Executive Director CTN Magazine

Monday, 13 August 2012 12:52

The latest developments in our lawsuit against the CARB On-Road Truck and Bus Rule is more evidence that we are truly fighting a multi-headed monster. We have taken on CARB and the State of California, the Natural Resources Defense Council (NRDC) quickly intervened in the case against us, and now the court seems to be on the verge of inviting the U.S. EPA to join in the case.

In an order issued on July 19, 2012, the court set a hearing date of August 9, 2012 at 2:00 PM in Sacramento.

The court also ordered additional supplemental briefing on several issues, including whether the EPA is an “indispensable party” to this litigation. The court seems to be buying into the defendant’s arguments that because EPA recently approved the California Statewide Implementation Plan (SIP), that action somehow “federalized” the California rule. This of course completely mischaracterizes our lawsuit. We are challenging the state rule, not the determination by the EPA to make it federally enforceable as part of the SIP.

While we were pleased that we finally had a hearing date, we were concerned about the fact that there is now even greater possibility for delay. If the court decided that the EPA is a necessary party, it will inevitably delay a final decision in this case even further.

On August 2, we received notice that the attorney for CARB requested a continuance of the hearing from 8/9 to 9/6 (which is the first available date on the Court’s crowded calendar) because he has to appear in Los Angeles in another case on 8/9. The court agreed to the request, on 8/7.

Unfortunately, every day that goes by while this legally questionable rule is in effect means more California businesses are forced to close, more jobs are lost, and more harm is done to the economy by a rule that ironically will not actually make the air any cleaner.

Key Timelines in Our Case

2/11/11 – Complaint filed in Federal Court, Eastern District of California
4/5/11 – NRDC Motion to Intervene
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
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 is an indispensable party
8/9/12 – Hearing on our request for relief under the Supremacy Clause, delayed to September.
9/8/12 – Rescheduled hearing on our request for relief under the Supremacy Clause.