Julia Horrocks

September 18, 2007

Last Spring, a majority of the Supreme Court in Massachusetts v. EPA, had "little trouble concluding" that the EPA has authority under the Clean Air Act (CAA) to regulate carbon dioxide emissions from motor vehicles. This month a federal judge in Vermont ruled that states can regulate greenhouse gas emissions as well.

The legal analysis begins with California. Section 209(a) of the CAA prohibits states from adopting their own standards for motor vehicle emissions as preempted by the federal act. However, under section 209(b), the EPA must waive preemption for standards adopted in California, if the State meets certain criteria. If California is granted such a waiver, other states that adopt those standards are eligible for the same waiver. California applied for a waiver in 2005, and the EPA's decision is pending. If EPA denies the California's application, then none of the states' regulations will take effect.

In 2005, Vermont, along with thirteen other states, adopted California's emissions standards. Automakers wasted no time attacking the new regulations with a multitude of claims against the State.

In Green Mountain Chrysler v. Crombie (hereinafter "Crombie"), Judge William K. Sessions III of the District Court of Vermont denied automakers' plea for declaratory and injunctive relief from Vermont's regulations on greenhouse gas emissions for new motor vehicles. Sessions first rejected the automakers' claim that the regulations are preempted by federal law. He cited Congress' intent to allow cooperation between state and federal governments on greenhouse gas emissions, and found Vermont's regulations within the requirements of federal law.

Judge Sessions then addressed automakers' claims that complying with Vermont's regulations would not be technologically or economically feasible, would restrict consumer choice, reduce employment, and decrease traffic safety. After a discussion of technology-forcing regulations and an overview of available alternative fuels, Sessions stated that he is "unconvinced automakers cannot meet the challenges of Vermont and California's GHG regulations."

Sessions' decision takes Massachusetts a step further by actually allowing the State to act under the EPA's authority to regulate greenhouse gases affirmed in that decision.

Not everyone appreciates the Judge's ruling. In Business and Media Institute, a journal devoted to the promoting free enterprise, Jeff Poor gave a critical review of the case and accused Judge Sessions of "legislating from the bench." Poor claims that the media has omitted important information about the judge's liberal background. He cites Sessions' appointment to the district of Vermont by former President Clinton, his liberal stance on capital punishment, and the fact that he taught at Vermont Law School, "a leader in environmental and public interest law" from 1978-1995.

Other commentators predict that Crombie will be overruled on appeal because the decision is pending EPA's approval of California's waiver application, and therefore not ripe for review, but environmentalists remain hopeful.

Sources:

Massachusetts v. EPA, 127 S.Ct. 1438 (2007).

42 U.S.C. §§ 1459-60, 7401-7671, 7507, 7543(a)-(b).

Vermont Air Pollution Control Regulations, Subchapter XI: Low Emission Vehicles, Vt. Code R. §§ 5-1101-09 (adopted April 27, 2007), available at http://www.anr.state.vt.us/air/docs/apcregs.pdf.

Green Mountain Chrysler v. Crombie, No. 2:05cv302 (D.Vt. 2007), available at www.vtd.uscourts.gov/Cases/05cv302.html.

Jeff Poor, Media Ignore Judge's Liberal Background in State Emissions Regulation Ruling, Business Media Institute, Sept. 13, 2007, http://www.businessandmedia.org/articles/2007/20070913120057.aspx.

Felicity Barringer, U.S. Court Back States' Measures to Cut Emissions, N.Y. Times, Sept. 13, 2007, available at http://www.nytimes.com/2007/09/13/us/13emissions.html (quoting Professor Patrick Parenteau of Vermont Law School).