On Tuesday, in Ohio v. EPA, the D.C. Circuit Court of Appeals denied several challenges to EPA’s decision to restore California’s authority under § 209(b) of the Clean Air Act to regulate emissions from motor vehicles. It’s definitely a win for EPA. And while I’m leery of my ability to predict what this Supreme Court will do, if I had to guess, I’d say that even this SCOTUS will affirm EPA’s authority. 
However, I don’t think either EPA or the states and NGOs that intervened on EPA’s side should get too excited about this decision. It’s important to remember that this litigation only challenged California’s ability to set standards through model year 2025. In addition, it is noteworthy that, on the petitioner’s core claims, the Court found the petitioners did not have standing, and the keys to the standing decision were two sets of facts that may not be present in future cases.
First, because the rule at issue only runs through model year 2025, the record before the court showed that striking down California’s authority would have no impact on the cars sold or the prices charged for those cars in the narrow time window between the time of decision and the end of model year 2025. Second, and relatedly, several auto manufacturers intervened on EPA’s behalf and stated that, presumably because of market conditions, they were already selling fleets that over-complied. Therefore, under traditional standing jurisprudence, the petitioners could not demonstrate that it was likely a decision in their favor would “redress” their injury.
One could imagine a scenario in which similarly situated petitioners take to heart the lessons of Ohio v. EPA, and put together a record that would support, at least to the satisfaction of five members of the Supreme Court, a finding of redressability. I should note that, if a future court presented with a future challenge to a future waiver were to decide that red states and/or fossil fuel suppliers do have standing, I’ve already gone on record as saying that EPA should win that challenge. However, I’m not a member of the Supreme Court.
Which only leaves me to note the irony in the arguments about standing. In order to bolster their standing arguments, the state petitioners cited “the ‘special solicitude’ to which states are entitled when they seek to protect their “quasi-sovereign interests.” Of course, that “special solicitude” was given to Massachusetts in Massachusetts v. EPA, a decision reviled by the red state petitioners in Ohio v. EPA. On the flip side, Massachusetts, which was the beneficiary of special solicitude in Massachusetts v. EPA, was one of the states intervening on EPA’s behalf in Ohio v. EPA.
I guess where you stand depends on where you sit.
The post The D.C. Circuit Affirms EPA’s Reinstatement of California’s Authority to Set Auto Emissions Limits; Don’t Get Too Excited About It first appeared on Law and the Environment.