by John E. Bonine

In turning down California's request to set stricter limits on greenhouse gas emissions from new automobiles, George W. Bush's Environmental Protection Agency has struck a blow against both states' rights and the future of our grandchildren.

Unless the decision is reversed, new cars sold in Oregon and elsewhere in 2009 will not limit greenhouse gases, as they could and should, beyond the limits contained in the new energy bill.

Oregon should join California Attorney General Jerry Brown and Gov. Arnold Schwarzenegger, who have announced they will "sue at the earliest possible moment" to overturn the EPA decision. The states should push for an expedited hearing.

How successful are the states likely to be? They have a good chance to win on legal grounds, but a court decision cannot be handed down quickly enough to affect 2009 models of automobiles. And if we have to wait until a new president is in office who can approve a new request from California, we will have lost at least two more years in the battle against global warming.

Can Congress make a difference? U.S. Sen. Barbara Boxer, D-Calif., said she was "prepared to take all measures to overturn this harmful decision." But that offers little hope, for "all measures" taken by the Congress would likely draw a veto by this president.

Probably the most effective response to this latest contribution to global heating (it's not just warming) would be a strong political reaction. But let's examine the likely success of a lawsuit by California, Oregon and others anyway.

First, some background:

The first government in the world to tackle the problem of pollution from automobiles was California, which started mandating standards for newly produced automobiles more than 40 years ago. The auto industry lobbied for national standards and a law that would block individual states from regulating automobile design. The prospect of numerous states having differing standards drove Detroit to seek a uniform, national program.

Although all other states were pre-empted from having their own standards, California was able to hang on to its legal right to act as a leader in forcing the development of new technology. The federal Clean Air Act specifically granted this right. In 1977, the act was amended to allow other states as well to adopt standards stricter than the national standards -- as long as they were the ones that California was imposing on the industry. In that way there would be two sets of standards in the United States -- the more progressive California-and-others standards and the laggard EPA standards. It was a good solution that respected the role of the states as "laboratories" for experimentation, while giving a major industry some certainty in its planning and production processes.

But the law also gave the EPA the power to veto the California-and-others set of standards. Section 209 of the Clean Air Act says the EPA should not grant a waiver for separate California-and-others standards unless they are needed "to meet compelling and extraordinary conditions."

On Wednesday, EPA Administrator Steve Johnson said: "Previous waiver petitions covered pollutants that predominantly impacted local and regional air quality. These gases contribute to the challenge of global climate change affecting every state in the union."

In other words, the Bush administration has concluded that global warming (or, more accurately, heating) is not "compelling" or "extraordinary" because it is not local or regional, but national and global. The reasoning takes one's breath away.

A court challenge to the EPA's decision will turn on a question of administrative law that I ask my law students: "Who interprets the laws passed by Congress -- the courts or the executive branch?"

A Supreme Court case in 1984 titled Chevron v. NRDC established a two-step test for answering that question.

Step One: If the law is clear, the courts interpret it and can overturn the government decision (or, shall we say, they just apply the law).

Step Two: If the law is not clear, the courts "defer" to the interpretation by the administrative agency -- as long as it is "permissible" (reasonable).

The best way to challenge a federal agency is to win in Step One. If the court goes to Step Two because of ambiguous statutory language, it often upholds the agency.

Regarding this Step One interpretation, several years ago, when the Supreme Court was deciding whether the FDA could regulate cigarettes, it said the courts are not limited to examining only the bare words of the statute in order to determine whether it is clear. They also can consider "legislative intent" (committee reports, other background material), including the context of the legislation.

Consider this: Congress in 1977 allowed all states -- not just California -- to adopt the stricter California standards. It did this in order to address the widespread problems of air pollution in our nation. But Congress did not limit this reinstatement of states' rights to only states that had their own local or regional problems. It allowed any state to adopt the stricter standards, regardless of the local situation.

This suggests that Congress intended that the states be able to address "compelling and extraordinary circumstances" that are national or even global, despite the EPA's administrator claim in vetoing the stricter greenhouse gas standards last week.

Even if the odds of defeating EPA in court are good, the courts take some time to rule. But the planet doesn't have much time.

George Bush's administration is fiddling while the planet burns. This is not the same EPA for which I worked (during the Nixon, Ford and Carter administrations). In those days, we tried to follow the law, and Administrator William Ruckelshaus even invited California to apply for approval of stricter standards.

The present EPA is putting the interests of the oil and automobile industries ahead of the interests of our children and grandchildren. We have to regain an EPA in which the initials really do stand for "environmental" and "protection." While the courts can help, the real answer lies with parents of the next generations. And the real answer lies at the ballot box, not in the courtroom.

John E. Bonine joined the Environmental Protection Agency in 1972 as a staff attorney in the Office of General Counsel. He held supervisory positions during the Ford and Carter administrations, rising to associate general counsel, before leaving in 1978 to join the faculty of the University of Oregon School of Law.
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