Governor Schwarzenegger has found a new predator invading his turf, and he has taken to the courts to defeat it. California, along with 15 other states and five

environmental groups, recently petitioned the Ninth Circuit for review of the Environmental Protection Agency’s

(“EPA”) denial of a waiver which would have allowed the state to enforce tough regulations on greenhouse gas

emissions (“GHG”) from new vehicles. Previous governor Gray Davis signed the bill requiring the reductions

almost five and a half years ago.

After the California Air Resources Board (“CARB”) adopted the regulations requiring a gradual reduction in fleet

average GHG emissions, California asked the EPA for a waiver of federal preemption. Under the Clean Air Act, regulation of mobile sources (i.e., vehicles) is unique in that only California may apply for a waiver and if granted, other states may implement California’s regulation. The EPA received the application in late 2005, took comments and held two public hearings in the summer of 2007, and on December 19, 2007, Stephen Johnson, Administrator of the EPA, announced in a letter to Governor Schwarzenegger that his agency would deny the waiver. Even though the letter may not constitute final action by the EPA—the decision generally must first be published in the Federal Register—California could not contain itself and it petitioned for judicial review on January 2.

The case may highlight three substantive arguments: 1) the meaning of section 209, 2) the effectiveness of the regulation now that it cannot apply to 2009 models, and 3) whether California’s regulation is more protective than the federal standards to be adopted under the recently passed energy bill.