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Industry Tries to Derail Progress in California, Again

David Pettit

Posted February 4, 2010 in Curbing Pollution

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In a familiar attack on California’s plans to fight climate change, a coalition of industry groups has filed a lawsuit in federal court in Fresno, California challenging California’s low-carbon fuel standard (LCFS).  The low carbon fuel standard is designed to reduce CO2 emissions by cutting down on the carbon content in motor vehicle fuel.  My colleague Roland Hwang has blogged about this here

The industry plaintiffs, including the American Trucking Associations, which is trying to kill the concession agreements that are the heart of the diesel pollution-reducing Port of Los Angeles Clean Trucks Plan, are making two arguments:  that the LCFS violates the Commerce Clause of the United States Constitution and that it is preempted by federal law, specifically the federal Energy Independence and Security Act of 2005.  These are the same legal theories that the auto industry used, unsuccessfully, in legal challenges to California’s Pavley Act, which is designed to reduce tailpipe emissions of CO2. 

In the Commerce Clause claim, the plaintiffs allege that the LCFS discriminates against non-California producers of corn ethanol, a product that can be blended with gasoline to reduce the carbon content of the combined fuel.  Plaintiffs also make the interesting claim that the LCFS will not provide any benefit to California that could outweigh the alleged harm to out-of-state interests, in summary because they claim the LCFS benefits won’t put a dent in global climate change.  Were that theory to prevail, which I think unlikely, a very big dent would be put in many state and regional level climate change initiatives because the same argument could be made there:  climate change is a world-wide problem and nothing we do locally can do any good.  So I guess we should just quit trying and get used to living here in California with more smog that kills more people every year, more fires, more agricultural pests, more ocean erosion, fewer native species and no water. 

The preemption claim asserts that the federal government has occupied this area of regulation of motor vehicle fuels and so California can’t have its own laws regulating the carbon content of fuels.  As I mentioned above, that same argument was made in the Pavley Act cases and went down to defeat.  There is no reason to expect a different result here.

Why are these industry groups throwing money at lawyers rather than working with California to stop global climate change – with retread legal arguments that are proven losers?  It’s hard to say.  Their public messaging trots out the “job killer” page from the industry playbook, but there’s nothing behind that:  the clean fuels industry will be creating jobs, not eliminating them.  After industry loses this next round, maybe they will clean up their act like the auto industry did after losing the Pavley cases.  It’s disappointing, but not surprising industry has chosen to litigate rather than innovate despite the fact that California requires them to start offering clean fuels. Instead of moving their industry into the 21st Century it appears they’d rather keep selling the same dirty old oil that sickens people and destroys our environment.

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