Judge’s Decision Ignores Simple Supremacy Clause Question

Executive Director

Friday, 04 January 2013 16:27
I was on the cusp of finishing my January managers’ report just before the Christmas weekend and something happened, so instead of cancelling most of my report, I decided to share it with you. I was going to begin it like this:

“After 23-months we still have no decision in our case against CARB. September 6th was the last hearing date (this one caused by EPA’s politically-timed acceptance of CARB’s state implantation plan (SIP)). At that hearing, Judge England said he would have a decision out ‘shortly.’ The word ‘shortly’ surely doesn’t mean the same to all of us. Impatient with the delay, we sent an appeal letter to the court on November 15 asking for a decision.”

I was going to add in my story that “by the time you read this the wheels of justice would have added another 4 months of injustice to small business diesel engine powered truck owners – our members.”

This whole experience made me think about the best quote to fit the situation, one like: “Justice Delayed is Justice Denied!”

Yes – Justice is something meant to be handled in the present moment. This is so because, as Martin Luther King, Jr., said, “Injustice anywhere is a threat to justice everywhere,” regardless of the excuse. Therefore if someone delays something as important as justice knowing that injustice is a threat to it, then the person is denying justice. If it was important to the person, then they would’ve handled the situation right then, but since they delayed it, that means it’s not an important issue to them or in this case, maybe too political – and if that is the case, it makes this all even worse.

But just as I was getting ready to send my report to print, as fate would have it, on December 19th, Judge England did finally issue his decision. I would argue that he really did not craft a decision but instead he gave us 35 pages of legal rationalization that attempted to explain that since EPA accepted CARB’s SIP last year, during our case, the state SIP now has the weight and authority of federal law and that “After careful consideration of the parties’ arguments and the relevant legal authority, the Court concludes that, for the reasons set forth below (in his decision), it cannot retain jurisdiction over this action in light of EPA’s approval of the Truck and Bus Regulation as part of California’s SIP. Alternatively, even if the Court were to retain jurisdiction, this action should be dismissed because EPA is a necessary and indispensable party under Federal Rule of Civil Procedure 19.”

Basically the judge punted and even went so far as to add more obstacles for us to overcome just for good measure!

The court’s decision creates further delays that works into the hands of the defendants (CARB/EPA and environmental “sue and settle” NRDC, run by 300 attorneys), because the longer we have to wait to get a Supreme Court decision on the merits of our straight forward constitutional argument, the more companies and members will go out of business in the name of supposedly slightly cleaner air.

We anticipate that once the decision was rendered, the websites of the defendants and related ‘interested parties’ would be replete with disinformation about how the judge’s decision “will prevent 3,500 premature deaths” along with not exposing our kids to dirty old diesel buses. We can never find the bodies behind all these outrages death claims, yet the media can’t get out of its own way to parrot the same outrageous supposedly ‘peer reviewed’ claims.

The bottom line is that CCTA is committed to pursuing this fight and will likely appeal this district court ruling to the 9th Circuit Court of Appeals. Due to the judge’s decision, we will probably have to consider filing a separate petition for review of the EPA’s SIP determination, also with the 9th Circuit Court. As we suggested above, the district court found, in light of the EPA’s action (the approval of the California SIP), the appellate court is the only appropriate forum for this case now.

I couldn’t help to finish this with a quote from 1987 rejected Supreme Court nominee Robert Bork who passed away about the same time as the end of the “Mayan World” and this decision by Judge England – December 19.

Bork said in his 2002 best-selling book, Slouching Toward Gomorrah: Modern Liberalism and American Decline, that “A decline runs across our entire culture and the rot is spreading.” Bork blamed the liberal elite which also controls the environmental movement of “hijacking our nation.”