Deep Dive Episode 249 – Litigation Update: Ohio v. Environmental Protection Agency

[Music and Narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.

 

On January 24, 2023, The Federalist Society’s Regulatory Transparency Project hosted a virtual event titled Litigation Update: Ohio v. Environmental Protection Agency. The following is the audio from the event.

 

Sarah Bengtsson:  Hello, and welcome to this Regulatory Transparency Project litigation update on Ohio v. The Environmental Protection Agency. My name is Sarah Bengtsson, and I am the Associate Director of the Regulatory Transparency Project here at The Federalist Society. Today, January 24, 2023, we are pleased to have with us an excellent panel of intellectually diverse legal experts who will discuss this case pending before the D.C. Circuit. 

 

Before we begin, I will introduce our panelists and our moderator, and after the discussion, we will have an opportunity for audience Q&A, so please enter any questions you have into the Q&A function at the bottom of your Zoom window. 

 

With that, I will first introduce Jonathan Brightbill, Partner at Winston & Strawn LLP. He works in the firm’s litigation and white collar regulatory defense and investigations practices. He served as Acting Assistant Attorney General of the United States Department of Justice. There, he led the Environment and National Resources Division, and he worked on the Trump administration’s One National Standards Rule. Jon, thank you so much for being here today. 

 

Next, we have Professor Robert Percival, the Robert F. Stanton Professor of Law at the University of Maryland Carey School of Law. He’s also the Director of the Environmental Law Program at the university. He previously served as senior attorney for the Environmental Defense Fund, and he is an author of more than 100 publications on environmental law, federalism, presidential powers, regulatory policy, and legal history. He’s also the principal author of an environmental law case book titled Environmental Regulation: Law, Science, and Policy. Professor, thank you for being with us today. 

 

Our moderator for today’s discussion is Dr. Sohan Dasgupta, Partner at Taft. He practices litigation, investigations, regulatory and compliance matters, and international disputes. He served as Deputy General Counsel of the United States Department of Homeland Security and Special Counsel of the United States Department of Education. He’s also an adjunct law professor at George Mason University’s Antonin Scalia Law School. Sohan, thank you for being here and for moderating today. 

 

There’s a lot more to say about each of these individuals, but in the interest of time, I’ll stop there. You can read their full bios at regproject.org. Finally, a note that, as always, all expressions of opinion on today’s program are those of the speakers. Thank you all for joining. And with that, Sohan, the floor is yours. 

 

Sohan Dasgupta:  Thank you very much, Sarah. Really appreciate the generous words and your most helpful and illuminating introduction. As Sarah mentioned, my name is Sohan Dasgupta, and I’m delighted the moderate today’s litigation update with our distinguished panelists, Mr. Jonathan Brightbill, former Acting Assistant Attorney General of the United States and currently a Partner at Winston & Strawn, and Professor Robert Percival of the University of Maryland School of Law. 

 

I would like to mention at the outset The Federalist Society’s mission statement. The Federalist Society exists to promote the principles that the state exists to preserve freedom, the separation of powers is central to our constitution, and that it is the duty of the judiciary to say what the law is, not what it should be, a la Marbury v. Madison. 

 

This litigation update concerns Ohio v. The Environmental Protection Agency, which denotes a challenge to the EPA’s reinstatement of the waiver allowing California to regulate greenhouse gas emissions from motor vehicles. The EPA rescinded the Safer Affordable Fuel-Efficient Vehicles Rule Part One, One National Program SAFE-1 that Sarah alluded to Jonathan having worked on, and reinstated a waiver of the Clean Air Act preemption for California’s greenhouse gas, GHG, standards and Zero-Emission Vehicle, ZEV, sales mandate. These are just some aspects of California’s Advanced Clean Car Program, ACCP. 

 

A three-judge panel of the D.C. Circuit will hear oral argument in September of this year. Judges Millett, Rao, and Childs will hear arguments in this case. And we will, later on, get into predictions from our panelists about where this case is headed, what the implications are, and so on and so forth. 

 

In full candor, yours truly filed an equal sovereignty and clear statement rule-related amicus brief on behalf of 11 amici, basically arguing that the Constitution’s federalism principles, most notably equal sovereignty that the Supreme Court has been addressing and sharpening over the last several decades—most notably in Shelby County v. Holder—are directly implicated in this case, and also making the point in this amicus brief that Congress has not authorized the EPA to grant this waiver; in fact, it has precluded the issuance of this waiver through the Clean Air Act and the Energy Policy and Conservation Act of 1975. In the absence of a clear statement from Congress, the EPA’s reinstatement of this waiver, because it unsettles established federal-state balance and concerns a matter of both economic and political significance under West Virginia v. EPA, this waiver should be invalidated.

 

I would now like to turn it over to Jonathan Brightbill, who will discuss the issues and facets of this case. And we will then go to Professor Percival, and we will let the discussion proceed and develop organically. Thank you, Jonathan. Turning it over to you now. 

 

Jonathan Brightbill:  Great. Well, thank you, Sohan, and thank you to The Federalist Society for hosting this discussion and inviting me to participate. And it’s also a pleasure to do another panel discussion with The Federalist Society with Dr. Percival. We always have very enjoyable and spirited discussions, Bob. So, growing up in rural Pennsylvania in the 1980s, there was no greater treat on a sick day from home than sitting around and getting to watch daytime television—Hogan’s Heroes and Gilligan’s Island reruns, Hollywood Squares—but, of course, the best was always The Price is Right at 11 a.m. on CBS. 

 

And I’m old enough to remember Johnny Olson, the original announcer for Bob Barker before Rod Roddy took over, and the high point of every single Price is Right was, of course, when somebody got a chance to play for a new car, right? Now, even at a young age, it struck me that the new car always featured, among other things that they talked about, California emissions. And I noticed that as a kid, and I always wondered what it meant, but little did I—or, I imagine, most other non-Californians—appreciate that the significance of that feature comes from an extremely complex legal history about what and why California itself gets its own emissions, and nor could I then imagine, as a kid in the 1980s, that the debate about California emissions and California’s authority to set emissions standards would rage for decades more, and it has. 

 

The latest round, as we’re here to talk about today, is the case styled Ohio v. EPA, and it is, in some respects, the flipside of a case that’s currently held in abeyance, which would have challenged the Trump administration’s rule, the One National Standard Rule, which included both a rulemaking by the Department of Transportation’s National Highway and Traffic Safety administration as well as the waiver adjudication, as EPA has styled it, that is at issue in Ohio v. EPA. 

 

The EPA admits it had gone back during this administration and reconsidered what was done during the Trump administration, and now we have, in effect, the flipside of the litigation that was begun during the Trump administration. In full disclosure, I was representing the United States in that case, but I’m no longer representing a party in any of the current litigation, so my discussion points today are based on public information about the current litigation. 

 

Now, the lead petitioner in this case is the State of Ohio, which had intervened in the prior case, which I gather is actually still in abeyance, but prior case in the D.C. Circuit. And it, along with a number of other states, are opposed to what they see as California setting—or, at the very least, dramatically influencing—national regulatory policy regarding emissions standards for automobiles and, in effect, pushing the nation towards electric vehicles. They’re joined by quite a number of private petitioners, as they have styled themselves, which is a mix of trade associations and individual companies who are opposed to the desire to replace and electrify America’s motor vehicle fleet and support infrastructure based on the internal combustion engine with one that would be for the electric vehicles. 

 

So, with respect to the California waver, the D.C. Circuit precedents challenging California’s authority and challenging California’s execution of that waiver go back to the 1970s. Nevertheless, in Ohio v. EPA, the D.C. Circuit, at least first, is going to get to grapple with more than your standard array of statutory and administrative law issues. In the wake of their success in the Supreme Court in West Virginia v. EPA and the recognition of the long-simmering, but now recognized, major questions doctrine, the collection of states—and many of the same states as were collected for West Virginia v. EPA—has returned to see if they can make more law to further restrain the administrative state. 

 

And by that, they are putting forth, as Sohan referenced in his introduction, an affirmative constitutional challenge to the Clean Air Act’s structure, asserting that the 1967 provision that, in the words of the United States in their response to the petitioner’s brief, grandfathered California’s existing automobile emissions program and allowed that program to continue. But that provision has not only grandfathered the existing program, but then has since gone on to allow it to expand beyond the scope of what it was in 1967. 

 

And the states’ petitioners in particular advancing the argument that this violates the constitutional equal sovereignty doctrine, which requires that states, in the arguments of the petitioner states, be treated as equals at least and not be regulated as states, but that the federal government maintain itself as regulating the people and that any differential impact be as a result of what I’ll call non-political differentiation between and among the states. 

 

So this latest round of litigation stems from the California decision in the mid-2000s to begin regulating greenhouse gas emissions from automobiles. Prior to that, they had had a Zero-Emission Vehicle mandate going back to the 1990s, and they were, even then, seeking to have a transition to electric vehicles in California to address smog and NOx and other conventional pollutants. But in the mid-2000s, they began to then develop and justify and support an additional program requirement based on trying to address greenhouse gas emissions. 

 

Now, that ran into, really, two statutory issues. One was actually the Clean Air Act itself, which states that, in 209(a) of the Clean Air Act, there will be one federal national standard, and initially, at that point, when California first moved ahead with the greenhouse gas emissions standard, that 209(a) applied. Secondarily, it also allegedly ran afoul of the Energy Policy and Conservation Act of 1975, which is a provision which Congress established and established a program for regulating fuel economy of automobiles and created a CAFE standard—a Corporate Average Fuel Economy standard—that required the various car companies to meet an average metric across their various vehicle fleet. 

 

Interestingly, the CAFE program, from its inception, measured the fuel economy of vehicles by actually measuring the carbon dioxide emissions that were generated by virtue of the combustion of gasoline in the vehicle and, by a mathematical conversion, then determining what the fuel economy of the vehicle was. So, in effect, you have a situation where you can state a fuel economy standard, either as miles per gallon, but the reality is that miles-per-gallon standard has always been based off of a measurement of carbon dioxide emissions over a stated period of time. 

 

So the OEMs, the automakers at that time, brought challenges as well, asserting that the California program was preempted under the EPCA statute. The Bush administration initially denied a request that was made by California under 209(b) of the Clean Air Act, which is the provision now that will be central to the Ohio v. EPA case, at least on the statutory arguments. 

 

This provision, as I earlier mentioned, gave an ostensibly—facially, at least—neutral innocence, stated that, “Any state which has adopted standard other than crankcase emissions standards for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, any such state could receive a waiver of the preemption provision in 209(a).” 

 

Nevertheless, it bears emphasis—of course, this is one of the arguments of the petitioners—there is and was and will be for all time only one state in the Union that meets that requirement, and that is the state of California. Indeed, years later, as there were changes to this provision and other provisions of the Clean Air Act were added, which continued to expand the authority of California to obtain Clean Air Act waivers, some of the later provisions, Congress actually then stopped with the idea of March 30, 1966, in any state and just went directly to naming the state of California in those provisions. 

 

So the primary issues presented will be whether or not Congress can permissibly permit one state, but not others, as a political entity to exercise powers or to have exemptions from federal powers and regulations that it is not granting to others. In effect, can Congress pick favors? Can it regulate states as states? 

 

Secondarily, then, the second primary challenge, from a statutory perspective, is whether or not the Clean Air Act provision, in aside, whether or not the California waiver and California program would violate the Energy Policy and Conservation Act of 1975, which the petitioners contend the EPA is required to consider when it is, itself, doing an analysis of whether to grant California a waiver. 

 

There are also a number of what I will call more record-based challenges. The private petitioners, in their brief, have argued that the 209(b) waiver is one that must be undertaken — The analysis must be undertaken on a kind of standard-by-standard basis. The United States takes the position that the waiver is granted on a whole programmatic basis, but if you take the waiver on a kind of standard-by-standard basis, the private petitioners are of the view that the EPA has failed to justify the waiver because the waiver can only be granted where there are compelling and extraordinary conditions and where California has demonstrated that it “needs” the waiver to address those conditions. 

 

And the contention is made that California has failed to make the record showing that there is a need for a greenhouse gas emissions standard because California and EPA cannot, in effect, demonstrate that the standard that they are putting into place is one that will actually do anything to address the climate impacts that were identified as a justification for the waiver. 

 

Interestingly, it bears — worth mentioning on this note that California and other states can adopt the California standards through what’s called the 177, and that’s another section of the Clean Air Act. But California and the other Section 177 states represent about 40 percent of the country; however, in the remainder of the country, the standards that apply would then be either the EPA standards or the EPCA fuel economy standards, and those two things used to be joined at the hip. And that’s another aspect that is subject to review now, and that’s a topic for another podcast, perhaps. 

 

But interestingly, because greenhouse gas emissions—the nature of greenhouse gas emissions—are such that you don’t have a direct emission from tailpipe to a localized environmental effect like you do in smog. Instead, the greenhouse gases are gases that actually mix uniformly across the atmosphere, and therefore, the environmental effects that are asserted are as a result of the ultimate changes in the climate which impact forest fires or flooding or the like. 

 

But if you look at California’s emissions in the aggregate—and this is a point that the petitioners make in their brief—even if California’s emissions program is ratcheted down, if automakers are nevertheless able to average over the entirety of their vehicle fleets, including states that don’t have those standards, whatever impacts are theorized from the California program, the other 177 states are arguably offset by the emissions that could be increased in other states. Regardless, all these types of issues go to this issue of whether or not California truly needs the standard. 

 

In response, the United States has asserted many procedural arguments, and there is a long and convoluted history as to how this waiver has been first denied during the Bush administration, then granted during the Obama administration, then it was rescinded during the Trump administration. Now it’s being reinstated during the Biden administration. 

 

And so, while there are a host of what I’ll call really interesting intellectual issues that have been kicking around for a very long time, the United States, in its brief, is working very hard to try to not breach any of those issues. There are issues of standing that have been raised about the both constitutional standing as well as the zone of interest, questions about EPA’s own authority to reconsider its previously granted waiver. It’s always a curious thing, of course, when the federal government makes arguments that it is going to construe the statute, that it lacks the power to do something. Of course, the Trump administration did make such arguments as it related to the Clean Power Plan repeal and the major questions doctrine, and ultimately did turn out to be right in the Supreme Court. And so, it’s not unheard of, but it is always interesting, nevertheless, to see those types of arguments being made by federal administrative agencies. 

 

So very, very interesting case, and that’s kind of the background on where a lot of the major issues are. And I’m going to hand it off now to my colleague here, Professor Percival, to give his take on some of these arguments and where they may go.

 

Sohan Dasgupta:  Yes, Professor. Please feel welcome to chime in. And, Jonathan, thank you so much for such a comprehensive and impressive elucidation of these issues.

 

Robert Percival:  Great. I have to apologize first because I have a horrible cold for the last three days that has affected my ability to speak. It’s not COVID; I’ve done three negative COVID tests. But I just wanted to give sort of a larger background, and that is that, I’ve been teaching environmental law now for 36 years, and the California waiver provision of the Clean Air Act is what I would call a bedrock principle of environmental law. 

 

I remember myself when I drove my car that was registered in Iowa out to California to go to law school at Stanford, facing a $600 penalty if I got it registered there because it wasn’t compliant with the California standards. Now, for the last 10 years, I’ve been driving fully electric vehicles, and I totally love them. I bought my second one last summer. And so, I’m completely enthralled with Zero-Emissions Vehicles.

 

Jonathan Brightbill:  Bob?

 

Robert Percival:  Yeah?

 

Jonathan Brightbill:  How did you drive to Iowa in that thing?

 

Robert Percival:  I have not driven to Iowa in it yet, but it is convenient because, when everyone says, “Oh, but when you’re flying to all these places, you’re harming the environment,” I say, “Yeah, but when I drive to work in Baltimore from Washington, D.C., I’m not contributing any pollution since I have a Zero-Emissions Vehicle.” 

 

But this case is strange. Well, first of all, let me just say, every time there’s a major regulation adopted by the EPA, there’s going to be litigation, so it’s only expected that everyone and their brother and sister would pile on and come up with reasons why the agency screwed up, it’s contrary to law. And now, after West Virginia v. EPA, they’re inventing new constitutional doctrines to feed on the major questions doctrine now that the Supreme Court was willing to bite on that, and I think this is an excellent illustration of what I would call political litigation. 

 

The red states don’t like what the blue states are doing, so they’re challenging it, but what’s strange is that what they’re actually asking for is something that would constrain their choices more than they have now. Right now, all states are free, if they want, to adopt the California standards or to comply with the national standard that EPA has set. And what the states are arguing is, “Oh, but by letting California have a more strict standard, that’s somehow harming us.” 

 

I think the government actually has quite a good argument that there’s a serious standing problem here because it’s difficult to show how the red states have been hurt in any way, other than their feelings might be hurt because California has been authorized to do something really cool and innovative that’s been such a dramatic success over the years. 

 

And the argument that this somehow interferes with state sovereignty when it imposes no obligations on the state, it doesn’t displace any exercise of state police power; it simply says you now have a choice because of Section 177. It’s not just California that gets to do this. It’s any other state that wants to join them, and there’s at least 13 states that have done so, including Maryland, where I teach, and Vermont, where I teach during the summer, both states that, until just a few days ago, had Republican governors, but environmental protection is very popular in both of those states. 

 

So I think the standing arguments here are really quite serious. The constitutional claim that, somehow, the equal footing doctrine and amalgam of other constitutional strands that you can weave together mean that it’s unconstitutional to grant California special treatment, I think, sort of falls apart on its face. The statute itself, when it was adopted over a half-century ago, said, because California had the most serious air pollutions in the country at that time and because California was the only state that had adopted its own auto emissions standards, that because the new national Clean Air Act regulations were going to make a deal with automobile manufacturers, that we’re not going to subject you to having potentially 51 different state standards. Instead, you would have one uniform national standard or California’s standard. That was a reasonable compromise that preserved California’s sovereignty. 

 

I actually think the breathtaking consequences of the argument based on state sovereignty are such that California could have argued that, if they’d preempted their standards, that they were being singled out for disparate treatment because they would have had to roll back their existing state vehicle emissions standards. As the government points out in its brief, the Constitution has very few explicit guarantees of equal treatment among states. There have to be uniform duties imposed and excises, uniform national bankruptcy, and naturalization provisions, but there’s very little to suggest that there’s some broad principle that requires it beyond these specific instances. And even if it did, it’s hard to know how you would determine what is disparate treatment, especially here when the standard that’s adopted gives all states more choice. They can choose whether or not they want to adopt the Californian standards, and they simply haven’t done so. 

 

Now, Jonathan made it sound like, “Well, we’ve gone back and forth and back and forth recently about these waivers.” The government points out in its brief that, until recently—until the Bush and Trump administration—there were 75 waivers that were routinely granted, and it was only in 2008 when the Bush administration tried to deny the California waiver over the advice of all Clean Air Act experts and EPA’s own counsel, something that was quickly rescinded when the Obama administration took office. And in 2019, when the Trump administration did so, and now the Biden administration has overridden that, it’s quite clear that there’s a long history now of these waivers being granted to California and other states are permitted to following along, and they have done so. 

 

Now, the argument that, while California, even if it did all these things, that’s not going to solve the greenhouse gas problem, I get so tired of hearing this argument because it’s the standard fossil fuel industry response to pick apart every little, individual source of greenhouse gas emissions and say, “Oh, this in itself is not going to make a difference, so we shouldn’t worry about it.” Well, if we applied that to all sources of greenhouse gas emissions, then we wouldn’t be doing anything about what is now generally becoming agreed is a global crisis. 

 

As Chief Justice Roberts said about Justice Stevens’s majority opinion in Massachusetts v. EPA, every little bit helps, and that is what the Biden administration has been trying to do here. So I would suspect that this case is — I assume Judge Rao will vote for the petitioners in this case, but I doubt if Judge Millett or Childs will do so, so I suspect that the challenge will be rejected by the D.C. Circuit. And I’m going to stop there and conserve what’s left of my voice.

 

Sohan Dasgupta:  Well, thank you very much, Professor, and it’s very gracious of you, despite your ailment, to take part in today’s litigation update, so I really appreciate that. And the Professor, very graciously, has shared with us his views on the various aspects of these challenges, so it’s sort of Jonathan’s turn, but I wanted to start off with the issue of standing. 

 

Jonathan, any views on the standing issue that the professor mentioned before we dig a little deeper, mainly with you in the hotseat, about the various other claims? And we can go back and forth between Jonathan and the professor. I think it’ll be quite entertaining and instructive. Turning it over to you, Jonathan. 

 

Jonathan Brightbill:  Yeah. So, of course, the D.C. Circuit in particular has some curious standing precedence, and particularly in this area as it relates particularly to these statutes and this issue. So I do expect that the standing issue is one that the panel will take up with the litigants and will explore, and that in and of itself may present the necessary vehicle. 

 

I mean, I think one thing that I do tend to agree with Bob is, given the complexity of the issues here with the meeting in D.C. Circuit panel, there’s a good prospect that this one may have to go the way of the — may end up going the way, if the petitioners are ultimately successful, of not succeeding in the first round. But then, of course, if you need to move on to another round, you need — Generally speaking, the Supreme Court likes to see something more than record-based administrative review-type debates. And so, the standing questions that have been raised could provide—ironically, to the extent that the government succeeds on that—the vehicle that would allow this case to get up to the Supreme Court. 

 

Similarly, I think that the discussion about the equal sovereignty of the states is another very interesting issue that could similarly serve as such a vehicle, just as the major questions doctrine issue, which was in the Clean Power Plan repeal case provided the necessary vehicle to get the case up to the Supreme Court. So a colleague of mine often refers to these types of issues as SCOTUS bait. 

 

So be careful, I guess, what you wish for. I mean, ultimately, my view would be that there certainly is standing, particularly as it relates to the red states, we’ll call them, because you’re dealing with an injury of the states as a political entity as it relates to other states. They give a couple of examples in their brief, citing back to Supreme Court precedents and kind of introducing, if you will, the parade of horribles of, if Congress can do this and give California, in effect, this special dispensation to set standards and do so in a way that really impacts the rest of the country, can Congress not, as they say — And I’m just kind of reading from their brief here because these are their examples. 

 

But could it not imagine a law allowing some states, but not others, to boycott Israel—Cf. Crosby v. National Foreign Trade Council—or a law permitting just one state to enact and enforce immigration laws—Cf. Arizona v. United States? So the U.S. response to that is, “Well, commerce clause, longstanding tradition of regulating commerce between the states and discrimination is okay.” Well, discrimination is okay vis-à-vis the citizenry, but when you’re dealing with issues of the states as states, as, in effect, body of coequal sovereign—at least in part—units within the broader federal government, that takes on a different type of implication. 

 

And so, it does seem to me that they have standing to complain about whether the Congress has, in effect, disenfranchised them or provided them advantages and to the extent — But I can see that that’s an interesting question that’s been presented.  

 

Sohan Dasgupta:  Thank you very much, Jonathan. Professor, I wanted to pick back up where Jonathan sort of ended, which is on the equal sovereignty issue, and we have lots of other — We have more issues to discuss than we have time, so we have to steward our issues properly. 

 

On the equal sovereignty issue, an amicus brief that was filed last week mentioned that the sort of Shelby County-related concerns about discrimination of some states vis-à-vis other states under the Fifteenth Amendment is different from Commerce Clause, from discrimination against some states vis-à-vis other states where Congress’s commerce power is concerned. Do you have any instinctive reactions to that kind of an argument? It was Leah Litman’s brief. 

 

Robert Percival:  Yeah. No, I think that’s right. When the Voting Rights Act that was at issue in Shelby County involved Congress exercising its power to enforce the Fifteenth Amendment, and the Supreme Court’s precedent has said that congressional measures have to be congruent and proportional to the evil that they’re trying to remedy, and that gave the court license to say, “Well, we don’t think that the problem that the Voting Rights Act was initially trying to address by requiring these pre-clearance procedures exists anymore because there’s been such a decline in racism.” 

 

And before the ink was dry on the opinion, the states that prevailed in that case in the South were passing voter suppression laws right and left, which kind of proved that the Supreme Court’s own empirical conclusion was inaccurate. But that’s a far cry from the justification that’s needed when you tailor Commerce Clause regulation where Congress’s authority under the Commerce Clause is embedded right in Article I, Section Eight of the Constitution. 

 

And so, I don’t think that is a very good precedent for this novel argument. And I have to say — I forgot to mention. I was amused to see the major questions argument be brought in. I guess it might be considered a legal malpractice these days if any lawyer doesn’t mention major questions because it’s kind of the issue of the day, but I don’t see how that applies here at all because it involves the question of whether Congress expressly delegated to an agency this power. 

 

And you couldn’t have more specific provisions in the Clean Air Act saying that the California waiver can be granted, and in Section 177, other states can adopt the same standards that California have. So it’s not really a question of, did Congress give EPA the authority to do what it’s done here?  

 

Sohan Dasgupta:  Jonathan, any reactions?

 

Jonathan Brightbill:  I do think that this deployment of the major questions doctrine is a bit of a change, and it would represent an expansion from where it was originally recognized, but it doesn’t mean that the Supreme Court wouldn’t be prepared, in this context, to go there and to do that, particularly given the age of the provision here and the passage of time. 

 

Essentially, what we have here is a provision that has been successful in the sense of California—for the years when it was focused on conventional pollutants for a time—had standards that were in advance in that sense. So it’s been successful in the sense that we now have very, very clean automobiles as a general matter. The modern catalytic converter is a device of wonder in terms of its ability to eliminate most emissions. 

 

And so, the reality is, though, at this point, the delta between the emissions of a modern catalytic converter and even a Zero-Emission Vehicle, particularly when you consider the life cycle basis of emissions — which is an interesting kind of record issue that has been presented across this suite of cases because Bob makes reference to the vehicle not polluting. Of course, the vehicle is not making emissions as it’s driving on the road, but the creation of batteries and, frankly, the fact that these are heavier vehicles all around, there are emissions that occur in other places and on the road to ultimately powering these vehicles in terms of extracting the minerals, creating the batteries, and doing all these things. 

 

Maybe they aren’t emissions in the United States, and because they’re not where I’m driving my car, those emissions are of less consequence to some folks. But there are real serious debates about the difference in the total life cycle pollution among the vehicles as well as concerns of environmental justice having been raised, not necessarily on kind of a localized basis, but on an international or worldwide basis as to where these emissions are ultimately occurring. 

 

Sohan Dasgupta:  Thank you, Jonathan. Do you have any thoughts on whether or not — You’ve discussed the issues, but I just wanted to kind of dive into your own analyses about the EPA’s waiver and whether or not it’s preempted by federal law, your views on the — particularly as it pertains to the Clean Air Act and the EPCA, if you’d like to dive in. Then I’ll go to a question for Professor Percival that’s come in. 

 

Jonathan Brightbill:  What’s the question, Sohan? I’m sorry. 

 

Sohan Dasgupta:  Oh, yeah, sorry. The fault is entirely mine. Is the EPA’s waiver preempted by federal law, the main statutory question in this case?  

 

Jonathan Brightbill:  I do think — 

 

Sohan Dasgupta:  If there were a Judge Brightbill on the panel, how would Judge Brightbill come out, or better yet, if I had my druthers Justice Brightbill on the big court, how would that go?

 

Jonathan Brightbill:  Or a hypothetical Judge Brightbill that has filed a brief before, obviously in the defense of the Trump administration rule, and I wrote then—and I continue to write and believe what I wrote then, and I continue to believe that now—that the California GHG program is preempted, certainly under the EPCA standard. 

 

And then, as it relates to the waiver issue, then, you do have an interesting question of statutory interpretation in a provision that saw a lot of revision over the years, and you kind of have things kind of bolted on in various ways. I think that the state petitioners have the right argument and that it just does not make sense, ultimately, to read the provision as requiring essentially a single waiver that grants the state of California essentially a waiver, then, for all time, for all standards. 

 

It doesn’t make sense, I think, when you really parse the text as a textual basis, and it certainly doesn’t make sense as kind of a policy basis when you consider what Congress was trying to do. Why even have to go back and get more waivers if it’s fait accompli once you have the first waiver? And that’s really the theory of the United States that they’ve gone back to now in their reconsideration of the waiver. 

 

So I do think that the petitioners have the best of both arguments on the preemption question, but as I said, there’s a lot of procedural history here, and it’ll be interesting to see how some of those issues play out as well. 

 

Sohan Dasgupta:  Thank you very much, Jonathan. As I mentioned earlier, a question that’s come in for Professor Percival is that, many people believe that greenhouse gases and climactic issues differ in meaningful ways from traditional criteria, such as compelling and extraordinary conditions and/or congruent and proportional needs. 

 

It seems to me that this question is talking about City of Boerne v. Flores, kind of Fourteenth Amendment congruent and proportionality issues, and I guess the Fifteenth Amendment equivalents as well. So the focused question is, does Professor Perceval, in fact, have a response to these arguments other than believing that they are tiresome old tropes? I’m using a euphemistic version of the question, but, Professor, do you have any thoughts on issues like that?  

 

Robert Percival:  Well, I spent two weeks in California this January, and if you tried to tell anyone from California that climate change has not created compelling and extraordinary conditions there—in light of the double whammy of wildfires, then extraordinary weather events that are causing landslides and widespread damage around the state—I think you wouldn’t be very likely to persuade anyone about that. 

 

And I don’t think that — The Clean Air Act has evolved over time, and it’s true. Back in 1970, when it was enacted, it didn’t specifically refer to greenhouse gases. And when California wanted to start regulating them, it was thought that the major way to do so would be through looking at vehicles’ fuel economy. And that’s when the argument arose that, “Oh, but that would be a violation of NHTSA’s fuel economy standards.” And I think that was — It settled in the lower courts. 

 

And then, in Massachusetts v. EPA, that was really the acid test where the Supreme Court, in 2007, said that the Clean Air Act has evolved. Air pollutant can include greenhouse gases, and it actually cited with approval the lower court decisions that had rejected the effort to say that the fact that there were national fuel economy standards preempted states from adopting those. 

 

The Supreme Court has had, in recent years, been very skeptical about preemption claims, as it should be, because the justices want to preserve states’ prerogatives. And here, that’s why it would be very interesting if this case went to Supreme Court because what the petitioners are essentially arguing is, “Give us fewer choices of fuel economy standards in the name of preserving our sovereignty,” and that just doesn’t make any sense. 

 

Jonathan Brightbill:  Yeah, but it’s not really — Bob, it’s not giving us future choices. You’re going to — because the choice that they’re being offered is merely the offer that purportedly coequal sovereign California has offered in a way that may be most advantageous for them as opposed to other states, of course. 

 

You know, I do think that there are really interesting constitutional questions raised about whether if Congress starts to get into the business and, more expansively, has the power to be in the business of differentiating among states, and as states — There was no argument that I saw in the brief of the United States—I didn’t get through all the amicus briefs—as to where that stopping point is, but I think that’s one that needs to be answered. 

 

Now, as to the EPCA statute, I have yet to see any answer in any brief that anyone’s filed that wrestles with the fact that the United States Code, at least as it applies to Titles 42 and 49, is not the law. Positive law are the statutes that were passed by Congress at this point in time. And if you actually go back and look at those statutes, you recognize that the language that those two district court opinions were hung upon failed to recognize that it was there because there was a specific phase-out in the EPCA statute over time that Congress installed, during which EPCA and the fuel economy standards could account for—and were allowed to account for—the fact that compliance with California emissions standards would impact negatively fuel economy. 

 

And the Congress granted specific authority to the NHTSA to account for that in their standards, and that authority was phased out over time, leaving what I think is the really unambiguous answer that NHTSA’s fuel economy standards and the EPCA statute itself no longer has that authority and would affirmatively be contrary to that statute now to consider the California emission standards, which neither of those district court decisions—in whatever that was, 2006—saw that, recognized that. And so, that question as a statutory matter remains, and I think there’s really only one clear answer to it. 

 

Sohan Dasgupta:  So gentlemen, we are nearing the end of the session, and so I just wanted to end with a couple of global questions, two of which will be predictive. Handle them as you would elect. One is that, from a prediction standpoint, how do you think this case will play out in the end at the three-judge panel en banc—if it were to go en banc, if you think it has some likelihood of maybe going en banc—and then if it goes up to the Supreme Court? That’s the first question. 

 

Another predictive question is, how do you think this case will affect, in the long run, environmental law or the federal administrative state? And the final question is, why do you think so many industry actors have weighed in on the federal government’s and California side? So since Jonathan just went, I’m happy to start with the professor, and then we will take it from there. Thank you, Professor, and Jonathan. 

  

Robert Percival:  Yeah. Okay. As I mentioned before, I think on this panel, Judge Childs is the crucial vote. Rao will vote for the petitioners. Millett will vote for the respondent. I suspect Judge Childs will vote for the respondent as well. I don’t know if they’ll bother to take it en banc because I don’t think the en banc Court would disagree with an opinion in EPA’s favor. 

 

Going up to Supreme Court, it depends on what their appetite is for venturing further. I suspect actually Jonathan is right, that it won’t be dismissed on standing grounds because the panel will want to reach the merits. If it goes up to the Supreme Court, I don’t think the Court’s going to want to open a can of worms of new constitutional equal footing doctrine that would allow it to parse the fairness of every federal program in the country. So I think that’s a great unknown as to what would happen in the Supreme Court. And what was your final question?  

 

Sohan Dasgupta:  Well, it was related to it. What do you think the — Well, maybe you’ve already answered it. How do you think this case will affect, in the long run, environmental law or the administrative state? And the other question was, why do you think so many industry actors have weighed in on the federal government and California state?  

 

Robert Percival:  Well, the auto industry in general hated the Trump rollback of the California waiver because they’re all in on the EV revolution. They’ve made substantial investments. There’s so much reliance interest economically in retaining the California waiver. And so, the industry, in general, is getting with the global move towards electric vehicles, and they don’t want to reduce the demand for them by having the California waiver rolled back. I mean, that was illustrated by the fact that California — After Trump rolled back the waiver, major automakers voluntarily agreed with California that they were going to follow the California standards, whether they were in effect or not. 

 

Sohan Dasgupta:  Jonathan?

 

Jonathan Brightbill:  So in the prediction game — 

 

Sohan Dasgupta:  The best parlor game in Washington, right, prediction?

 

Jonathan Brightbill:  Yeah. I mean, look, in terms of the prediction game, I don’t have a reason to do a different analysis than Bob with the panel, but one never knows. That’s why we have judges, and sometimes cases go one way or another that you don’t expect, but I think that a conventional analysis would end up where Bob has ended up. 

 

With respect to why so many industry — I think that question is frankly not that interesting, so I’m not going to answer it because I think the answer is really obvious, right? There is a lot of — These regulations have a very dramatic effect on markets into which many companies are invested on one side or another. And so, I think a lot of times when you’re looking at these things, it’s not that difficult if you follow the investments and follow the financial incentives, where and how various industry participants come out on one side or the other in the equation. There are obviously a lot of industry petitioners involved, there are industry interveners, and I think that trying to figure out how and why any particular one has intervened is a matter of following incentives. 

 

You know, I do think the more interesting question, ultimately, is the effect that this is all going to have on the automobile fleet and the people and the availability of new motor vehicles, the cost of new motor vehicles and the cost and availability of fuel or energy and other things to subsidize that. The automobile is a wondrous mechanism of America and representation of freedom, as it allows great mobility in both business and in life and in transportation and vacation. 

 

And so, I think a more interesting question is, ultimately, what effect will all this have on people and, in particular, people’s ability to drive and to have and to own an automobile, which is as American as apple pie, as the saying goes?  

 

Sohan Dasgupta:  Well, thank you, Jonathan, and thank you, Professor. This has been a very illuminating and impressive, excellent discussion. We really appreciate your time, and we thank The Federalist Society for their exertions in putting this event together. And with that, we shall adjourn today. 

 

Sarah Bengtsson:  Thanks, Sohan, and thank you to our experts again and for the audience for tuning in. If you’re interested in finding more content like this, you can go on our website at regproject.org or follow us on any major social media platform @fedsocrtp to stay up to date. Thanks again. We are adjourned. 

 

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Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.

 

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