Venue victory in CARB waiver case


In an order issued today, the D.C. Circuit agreed with our argument that Dalton Trucking v. EPA should be argued in the 9th Circuit and not in the D.C. Circuit.  The case involves our challenge to EPA’s grant of waiver from federal preemption under the Clean Air Act for CARB’s nonroad diesel engine rules, which set forth stringent emissions limitations for  particulate matter and nitrogen oxides.  Those CARB regulatory requirements, which cannot go into effect without EPA’s approval, have had and will continue to have devastating impacts on California’s trucking and construction firms, especially the smaller ones.

Today’s victory provides us with a clean slate in litigating in the 9th Circuit the extent to which EPA may approve excessively stringent California mobile source emissions standards that are not needed to meet extraordinary conditions in the state.  In addition, the opinion makes clear that EPA’s waiver decisions are not entirely discretionary but are fully reviewable in federal court.  In an era when the federal government reaches further and further beyond its statutory authorities, that is not a small victory.