by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Constitutional Accountability Center filed an amicus curiae brief today on behalf of a coalition of prominent state and local government organizations to support California’s efforts to enforce its first-in-the-nation mobile source greenhouse gas emissions standards. The case, California v. EPA was filed after the federal Environmental Protection Agency (EPA) blocked California’s auto emissions standards by refusing to grant the State a waiver of federal preemption under the Clean Air Act. The briefs filed by and in support of California provide a compelling basis for the court to invalidate EPA’s decision—but more importantly, the arguments in those briefs should convince President Obama to reconsider the waiver denial when he takes office in January.

Under Section 209 of the Clean Air Act, Congress gave California the right to seek a waiver of federal preemption to enforce air pollution standards different from—but at least as stringent as—federal standards. This waiver provision recognized California’s long-standing role as an environmental trailblazer on air pollution issues, and allows California to experiment with regulation that can then be adopted by other States or used to inform and shape federal regulation.

Faced with the Bush Administration’s failure to regulate the causes and effects of climate change, California created a program to regulate greenhouse gas emissions from motor vehicles and sought the requisite waiver of preemption under the Clean Air Act. Sharing California’s concern for the public health and welfare effects that States and localities will suffer as a result of global warming, nineteen other States have pledged to adopt and enforce California’s standards as their own.

EPA, however, refused to grant the waiver. As detailed by a House Oversight and Reform Committee investigation, the EPA Administrator ignored his staff’s unanimous support for granting California’s waiver and, after communications with officials in the Bush White House, denied the waiver. In his decision, Administrator Stephen Johnson noted that global warming is not a problem unique to California and asserted that there was no indication Congress had global problems like climate change in mind when it allowed California discretion to enact its own air pollution standards. Administrator Johnson’s denial of California’s waiver for its greenhouse gas emissions program is the first such denial in decades of practice under the Clean Air Act.

EPA’s denial of the waiver is not only unprecedented, it is also dead wrong. As we argue in our amicus brief, the EPA Administrator’s reasons for blocking California’s emissions program are contrary to the text of the Clean Air Act, congressional intent, and the Supreme Court’s “presumption against preemption,” which requires that federal statutes be read to allow for state regulation unless Congress expresses its intent to preempt state law under the Supremacy Clause. Instead of reading the Clean Air Act to allow California’s efforts to combat climate change, as the Supreme Court requires, EPA went out of its way to apply the statute to preempt state law. As we demonstrate in our amicus brief, EPA erred when it held its thumb on the scale in favor of federal preemption, which is particularly harmful in the context of global warming. Here, the EPA is not preempting the State’s plan in favor of a comprehensive federal effort to fight climate change, but rather is blocking California’s efforts to do something about climate change in the face of federal inaction so egregious that the Supreme Court had to scold the Bush Administration in Massachusetts v. EPA for denying that it has the authority to regulate greenhouse gas emissions from new motor vehicles.

CAC’s dim view of the EPA Administrator’s reasons for denying California’s waiver was apparently shared by EPA’s own lawyers. As a House Oversight Committee investigation revealed, a briefing prepared by the lead staff lawyer for EPA’s General Counsel stated: “After review of the docket and precedent, we don’t believe there are any good arguments against granting the waiver. All of the arguments … are likely to lose in court if we are sued.”

We couldn’t agree more. But while we would welcome a court decision repudiating EPA’s arbitrary and erroneous decision, we hope that the arguments presented in our brief will convince the new Administration to grant the waiver, making such a court ruling unnecessary. During the presidential campaign, Barack Obama pledged to support California’s auto emissions program, calling EPA’s waiver denial yet another example of how the Bush Administration “has put corporate interests ahead of the public interest.” Since the election, President-elect Obama has made clear that under his Administration, the government will no longer deny the climate change crisis nor delay a response.

We look forward to the fulfillment of these promises. The briefs filed in the California v. EPA case show that the Obama Administration should not be swayed by arguments that the auto industry cannot afford to create greener cars during the economic downturn, as claimed today in a letter from Minority Leader John Boehner to Rep. Waxman. To the contrary, auto manufacturers like Toyota have shown that environmentally-friendly cars, like the Prius, can be wildly successful. Detroit can afford to make cars that comply with California’s proposed emissions program, but, as our brief shows, our States, counties, cities and towns cannot afford to turn a blind eye to the effects of climate change. The happiest ending to this saga would be for the Obama Administration to immediately grant the waiver for California’s greenhouse gas emissions program, and work toward creating thoughtful, effective federal regulation to—finally—address the climate crisis.

In California et al. v. EPA et al. (No. 08-1178, filed May 5, 2008 in the DC Circuit), CAC represents the National Conference of State Legislatures, the National Association of Counties, the National League of Cities, the International Municipal Lawyers Association, and the American Planning Association.CAC filed its amicus brief jointly with the City of New York, King County (Washington), the Canadian Province of British Columbia, and the National Association of Clean Air Agencies. No argument date has been set.