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Stall In Lawsuit Reveals The Distance Between California And Former Ally, EPA

A highway paving machine in the yard of Skip Brown, whose Delta Construction ...

Credit: Ingrid Lobet / inewsource

Above: A highway paving machine in the yard of Skip Brown, whose Delta Construction company in Sacramento is a plaintiff in a lawsuit challenging a California diesel exhaust rule. March 9, 2017.

On the surface, it’s just a request to the Ninth Circuit Court of Appeals for more time to prepare, due to a change in federal administration. But inside the legal filing, lead attorneys in the Trump administration Justice Department say they are taking a hard look at California’s right to set clean air rules.

On the surface, it’s just a request to the Ninth Circuit Court of Appeals for more time to prepare, due to a change in federal administration.

But inside the legal filing, lead attorneys in the Trump administration Justice Department say they are taking a hard look at California’s right to set clean air rules.

The case, called Dalton Trucking vs. Environmental Protection Agency, takes up the cause of contractors who use diesel construction and highway equipment. California, they say, is regulating their machines too tightly.

Where an Obama administration was fighting this lawsuit, keeping EPA allied with California, in the Trump administration, the EPA now sends this message to the diesel interests: Give us a little more time, we think you may be right.

The court granted the continuance.

Attorneys for the diesel users are buoyed.

“Almost on the eve of oral argument, the EPA filed a motion asking the court to postpone so the EPA could reconsider the prior administration’s action,” said Ted Hadzi-Antich, a senior attorney at the Texas Public Policy Foundation. “The 9th Circuit granted EPA’s motion, over the strong objections of the California Air Resources Board.“

The lawsuit is ambitious, reaching far beyond the question of whether California can control diesel exhaust from roadwork equipment and bulldozers. It challenges 40 years of authority granted by EPA to the state, saying the agency has misinterpreted the language of the federal Clean Air Act for decades.

“It appears from recent court filings that the Trump administration intends to revisit the California waivers for light-duty, heavy-duty, and off-road vehicles,” said David Pettit, a senior attorney with the Natural Resources Defense Council. But he said EPA will have to go through a significant process, it cannot just change rules.

California says that without the ability to set its own rules, it would not be able to attain clean air, to say nothing of the other states that have for decades adopted California rules.

The Air Resources Board asked the court to deny the request and go forward with the case, saying postponement would have the effect of “perpetuating indefinitely the cloud of uncertainty” over the diesel program. The issue, it said, was “long overdue for adjudication.”

The court set no date for oral argument.

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