‘SCOTUS bait’: Legal battle over Calif. waiver begins

By Lesley Clark | 01/31/2023 06:33 AM EST

A court fight over California’s long-standing ability to set tougher vehicle emissions standards may eventually land before the nation’s highest bench.

Traffic inches forward along U.S. Highway 101 toward downtown San Francisco.

Traffic inches forward along U.S. Highway 101 toward downtown San Francisco. Republican officials are taking aim at California’s ability to set its own tailpipe emission standards. Justin Sullivan/Getty Images

California’s decades-old right to impose its own automobile emissions standards could be on a collision course with a Supreme Court that has recently widened the target for challenges against EPA climate action.

Historically home to some of the nation’s worst air quality, California has for 50 years set pollution requirements stricter than those imposed by the federal government. But 17 Republican-led states have challenged that authority, arguing EPA violated the Constitution and states’ sovereign rights by granting California a Clean Air Act waiver allowing the Golden State to tackle planet-warming emissions on its own (E&E News PM, May 13, 2022).

The U.S. Court of Appeals for the District of Columbia Circuit is scheduled to hear oral arguments on California’s waiver in September. Environmental attorneys say the case could eventually land at the Supreme Court amid a conservative push to challenge the limits of the executive branch.


“A colleague often refers to these types of issues as SCOTUS bait,” said Jonathan Brightbill, a partner at Winston & Strawn LLP, during a recent Federalist Society webinar.

The state sovereignty discussion could serve as the vehicle that grabs the interest of the high court, which rejects most cases that come its way, said Brightbill, who served as principal deputy assistant attorney general of the Justice Department’s environment division during the Trump administration.

California’s waiver was revoked — for the first time ever — under former President Donald Trump, with EPA citing a need for national uniformity. The Biden administration restored the waiver in March, calling it an important part of the broader effort to tackle climate change.

A Supreme Court showdown over California’s Clean Air Act waiver could build on the justices’ blockbuster climate ruling in West Virginia v. EPA.

In the June 2022 decision, the justices applied a legal theory championed by conservatives to find that EPA under former President Barack Obama had overstepped by crafting a rule that required power plants to shift from coal to renewable energy sources. The “major questions” doctrine states that Congress must speak clearly in order to authorize agencies to regulate matters of “vast economic and political significance.”

“In the wake of their success in the Supreme Court in West Virginia and the recognition of the long-simmering, but now recognized, major questions doctrine, the collection of states has returned to see if they can make more law to further restrain the administrative state,” Brightbill said.

He noted Ohio and other states opposing the Clean Air Act waiver had introduced a “parade of horribles” that could result from upholding California’s authority. For example, the red states have said, Congress could allow some states, but not others, to boycott Israel. Or it could pass legislation that allowed one state to enact and enforce immigration laws.

“It does seem to me that they have standing to complain about whether the Congress has in effect disenfranchised them,” Brightbill said.

Robert Percival, director of the environmental law program at the University of Maryland, said challenges to EPA regulations are routine, but “after West Virginia v. EPA, [litigants] are inventing new constitutional doctrines to feed off the major questions doctrine now that the Supreme Court was willing to bite.”

Percival called California’s waiver a “bedrock principle of environmental law” and argued at the Federalist Society webinar that red states may have trouble proving they’ve been injured.

“The red states don’t like what the blue states are doing, so they are challenging it,” he said. “But it’s difficult for red states to say how they’ve been hurt in any way other than their feelings might be hurt because California was authorized to do something really cool and innovative that’s been a dramatic success over the years.”

Ripple effect

Ohio Attorney General Dave Yost, the Republican leading the D.C. Circuit challenge against EPA, argued that California’s waiver upsets parity among the 50 states.

“The equal sovereignty doctrine helps preserve the constitutional balance,” Yost told the court on Nov. 2. “When Congress unequally limits the states’ sovereignty — when it allows some states but not others to exercise some aspect of sovereign authority — it reorders the constitutional division of power among the states.”

He added that “giving one state special power to regulate a major national industry contradicts the notion of a union of sovereign states.”

A ruling against EPA would ripple through the vehicle industry: Eighteen states and the District of Columbia now follow California’s tougher rules, representing nearly 40 percent of the national auto market. California itself is the largest economy in the country and fifth globally.

California’s waiver has allowed the state to enact a package of regulations called the Advanced Clean Cars Program, which was first passed in 2012 and included a mandate for automakers to sell an increasing number of zero-emission vehicles in the state. In August, the California Air Resources Board banned the sale of new gas-fueled passenger vehicles after 2035 in a rule called Advanced Clean Cars II.

EPA has argued that the red states have no standing to bring their case because they’ve shown no harm.

“The relief they seek — lifting the waiver of preemption for California — would only deprive them of the power they presently have to adopt California’s standards into their own laws,” Todd Kim, head of DOJ’s Environment and Natural Resources Division, told the D.C. Circuit on Jan. 13. “As a result, they would have less sovereign power than they have presently.”

Percival said the waiver protects California’s sovereignty because the smog-choked state was the only one that had its own auto emissions standards when the Clean Air Act was enacted.

Beyond issues such as bankruptcy and naturalization, Percival said, the Constitution has few “explicit guarantees of equal treatment among states.”

‘Friends of the court’

Interested parties have been filling the docket to support — or criticize — Ohio’s claims against California’s waiver ahead of the September D.C. Circuit argument.

Fossil fuel industry groups in Texas, Louisiana and Oklahoma wrote in a “friend of the court” brief that the waiver has given California outsize power over the U.S. car market, and oil-producing states are “undeniably dependent on the industry.”

They warned that the program, which they said is part of a Biden administration effort to “drastically reduce or even eliminate” internal combustion engine vehicles, poses a “clear and present danger to the oil and gas industry’s, the states’, and the nation’s prosperity and survival.”

The groups — the Texas Oil & Gas Association, Louisiana Mid-Continent Oil & Gas Association and Petroleum Alliance of Oklahoma — said the rule would decrease demand for gasoline for nearly half of the new vehicle market, imposing a “direct catastrophic impact” on their states, “as well as on the national economy.”

Health groups, including the American Medical Association and the American Academy of Pediatrics, also weighed in, saying that California’s ability to set its own regulations is “essential to protecting the state’s public health, particularly in a warming world.”

Five of the world’s largest automakers also defended EPA’s decision to grant California the right to set strict tailpipe emissions, saying in their amicus brief that upholding the decades-old waiver would “promote stability and regulatory certainty while the industry goes electric.”

And a group of administrative law professors, including George Washington University environmental law professor Robert Glicksman, wrote that the “text, structure, and history of the Clean Air Act show that Congress intended a waiver, once granted, to become settled law on which states and private parties could rely.”

The law professors called the Trump administration’s effort to revoke the waiver “unprecedented” and said the attempt had relied on an “expansive conception of its own ‘inherent authority.’”

They added that it was “doubtful that this doctrine can be reconciled with Supreme Court precedent.”