Feds, states go head-to-head in D.C. Circuit

Source: By Pamela King and Maxine Joselow, E&E News reporters • Posted: Sunday, September 8, 2019

Appellate judges today sharply questioned the Trump EPA’s decision to overhaul Obama-era clean car standards.

At issue is former EPA Administrator Scott Pruitt’s decision last year that the Obama-era standards were “inappropriate” and should be revised (Greenwire, April 3).

That decision — known formally as the “Midterm Evaluation Final Determination” — paved the way for the Trump administration’s aggressive rollback of greenhouse gas and fuel economy standards for light-duty vehicles.

The rollback isn’t complete. EPA and the National Highway Traffic Safety Administration are expected to issue a final rule later this fall.

The U.S. Court of Appeals for the District of Columbia Circuit panel spent more than an hour today grappling with a fundamental question: Did Pruitt’s decision constitute a final agency action?

Judge Sri Srinivasan began by noting that agency actions must be final in order to be challenged in court.

That prompted other judges to inquire about the relief the court could offer, since EPA and NHTSA have yet to release a final rule.

Sean Donahue of Donahue, Goldberg & Weaver LLP, representing environmental challengers, argued that the final determination was indeed a final action.

A lawyer for a coalition of states led by California, meanwhile, argued that the final determination flouted the Obama EPA’s determination that the standards were achievable and violated the agency’s own procedural requirements.

EPA’s conclusion that the Obama standards were “too stringent and too costly” ignores “thousands of pages of its own records,” said David Zaft, a deputy California attorney general.

The judges also questioned whether the Trump administration’s final rule would reach a different conclusion than the final determination.

Eric Hostetler, a deputy in the Justice Department’s environment division, and Erin Murphy of Kirkland & Ellis LLP, who represented the Alliance of Automobile Manufacturers and the Association of Global Automakers, argued that the final determination doesn’t have to dictate the content of the final rule.

“All of the options are on the table,” Hostetler said.

The final rule could propose keeping the Obama-era standards in place or even strengthening them, despite the agency’s earlier findings, he said.

Judge Nina Pillard, an Obama appointee, wondered why EPA would put itself through the trouble of issuing a final determination instead of just starting a rulemaking.

Said Hostetler: “Good government and transparency.”

The panel of judges also included Judge Judith Rogers, a Clinton appointee.

Srinivasan, another Obama pick, replaced Senior Judge Raymond Randolph on the case after the George H.W. Bush appointee criticized an invitation to a climate science event last month (Greenwire, Aug. 16).

Today’s arguments in State of California v. EPA set the stage for an even bigger courtroom brawl once the rollback is finalized later this fall. California and a coalition of environmental groups are widely expected to sue over the final rule.

Reporter Jennifer Hijazi contributed.