The California greenhouse gas waiver decision and agency interpretation: A response to professors galle and seidenfeld

Duke Law Journal

Volumn 57, Issue 7, 2008, Pages 2158-2175

  Mendelson, Nina A ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 54449088139     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (94)

1. Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L.J. 1933, 1948-85 (2008).
2. See id. at 1943.
3. See Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 797-98 (2004) [hereinafter Mendelson, Chevron and Preemption];
4. Nina A. Mendelson, A Presumption Against Agency Preemption, 102 NW. U. L. REV. 695, 706-24 (2008) [hereinafter Mendelson, Presumption].
5. Galle & Seidenfeld, supra note 1, at 1949-61 (transparency); id. at 1979-85 (accountability).
6. Id. at 1956.
7. Id. at 2001-02. The judicial "hard look" refers to review applying the Administrative Procedure Act's "arbitrary and capricious" review standard. See 5 U.S.C. § 706(2)(A) (2006) (requiring courts to set aside agency actions, findings, and conclusions if courts find them to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").
8. Professor Merrill has opposed Chevron deference in his amicus brief filed in Watters v. Wachovia. Brief of the Center for State Enforcement of Antitrust and Consumer Protection Laws, Inc. as Amici Curiae Supporting Petitioner at 6-8, 16-19, Watters v. Wachovia Bank, N.A. 127 S. Ct. 1559 (2006) (No. 05-1342), 2006 WL 2570991. He argues, however, that an agency could properly receive a delegation to preempt state law if Congress expressly authorized the agency to do so. Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. 727, 767 (2008).
9. Professor Sharkey has advocated Skidmore deference in her piece, Products Liability Preemption: An Institutional Approach, 76 GEO. WASH. L. REV. 449, 492-93 (2008).
10. See Galle & Seidenfeld, supra note 1, at 1971-74; Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. 727, 755-56 (2008); Sharkey, supra note 7, at 485-90.
11. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984).
12. See Galle & Seidenfeld, supra note 1, at 1999 ("We doubt Chevron is flexible enough to capture all the nuances of our test."); Merrill, supra note 8, at 775 (arguing for Skidmore rather than Chevron deference); Sharkey, supra note 7, at 491-98 (same).
13. Chevron, 467 U.S. 837, 843-44 (1984).
14. See Mendelson, Chevron and Preemption, supra note 3, at 797-98; Sharkey, supra note 7, at 492-93.
15. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (holding that an agency interpretation may receive deference depending upon the "thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade").
16. They advocate "an amalgam of Skidmore and hard-look review." See Galle & Seidenfeld, supra note 1, at 2001-02. Their only apparent hesitation about Skidmore review is that because of the doctrine of stare decisis, it seems to limit an agency's flexibility to change its mind. Id. at 2000-01; see also, e.g., United States v. Mead Corp., 533 U.S. 218, 247 (2001) (Scalia, J., dissenting) (arguing that a Skidmore approach will lead to "ossification" of statutory law). On the other hand, this seems to present the greatest problem when the Supreme Court has spoken. For example, a court of appeals may revisit precedent or disagree with another appellate court. Moreover, an agency can seek a legislative amendment from Congress.
17. See discussion infra Part II.
18. Galle & Seidenfeld, supra note 1, at 2012.
19. 42 U.S.C. § 7543(a) (2000) ("No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles . . . .") (this section is commonly referred to as Clean Air Act § 209(a)).
20. Id. § 7543(b).
21. Id.
22. Id. § 7543(b)(1).
23. Since 1967, when the preemption and preemption waiver provisions were adopted, California has submitted and EPA has granted over fifty waivers of preemption in compliance with statutory terms. JAMES E. MCCARTHY & ROBERT MELTZ, CONG. RESEARCH SERV., CALIFORNIA'S WAIVER REQUEST TO CONTROL GREENHOUSE GASES UNDER THE CLEAN AIR ACT 2 (2007), available at http://www.azclimatechange.gov/download/082007.pdf.
24. Id.
25. Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. 12,156, 12,157 (Mar. 6, 2008).
26. See 42 U.S.C. § 7507.
27. See Pew Center on Global Climate Change, Vehicle Greenhouse Gas Emissions Standards, http://www.pewclimate.org/what_s_being_done/in_the_states/ vehicle_ghg_standard. cfm (last visited May 31, 2008).
28. The EPA initially took the position that decision on the waiver petition would be inappropriate prior to the Supreme Court's decision in Massachusetts v. EPA, 127 S. Ct 1438 (2007). Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. at 12,157. In Massachusetts, the EPA argued that greenhouse gases were not "air pollutants" within the meaning of the Clean Air Act. Massachusetts, 127 S. Ct., at 1450. In April 2007, the Supreme Court rejected the EPA's arguments. See id. 1462.
29. Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. at 12,157.
30. Id.
31. See id. at 12,156-57.
32. 42 U.S.C. § 7543(b)(1)(B) (2000).
33. Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. at 12,160.
34. Id.
35. Id.
36. See id. at 12,162-63.
37. See Mendelson, Chevron and Preemption, supra note 3, at 756-57 (summarizing federalism concerns that might be supported by a presumption against preemption).
38. Galle & Seidenfeld, supra note 1, at 1977.
39. See id. at 2011 ("This suggests that the agency should displace state law only by clearly stated legislative rules.").
40. Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. at 12,157.
41. See 42 U.S.C. § 7543(b)(1) (2000) (requiring "notice and opportunity for public hearing" prior to decision on a waiver application).
42. Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. at 12,157. This, and other procedural requirements for rulemaking, are detailed in 5 U.S.C. § 553 (2006).
43. Letter from Stephen Johnson, EPA Administrator, to Arnold Schwarzenegger, Governor of Cal. (Dec. 19, 2007), available at http://www.epa.gov/otaq/ climate/20071219-slj.pdf.
44. See 5 U.S.C. § 706(2)(A) (stating that judicial review standards for agency action include review to confirm that the action is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"). One requirement applicable to rulemaking would not seem to apply here: an obligation to respond to "significant comments" that courts have imposed as a gloss on Section 553 of the APA. E.g., United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 249-50 (2d Cir. 1977) ("We think that to sanction silence in the face of such vital questions [raised in the comments] would be to make the statutory requirement of a "concise general statement" less than an adequate safeguard against arbitrary decisionmaking.); Am. Mining Cong. v. EPA, 965 F.2d 759, 771 (9th Cir. 1992). Nonetheless, the other environmental features of the decision should have given EPA ample incentive to engage all relevant arguments.
45. See Exec. Order No. 13,422, 72 Fed Reg. 2,763 (Jan. 18, 2007); Exec. Order No. 12,866, 3 C.F.R. 638 (1993), reprinted in 5 U.S.C. § 601 (2006) (requiring Office of Management and Budget clearance only of agency rules).
46. A March 2008 Senate appropriations committee hearing transcript contained the following colloquy between California Senator Dianne Feinstein and EPA Administrator Stephen Johnson: FEINSTEIN: Did you discuss it with the White House? JOHNSON: As I have said in previous testimonies, yes, I discuss major issues with the White House. I think that's good government. I discussed it with my colleagues across the administration. But again, the decision, the final decision rests with me and I made the decision . . . . Fiscal Year 2009 Budget for the EPA: Hearing Before the Subcomm. on Interior, Environmental, and Related Agencies of the S. Comm. on Appropriations, 110th Cong. (Mar. 4, 2008), 2008 WL 607187.
47. E.g., John M. Broder & Felicity Barringer, E.P.A. Says 17 States Can't Set Emission Rules, N.Y. TIMES, Dec. 20, 2007, http://www.nytimes.com/2007/12/20/washington/20epa.html?_r=1&oref=slogin;
48. Alex Kaplun, Senate Panel to Probe Decision on Calif. Waiver, GREENWIRE, Dec. 21, 2007 (on file with the Duke Law Journal).
49. See Alex Kaplun, Calif., Groups Sue EPA Over Waiver Decision, GREENWIRE, Jan. 2, 2008 (on file with the Duke Law Journal).
50. Administrator Johnson was questioned in appropriations hearings, as well as in other settings. E.g., Fiscal Year 2009 Budget for the EPA, supra note 44; Fiscal Year 2009 Budget for the EPA: Hearing Before the Subcomm. on Interior, Environmental, and Related Agencies of the S. Comm. on Appropriations, 110th Cong. (Feb. 26, 2008), 2008 WL 526941.
51. See Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. 12,156, 12,163 (Mar. 6, 2008).
52. See id.
53. Id.; see also id. (discussing "the unique problems faced in California as a result of its climate and topography" (citing H.R. REP. NO. 90-728, at 21 (1967)).
54. The EPA opinion did, a few pages earlier, note that "part of [the] benefit" to California of the 209(b) waiver was to allow the state to serve as a "laboratory for potential federal motor vehicle controls." Id. at 12,162. In simply mentioning this issue, the EPA opinion represents a substantial advance over most other agency actions relating to the extent of state law preemption. See, e.g., Mendelson, Chevron and Preemption, supra note 3, at 784 (describing other examples of agency preemption discussions); Mendelson, Presumption, supra note 3, at 718-32 & nn 122-30. It may be that agencies will eventually develop some consistent expertise on these questions. For this potential to be fully realized, however, legislation is required. See infra text accompanying note 81 (arguing that statutory criteria are required to guide both agencies and reviewing judges). Ultimately, however, this issue appeared to play no role whatsoever in the EPA's reasoning. Indeed, that sentence could have been omitted from the opinion, while making no difference at all either to the analysis or to the outcome.
55. Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. 12,159-60.
56. Id. at 12,162.
57. Mendelson, Chevron and Preemption, supra note 3, at 783-86.
58. Mendelson, Presumption, supra note 3, at 719-21.
59. Galle & Seidenfeld, supra note 1, at 2012.
60. Mendelson, Chevron and Preemption, supra note 3, at 780-82; Mendelson, Presumption, supra note 3, at 718.
61. Mendelson, Chevron and Preemption, supra note 3, at 787-88.
62. H.R. REP. NO. 90-728, at 21 (1967).
63. Id. at 22.
64. Id. at 96 (separate statement Mssrs. John E. Moss & Lionel Van Deerlin) ("California has led the Nation in promulgating strict emission control requirements . . . ."); id. ("California has been a model for the Nation in this critical field.").
65. S. REP. NO. 90-403, at 33 (1967).
66. See id.
67. H.R. REP. NO. 90-728, at 9.
68. H.R. REP. NO. 95-294, at 301 (1977).
69. See Fiscal Year 2009 Budget for the EPA: Hearing Before the Subcomm. on Interior, Environmental, and Related Agencies of the S. Comm. on Appropriations, 110th Cong. (2008), 2008 WL 607187 (statement of Sen. Allard) ("I do not necessarily agree on all aspects of the greenhouse debate, but . . . . I'm also troubled by the suggestion that the state of California's rights may have been curtailed."); id. (statement of Sen. Feinstein) ("I mean, it seems to me if Congress intended for waivers to be limited to problems unique to California, why did it give other states the right to adopt the same standards?").
70. State Efforts Toward Low-Carbon Energy: Hearing Before the H. Select Comm. on Energy Independence and Global Warming, 110th Cong. (2007), 2007 WL 3389741 (statement of Rep. Markey); see also id. (statement of Rep. McCollum) ("We have California, Wyoming, Washington, and the northern states coming up with creative ideas.").
71. Hearing on the EPA Before the Subcomm. on Interior, Environmental, and Related Agencies of the H. Comm. on Appropriations, 110th Cong. (2008), 2008 WL 526941 (statement of Rep. Moran) ("I was stunned that - where I would think that EPA would be encouraging state and local efforts. You pulled the rug out from under California, which was attempting to show the lead, because of the lack of leadership on the federal government's part.").
72. Climate Change: Hearing Before the S. Comm. on Foreign Relations, 110th Cong. (2008) (statement of Sen. Cardin), 2008 WL 219099.
73. See supra note 44 and accompanying text.
74. Capture could, of course, explain the result here. I have elsewhere argued that if one accepts a public choice view of agency regulation, state law preemption can allow an agency to more effectively "deliver on 'deals' with well-organized interest groups." Mendelson, Chevron and Preemption, supra note 3, at 795.
75. See id. at 779-91.
76. See Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. 12,156, 12,159 (Mar. 6, 2008) ("EPA's review of this criterion has typically been cursory due to California needing its motor vehicle emission program due to fundamental factors leading to local and regional air pollution problems (as discussed below)."). For an example of the EPA's cursory review, see California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption - Notice of Waiver Decision and Within the Scope Determinations, 64 Fed. Reg. 42,689, 42,690 (Aug. 5, 1999) ("CARB has continually demonstrated the existence of compelling and extraordinary conditions justifying the need for its own motor vehicle pollution control program, which includes the subject standards and procedures. No information has been submitted to demonstrate that California no longer has [such] a compelling and extraordinary need . . . .").
77. E.g., USAJobs, EPA Supervisory Environmental Program Analyst posting, http://jobsearch.usajobs.opm.gov/getjob.asp?JobID=71190618@brd=387... rt=rv&vw=b&Logo=0&FedPub=Y&lid=316&FedEmp=N&ss= 0&TabNum=3&rc= (last visited May 31, 2008) (copy on file with author).
78. The posting does not mention knowledge of state-federal relations or general governmental structure.
79. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.").
80. Galle & Seidenfeld, supra note 1, at 1977.
81. E.g., Stephanie Stern, Cognitive Consistency: Theory Maintenance and Administrative Rulemaking, 63 U. PITT. L. REV. 589, 591 (2002) ("After agency members have devoted months, or even years, to preparing a proposed rule and made highly visible public commitments endorsing that proposal, the attitude maintenance bias suggests suboptimal processing of later public inputs.").
82. Letter from Stephen Johnson, EPA Administrator, to Arnold Schwarzenegger, Governor of Cal., supra note 41, at 1-2.
83. Galle & Seidenfeld, supra note 1, at 2012-13.
84. See, e.g., Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 471 n.4 (2001) (refusing to allow an agency to consider cost when the statute did not mention it). See generally Mendelson, Chevron and Preemption, supra note 3, at 793-94.
85. See Galle & Seidenfeld, supra note 1, at 1983 n.2ll.
86. Exec. Order No. 13,132 § 11, 3 C.F.R. 206, 211 (2000), reprinted in 5 U.S.C. § 601 (2006).
87. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (applying arbitrary and capricious standard to require agency to provide reasoned analysis of policy choice).
88. See, e.g., Nevada Land Action Ass'n v. U.S. Forest Service, 8 F.3d 713 (9th Cir. 1993) (denying a challenge to agency action for failure to justify chosen land management alternative in comparison to others considered); Md. Wildlife Fed'n v. Dole, 747 F.2d 229 (4th Cir. 1984) (dismissing a challenge to failure to adequately consider highway alternatives under NEPA), vacated sub. nom, Md. Wildlife Fed'n v. Lewis, 22 ERC 1910 (4th Cir. 1985) (No. 83-1429); United States v. Bell Petroleum Servs., 734 F. Supp. 771 (W.D. Tex. 1990) (ruling on a challenge to agency's decision to install a drinking water system, rather than taking no action or supplying bottled water under CERCLA); see also Motor Vehicle Mfrs. Ass'n, 463 U.S. 29 (applying arbitrary and capricious standard to require agency to provide a reasoned analysis of its policy choice).
89. Galle & Seidenfeld, supra note 1, at 1965.
90. For example, the National Conference of State Legislatures maintains the "Preemption Monitor" webpage. Law and Criminal Justice, Preemption Monitor, http://www.ncsl.org/standcomm/sclaw/PreemptionMonitor_Index.htm (last visited May 31, 2008); see also Nat'l Governors Ass'n, Importance of Federalism, http://www.nga.org/portal/site/nga/menuitem. 5cd31a89efe1f1e122d81fa6501010a0/?vgnextoid= 817486c0f1c61010VgnVCM1000001a01010aRC RD (last visited May 31, 2008).
91. See Galle & Seidenfeld, supra note 1, at 1966; Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 26-27 (2007).
92. Mendelson, Chevron and Preemption, supra note 3, at 769-73.
93. Id. at 797-98 (quoting Skidmore v. Swift, 323 U.S. 134, 140 (1944)).
94. See Galle & Seidenfeld, supra note 1, at 1984.