In May, President Obama announced that he had reached an agreement with the State of California and automakers over standards for vehicular emissions of greenhouse gases. The President stated that the federal government would adopt California’s famed “Pavley” auto emission standards nationwide – in addition to granting California’s long-sought waiver of federal preemption in order to apply the standards on its own – thereby establishing the country’s first national auto emissions standard targeting greenhouse gases. In exchange for cooperation from the auto industry, however, President Obama also stated that both California and his administration would implement the standards on a slower time frame than that originally put forth by California.

As part of this arrangement, automakers signed letters agreeing to drop their assorted state and federal lawsuits against California and other states that had adopted the Pavley standards, standards that automakers argued were preempted by federal law. (For a summary of the federal lawsuits, click here.) As Warming Law reported, parties agreed to stay these cases while the EPA granted California its waiver and the state formally amended the standards to reflect the delayed timeline developed with the White House. Following finalization of these changes, sources said, automakers would file motions to dismiss the lawsuits.

This plan seems to be on track. Sort of.

On June 5, the United States Court of Appeals for the Second Circuit granted a joint motion by the parties in a lawsuit against Vermont, Green Mountain Chrysler-Plymouth-Dodge v. Crombie (2nd Cir, 07-4342), to hold the case in abeyance, with a status report due in October. This case was the most advanced of the automakers’ lawsuits against the states, with the Second Circuit having held oral argument in March. (No decision has been handed down.) Similarly, on June 8, the United States Court of Appeals for the Ninth Circuit granted a joint motion by the parties to stay the lawsuit against California, Central Valley Chrysler-Jeep, et al. v. Goldstene, et al. (9th Cir, 08-17378), until October.

However, no motions to stay or dismiss have been filed in a lawsuit against Rhode Island, Association of International Automobile Manufacturers, et al. v. Sullivan, et al. (1st Cir, 09-1023). In this case, originally brought by a coalition of automobile manufacturers and dealers, a district court judge rejected the manufacturers’ preemption claim on the ground that it had already been decided, against them, in two other jurisdictions (Vermont and California). However, the judge allowed the auto dealers to continue their lawsuit.

Automakers appealed this decision to the U.S. Court of Appeals for the First Circuit. A briefing schedule was set late last month, with automakers’ briefs due Aug 5. So far, the auto industry has taken no steps to stay or dismiss this appeal, despite their pledge to stay and dismiss “all pending litigation” attempting to block the Pavley standards on preemption grounds. (Note: the Rhode Island auto dealers’ lawsuit, which remains at the district court level, is on hold pending the outcome of the automakers’ appeal.)

In addition, a lawsuit brought by auto dealers against the state of New Mexico and the City of Albuquerque (among other defendants), Zangara Dodge, Inc. et al. v. Curry, et al. (D. NM, 07-01305), is going full steam ahead. Last month, prior to President Obama’s announcement, the court granted the parties’ joint motion to extend the briefing schedule, and the docket reflects no efforts to stay or dismiss that case. According to commitment letters signed by the auto industry executives (like this one) auto dealers appear not to have been part of the automakers’ agreement with the White House and California, and therefore did not commit to dropping their preemption lawsuits. It remains unclear whether this situation will change.

Finally, last week, the EPA formally granted California its requested “waiver of preemption” that allows the state to implement the Pavley auto emission standards on its own. The state first sought the waiver in 2005, a request that the Bush Administration denied in 2007, prompting California to file a lawsuit against the Bush EPA challenging the denial. The EPA’s decision to grant the waiver now is something of a formality. As noted above, in accordance with its agreement with the White House and the auto industry, California will accept the waiver but adjust the time frame in which the auto emission standards will come into effect. Given that the Obama Administration has stated it is also adopting the California standards nationwide, the entire process of granting an individual state permission to raise its standards is somewhat symbolic at this stage. Nevertheless, as the EPA reiterated in its press release last week, the decision demonstrates that the Agency maintains its authority, under the Clean Air Act, to grant California further waivers of preemption for auto emissions standards in the future:

With the decision to grant the California waiver, EPA returns to its traditional legal interpretation of the Clean Air Act that has been applied consistently during the past 40 years.… The Clean Air Act gives EPA the authority to allow California to adopt its own emission standards for new motor vehicles due to the seriousness of the state’s air pollution challenges. There is a long-standing history of EPA granting waivers to the state of California.

Stay tuned to Warming Law for developments in these cases, including any news regarding the status of the ongoing preemption lawsuits.