Massachusetts v. EPA

Slide 1:Massachusetts v. EPA James R. Milkey Assistant Attorney General, Chief of the Environmental Protection Division (EPD) of the Massachusetts Office of the Attorney General

Slide 2:Relevant sections of the Clean Air Act (as amended in 1990)

Slide 3:Relevant sections of the Clean Air Act (as amended in 1990)(cont’d) Title III - General Sec. 302. When used in this Act- (g) The term "air pollutant" means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term "air pollutant" is used. (h) All language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being, whether caused by transformation, conversion, or combination with other air pollutants.

Slide 5:Status of Rhode Island’s Climate Change Litigation Tricia K. Jedele Special Assistant Attorney General Environmental Advocate Rhode Island Attorney General’s Office TJedele@riag.ri.gov

Slide 6:“There is an international scientific consensus that greenhouse gas emissions, particularly CO2 emissions, are causing and will continue to cause climate change.” -- United Nations Framework Convention on Climate Change “Evidence continues to accumulate that global climate change must be taken seriously. U.S. cars and trucks are responsible for a non-negligible fraction of the world’s annual emissions of carbon dioxide, the most important greenhouse gas.” (emphasis added) -- National Academy of Sciences (Reported to Congress in 2002) “31% of US total greenhouse gas emissions in 2004 were from the transportation sector.” --NHTSA, Environmental Assessment

Slide 7:Two Sets of Motor Vehicle Emission Standards both with Federal Status 42 U.S.C. § 7543 (a), CAA § 209(a) Prohibition No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. 42 U.S.C. § 7543 (b)(1), CAA § 209(b)(1) Waiver The Administrator shall, after notice and opportunity for public hearing, waive application of this section to any State which has adopted standards (other than crankcase emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, if the State determines that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. No such waiver shall be granted if the Administrator finds that: (A) the determination of the State is arbitrary and capricious, (B) such State does not need such State standards to meet compelling and extraordinary conditions, or (C) such State standards and accompanying enforcement procedures are not consistent with section 7521 (a) of this title.

Slide 8:42 U.S.C. § 7521 (a)(2), CAA § 202(a)(2) Any regulation prescribed under paragraph (1) of this subsection (and any revision thereof) shall take effect after such period as the Administrator finds necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period. 42 U.S.C. § 7507, CAA § 177 Notwithstanding section 7543(a) of this title, any State which has plan provisions approved under this part may adopt and enforce for any model year standards relating to control of emissions from new motor vehicles or new motor vehicle engines and take such other actions as are referred to in section 7543(a) of this title respecting such vehicles if: (1) such standards are identical to the California standards for which a waiver has been granted for such model year, and (2) California and such State adopt such standards at least two years before commencement of such model year (as Determined by regulations of the Administrator).

Slide 9:Energy Policy & Conservation Actand the Auto Manufacturers’ Arguments Enacted in the aftermath of the energy crisis that resulted from the 1973 to 1974 Arab oil embargo. Title V of EPCA, entitled “Improving Fuel Efficiency,” codified at 49 U.S.C. §§ 32902 et seq., requires the Secretary of Transportation to set Corporate Average Fuel Economy standards for light trucks for each model year based on the “maximum feasible average fuel economy level” that the manufacturers can achieve in each model year 49 U.S.C. § 32902(g)(2) Requirements for Other Amendments. When the Secretary of Transportation prescribes an amendment under this standard that makes an average fuel economy standard more stringent, the Secretary shall prescribe the amendment (and submit the amendment to Congress when required under subsection (c)(2) of this section) at least 18 months before the beginning of the model year to which the amendment applies.

Slide 10:TITLE 49 - TRANSPORTATION SUBTITLE VI - MOTOR VEHICLE AND DRIVER PROGRAMS PART C - INFORMATION, STANDARDS, AND REQUIREMENTS CHAPTER 329 - AUTOMOBILE FUEL ECONOMY Average fuel economy standards 49 U.S.C. § 32902(f) Considerations on Decisions on Maximum Feasible Average Fuel Economy. - When deciding maximum feasible average fuel economy under this section, the Secretary of Transportation shall consider technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the United States to conserve energy. Preemption 49 U.S.C. § 32919(a) General. When an average fuel economy standard prescribed under this chapter is in effect, a State or a political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under this chapter.

Slide 11:Status of Three “Clean Car” Cases The cases were consolidated: The Association of International Automobile Manufacturers v. W Michael Sullivan, Director of the Rhode Island Department of Environmental Management, C.A. No. 06-69T Lincoln Dodge, Inc. et al. v. W Michael Sullivan, Director of the Rhode Island Department of Environmental Management, C.A. No. 06-70T RI’s Motion to Dismiss for Lack of Ripeness has been briefed and argued. Motion pending. Judge Ernest C. Torres

Slide 12:VERMONT (D.Vt.) Green Mountain Chrysler Plymouth Dodge Jeep, et al. v. George Crombie, Secretary of the Vermont Agency of Natural Resources, et al. Case No. 2:05 –cv-302 Association of Automobile Manufacturers v. George Crombie, Secretary of the Vermont Agency of Natural Resources, et al. Case No. 2:05-cv-304

Slide 13:CALIFORNIA (E.D.Ca.) Central Valley Chrysler Jeep, Inc., et al. v. Catherine E. Witherspoon, Executive Director of the California Air Resources Board, et al., Case No. CV-F-04-6663 Cal.’s Summary Judgment on Ripeness granted on CAA claim, but denied on EPCA. Case stayed pending outcome of Mass v. EPA Judge Anthony Ishii

Slide 14:Other Climate Change Litigation People of the State of California v. National Highway Traffic Safety Administration, Case Nos. 06-72317 and 06-72641 and consolidated cases. States involved: CA, CT, ME, NJ, NM, NY, OR, RI, VT, MA, DC, and City of New York. On April 6, 2006, NHTSA issued its CAFE Rule, establishing new mileage requirements for light trucks for model years 2008-2011. The CAFE Rule effected only a modest increase in required fleet-wide average mileage to 23.5 mpg for model year 2010. More significantly, in the preamble to the Rule, NHTSA opined that "the effect of a State GHG standard on vehicle design and performance is the same as that of fuel economy standards." - thus, express preemption And further opined that California's GHG standards are impliedly preempted because they would "frustrate the objectives of Congress in establishing the CAFE program and conflict with the efforts of NHTSA to implement the program in a manner consistent with the commands of EPCA."

Slide 15:State of CT, et al. v. American Electric Power Company, et al. Case No. 04 CV 05669 (S.D.N.Y) States involved: CT, RI, CA, IA, NY, NJ, VT, WI, City of New York Defendants:  American Electric Power Co., Inc.; American Electric Power Service Corporation; The Southern Company; Tennessee Valley Authority; XCEL Energy, Inc., Cinergy Corporation This is a common law tort case alleging public nuisance under the federal common law against five coal-fired power plants - the five largest producers of CO2 emissions in the United States. Together these five companies emit 650 million tons of carbon dioxide annually.  They are responsible for 25% of the U.S. energy sector's carbon dioxide emissions.  The district court in the Southern District of New York dismissed the case on the basis of the non-justiciable political question doctrine. The States appealed to the United States Court of Appeals for the 2nd Circuit. Oral Argument was held June 7, 2006. Awaiting a decision.