Washington State Attorney General’s Office Responds to Not Joining Other States on Fuel Efficiency Lawsuit

Seems the Washington State Attorney General’s Office is eager to get their spin out on why they did not join the California lawsuit challenging the weak fuel efficiency standards proposed by the Bush Administration for light trucks and SUV’s. When I received their response I was not surprised that they really did not seem to comprehend the need for Washington state to be a leader on this issue.

Washington State last year passed ESHB 1397 – the Clean Car Act – patterned after California’s. Instead of joining with other states that have passed Clean Car Legislation to help reduce global warming, Attorney General Rob McKenna has decided to sit on the sidelines and not participate.

The issue of reducing global warming and reducing oil consumption which contributes to global warming requires aggressive action, not excuses.

My previous posts on this issue started with “Missing in Action – Washington State Attorney General Rob McKenna , and four updates , here, here, here, and here.

The AG’s Office says they are involved and reference a case regarding the EPA saying it was not going to regulate CO2 emissions as a pollutant from cars. The interesting point here is that this lawsuit was initiated by Attorney General Rob McKenna’s predecessor Christine Gregoire in 2003 before McKenna took office.

While I attacked Rob McKenna for his lack of leadership in this area I must also, if he has correctly stated it, say that he shares this lack of action with the Governor’s Office. McKenna belongs to the Republican Party which has not shown any initiative over many years in dealing with increasing fuel efficiency standards, beside Bush’s token effort this year.

But the Seattle Times, in an editorial today, entitled “Democrats on Energy, Still a Zero”, points out that nationally the Democratic Plan on Energy released last week, was just as silent on raising fuel efficiency standards, in this instance as a way of saving energy.

The Seattle Times attributes the Democrats timidity to the influence of states with automotive workers and unions. The irony is that with rising gasoline prices, foreign carmakers that emphasized fuel efficiency, with hybrid cars like the Toyota Prius and Honda Civic Hybrid, are busy selling lots of cars.

Whether its reducing global warming or saving energy, both political parties need to be more aggressive on pursuing real solutions to real problems. This includes making serious efforts to increase Federal fuel efficiency standards to both decrease global warming and save energy.

Below is the response I received from the Washington State Attorney General’s Office.

Dear Mr. Zemke,
Thank you for your inquiry regarding the state of Washington’s decision not to intervene in Cal. et al. v. NHTSA, challenging the federal fuel efficiency standards published in April 2006. The state of Washington, including the Attorney General’s Office, is concerned about the impacts of climate change and supports the states in their efforts to urge federal agencies to fully consider the environmental impacts of CO2 emissions from cars.
In fact, Washington is currently involved in another key case – led by the state of Massachusetts -which we believe more directly addresses concerns about the regulation of CO2 emissions from cars. Last month in Mass. v. EPA, the states, including Washington, asked the Supreme Court to review EPA’s decision not to regulate CO2 emissions from cars as an air pollutant. View the cert petition here.
When this office was asked to consider joining the suit against NHTSA, Attorney General McKenna authorized review of the case and directed that our agency clients be consulted. The main claims of the states’ case relate to whether NHTSA complied with the National Environmental Policy Act (NEPA). The Washington State Attorney General’s office, Governor Gregoire, Washington State Department of Community, Trade and Economic Development and the Washington State Department of Ecology carefully evaluated the request to join the lawsuit. Based on a variety of factors -including Washingnto’s involvement in Mass. v. EPA- we jointly concluded that this is not a case that Washington should join at this time.
The Attorney General’s office is frequently asked to join lawsuits and file “friend of the court” briefs in support of parties to lawsuits. We evaluate such requests carefully and make decisions based on a variety of factors, including:
· Our ability, in the time provided, to fully consider the legal merit of the claims and the impact of the arguments being advanced on the interests of the state of Washington and its agencies;
· The role and timing of the requested participation;
· The best use of the legal resources of the office; and
· Which states may be most familiar with the legal issues and arguments.
Multi-state litigation presents unique challenges, both substantively and procedurally. Decisions to join a lawsuit or file a brief are made for a variety of reasons, and decisions not to participate should not be construed as taking a formal position on the issues in that case.
To provide further background, there are three multi-state lawsuits currently dealing with carbon dioxide (CO2) emissions. Two are related to cars and one is related to power plants.
The two related to cars are:
· The Massachusetts-led case related to the Environmental Protection Agency (EPA’s) authority to regulate CO2 as a pollutant under the federal Clean Air Act (CAA)(United States Supreme Court); and
· The California-led case challenging the National Highway Traffic Safety Administration fuel efficiency (CAFÉ) standards that were just adopted (Ninth Circuit).
The third case deals with the validity of newly updated New Source Performance standards (NSPS) that EPA adopted for emissions from power plants. This is the New York case you reference in your blog.
Here’s a quick description of the state’s involvement in each of those cases:
(1) Mass. et al. v. EPA re: EPA authority to adopt CO2 emission standards for cars. On Oct. 23, 2003, Washington joined a number of states and environmental organizations that filed a Petition for Review under Section 202 of the federal CAA challenging EPA’s refusal to regulate CO2 and other motor vehicle emissions that contribute to global warming. The D.C. Circuit Court of Appeals’ three judge panel issued its decision on July 15, 2005, denying the petition. The states, including Washington, filed a Petition for Certiorari on April 7, 2006, asking the U.S. Supreme Court to hear the case.
(2) Cal. et al. v. NHTSA re: the CAFE rule, alleging that the standards rule should not have been adopted under the National Environmental Policy Act (NEPA) without preparation of an environmental impact statement because the rule’s impacts are significant.
The 52-page statement you reference presents an argument that states are preempted from setting their own vehicle emission standards for CO2. However, the rule is about NHTSA, a federal agency, setting fuel efficiency standards for cars, not about whether states can adopt their own standards. Thus, we do not consider the reference to preemption of state law to be relevant to the challenged rulemaking action and understand that it will not be a main focus of the challenging states’ case.
3) New York et al. v. EPA re: EPA regulation of power plant emissions including CO2. We considered joining this case when it was filed last month, but after careful evaluation and because of its relationship to Mass. v. EPA, we opted to wait and monitor the case instead. We determined that if Mass. v. EPA is accepted for review, a decision in that case could resolve a key issue in New York’s power plant case. We continue to evaluate whether to intervene in this case before the deadline.
Thank you very much for your letter and please feel free to call or e-mail if you continue to have questions regarding the Attorney General’s Office and the cases in which we are involved.
Janelle Guthrie, APRDirector of Media RelationsWashington State Attorney General’s Office1125 Washington Street SEPO Box 40100Olympia, WA 98504-0100Phone: (360) 586-0725Cell: (360) 584-3046E-mail: janelleg@atg.wa.govJoin Attorney General Rob McKenna’s Listserv for the latest news from the AG’s office or visit our Web site at http://www.atg.wa.gov/

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