Supreme Court Green-Lights Suit against California Waiver Authority

by Niina H. Farah, Lesley Clark (Politico Pro Greenwire) The justices declined to set a new broader rule for when challengers can bring a case to court. -- The Supreme Court opened the door Friday for fuel producers to challenge California vehicle emissions standards in a tailored decision that sparked a stinging rebuke from one of the court's liberal justices.

The justices found in a 7-2 decision that a lower court had improperly blocked Diamond Alternative Energy and others from challenging the EPA waiver that allowed California to set more stringent car pollution rules.

Written by Justice Brett Kavanaugh, the opinion focused on whether the fuel producers could pursue their claims and didn't adopt the fuel challengers’ request for a broad “categorical” rule, which would hold that when the government denies a party the ability to compete in a marketplace it has standing — even without proving injury.

Kavanaugh noted at the outset the “sole issue” before the court was whether the fuel producers had standing to maintain their lawsuit.

“Fuel producers make money by selling fuel,” Kavanaugh wrote. “Therefore, the decrease in purchases of gasoline and other liquid fuels resulting from the California regulations hurts their bottom line.” READ MORE

Excerpt from Politico Pro Greenwire: A Supreme Court challenge to California’s ability to set the nation’s toughest auto emissions standards could be a warm-up for future legal battles over standing — the ability of Trump administration opponents to fight the president in court.

The justices last week heard oral arguments in Diamond Alternative Energy v. EPA, delving into a narrow question of whether fuel producers could challenge California's waiver authority from EPA since they weren’t directly affected by federal policy allowing the state to surpass national pollution standards.

Court watchers said the justices did not appear ready in this case to set a broad new rule for how courts can establish who can take their case to court. But the issue of standing is likely to be resurrected in the flood of litigation aimed at Trump administration policies.

The justices seemed ready to rule, perhaps unanimously, that the fuel producers did have standing, said Thomas Berry, director of constitutional studies at the Cato Institute, one of a number of organizations that submitted draft "friend of the court" briefs backing the fuel producers. READ MORE

Excerpt from New York Times: A federal law authorizes the E.P.A. to grant California a waiver even though other states and localities are not free to set their own limits. The U.S. Court of Appeals for the District of Columbia Circuit, in an unsigned opinion last year, rejected the fuel producers’ lawsuit, ruling that the challengers lacked standing. The appeals court reasoned that the challengers would not be directly harmed by the waiver, since its immediate impacts were only on vehicle manufacturers.

Writing for a seven-member majority on Friday, Justice Brett M. Kavanaugh said the fuel producers would suffer harm from the waiver and so had standing to sue.

“Without California’s regulations in effect,” he wrote, “manufacturers would likely make more cars powered by gasoline and other liquid fuels, thereby increasing purchases of those fuels.”

Justice Kavanaugh stressed the limits of the ruling. “This case concerns only standing, not the merits,” he wrote. “E.P.A. and California may or may not prevail on the merits in defending E.P.A.’s approval of the California regulations.”

Created under the 1970 Clean Air Act, the California waiver has for decades served as a tool to allow the state, which has historically had the most polluted air in the nation, to enact tougher state-level clean air standards than those set by the federal government.

Justices Sonia Sotomayor and Ketanji Brown Jackson each filed dissents. In hers, Justice Jackson wrote that the court should not have decided the issue, given that Mr. Trump was likely to once again rescind the waiver and make the issue moot. READ MORE