I n
By Richard Lazarus
The Transition and
Two Court Cases
E
nvironmentalists are agog over the
transition from Bush 43 to Obama
44. Most expect that the new administration will embrace environmental
policies far more sympathetic to their
concerns. For those expectations to
be realized, however, the Obama administration will need immediately to
deal with the inevitable awkwardness
of shifting government policies that are
the subject of pending litigation.
Two cases are likely to be top priorities for the new White House. The first
is EPA v. New Jersey, in which the solicitor general is seeking review of the
D.C. Circuit’s invalidation of EPA’s
mercury rule under the Clean Air Act.
The second is California v. EPA, in
which California, joined by a host of
environmental groups, are before the
D.C. Circuit, challenging EPA’s denial
of California’s application for a waiver
under Clean Air Act Section 209(b),
which would have allowed California
to regulate greenhouse gas emissions
from new motor vehicles.
EPA v. New Jersey well illustrates the
post-election, pre-inauguration maneuvering. At issue is EPA’s Clean Air
Mercury Rule, which was one of the
Bush administration’s most controversial environmental measures. The rule
called for regulation of mercury emissions based on a cap-and-trade program rather than a technology-based
emission limitation. Last February, the
D.C. Circuit struck down the rule, as
t h e
C ou r t s
inconsistent with the plain meaning of ministrator Stephen Johnson’s decision
the Clean Air Act, and then denied re- to deny California permission to reguhearing on May 20.
late greenhouse gas emissions from new
Under the Supreme Court’s rules, motor vehicles. Indeed, some members
the solicitor general would normally have recommended the administrator’s
have had only 90 days to seek Su- possible criminal prosecution for not
preme Court review. But, rather than acknowledging the extent to which his
file within 90 days, the solicitor Gen- decision allegedly resulted from presieral sought and obtained from the chief dential intervention rather than an exjustice two extensions of time and did ercise of his independent judgment.
not ultimately decide to file a petition
Obama has left little doubt that he
until October 17. Industry groups sup- favors a reversal of the administrator’s
porting EPA filed their own petition in decision to deny the California waiver
mid-September.
application and it is fair to assume that
Had New Jersey, the other states, such a reversal will be a priority recomand environmental groups that had mendation of those working on the
prevailed below filed their opposition transition. The procedural challenge is
within the normal 30 days allotted for how to accomplish such a dramatic shift
such a response, the Supreme Court in policy without, of course, creating a
could have acted on the petitions and specter of the very kind of presidential
formally granted the case before Inau- interference with the EPA administraguration Day. Indeed, had the respon- tor’s judgment that environmentalists
dents sought only a routine 30-day claim occurred with Johnson.
extension until midThe current briefDecember, the Court
ing
schedule is also a
Look for a newly
could have granted
bit unfortunate. Those
confirmed EPA
the petitions prior to
challenging the admininauguration. For unadministrator to file an istrator’s ruling filed
stated, but transparimmediate request for a their briefs at the end
ent reasons, the Court
of November. Unless
stay of litigation
recently granted rethe government seeks
spondents’ request for
an extension (probably
an especially long extension. The new not an imprudent notion), EPA’s brief
date? January 21, 2009.
in support of the administrator’s denial
With this additional delay, the new of California’s waiver application would
administration will be able to take for- be due in early January, just a few days
mal action to seek withdrawal or dis- before the inauguration.
missal of its petition before the Court
Look for a newly confirmed EPA
formally acts on it. Because, however, administrator (or an acting EPA adindustry has filed its own Supreme ministrator) to announce a reconsidCourt petition, look for the solicitor eration of the prior decision and the
general to do more than just seek dis- Department of Justice to file an immissal of its own petition. The solici- mediate request for a stay of the litigator general is also likely to inform the tion within a few days, if not hours, of
Court of some intervening develop- the new president’s swearing in. Forment at EPA — such as a formal EPA mal dismissal in light of the adminannouncement that it is reconsidering istrator’s decision to reconsider will
the Clean Air Mercury Rule — as a fur- likely occur later.
ther basis for the Court’s denial of the
This is the kind of change that supindustry petition.
porters of the new President can cerThe politics surrounding California tainly believe in.
v. EPA, now before the D.C. Circuit, are
even more controversial and the brief- Richard Lazarus is on the law faculty of
ing schedule no less awkward. Congress Georgetown University. He can be reached at
has been actively investigating EPA Ad- [email protected].
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