By Olivier F. Theard and Maria J. Gangemi

I. Introduction

On November 5, California filed suit for an injunction to compel EPA to rule on California’s requested waiver from the Clean Air Act’s prohibitions of states enforcing their own greenhouse gas emissions standards for automobiles.  Several other states have intervened, seeking to adopt California’s standards as well.

II. Background

The suit had been threatened for some time.  In 2002, the California legislature passed Assembly Bill 1493, which requires the California Air Resources Board to adopt regulations limiting greenhouse gas emissions from automobiles.  In 2004, California adopted regulations implementing AB 1493.  These regulations establish greenhouse gas emission limits effective with model year 2009 vehicles.  AB 1493’s requirement and the implementing regulations conflict with section 209(a) of the federal Clean Air Act, which prohibits states from adopting their own emission standards for new motor vehicles.

After California’s regulations became effective in December 2005, CARB requested from EPA a waiver of section 209(a).  Section 209(b) provides that the Act’s preemption of state standards shall be waived if the state standards would be at least as protective of public health and welfare as the applicable federal standards, unless the federal agency makes one of three determinations: (1) that the state’s action is "arbitrary and capricious," (2) that the state does not need such standards to meet "compelling and extraordinary" conditions, or (3) that the state standards and enforcement procedures are inconsistent with section 209(b).

On February 21, 2007, EPA informed CARB that it would not act on the waiver application until the United States Supreme Court decided whether EPA was required to address greenhouse gases as air pollutants under the Clean Air Act.  That decision came in the case Massachusetts v. EPA, 127 S.Ct. 1438 (2007), which clarified EPA’s duty to regulate greenhouse gas emissions under the Clean Air Act.  Still, EPA failed to grant or deny the waiver California requested.  Emboldened by the decision and the accompanying rebuke of EPA for attempting to avoid its statutory obligations to protect the public health and welfare, California finally filed this suit.

California’s waiver request, and this suit, are part of California’s overall strategy to aggressively regulate greenhouse gas emissions in this state.  California’s efforts also include passage of the landmark Global Warming Solutions Act (a.k.a. AB 32), which requires a reduction of the state’s global warming emissions to 1990 levels by 2020.

III. Summary

The gist of the suit is that EPA has unreasonably delayed a decision to grant or deny California’s request for a waiver of federal preemption and allowing it to enforce its own regulation controlling greenhouse gas emissions from motor vehicles.

In support of California’s position that the waiver should be granted, and that EPA must act on its request in any event, the Complaint alleges that: 

  • Harms of global warming include injury to California’s climate and endangerment to California’s human health, welfare, safety, economy, and environment;
  • Automotive emissions are a major source of greenhouse gases, and the California regulation would reduce these emissions;
  • Congress intended prompt EPA action on waivers such as that involved here, and EPA has unreasonably delayed to the detriment of "multiple and substantial" interests.


California’s aggressive efforts to lead the way in combating global warming have run up against preemption by the federal Clean Air Act.  Waiver of that preemption continues to be obstructed by EPA inaction.  Although the plaintiff states cannot cite to any set deadline for EPA action on a waiver request, the recent U.S. Supreme Court case in Massachusetts v. EPA strengthened California’s arguments that EPA cannot continue to ignore greenhouse gas emissions problem and provides support for the position that states can regulate in this area.

For more information please contact Olivier F. Theard and Maria J. Gangemi.  Olivier Theard is an associate in the Business Trial Practice Group and the Environmental and Construction Practice Group in the firm’s Los Angeles office.  Maria Gangemi is an associate in the Business Trial Practice Group in the firm’s Los Angeles office.