The U.S. Supreme Court will not review the important environmental case of Ohio vs. EPA, letting stand a Circuit Court decision widely seen as a win for California’s ability to set its own environmental standards, such as the Advanced Clean Trucks rule.
As per most instances in which the Supreme Court denies a request for a full court review, there was no further comment Monday on the court’s reasoning. However, according to the SCOTUS Blog, “Justice Clarence Thomas indicated that he would have granted the states’ petition for review.”
The action by the Supreme Court comes just days after a decision by the court to grant review of another case that could impact the ability of California to be granted environmental waivers by the Environmental Protection Agency.
However, getting the Supreme Court to consider that case, Diamond Alternative Energy vs. EPA, is not seen as significant a victory for the forces pushing back against EPA’s waiver power as it would have been had the justices chosen to take up Ohio vs. EPA.
According to Prasad Sharma, a partner with the trucking-focused Scopelitis law firm, a key argument in the Ohio case – rejected by the District of Columbia Circuit earlier this year – was that section 209 of the Clean Air Act, giving the EPA the ability to grant California environmental waivers, was unconstitutional. Had the court granted certiorari and later overturned the lower court, Sharma said, “it would have had a very broad and sweeping impact.” It was that D.C. Circuit decision that Ohio was asking the Supreme Court to review.
The issue the court will take up in Diamond Alternative – a biofuels subsidiary of petroleum refining giant Valero (NYSE: VLO) – is a narrower question of whether Diamond and other petroleum interests have legal standing to challenge the EPA’s power to grant California’s Advanced Clean Cars (ACC) regulation waiver.
Diamond Alternative’s challenge is to a waiver granted by EPA to California in connection with the ACC. That is the regulation that is part of the state’s push to move away from petroleum-based transportation, an effort that includes the Advanced Clean Trucks (ACT) and Advanced Clean Fleets (ACF) rules as parallel regulations in trucking. As its name suggests, ACC is focused on personal automobiles.
A waiver request for ACF, submitted by the California Air Resources Board last year, is now before the EPA. The ACT already has its EPA waiver.
Sharma said if Diamond Alternative were to prevail when the Supreme Court takes up the issue, the case would go back to the District of Columbia Circuit for a determination on the merits of whether EPA’s grant of the waiver was unlawful. That case, and the Supreme Court’s decision on the redressability component of standing, could significantly impact a pending challenge to EPA’s grant of a waiver for the ACT rule, which is also before the D.C. Circuit.
(There are numerous definitions online of redressability. This legal website describes it as the ability of a plaintiff to show that it suffered harm as a result of the incident or government action that is the focus of the lawsuit.)
Reed Sirak, an environmental attorney with the Benesch law firm, disputed that the Diamond case was notably less significant than Ohio vs. EPA.
“It is a potentially big deal because it would increase the ability of third parties that are not challenging the implementation of a rule to survive the standing test,” Sirak said.
The Advanced Clean Cars rule is directed at automobile manufacturers. But Diamond is a fuel provider.
If Diamond is granted standing by a Supreme Court decision, “it will make it easier for third parties that aren’t automobile companies to challenge future waivers.”
The plaintiff in the pending ACT lawsuit is the Western States Trucking Association. Just before Christmas last year, its challenge to the ACT was held in abeyance while Ohio vs. EPA was adjudicated.
Having the arguments of Ohio and other states in Ohio vs. EPA be heard and then accepted at the Supreme Court, Sharma said, “would have been a much more crippling blow to the Clean Air Act structure and California’s unique authority under the act.”
Alice Henderson, in a blog post published by the Environmental Defense Fund, celebrated the decision not to grant review. Henderson is the director and lead counsel for transportation and clean air at the EDF.
“California’s clean car standards have successfully helped reduce the dangerous soot, smog, and climate pollution that put all people at risk, while also turbocharging clean technologies and job creation,” she said. “EPA’s decision to grant California this preemption waiver is based on a rock-solid legal foundation and decades of precedent, and it ensures vital clean air protections for millions of people.”
Another case that challenges the Clean Air Act waiver power is before the D.C. Circuit: Texas vs. EPA. Its complex legal challenge to EPA’s power is considered by some legal observers as more extensive than what would have occurred had Ohio prevailed in its lawsuit.
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