Vermont defeats car makers; Earth wins

Being sued is an unavoidable hazard of serving in public office. Most often the grievance is narrow and the stakes are small, but once in a while you find yourself on the receiving end of a lawsuit with massive financial, legal or political implications.

All were the case when three Vermont auto dealers, the Alliance of Automobile Manufacturers, The Association of International Automobile Manufacturers, DaimlerChrysler Corporation and General Motors Corporation jointly sued the secretary of natural resources, the head of Vermont’s air pollution control division and the commissioner of environmental conservation – that’s me – in an effort to stop Vermont’s new regulations limiting greenhouse gas (GHG) emissions from automobiles. I have since stepped down, but the regulations were proposed and adopted, and the sixteen-day trial was held while I was commissioner.

This trial was not supposed to set the first national precedent regarding whether states can legally regulate GHG emissions from cars. After all, California adopted the rules first, as required under the Clean Air Act. Under the Act, states get to choose between adopting the EPA vehicle emissions regulations or California’s and since 1996 Vermont has followed the California regulations.

Since California was the first state to adopt the rules, they were the first to have their rules challenged by the manufacturers. Vermont was second to adopt the rules, followed by eleven others. To fight this rule the manufacturers had to sue California, but they did not have to sue Vermont or Rhode Island, where they filed a similar lawsuit. Their apparent legal strategy is to bring lawsuits against “California Car” states in different federal circuits; the ninth (California, Washington and Oregon), the second (New York, Connecticut and Vermont) and the first (Massachusetts, Maine, and Rhode Island). The remaining “California Car” states are Florida (11th circuit), Pennsylvania and New Jersey (3rd circuit), and Maryland (4th circuit).

So why did the manufacturers choose Vermont and Rhode Island for their other challenges? Out of the list of ten states outside the ninth circuit, Vermont and Rhode Island would have the least resources from which to mount a defense. So the manufacturer’s strategy appeared to be to attempt to win all three cases, but a loss in California could be offset by a win in tiny Vermont or Rhode Island when the matter was finally brought before the U.S. Supreme Court.

Until early this year everyone working on the Vermont case expected the California trial would go first, followed quickly by Vermont and then Rhode Island, if that one went to trial at all. But motions brought by the State of California and issues within the court caused that trial to be delayed, pending a ruling by the U.S. Supreme Court on a different but related case, Massachusetts v. EPA.

However, in response to similar motions here U.S. District Judge William Sessions decided to go ahead with the Vermont trial, and await the Supreme Court decision before issuing his ruling. The domestic manufacturer’s welcomed this; no doubt the prospect of taking a Vermont victory into the California courtroom was delicious. The reaction in Montpelier was near panic.

Like the understudy being told ten minutes before curtain on opening night that he had to perform, Vermont Attorney General Sorrell, Governor Douglas, the Agency of Natural Resources and supporting interveners were forced to rethink the whole effort.

The burden of being the first to hear the testimony of industry experts and cross-examine them, the first to prepare our expert witnesses for their cross-examination; in essence, the burden of being the first to defend California’s rule was suddenly and unexpectedly placed on the smallest state. California had spent millions over several years to prepare for their trial. And just as with the GHG emissions rule itself, Vermont relied heavily on California’s experts, studies and preparations. But when it came to the first test before a federal judge, California now had to rely on Vermont.

Then, a couple of weeks before the trial began in late April the U.S. Supreme Court ruled on Massachusetts V. EPA. In a 5-4 decision, the Court dealt a blow to the manufacturers’ case by holding that the Clean Air Act not only could be used to regulate vehicle GHG emissions, but that the reasons given by U.S. EPA for choosing not to were inadequate.

Judge William Sessions’ 240-page September 12th ruling in favor of Vermont and against the automobile manufacturers is far from the final step in this effort. But it represents a complete, if not final, victory. By all accounts the Vermont team, lead by Scot Kline of the attorney general's office, did an excellent job of defending our rule and challenging the claims of the manufacturers.

In the end Judge Sessions cited the Supreme Court ruling and rejected multiple legal, technical and economic claims brought by the manufacturers. And instead of the manufacturers defeating little Vermont and bringing that result to court in California, the California case may not even go to trial. According to the Boston Globe:

“A hearing is set for Oct. 22 in a similar case in California. But Matt Pawa, a lawyer who represented three national environmental groups in the Vermont trial, said the Vermont ruling makes it likely the California case will be dismissed.

"The persuasiveness of Judge Sessions' decision, we expect, should carry the day" in California, Pawa said.

He called the ruling "a historic win for the planet, for Vermont, for the cause to curtail global warming, and for the right of states to set more stringent limits on all kinds of pollution, including greenhouse gas emission standards."”