WASHINGTON — Environmentalists voiced confidence Thursday that California's bid to strictly limit greenhouse gases will survive a regulatory veto from the Bush administration, but the state's legal challenge first will have to go through an appeals court that tilts in favor of the federal government and industry.
Often, those who want to sue can choose where to file their claims. But the Clean Air Act, like many federal regulatory measures, says that challenges to the Environmental Protection Agency's decisions must be filed with the U.S. Court of Appeals for the District of Columbia.
Aides to California Atty. Gen. Jerry Brown confirmed Thursday that the state plans to sue the EPA in Washington. "Regardless of the venue, we believe our case is very strong," said Gareth Lacy, a spokesman for Brown. "There is no legal justification for denying this waiver request."
But the state will not be fighting on its home court. Unlike the California-based 9th Circuit Court of Appeals, which leans to the left, the D.C. circuit leans right. Nine of its 13 judges are Republican appointees. They usually uphold the decisions of the administration and its regulatory agencies.
For example, the D.C. circuit has rejected a series of challenges brought on behalf of prisoners at Guantanamo Bay, Cuba. Two years ago, the court, in a 2-1 decision, rejected California's challenge of an EPA order holding that carbon dioxide and other greenhouse gases were not air pollutants under the Clean Air Act.
The D.C. circuit does not have the final word, however. If they lose there, proponents of California's law would have to hope for another Supreme Court decision in their favor. Last April, in a different case, the high court took up an appeal filed by Massachusetts, California and a dozen other states and ruled 5 to 4 that greenhouse gases were indeed air pollutants.
That decision set the stage for Wednesday's move by the EPA. Because California's fight against smog predated the federal Clean Air Act, Congress has said California can go further than the federal limits on air pollution, so long as it obtains a waiver from the EPA.
Until recently, those waivers were routine. Two years ago, the California Air Resources Board asked EPA for permission to go ahead with its new rules limiting greenhouse emissions from motor vehicles. Along the way, 17 other states signed on to follow California's lead.
