Climate Law Update: Climate Change & Sustainable Energy News : Thelen Reid Law Firm : Renewable Energy, Construction, Project Finance Lawyers & Attorneys

A coalition of states and environmental groups launched a new court fight with the EPA Wednesday over Johnson’s decision to institute a lengthy administrative process to consider what to do in light of last year’s landmark Massachusetts v. EPA decision by the U.S. Supreme Court. That petition, if successful in court, would also set a 60-day deadline for the EPA to issue its so-called endangerment finding, which would set the stage for new regulation of greenhouse gases (see Climate Law Update story).

Snowe’s statement was particularly notable, coming as it did from a Republican:

“The administration has a court-mandated obligation that they can no longer ignore. Their deliberate efforts to delay adherence to the Supreme Court’s decision is reckless and irresponsible. The administration’s response to global warming must coincide with what the science and the American people require.”

Attorneys who spoke with reporters Wednesday describing the legal action said it would have no impact on the decision regarding California’s automobile regulations, despite the fact the Supreme Court ruling dealt with vehicle emissions. But the Feinstein-Snowe legislation would address the issue by setting a June 30, 2009 deadline for the EPA to complete taking another look at the question of California’s efforts to restrict the emissions.

The EPA's action regarding California was in response to the state's attempt to enforce rules implementing a 2002 state law (see description rules and legislation).

(Photo of U.S. Sen. Dianne Feinstein, courtesy of her office)

California, joined by numerous other states  that also want to impose stricter greenhouse gas standards on vehicles, as well as environmentalists who back them, has already sued the EPA to overturn the decision. Johnson's filing brought a sharp rejoinder from one of those states, New York, which also wants to adopt California's standards. New York Attorney General Andrew M. Cuomo issued a statement ripping the administrator's rationale as full of "twisted logic in its outrageous attempt to deny states the right to fight global warming pollution."

The Natural Resources Defense Council, a supporter of California's efforts, issued a statement from David Doniger, the environmental group's lead attorney in the litigation, claiming that Johnson was both legally and factually wrong. Doniger noted that a previous EPA administrator, William Ruckelshaus, found that California need not have a unique plight in order to qualify for a waiver. Nevertheless, Doniger said the state would experience special problems from climate change:

“No other state can claim the same wide range of severe impacts that California will suffer – indeed, already is suffering – more illnesses from heat-enhanced smog levels, dramatic reductions in state’s water supply, more horrendous wildfires, sea level rise, and agricultural losses. The combination and severity of these impacts makes California’s conditions “compelling and extraordinary.” 

The Alliance of Automobile Manufacturers has endorsed Johnson's decision, saying it protects a national approach to the issue.  

In a sense, the battle is being fought over familiar ground. In 2005, the California Air Resources Board, in justifying the regulations, suggested the state had special reason for concern:

"Climate is a central factor in California life. It is at least partially responsible for the State’s rapid population growth in the past 50 years, and largely responsible for the success of industries such as agriculture and tourism. The observed and future effects of climate change on California have been widely studied from a variety of perspectives. The signs of a global warming trend continue to become more evident and much of the scientific debate is now focused on expected rates at which future changes will occur." 

In order to implement its landmark 2002 law limiting automobile climate-changing emissions, California sought a needed a waiver from the EPA. Johnson said. no. The paper summed up the controversy over the California standards this way:

In December, Mr. Johnson angered a swath of environmental interest groups and governors in more than a dozen states, including California Gov. Arnold Schwarzenegger, by blocking California's efforts to curb greenhouse-gas emissions from automobiles.

In so doing, Mr. Johnson went against the advice of many of his EPA colleagues and delivered a huge victory for auto makers, which feared an onslaught of costly new state regulations. That decision has triggered a lawsuit by California and more than a dozen other states, as well as multiple congressional investigations seeking to determine how Mr. Johnson reached his conclusion.

The agency's lawyers told Mr. Johnson last year that California had a compelling need for the waiver, and that the EPA was likely to lose in court if sued over denying it, according to congressional aides who were allowed to see an internal EPA presentation turned over to a House committee under subpoena. The EPA asked the panel not to copy or disseminate the documents, saying they could be cited in litigation and "potentially impede the government's ability to defend its actions."

Despite the fact that some Republicans, including Schwarzenegger, disagreed with the determination, the paper reported that Johnson's sharpest critics have been Democrats.

The paper also reprised a controversy that erupted after Johnson spoke at a Republican fund-raising event "attended by representatives of various companies with business before the EPA. The event occurred at the offices of the former law firm of the disgraced lobbyist Jack Abramoff, whose crimes were a major campaign issue in 2006." Despite criticism by Democrats, the U.S. Office of Special Counsel recently concluded Johnson had not broken any federal law, the Journal reported.