Bush Faces a Long Legal Battle With California

The concept of the White House throwing out all the bad news at 5 p.m. on a Friday, when it is sure to get minimum press coverage, was immortalized in the great "Take Out the Trash Day" episode in the first season of The West Wing. Well, the Bush administration's decision on California's climate change program wasn't made on a Friday, but it was after business hours the week before Christmas, about eight hours after President Bush signed into law an energy bill that the administration obviously thinks will give it perfect cover for what it has done.

But no matter its timing, the Bush administration has assured itself of a high-profile political and legal battle that will continue through the remainder of this presidency, with California Gov. Arnold Schwarzenegger backed by 17 other governors, both Democratic and Republican. (We covered the details of California's effort to limit greenhouse gas emissions from cars here.)

Environmental Protection Agency chief Stephen Johnson argues that the energy bill that Bush signed, increasing auto fuel economy to 35 miles per gallon by 2020, constitutes a comprehensive national plan to address greenhouse gas emissions. But California argues—and at least two federal courts have agreed—that its plan to reduce tailpipe carbon dioxide emissions by 30 percent by 2016 is different and more comprehensive. It also would force automakers to achieve better gas mileage faster—36 mpg by 2016—and put a system in place for consideration of further improvements in auto greenhouse gas performance in the future. No more waiting 32 years for Congress to do something about car fuel efficiency.

Here is some evidence that even the Bush administration does not believe it is on solid legal ground. During the debate on the energy bill, the White House threatened a veto. It repeated the threat in the bill's final days on Capitol Hill, based on its desire to insert into the bill a declaration that the Department of Transportation was the sole regulator for both fuel economy and tailpipe emissions from cars.

Congress never agreed to this language, and with 87 percent of the public supporting more-efficient cars, the White House never followed through on its veto on this extremely technical point. But it is a technicality that would have snatched away California's authority, which has its root in the law giving the EPA power over tailpipe emissions.

The automakers also made a last-ditch effort to get what is called "legislative history" on their side to use in coming court battles. After Michigan Sen. Carl Levin failed in getting the language on the EPA's authority placed into the bill, he initiated a "colloquy" on the Senate floor with California Sen. Dianne Feinstein to try to establish the Department of Transportation's supremacy on tailpipe emissions. Feinstein apparently viewed her on-floor discussion with the auto-state Democrat as such a stumble that she later came back to the Senate floor to make another statement about the energy bill: "There was no intent in any way, shape, or form to negatively affect, or otherwise restrain, California or any other state's existing or future tailpipe emissions laws, or any future EPA authority on tailpipe emissions." You can read the Blog for Clean Air entries of December 12 and 13 for all the details.

Because the language the automakers wanted did not end up in the energy bill, it is no surprise that Johnson, the EPA administrator, had to rebuff the recommendations of every member of his legal staff to make his decision.

All of these details—admittedly difficult for anyone but a regulatory lawyer or a political junkie to follow—will be on California's side in the court battles ahead, as Schwarzenegger has vowed to "sue again and sue again," most likely with many states backing him. With a fight on the horizon that makes Bush look like the bad guy on global warming, it's no wonder the White House threw this decision out with the trash.