Notice & Comment

No Opinions, But a Petition Worth Watching – Seventeen States Challenge Section 209(b) of the Clean Air Act

The D.C. Circuit did not release new opinions during the week of October 17. There were oral arguments in cases that we’ll follow at D.C. Circuit Review—Reviewed, including litigation over Exemption 4 to FOIA. But that’s not the biggest or most interesting news from last week at the D.C. Circuit.

To my mind, the highlight was the filing of a petition by seventeen states in Case No. 22-1081, Ohio v. EPA. The states’ petition challenges the constitutionality of Section 209(b) of the Clean Air Act under the equal-sovereignty doctrine. Here’s the states’ pithy introduction to their petition:

The Clean Air Act allows the EPA to give California—and only California—a waiver. That waiver allows California—and only California—to set vehicle-emission standards more stringent than those imposed by the federal government. See 42 U.S.C. §7543(b)(1). This case asks whether the agency acted lawfully when it reinstated a previously withdrawn waiver. It did not, for at least two reasons. First, the Clean Air Act provision under which the EPA reinstated the waiver is unconstitutional—it unlawfully leaves California with sovereign authority that the Act takes from every other State. Second, the waiver is unlawful because it allows California to enforce state laws that the Energy Policy and Conservation Act of 1975 preempts.

The waiver is unlawful, and this Court should set it aside.

The states acknowledge the problem of climate change, but argue that it violates their sovereignty to put California in the driver’s seat when it comes to solving it:

whatever one might make of §209(b) in other applications, the equal sovereignty of the States forbids Congress from giving California alone the power to regulate a global risk faced by every State in the country and by every nation on Earth.

So, no debate from these states that climate change is a “global risk.” Still, the petition presents more than one question worth debating.

Do the states have standing? As purchasers of vehicles, they allege monetary harm stemming from an increase in the cost of vehicles nationwide. Thus, this case is yet another high-profile example of what I’ve called “the new public standing,” in which states sue the federal government based upon allegations of financial injury. The states also allege an injury to their dignity, that is, an injury to what they argue is a constitutional right to equal sovereignty. When in doubt, there’s always Massachusetts v. EPA‘s “special solicitude” for states, and the states invoke it to support their attack on the Clean Air Act’s waiver provision.

What about the merits of the states’ equal sovereignty argument? There has been a lot written about equal sovereignty since the Supreme Court’s decision in Shelby County v. Holder, which struck down Section 4 of the Voting Rights Act’s formula for identifying jurisdictions that had to preclear changes to their election laws. The states rely upon Professor Bellia and Professor Clark’s grounding of the equal sovereignty doctrine in the Constitution’s use of the term “States,” understood by reference to the law of nations (see here), as well as Professor Colby’s qualified defense of the principle, which stresses that it “is not a guarantee of state equality in all respects.” By contrast, Professor Litman has argued that the principle of equal sovereignty “is an invented tradition” and that the principle’s reach is quite limited if we understand it in terms of dignity. On that view (or on another view of equal sovereignty that I’ve explored here), the states are pushing the principle too far when they complain that Section 209(b) on its face or as-applied infringes on their dignity.

Buckle up and stay tuned as we track this and all the other administrative law cases from the nation’s “second most important court.”

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