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Agency has home-court edge in next round

Times Staff Writer

Environmentalists voiced confidence Thursday that California’s bid to strictly limit greenhouse gases will survive a regulatory veto from the Bush administration, but the state’s legal challenge first will have to go through an appeals court that tilts in favor of the federal government and industry.

Often, those who want to sue can choose where to file their claims. But the Clean Air Act, like many federal regulatory measures, says that challenges to the Environmental Protection Agency’s decisions must be filed with the U.S. Court of Appeals for the District of Columbia.

Aides to California Atty. Gen. Jerry Brown confirmed Thursday that the state plans to sue the EPA in Washington. “Regardless of the venue, we believe our case is very strong,” said Gareth Lacy, a spokesman for Brown. “There is no legal justification for denying this waiver request.”

But the state will not be fighting on its home court. Unlike the California-based 9th Circuit Court of Appeals, which leans to the left, the D.C. circuit leans right. Nine of its 13 judges are Republican appointees. They usually uphold the decisions of the administration and its regulatory agencies.

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For example, the D.C. circuit has rejected a series of challenges brought on behalf of prisoners at Guantanamo Bay, Cuba. Two years ago, the court, in a 2-1 decision, rejected California’s challenge of an EPA order holding that carbon dioxide and other greenhouse gases were not air pollutants under the Clean Air Act.

The D.C. circuit does not have the final word, however. If they lose there, proponents of California’s law would have to hope for another Supreme Court decision in their favor. Last April, in a different case, the high court took up an appeal filed by Massachusetts, California and a dozen other states and ruled 5 to 4 that greenhouse gases were indeed air pollutants.

That decision set the stage for Wednesday’s move by the EPA. Because California’s fight against smog predated the federal Clean Air Act, Congress has said California can go further than the federal limits on air pollution, so long as it obtains a waiver from the EPA.

Until recently, those waivers were routine. Two years ago, the California Air Resources Board asked EPA for permission to go ahead with its new rules limiting greenhouse emissions from motor vehicles. Along the way, 17 other states signed on to follow California’s lead.

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On Wednesday, however, hours after President Bush signed into law a measure that will require more fuel-efficient cars by 2020, EPA Administrator Stephen L. Johnson rejected California’s bid to move ahead faster to limit greenhouse-gas emissions.

Bush defended the EPA decision, saying that the law’s increase in corporate average fuel economy, or CAFE, standards to 35 miles per gallon would significantly reduce greenhouse gases.

“Director Johnson made a decision based upon the fact that we passed a piece of legislation that enables us to have a national strategy . . . ,” Bush said.

Johnson reasoned that global warming is not a problem “exclusive or unique” to California. In the past, the state has been allowed to press ahead with anti-pollution rules because of its smog problem.

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“Unlike other air pollutants . . . greenhouse gases are fundamentally global in nature,” he said in a letter to Gov. Arnold Schwarzenegger.

Johnson pointed to an obscure passage in the Clean Air Act that said California’s request for a waiver should be rejected if the state cannot show its regulations are needed to “meet compelling and extraordinary conditions.”

On Thursday, environmental activists derided that reasoning.

“California is attacking the most serious environmental problem of all time. If that is not ‘compelling and extraordinary,’ I don’t know what those words could mean,” said Jim Marston, a lawyer for Environmental Defense.

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David Bookbinder, a Sierra Club lawyer, called Johnson’s rationale “nonsensical.”

“One way or another, this decision will have a very short shelf-life, although it may delay things for another year or 18 months,” he said. “That will be the pathetic legacy of this administration. They thwarted any regulation of greenhouse gases for seven or eight years.”

Not surprisingly, industry lawyers viewed Johnson’s decision more favorably.

Auto industry lawyers argue that the nation should have one, and only one, set of fuel-efficiency standards for cars and trucks. This has made for a confusing series of legal challenges by the industry.

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In one law, Congress said that the fuel economy standards are national in scope and that states may not impose their own rules.

However, under the Clean Air Act, California can strictly limit air pollution, which has the effect of requiring that cars and trucks burn less fuel.

Andrew Clubok, a lawyer for several automakers who oppose California’s greenhouse gas limits, said the state does not have the legal authority to force new fuel-efficiency standards, even indirectly.

“California would not provide the lead time to retool vehicles to meet its standards,” he said. “We hope the EPA’s decision is upheld, because it is based on sound and sensible reasoning.”

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In the end, the court battle may turn on whether Johnson’s decision was based on sound science. The law says technical judgment by agency officials should be upheld by courts if they are based on sound reasons.

Two Democratic California lawmakers, Rep. Henry Waxman of Beverly Hills, who chairs a House oversight committee, and Sen. Barbara Boxer, indicated that they would challenge the soundness of Johnson’s reasoning.

“Your decision appears to have ignored the evidence before the agency,” Waxman said in a letter to the EPA chief.

david.savage@latimes.com

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