Why I lost my smog fee lawsuits: judges are crooked
Because of my knowledge gained in my lawsuits, I have been following the litigation over the US Environmental Protection Agency's denial of California's request for a waiver of federal pre-emption of greenhouse-gas auto-emissions regulations. Federal law provides for general federal pre-emption of new-vehicle emissions standards but allows the EPA to waive that pre-emption for California. Also, other states are allowed to adopt the California auto-emissions standards package. Federal law for particular EPA final rulings -- including California waiver decisions -- requires that when the EPA determines that the final ruling is of national scope and effect, challenges to that ruling must be filed as original actions (i.e., they don't go through district courts first) in the District of Columbia federal court of appeals within 60 days after the ruling is published in the Federal Register. Challenges to California waiver decisions have traditionally been filed in the DC circuit because of an EPA determination of national scope and effect (because (1) some states outside the 9th circuit have adopted the California standards package and (2) manufacturers outside the 9th circuit are affected).
The EPA administrator sent California Gov. Arnold Schwarzenegger a very short informal letter -- dated December 19 -- announcing denial of the greenhouse-gas waiver request. The letter said, "I have decided that EPA will be denying the waiver and have instructed my staff to draft appropriate documents setting forth the rationale for this denial in further detail and to have them ready for my signature as soon as possible." Because the letter did not say that the decision was of national scope and effect, California immediately filed in the 9th circuit court of appeals a challenge to the decision, despite the fact that federal law says that the challenge to the decision may be filed only within 60 days after the publication of the decision in the Federal Register! The EPA published the final ruling -- which went into far more detail than the informal Dec. 19 letter -- in the Federal Register in February. The 9th circuit court of appeals, instead of dismissing California's petition because of a lack of jurisdiction, set up a briefing schedule for the litigants! Because California was really supposed to file the petition in the DC circuit, as a precaution California filed another petition in the DC circuit. But California's petition in the DC circuit challenged the Dec. 19 informal letter instead of the final ruling published in the Federal Register!  I suspect that California hocus-pocused that federal law did not specify that the only judicially reviewable ruling was the final ruling published in the Federal Register. Probably the reason why California preferred to challenge the informal letter was that the letter had much less detail than the Federal Register ruling and hence was easier to attack -- it will really be the living end if California claims that the letter's reasons for denying the waiver are insufficient. It gets worse -- the Warming Law blog says,
On April 4, the auto industry filed a rather creative motion with the D.C. Circuit under the All Writs Act requesting an order prohibiting California "from its attempt to oust this Court of proper jurisdiction" to review EPA's waiver denial. It requests this relief "as soon as possible." Specifically, the motion asks for an injunction barring California "from filing any additional petitioners [sic] for review of EPA's waiver denial in any Court other than this Court," a request that borders on the frivolous, and requiring California to move to dismiss its petition for review filed in the Ninth Circuit.
I gotta hand it to those California government attorneys -- they are very clever pettifoggers. And it is easy for them to get away with their shenanigans when they have the help of crooked judges.