate change.  This lawsuit adds to the pressure on the EPA.

As a side note, last week Jerry Brown reached a settlement with Conoco-Phillips that would require the company to spend $10 million to offset the emissions created by their East Bay refinery expansion.

Brown told a news conference that the accord is believed to be the first time an oil refinery in the country has agreed to mitigate increased carbon emissions from an expansion project.

Brown is definitely using every option at his disposal in this fight.

(Now cross-posted at MyDD for your reading pleasure. : ) – promoted by atdleft)

“A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere,” Justice John Paul Stevens said in the majority opinion. “EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change.”

Apparently, Justice Stevens was not the only Supreme who thinks that the EPA has a responsibility to regulate greenhouse gas emissions. There were four others who agreed with him.

(Follow me after the flip for more…)

From the AP Wire via Huffington Post:

The Supreme Court rebuked the Bush administration Monday for its inaction on global warming in a decision that could encourage faster action in Congress on climate change and lead to more fuel-efficient cars as early as next year.

The court, in a 5-4 ruling in its first case on climate change, declared that carbon dioxide and other greenhouse gases are air pollutants under the Clean Air Act.

The Environmental Protection Agency has the authority to regulate those emissions from new cars and trucks under the landmark environment law, and the “laundry list” of reasons it has given for declining to do so are insufficient, the court said.

So what does this mean? Well, Bush will not be able to get away with inaction any longer. Also, I’m sure that this will assist the efforts in Congress to combat the coming climate catastrophe. Now that the EPA has a responsibility to regulate greenhouse gas emissions, why not allow Congress to decide how exactly to do this?

And oh yes, this is a huge boost for California, as well as ten other states who also want to regulate tailpipe emissions. Now that the EPA has a responsibility to regulate greenhouse gas emissions, they might want to take another look at approving these state programs to hold the automakers accountable for producing cars that don’t completely annihilate our planet sooner.

So will this ruling give Democratic Congressional leaders a new opportunity to get Congress to take action on climate change? Will this ruling force Bush to act on the coming climate catastrophe? Will this give a legal boost to California’s trail-blazing law to regulate tailpipe emissions? Well, I guess all we know now is that the only place left in this nation that continues to deny reality on climate change is the White House.