Suit filed for emission waiver

Even as California joined 15 other states and five environmental groups in suing the Bush administration to win the right to enforce strict limits on climate-warming vehicle emissions, backup plans were taking shape Wednesday in Sacramento.

California sued the federal government in the U.S. District Court of Appeals, challenging the U.S. Environmental Protection Agency's decision last month to deny California and the other states the waiver they need to regulate greenhouse gases from new cars and trucks.

With proposals ranging from "emissions surcharges" on new gas guzzlers to fees on automakers and rebates for fuel-sipping hybrids, legislators, environmental advocates and state Air Resources Board staff members are piecing together emissions-cutting alternatives to AB 1493. The state's landmark vehicle emissions law was blocked Dec. 19 by the federal EPA.

"We need to take the offensive and make the car companies understand that we have other resources at our disposal," said John White, who directs the Center for Energy Efficiency and Renewable Technologies, a coalition of environmental and public-interest groups and renewable energy companies. "Through the Bush administration, the automakers have just punched us in the face."

If the state wins the case, it will get to enforce AB 1493, a 2002 state law that would force carmakers to redesign vehicles to get dramatically better mileage, starting with the 2009 model year. But if California loses, officials would be required under the state's overarching global-warming law, AB 32, to find 14.5 million tons of transportation emissions cuts through other means – such as getting consumers to shift to smaller vehicles or simply drive less.

A bill proposed by Assemblyman Ira Ruskin, D-Redwood City, would impose an emissions charge of up to $2,500 on new vehicles that get below-average mileage. That revenue would fund rebates for the highest-efficiency vehicles.

Mary Nichols, chairman of the state Air Resources Board, said Wednesday her agency is considering fees on automakers manufacturing high-emissions vehicles.

"We would be looking to the car companies," she said. "We do not intend to penalize individual motorists."

Air board spokesman Stanley Young said the agency intends to seek new emissions-cutting mandates from the Legislature before setting any new fees.

Others, such as White, argue that the state can attain most of AB 1493's goals by tightening enforcement of existing laws. California's zero-emissions vehicle standards, for instance, were designed to control smog-forming air pollutants but might be used to force automakers to roll out more ultra-efficient vehicles, such as plug-in hybrids. He also said Gov. Arnold Schwarzenegger could toughen the state's low-carbon fuels program and require a faster rollout of lower-emitting gasoline and diesel substitutes.

Nichols said she would release the air board's preliminary proposals "fairly soon."

Gloria Bergquist, vice president of the Washington, D.C.-based Alliance of Automobile Manufacturers, a coalition of global automakers, said her group would fight any plan that imposes fees on certain vehicles.

"We do support incentives, but we don't support penalizing people who need those vehicles for their livelihood," she said.

The lawsuit filed Wednesday was no surprise, but the decision to file it in San Francisco's 9th Circuit Court of Appeals was somewhat unusual.

Generally, decisions by federal agencies must be challenged in the District of Columbia Court of Appeals, which tends to be more conservative than the 9th Circuit.

But lawyers backing California argue the state isn't constrained to file in Washington, D.C., because the Dec. 19 ruling left out key language stating that the decision was "of national scope and impact."

"They did not put that boilerplate in, so we can challenge it anywhere," said attorney David Bookbinder of the Sierra Club, which has worked with the state to defend the emissions law.

In addition to the Sierra Club, the environmental groups suing the federal government are the National Resources Defense Council, Environmental Defense Fund, Conservation Law Foundation and International Center for Technology Assessment.

Under the federal Clean Air Act, California has the unique authority to set its own air pollution standards. But the state rules can't be enforced unless the EPA grants a waiver. Once California obtains a waiver, other states are free to adopt copycat policies.

Fifteen other states seeking to adopt similar rules joined California's suit Wednesday: Massachusetts, Arizona, Connecticut, Delaware, Illinois, Maine, Maryland, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington.

The EPA has granted California more than 40 waivers over the past 40 years. No request had been rejected outright until EPA Administrator Stephen Johnson turned down the state's AB 1493 waiver request.

In his decision, Johnson argued that because greenhouse gas emissions "harm the environment in California and elsewhere regardless of where the emissions occur," the state doesn't face an "exclusive or unique" challenge that would justify special air pollution regulation.

The state maintains that California must show merely that its global-warming peril is serious – not necessarily unique – in order to win the waiver.

Federal judges have ruled in the state's favor in three major global-warming cases over the past year.

John Dwyer, a San Francisco attorney who specializes in environmental and appellate-court cases, said the initial skirmish in the case is likely to be over where it is heard, with the state and EPA each presumably seeking home-field advantage.

Peter Hsiao, a partner and environmental law specialist with Morrison & Foerster in Los Angeles, said the agency likely would petition the 9th Circuit to dismiss the case on grounds that it's of national scope and ought to be heard in Washington.

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