Posted by Jonathan Adler:
Alternative Views of the EPA Waiver Decision:
http://volokh.com/archives/archive_2007_12_16-2007_12_22.shtml#1198204120
My interpretation of the Act and relevant language places me at odds
with some of the folks cited in [1]this Washington Post story about
the EPA's decision to deny California a waiver of Clean Air Act
preemption. For example:
"By refusing to grant California's waiver request for its new motor
vehicle standards to control greenhouse gas emissions, the
administration has ignored the clear and very limited statutory
criteria upon which this decision was to be based," said S. William
Becker, executive director of the National Association of Clean Air
Agencies, which represents officials in 48 states. "Instead, it has
issued a verdict that is legally and technically unjustified and
indefensible."
EPA's lawyers and policy staff had reached the same conclusion,
said several agency officials familiar with the process. In a
PowerPoint presentation prepared for the administrator, aides wrote
that if Johnson denied the waiver and California sued, "EPA likely
to lose suit."
If he allowed California to proceed and automakers sued, the staff
wrote, "EPA is almost certain to win."
That advocates on one side of the issue seek to spin the statutory
language in one way or the other does not surprise me. Industry and
environmental advocates do this all the time, particularly when they
expect the issue to end up in court. Hyperbolic assertions ab out
�clear� statutory text are common in this context.
I am also not troubled by the reference to internal agency
conclusions. In my experience, the legal judgments of the career
attorneys in the Justice Department�s Environmental and Natural
Resources Division tend to be more objective than those in the agency
itself. The EPA�s record in federal court is not a particularly good
one, in either this administration or its recent predecessors. The
agency has a long record of adopting legal interpretations that do not
hold up in court, despite the assurances of career agency personnel.
In this case, I suspect the agency staff thought the waiver should be
approved, perhaps because they had approved so many waiver requests
from the past and seek greater regulation of greenhouse gases, and
allowed this view to color their interpretation of the Act.
As I noted in my other post, however, my argument is not that the
agency will necessarily win when this decision is challenged in
federal court. It is possible that the agency did not adequately
defend what is an utterly defensible legal conclusion. It is also
possible that a reviewing court will get the question wrong, perhaps
due to the atmospherics created by other recent climate change
decisions, including the Supreme Court�s rejection of EPA�s position
on climate change in Massachusetts v. EPA. I will not make an actual
prediction until I�ve read the EPA�s formal decision and the legal
briefs filed for and against the decision.
For a slightly different take on the EPA�s decision, and eventual
legal challenge, See [2]John Bonine�s Daily Kos diary and [3]Jamison
Colburn�s post on Dorf on Law. For other views contrary to mine, be
sure to check out the numerous relevant posts on the [4]Warming Law
blog as well.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2007/12/19/AR2007121902012_pf.html
2. http://www.dailykos.com/story/2007/12/19/213314/28
3. http://michaeldorf.org/2007/12/new-politics-of-delay.html
4. http://warminglaw.typepad.com/
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