This morning, the D.C. Circuit dismissed California, et al. v. EPA, a case challenging EPA's determination that the Obama-era #cleancars standards were no longer appropriate. For background on the case, see my blog: eelp.law.harvard.edu/wp-content/upl…
This case was interesting because the mid-term evaluation and final determination were unique features of the "National Program" created in 2012 to harmonize California and federal standards into one package of CAFE and GHG standards that extended out to 2025.
The mid-term evaluation was designed for regulators to examine & adjust the targets for 2022-2025, if needed, and determine whether the standards were still appropriate based on: Technical Assessment Report prepared by CA & EPA, feasibility, safety, cost, reducing emissions, etc.
The D.C. Circuit found that EPA's withdrawal of the final determination issued in Jan. 2017 and its issuance of a new final determination were not final agency actions and thus could not be reviewed by the court.
"Because the Revised Determination neither determines rights or obligations or imposes any legal consequences, nor alters the baseline upon which any departure from the currently effective 2012 emission standards must be explained, [it] is not judicially reviewable final action."
The decision is not surprising. I noted in my blog that "the court has a variety of off-ramps, so to speak, which allow it to dismiss the case before arriving at the substantive claim: lack of standing, lack of a final agency action…."
However, the court was clear today that EPA will have some explaining to do in the inevitable litigation challenging the final SAFE Vehicles rule, due sometime this winter.
The D.C. Circuit emphasized, "By withdrawing the Original Determination and initiating a rulemaking, EPA has not erased the Draft Technical Assessment Report, Technical Support Document, or any of the other prior evidence it collected."
"...the evidence supporting it stands. If EPA’s rulemaking results in changes to the existing 2012 standards, it will be required to provide a reasoned explanation and cannot ignore prior factual findings and the supporting record evidence contradicting the new policy."
