Ted Hadzi-Antich at oral argument in D. C. Circuit

Monday of this week, I argued that EPA’s decision allowing California to enforce its statewide controls over emissions of particulate matter and nitrogen oxides from tractors and other nonroad diesel vehicles should be vacated by the D.C. Circuit.  The federal Clean Air Act preempts all state mobile source emissions standards but provides that California, and California only, may apply to EPA for a waiver from federal preemption.  To succeed, California must show that it has a “compelling and extraordinary” need for its own standards.  I argued that EPA must deny the waiver request because California did not show that it needs the standards for which the waiver application was made.  The EPA argued that the waiver was properly granted because California has shown the requisite “compelling and extraordinary” need. The issue is important because the California standards are the most stringent and job-killing emissions standards of their kind anywhere in the nation.  If the waiver grant is upheld, other states may opt into the California standards, creating equal-opportunity-economic-havoc in those other states.  If the waiver grant is vacated, the standards will not apply in California, and other states may not adopt them.

The three-judge panel focused on the threshold issue of whether the lawsuit should be heard in the D.C. Circuit or the Ninth Circuit.  Under the Clean Air Act, the Ninth Circuit has venue over issues of “local or regional applicability,” while the D.C. Circuit has venue over issues of “national applicability.”  We argued that the case should be transferred to the Ninth Circuit because EPA’s waiver decision applied directly only to California and that, therefore, the waiver grant was of “local or regional applicability.”  The government wanted the case to remain in the D.C. Circuit, arguing that other states may adopt the California standards in the future and that, therefore, the waiver grant was of “national applicability.” All three judges extensively and aggressively asked EPA’s counsel why the case should not be transferred to the Ninth Circuit, given the fact that the waiver grant itself only applied to California and the question of whether other states will adopt the California standards at some point in the future is speculative.

Because the panel took such a keen interest in the venue issue, there was little time devoted to the substantive issues.  If the case is transferred to the Ninth Circuit, we will have another day in another court to deal with those issues. Here is an audio link to the oral argument.  To listen, press Case No 13-1283, Dalton Trucking, Inc. v. EPA, located on the page for November 9, 2015.  Background information regarding the case can be found here.