Yesterday in the Ninth Circuit, automakers and car dealers filed notices of appeal (docketing statements here and here) challenging last year’s phenomenal ruling by a California federal judge, which denied the industry’s claim that California’s landmark Clean Cars program is preempted by federal law.

In 2004, automobile manufacturers and dealers sued the California Air Resources Board after California formally adopted a tough new set of auto emissions standards (the “Clean Car program”), arguing in Central Valley Chrysler-Jeep et al v. Witherspoon (now Goldstene) that the new standards were preempted by the national fuel efficiency standards put forward in the Energy Policy and Conservation Act.  (The suit, it is worth noting, was heard despite the fact that the EPA had yet to grant (and has since denied) California the waiver necessary to enforce the new emissions standards, though that waiver denial is currently being challenged in the DC Circuit.)

US District Judge Anthony Ishii ruled resoundingly against the automakers, finding the Clean Car program was not preempted by federal law, nor was it preempted (as the plaintiffs also claimed) by US foreign policy.  Now, following months of disturbingly creative, though unsuccessful efforts to get around the ruling, the auto industry will try its luck at the Ninth Circuit.   In the meantime, California’s Clean Cars program cannot be enforced, per an injunction issued by Judge Ishii, until the EPA grants the waiver or federal legislation is enacted that allows California to carry on with its program.

California is one of three states in which auto manufacturers have challenged the Clean Cars program on the ground that its emission standards are preempted by federal law.  In similar cases, the Second Circuit is currently hearing an appeal by automakers to overturn a ruling by the US District Court of Vermont also denying the preemption claim, and a ruling is still pending in a preemption case heard on July 23 in the US District of Rhode Island.