Don’t tread on us

The federal government, led by President Bush, has pushed the envelope in cutting back on environmental protections. But California is pushing back in court with some success.

Illustration By Thomas Fuchs

While waiting for the final showdown between President George W. Bush in the red corner and his challenger, John Kerry, in the blue corner, the country will spend the next four months studying policy debates, attacks and counterattacks, and plenty of slimy ad campaigns. But challenges to the president’s eminence don’t begin and end with electoral politics. Throughout his term in office, the president has been strongly challenged—aggressively and repeatedly—by the state of California. But instead of attracting television cameras, these battles take place rather quietly in the courts.

Under Bush, the federal government has used its broad authority to push for sweeping changes in policies that affect the state, and California, making the most of its historical exemptions from certain federal regulations, has pushed back.

For instance, the Clean Air Act gives California—historically the smoggiest state in the United States—the freedom to improve on federal air-quality standards to protect Californians’ health. But when the state used that authority to launch a campaign for electric cars, the federal government accused California of regulating “fuel economy,” an arena only Congress could regulate. The courts agreed with the feds, and California scaled back its “zero-emissions vehicles” program.

That case was only one of 20 currently pitting California regulators against federal regulators in the courts. Imagine two backyard bullies drawing lines in the sand and then using all their muscle to shove against each other, sweating to gain every inch of ground. That’s what these court battles have come to resemble.

But the freedoms and protections represented by those lines in the sand are worth fighting for. Along with having poor air quality, California is home to some of the nation’s most stunning natural resources. The federal government has tried to increase logging in our forests, threatening endangered species and old-growth trees; has tried to exempt the Department of Defense from cleaning up its environmental messes from weapons production and munitions training; and has left the door open to increased oil drilling off the coast of California.

So, which powerful bully is winning in this legal tug of war? So far, results from the complex, multilayered court battles are mixed.

The office of state Attorney General Bill Lockyer recently provided SN&R with summaries of the 20 significant cases working their way through the courts. California didn’t always bring the suit. Sometimes it filed briefs in support of environmentalists or petitioned for the courts to review decisions made by federal agencies in hopes of overturning them.

Though the list includes cases regarding national banking regulation and medical marijuana, as well as cases seeking relief after the recent energy crisis in California, the great majority of the legal fights (a whopping 15 cases) focus on the interpretation and scope of environmental policy.

In these court battles, California looks like the trend-setter, attempting to protect its coastline from oil spills, its forests from fire and degradation, and its inhabitants from the illnesses associated with contaminated air and water, even when strict regulation means that big businesses, like those in the auto industry, will be forced to develop and pay for new technologies. These cases also portray a particular side of the Bush administration: often the friend of big business, anxious to preempt state law to rescue industries from excessive rules that limit profits.

“The [state attorney general] has called the federal government the single biggest threat to California’s environment,” said Tom Dresslar, spokesman for Lockyer’s office, adding that the president’s pro-business stance has threatened the traditionally cooperative relationship between state and federal regulators. (The state attorney general himself did not respond to an interview request.)

Federal agencies have insisted in court documents that their policies are improvements that streamline regulation and offer greater flexibility without reducing environmental protections. (Repeated calls and e-mails to the U.S. Environmental Protection Agency (EPA) failed to elicit comment about whether the agency had changed its priorities to be more business-friendly under Bush.)

With a Republican president and a Democratic state attorney general, some legal experts chalk all the acrimony up to partisan politics. State and federal governments are trying to regulate in the same areas, said Professor Brian Landsberg of the McGeorge School of Law, an expert in constitutional law, and there’s going to be friction when they’re politically polarized.

Professor John Sims, also of McGeorge, noted that there’s also been a shift in who supports states’ rights and who pushes for greater federal control. As an example, a banking-industry case on the attorney general’s list of 20 showed that nationwide banks relied on the federal government for protection when asked to adapt their products and reporting practices to a unique set of consumer protections proposed by California.

Though neither professor knew whether the current number of court cases was statistically relevant compared with the number under other administrations, Dresslar claimed that if they weren’t “unprecedented in scope and volume, it’s pretty darned close.” Pre-Bush, he said, there were only a handful of cases pitting California against the federal government.

Though Lockyer’s office could not estimate the cost of fighting these cases, Dresslar did say that “in terms of personnel, these battles probably cause us to divert the time of a dozen or so of our best and brightest environmental-, consumer- and labor-law prosecutors.”

That’s a lot of resources. With high-stakes environmental effects on the table, SN&R summarizes here 10 cases that epitomize the positions of the state and federal governments. There are a couple of likely wins for California, and some obvious successes for federal agencies, but many of these cases will continue to drain state and federal resources for months and years to come.

Bush may face greater threats in the coming political season, but these cases collectively represent an enormous challenge to California, which is trying to permanently strengthen state control over its most important natural resources: air, drinking water, wild lands, oceans, forests, etc. You name it, and it seems like California’s in a fight to protect it.

Offshore oil drilling

In one recent court battle, California asserted its right to review and potentially reject offshore oil-drilling leases approved by the federal government; the feds, under Bush, had ignored the state’s rights and extended drilling leases to oil companies.

It started back in 1969, over one of California’s most dramatic environmental tragedies. An oil-well accident off the coast released thousands of gallons of oil per hour for more than a week, spreading muck over 30 miles of Southern California beaches. Within a month, a second well had blown out, and it was discovered that a federal regulator had waived safety requirements that could have prevented the disaster.

That accident showed that coastal states needed special protections, so the federal Coastal Zone Management Act (CZMA) gave states the right to review any federal activity affecting the first three miles of their bordering ocean for consistency with the states’ coastal-protection policies.

In spite of this legislation, and a federal moratorium on new oil and gas drilling off California’s coast, in 1999, the U.S. Department of the Interior extended 36 offshore oil-drilling leases to companies including Aera Energy LLC and Samedan Oil Corp. The leases, issued between 1968 and 1984, would have expired but for the intervention of the federal government; they had never been reviewed for consistency with state policy.

Lockyer’s office filed a lawsuit asking that the leases be handed over to the California Coastal Commission (CCC) for review as allowed under the CZMA. Both Senators Barbara Boxer and Dianne Feinstein, along with 30 Democratic Assembly members, supported the suit. The federal government claimed the review was unnecessary because any actual drilling activity would have to be reviewed, making a review of the leases duplicative. But both the lower court and the 9th Circuit Court of Appeals sided with California.

Though Californians might expect that any development of the leases would be inconsistent with state policy, the CZMA supports some oil and gas drilling, so each lease will be reviewed separately based on its potential environmental impact, including on sensitive species like the California sea otter.

The Bush administration says it won’t appeal the case to the Supreme Court, claiming that “the administration supports the moratorium on new leasing off the California shore and respects the wishes of the people of California.” The administration did, however, write new federal legislation to limit the CZMA’s power and put it into the massive national energy bill, which has since languished; the bill is expected to reappear, in whole or in part, in the near future.

The office of the state attorney general, Bill Lockyer, is supporting environmentalists and others against the federal government in 20 separate cases—many of which are being fought all the way up through the appellate courts.

Sierra Nevada Framework

The Sierra Nevada Framework controversy also goes back a number of years. A plan to protect and restore the forests in the Sierra Nevada was in place when the Bush administration decided the regulation needed a major overhaul: more freedom to log and graze on the land.

In 1996, a report was released claiming the Sierra Nevada had been weakened by decades of increasing human habitation, a history of logging and over-grazing, almost a century of fire suppression, disease and parasites. Sensitive and endangered animal species were losing habitat, and catastrophic fire was a constant concern, as was the future health of California’s old-growth forests.

Over a decade, citizens groups and regulators forged a solution for the ailing region: the Sierra Nevada Framework. Once approved by the U.S. Forest Service in 2001, the framework was widely praised by environmentalists for protecting old-growth trees, wildlife and aquatic resources. It called for logging, but primarily near human developments to reduce the risk of fire. Environmentalists were pleased, but business interests like the timber industry were not. Under Bush, the Forest Service began considering an amendment.

“The Sierra Nevada Forest Plan Amendment of 2001 is a good plan,” claimed Pacific Southwest Regional Forester Jack Blackwell, “except that its methods and standards cannot reverse the damage, and growing threat, of catastrophic fire quickly enough.”

With little public review—according to environmentalists who felt left out of the process—a new plan was presented by the Forest Service. It approved the logging of older trees up to 30 inches in diameter—a significant increase over the previously approved 20 inches. Along with reducing fire danger, claimed the Forest Service, increased logging would help pay for the expense of implementing the plan.

“The emphasis will be on unnaturally dense stands of smaller trees and brush,” said a release from the Forest Service. “We’ve got to remove some of this dense growth in strategic sites. It may look beautiful, but it’s deadly.”

Environmentalists hit the roof. The California attorney general’s office appealed to the Forest Service, supporting environmentalists who complained about the cutting of more fire-resistant medium-sized trees and the destruction of needed habitat. The attorney general claimed that the Forest Service had failed to “discuss the environmental impacts of its radical alteration of the framework.”

Lockyer’s office was not alone in protesting. The new plan attracted more than 6,500 written appeals from environmentalists, according to the Forest Service.

The decision is now in the hands of Dale Bosworth, chief of the U.S. Forest Service, but if he chooses not to return to the original framework, it’s likely environmentalists and California will consider a lawsuit, moving the decision from the Forest Service’s hands into the hands of the court system.

Greenhouse-gas emissions

California has sought to regulate pollution from cars for years, claiming that ozone-destroying gases could lead to climate changes threatening marine life, California agriculture, etc.; the Bush EPA, however, recently denied a petition asking the federal agency to regulate greenhouse gases nationwide.

The case has roots in a petition sent by the International Center for Technology Assessment to the federal EPA in October 1999. Greenhouse gases are pollutants, said the petition, so the EPA must regulate carbon dioxide, methane, nitrous oxide and hydrofluorocarbons.

Before responding, the EPA reviewed 50,000 public comments. And then it denied the petition, claiming that “it cannot and should not regulate [greenhouse-gas] emissions from U.S. motor vehicles.” The EPA sided with industry reps and other opposition forces claiming that the Clean Air Act did not grant the agency the authority to address the broad concern of “global climate change.” If it did assume that authority, went the logic, the EPA would “effectively regulate car and light truck fuel economy,” an area clearly under the control of the Department of Transportation. The EPA also found that certain greenhouse gases were naturally occurring and did not fit the definition of a pollutant.

Finally, the EPA found regulation unnecessary, claiming that Bush already had established a policy on global climate change. That policy, the EPA asserted, would answer questions regarding global warming and encourage technologies that would reduce greenhouse-gas emissions “if needed.”

California was joined by 11 other states in petitioning the U.S. Circuit Court of Appeals in Washington, D.C., to review the EPA’s decision. A statement issued by Lockyer’s office read, “That policy is wrong-headed. … At its core, despite consensus science to the contrary, is the view that more study needs to be done before taking corrective action. I don’t have a problem with gathering more empirical evidence. But we’ve done enough study to know that we need to take concrete steps, now, to address this serious threat to our environment and public health.”

A decision from the Court of Appeals is still pending.

Wilderness protection

The Bureau of Land Management (BLM) administers 261 million acres of federal land, including approximately 15 million acres of forests, deserts and coastline in California. One of the BLM’s jobs is to recommend to Congress how many acres should be designated as “wilderness study areas”—public wild lands temporarily protected from development. In Utah, the BLM opened up some of these proposed wilderness-study areas to off-road vehicles, and California joined community groups protesting that decision.

According to the court documents, the BLM had recommended in 1991 that Congress designate 2 million acres of land in Utah as protected wilderness-study areas—no new roads and no off-roading. Congress hasn’t ruled on that recommendation yet, and the BLM, which also manages mixed-use areas, opened some of these lands up to off-road vehicles. Community members took the BLM to court, claiming it had failed to follow its own recommendation and protect all 2 million acres, as they were legally obligated to do.

The case eventually pivoted on whether community groups had the right to ask the courts to intervene. A lower court said they did, and the appeals court agreed, but the Bush administration asked the Supreme Court to throw out the decision.

The California attorney general’s office filed a brief, along with 13 other states, supporting the citizens and arguing that the federal courts are the only recourse when a federal agency has not followed its own mandate. Clearly, California feared for its own protected wilderness areas.

On June 15 this year, the Supreme Court reversed the appeals court’s decision and sided with the Bush administration. Judge Antonin Scalia claimed that if the courts insisted an agency meet its own obligations to the court’s specifications, the courts would, in effect, be setting policy.

New source review

Since the 1950s, air quality has been an obvious concern in California in big cities like San Diego, Los Angeles and Sacramento, where nearby mountains trap in smog and pollution. California traditionally favors strict regulation for big polluters, including power plants, factories and refineries. And so does the federal government, but environmentalists accuse the Bush administration of weakening a complicated program called “new source review” that forces plants to install pollution controls.

The Clean Air Act and the Acid Rain Control Program require power plants and refineries—expensive, high-polluting facilities—to install the most up-to-date pollution controls whenever they build new plants. Surprisingly, the regulation was stymied when many large industrial sources opted not to build new facilities, but just to keep modifying the old ones. So, the permitting program—new source review—was reworked to ensure plants installed the most up-to-date pollution controls whenever performing anything beyond “routine maintenance” on their old plants. But “routine maintenance” was hard to define, and the rules were hard to navigate; some companies just ignored the law altogether.

In 1999, the U.S. EPA began suing non-compliant companies but, at the same time, began refining new source review, claiming that the clunky legislation itself hindered plants and refineries from making needed upgrades.

In the streamlining process, the EPA defined “routine maintenance” as any equipment replacement that cost less than “20 percent of the replacement value of the entire process unit.” This, according to environmentalists, gave power plants the freedom to perform millions of dollars a year of upgrades without triggering the need for upgraded pollution controls. The EPA contends that plants will have more flexibility to improve their facilities; it also claims that new source review was “never designed to require facilities to reduce existing levels of pollution.”

California joined other states in a petition against the EPA’s decision, and lawyers characterized the amended new source review as “just one example of a much broader Bush plan to roll back existing environmental protections and encroach on California’s authority to enforce its own laws.”

The EPA’s new rules have been stayed by the U.S. Circuit Court of Appeals in Washington, D.C., pending a decision, but the EPA’s Web site claims that “the [new source review] improvement rule likely will result in greater environmental benefits than the prior program.”

Mexican trucks

Just this June, the U.S. Supreme Court agreed with President Bush (ruling against the 9th Circuit Court of Appeals) that trucks from Mexico should have full access to American highways. This came as a blow to California, which had succeeded, in spite of the North American Free Trade Agreement, in limiting Mexican trucks to a narrow zone just north of the border.

A moratorium on Mexican trucks, which usually don’t meet American environmental standards, had been an attempt to limit the number of higher-polluting vehicles on California’s roads, especially in smog-dense areas like Los Angeles and the Central Valley.

With Congress’ blessing, Bush lifted the ban in his second year in office, claiming that freeing the roads for Mexican trucks was a foreign-affairs decision that would improve relations with Mexico and economic conditions in that country.

In March 2004, Lockyer joined the attorneys general of eight other states to challenge the Bush administration. As in other environmental cases, California complained that the federal administration hadn’t completed a full investigation of the environmental effects of its actions—as per the National Environmental Policy Act. California called for a study of potential environmental damage by Mexican trucks to prove that admitting them would keep states from complying with federal air-quality standards (the Clean Air Act again). To bolster its position, California submitted an independent report that estimated an increase of nearly one-third of a ton per day of nitrogen oxides in the Imperial Valley.

But the Supreme Court was unmoved. It ruled that the president had the authority to open up access to Mexican trucks, that it was his decision, exempt from environmental regulation. An e-mail from the California Air Resources Board, which concerns itself with air-quality issues, put it simply: “We have no control over this and must comply.”

Heat and air-conditioning regulation

In a consumer-related case, California went to court to protect strict standards put in place by Bill Clinton at the very end of his term as president. Clinton had signed into law energy-efficiency rules for heating and air-conditioning equipment. The move was meant to reduce consumers’ energy bills and protect against future power shortages, an issue of great importance during California’s energy crisis.

However, the U.S. Department of Energy reduced efficiency standards under the Bush administration in the name of consumer protection—strict new rules would be too expensive for consumers and would offer them too few choices in the marketplace.

In a lawsuit filed by California and nine other states, it was argued that the federal Energy Policy and Conservation Act prohibits the passing of any rules that reduce current energy-efficiency standards.

In January 2004, the 2nd Circuit Court of Appeals supported the state’s challenge to the new rules, rolling standards back to the tougher rules enacted under Clinton.

Department of Defense exemptions

“The federal government is the largest polluter in the country,” Lockyer claimed in testimony presented to California’s Assembly Natural Resources Committee (ANRC) in January 2003. “By far, the Department of Defense (DOD) is the largest polluter of any federal agency.” In Sacramento alone, there are four Superfund sites on the National Priorities List, and they’re all defense-related: the Rancho Cordova Aerojet facility, Mather and McClellan Air Force Bases, and the Sacramento Army Depot.

California is concerned about the DOD’s recent requests that Congress exempt it from various environmental regulations, but the DOD claims that it can’t prepare to fight wars in defense of America on its lands while meeting every law that protects birds and animals to the letter.

In 2002, the DOD received a temporary exemption to the Migratory Bird Treaty Act that allowed the “incidental taking of endangered birds during bombing and other training on military lands,” according to a DOD press release. In 2003, the DOD asked Congress for clarification on certain Clean Air Act regulations, which sounded very much like requests for exemptions. For instance, the National Research Council wants the Marine Mammal Protection Act to regulate only biological effects on animals, and not “annoyance” or “potential to disturb.”

According to Lockyer, these requests for exemptions weren’t unusual. The DOD also wanted to avoid cleaning up weapons discharges and toxins (like the rocket-fuel ingredient perchlorate) from its Superfund sites.

Lockyer’s testimony to the ANRC claimed the exemptions were unnecessary because the president or defense secretary could exempt the DOD from statutory and regulatory requirements on a case-by-case basis at any time. “All that is required is a finding that doing so is necessary for national security or is in the paramount interests of the United States,” he said.

In April this year, 39 other attorneys general joined California in addressing various members of Congress with a petition protesting the DOD’s proposed exemptions. The petition argued that the DOD had not proved that these regulations had in any way impeded their ability to prepare and train for war.

Congress has not yet decided about the proposed exemptions.

Ethanol waiver

California first banned the fuel additive methyl tertiary-butyl ether (MTBE) in 1999 because it was leaching into groundwater, but under federal fuel standards, California was still obligated to sell oxygenated fuel. The only other way to oxygenate fuel, besides using MTBE, is with ethanol. California asked for a waiver from the “oxygenated fuel mandate,” but it was denied by the U.S. EPA.

California claimed that substituting MTBE with ethanol would be detrimental both environmentally and economically. Former Governor Gray Davis explained that California gasoline can be blended to meet clean-fuel requirements without a mandatory oxygen content. The EPA wasn’t convinced. It denied the waiver, claiming that California had not proved that waiving the oxygen-content mandate would have a positive effect on ozone pollution.

Illustration By Thomas Fuchs

The attorney general’s office petitioned for review of the EPA’s decision, and in July 2003, the 9th Circuit Court of Appeals agreed with California that the EPA had not viewed and weighed the science appropriately before denying the oxygen waiver. The court did not, however, overturn the EPA’s denial. It simply vacated it and asked the EPA to go back to the drawing board and perform a more complete investigation of the final effects of California’s proposal before turning the state down.

The EPA decided not to appeal the decision and instead has accepted the court’s mandate.

Nuclear storage

In December 2001, Pacific Gas & Electric (PG&E) applied to the U.S. Nuclear Regulatory Commission (NRC) to expand its Diablo Canyon power plant near San Luis Obispo. Plans included an above-ground spent-nuclear-fuel storage facility to house 140 casks of cooling nuclear-reactor fuel from the plant’s two reactors. California protested the facility, claiming that the feds hadn’t studied the potential effects of a terrorist attack.

The NRC granted the license to PG&E, effective for 20 years and renewable. A Safety Evaluation Report “summarizes the NRC staff’s analyses of potential effects on the installation from a wide range of natural and man-made hazards, such as flooding, lightning, fire, earthquakes and explosions,” claimed an NRC press release.

What was missing, according to the California attorney general, was an assessment of potential terrorist attacks. The NRC claimed that the threat of a terrorist attack was too remote to be considered in the environmental report.

Community groups squawked. Mothers for Peace launched a lawsuit, and when the case got to appeal with the 9th Circuit, Lockyer backed them up. In a petition for review, Lockyer cited page after page of quotes from the president and others about the terrorist threat to nuclear power plants. For instance, in January 2002, Bush noted that plans for U.S. nuclear power plants had been found at Al Qaeda bases in Afghanistan; that same month, the NRC itself issued alerts to the nation’s nuclear power plants, warning them of the potential for attack.

A statement from the attorney general’s office claimed, “This administration, and this president, constantly remind us of the terrorist threat. And yet, in this case, they say the danger is so remote they can deny Californians their right to know the environmental effects of a terrorist attack on a nuclear facility.”

A decision from the 9th Circuit is pending.

The bulk of these battles are moving straight from district courts to the appellate courts, and some right up to the Supreme Court, putting pressure on the resources of the California attorney general’s office.

For the first years of his first and second terms, Lockyer worked with the support of a Democratic governor, but with Arnold Schwarzenegger’s election, what had been a polarized fight between the state’s Democratic administration and the federal government’s Republican administration has shifted.

Though the presence of a new Republican governor eventually could weaken California’s aggressive environmental stance, Dresslar claimed that so far, the attorney general has received Schwarzenegger’s support. “We’re encouraged,” he said.

Schwarzenegger’s own policy on the environment was laid out before the recall election. He campaigned with high-minded environmental goals like cutting air pollution statewide by up to 50 percent. He promised refueling stations for hydrogen-powered cars every 20 miles on interstate highways; he promised to “examine the impact of the federal decision to exempt new sources of industrial air pollution from new source review” and to enforce the Sierra Nevada Framework.

According to Dresslar, “Schwarzenegger has supported our positions, most notably on global warming, new source review and offshore drilling.” If the attorney general and the Republican governor are willing to fight the same battles and commit the same resources to pushing back federal control of state environmental protections, California has a good chance of achieving the kinds of environmental goals that 50 years of legislation have supported. And it’s possible they’ll only need to fight on to this degree until November.