Executive Director – CTN Magazine
Thursday, 13 September 2012 08:21
On Thursday, September 6, 2012, we finally had our hopefully “last” hearing in this phase of our lawsuit against CARB in front of U.S. District Court Judge Morrison England, Jr. in Sacramento. The hearing was delayed several times due to the judge’s repeated requests for supplemental briefing from the parties.
At the hearing, the defendants fielded three attorneys: a Deputy Attorney General from the state Department of Justice, the CARB General Counsel, and a high-profile lawyer from the Natural Resources Defense Council (NRDC). Interestingly, the attorney from the NRDC, Melissa Lin Perrella, spoke 90% of time; counsel from the AG’s office 10% and the lawyer from CARB said nothing. Clearly, the NRDC is running this show for the opposition.
IMAGE: Pat Whalen, lead counsel for CCTA.
Pat Whalen acted as counsel for CCTA/CDTOA.
While our case was pending (we are entering the 19th month since the suit was originally filed) the U.S. Environmental Protection Agency (EPA) formally adopted the California State Implementation Plan (SIP). The state SIP is essentially a map laid-out mostly by CARB for complying with the federal Clean Air Act, and administered by the EPA. The SIP consists of narrative, rules, technical documentation, and agreements that California will use to clean up questionably polluted areas, in this case certain air districts within the state.
The California SIP has as one of its components the on-road truck and bus diesel engine rule we are challenging in our lawsuit. CARB and NRDC tried to use EPA adoption of the SIP as a basis to get our lawsuit dismissed. The judge had earlier asked for supplemental briefing on that question, and then later, asked whether EPA was an “indispensable party” to the litigation. We believe they are not.
Our arguments at the hearing were consistent: we are not challenging the SIP or any action by EPA in approving the SIP. If EPA, as a federal agency wishes to enforce their regulations – they can. We are simply arguing that under the Federal Aviation Administration Authorization Act of 1994 (FAAAA), 24 years after the passing of the Clean Air Act, Congress made clear that states, like California, cannot regulate motor carriers when the regulation impacts their prices, routes or services (as an aside, the CAA does not grant EPA any authority to regulate “in-use” engines).
Clearly, these rules are having a huge impact on truckers large and small regardless of whether or not they are based in California, another state or even another country. Interestingly, NRDC’s Ms. Perrella noted at least a half dozen times during this hearing that there should have also been a Commerce Clause claim. We have actively reached-out to others in the industry on a commerce cause action. Even Perrella believes that it is ripe for additional litigation.
At the hearing, there was a great deal of discussion about the EPA SIP adoption, and both the NRDC and AG counsels argued that somehow EPA’s recent action should result in our case being dismissed. However, they never provided a clear explanation of how our litigation – which does not challenge the EPA (and federal regulatory scheme) or the SIP in any way – should be affected at all by the recent developments at the federal level.
Pat clarified for the judge the fact that our claim had not changed since the initial lawsuit some 19 months ago: we were simply challenging a state law, not anything done by the federal government, and it appeared by the end of the hearing that he understood our argument.
The judge took the matter under submission and said he would rule “shortly.” This could mean either weeks or months until we get a decision. I have a bet with Joe that Judge England will decide prior to the November election – let’s see who wins.
There are a number of ways the judge could rule. This is just speculation, but one option is that he could grant summary judgment in our favor, meaning the rule would be unenforceable by CARB. NRDC would surely appeal this. Second, he could grant summary judgment against us, in which case we would have to appeal to the 9th Circuit. Third, he could dismiss our suit by ruling that the EPA is a necessary party. Fourth, he could decide that, on the merits, the CARB on-road rule does not impact prices, routes or services, or alternatively that it fits within the “safety exception” to the FAAAA. Short of us winning, we would appeal.
Key Dates in Our Case
2/11/11 – Complaint filed in Federal Court, Eastern District of California
5/23/11 – NRDC Motion to Intervene Granted
7/5/11 – CDTOA Motion for Summary Judgment (MSJ); Hearing originally set for 9/6/11, but continued to 1/26/12 to permit discovery
11/15/11 – CDTOA Motion for preliminary injunction (a secondary lawsuit)
12/15/11 – Hearing on preliminary injunction
1/18/12 – Hearing on Summary Judgment continued to 2/9/12
1/30/12 – Order denying preliminary injunction
2/8/12 – Eve of hearing on MSJ, matter ordered submitted without oral argument
5/21/12 – Court orders on its own motion the case is stayed indefinitely (MSJ still pending)
5/31/12 – Court orders supplemental briefs regarding EPA adoption of the SIP (Supplemental briefing completed by 7/12/12)
7/19/12 – Court orders second round of supplemental briefing, at issue is whether EPA’s SIP adoption makes it an indispensable party
9/6/12 – Final hearing on our request for relief under the Supremacy Clause (decision pending shortly).