State of California v. Environmental Protection Agency, 102519 FEDDC, 18-1114

Docket Nº:18-1114, 18-1118, 18-1139, 18-1162
Opinion Judge:Rogers, Circuit Judge
Party Name:State of California, by and through its Governor Edmund G. Brown Jr., Attorney General Xavier Becerra and California Air Resources Board, et al., Petitioners v. Environmental Protection Agency and Andrew Wheeler, as Administrator of the United States Environmental Protection Agency, Respondents Alliance of Automobile Manufacturers and ...
Attorney:David Zaft, Deputy Attorney General, Office of the Attorney General for the State of California, argued the cause for State Petitioners. With him on the briefs were Xavier Becerra, Attorney General, Robert W. Byrne, Senior Assistant Attorney General, Gary E. Tavetian and David A. Zonana, Supervis...
Judge Panel:Before: Rogers, Srinivasan and Pillard, Circuit Judges.
Case Date:October 25, 2019
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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State of California, by and through its Governor Edmund G. Brown Jr., Attorney General Xavier Becerra and California Air Resources Board, et al., Petitioners

v.

Environmental Protection Agency and Andrew Wheeler, as Administrator of the United States Environmental Protection Agency, Respondents

Alliance of Automobile Manufacturers and Association of Global Automakers, Inc., Intervenors

Nos. 18-1114, 18-1118, 18-1139, 18-1162

United States Court of Appeals, District of Columbia Circuit

October 25, 2019

Argued September 6, 2019

On Petitions for Review of an Action of the United States Environmental Protection Agency

David Zaft, Deputy Attorney General, Office of the Attorney General for the State of California, argued the cause for State Petitioners. With him on the briefs were Xavier Becerra, Attorney General, Robert W. Byrne, Senior Assistant Attorney General, Gary E. Tavetian and David A. Zonana, Supervising Deputy Attorneys General, Julia K. Forgie, Deputy Attorney General, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Matthew I. Levine and Scott N. Koschwitz, Assistant Attorneys General, Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Thomas J. Miller, Attorney General, Office of the Attorney General for the State of Iowa, Jacob Larson, Assistant Attorney General, Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Valerie Edge, Deputy Attorney General, Kwame Raoul, Attorney General, Office of the Attorney General for the State of Illinois, Daniel I. Rottenberg, Assistant Attorney General, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Steven M. Sullivan, Solicitor General, Aaron M. Frey, Attorney General, Office of the Attorney General for the State of Maine, Mary M. Sauer and Laura E. Jensen, Assistant Attorneys General, Keith Ellison, Attorney General, Office of the Attorney General for the State of Minnesota, Max Kieley, Assistant Attorney General, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Christophe Courchesne, Carol Iancu and Matthew Ireland, Assistant Attorneys General, Megan M. Herzog, Special Assistant Attorney General, Letitia James, Attorney General, Office of the Attorney General for the State of New York, Yueh-Ru Chu, Chief, Affirmative Litigation Section, Environmental Protection Bureau, Gavin G. McCabe, Special Assistant Attorney General, Gurbir S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, David C. Apy, Assistant Attorney General, Robert J. Kinney, Deputy Attorney General, Josh Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Michael J. Fischer, Chief Deputy Attorney General, Kristen M. Furlan, Assistant Director, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Paul Garrahan, Attorney-in-Charge, Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of Vermont, Nicholas F. Persampieri, Assistant Attorney General, Peter F. Neronha, Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz, Special Assistant Attorney General, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Katharine G. Shirey, Assistant Attorney General, Mark R. Herring, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, Paul Kugelman, Jr., Senior Assistant Attorney General and Chief, Matthew R. McGuire, Principal Deputy Solicitor General, and Matthew L. Gooch, Assistant Attorney General. Aaron Goldstein, Deputy Attorney General, Office of the Attorney General for the State of Delaware, Emily C. Nelson, Assistant Attorney General, Office of the Attorney General for the State of Washington, Stacey W. Person, Assistant Attorney General, and Peter Surdo, Special Assistant Attorney General, Office of the Attorney General for the State of Minnesota, entered appearances.

Sean H. Donahue argued the cause for petitioners Public Interest Organizations. With him on the briefs were Matthew Littleton, Benjamin Longstreth, Irene Gutierrez, Joanne Spalding, Alejandra Núñez, Vera Pardee, Vickie Patton, Peter Zalzal, Martha Roberts, Alice Henderson, Erin Murphy, Howard I. Fox, Javier Guzman, Travis Annatoyn, Maya Golden-Krasner, Scott L. Nelson, and Emily K. Green. Howard M. Crystal, David D. Doniger, Seth L. Johnson, and Susannah Weaver entered appearances.

Robert A. Wyman, Jr., Joel C. Beauvais, Devin O'Connor, and Kevin Poloncarz were on the briefs for petitioners National Coalition for Advanced Transportation, et al. Steven Croley entered an appearance.

Michael Burger was on the brief for amici curiae The National League of Cities, et al. in support of petitioners. Susan E. Amron, Edward N. Siskel, and Jennifer M. Stacy entered appearances.

Philip J. Weiser, Attorney General, Office of the Attorney General for the State of Colorado, and Eric R. Olson, Solicitor General, were on the brief for amicus curiae the State of Colorado in support of petitioners.

Gary S. Guzy, Beth S. Brinkmann, Thomas Brugato, and Jeffery S. Dennis were on the brief for amicus curiae Advanced Energy Economy in support of petitioners.

Bayron T. Gilchrist, Barbara Baird, William B. Wong, and Brian Tomasovic were on the brief for amicus curiae South Coast Air Quality Management District in support of petitioners.

Jared P. Marx and Samuel Walsh were on the brief for amicus curiae Lyft, Inc. in support of petitioners.

Joseph R Palmore was on the brief for amicus curiae Consumers Federation of America in support of petitioners.

Eric G. Hostetler, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Eric Grant, Deputy Assistant Attorney General, and David Orlin and Mark Kataoka, Counsel, U.S. Environmental Protection Agency.

Erin E. Murphy argued the cause for intervenors. With her on the brief were Paul D. Clement, Stuart Drake, C. Harker Rhodes IV, Raymond B. Ludwiszewski, John T. Whatley, Susan T. Conti, and Charles H. Haake.

Before: Rogers, Srinivasan and Pillard, Circuit Judges.

OPINION

Rogers, Circuit Judge

After the Environmental Protection Agency ("EPA") announced that it would reconsider the appropriateness of, and conduct a rulemaking to potentially alter, greenhouse gas emission standards adopted in 2012 for model year 2022 to 2025 motor vehicles, a coalition of states, environmental groups, and industry representatives brought this challenge. Because we conclude EPA has not engaged in "final action" under the Clean Air Act, the petitions for review are dismissed for lack of jurisdiction.

I.

Section 202(a) of the Clean Air Act ("CAA") directs EPA to "prescribe (and from time to time revise)" standards for "the emission of any air pollutant from . . . new motor vehicles or new motor vehicle engines," which "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7521(a). One group of regulated air pollutants are greenhouse gases ("GHGs"), which EPA has found may reasonably be anticipated to endanger public health and welfare based on their contribution to climate change. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66, 496, 66, 516 (Dec. 15, 2009). The CAA generally prohibits states from adopting their own vehicle emissions standards. See 42 U.S.C. § 7543(a). Congress, however, allowed the EPA Administrator to grant waivers to states that had adopted standards prior to 1966 so long as their standards were "at least as protective of public health and welfare" as the federal ones. Id. § 7543(b). California was the only state that qualified for this waiver of federal preemption, Ford Motor Co. v. EPA, 606 F.2d 1293, 1296 (D.C. Cir. 1979), until Congress added Section 177 to the CAA in 1977 to permit other states to "adopt and enforce" standards that are identical to those of California, 42 U.S.C. § 7507. Congress required California, along with any state that adopted California's standards under Section 177, to...

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