California Exceptionalism

 By: John Sims

A few days after my post about California’s decades-long leadership on efforts to curb air pollution from vehicles, The Sacramento Bee ran an opinion piece on the topic, written by Robert F. Sawyer and Jananne Sharpless, former chairpersons of the California Air Resources Board.  In “Let California lead on clean cars,” the authors describe and argue against a proposal pending before Congress to create a single national standard for vehicle emissions and fuel economy.  Their conclusion is that California “cannot afford to let Washington undermine California’s authority and our states’ rights to protect our communities’ health and our economy.”

My earlier post also provided a link to the December 11 argument in the Ninth Circuit case in which the federal government seeks mandamus to stop the district court in Oregon from going ahead with a February trial on climate change.  It turned out that the linked video portrayed the last appearance on the bench by Judge Alex Kozinski, who retired December 18 after more than 30 years on the Ninth Circuit, after having been charged with sexual harassment.  On December 21, the court assigned Judge Michelle Friedland of California to replace Judge Kozinski on the mandamus case.  There is no way to know yet whether the new composition of the panel will substantially delay the resolution of the mandamus matter.

By: John Sims

A dramatic confrontation over climate change took place on Monday, December 11, in the San Francisco courthouse of the United States Court of Appeals for the Ninth Circuit.  That’s the federal appellate court that includes California and the other western states.  The plaintiffs, many of whom are children, point out that the federal government is not taking adequate steps to restrict greenhouse gases, and that in fact its coal-friendly and oil-friendly policies will have disastrous consequences for the plaintiffs (and the millions of other children like them) over the course of their lives.

The Los Angeles area, because of its reliance on automobiles and dense freeway traffic, experienced some of the worst smog in the nation after World War II.  Thus, when Congress adopted the Clean Air Act in 1970 to curb pollution, California was highly motivated to support that goal.  The statute includes a provision that allows California to receive federal permission to impose limits on emissions from new motor vehicles that are more restrictive than those adopted by Environmental Protection Agency.  Other states are also allowed to opt into the stricter California standards, and a number have done so.

In recent years, California has been one of leaders in the fight against global warming on many fronts, working with other states and even foreign nations to lower the levels of greenhouse gases.  Mere mention of California’s landmark “A.B. 32” legislation from 10 years ago has been enough to induce trauma in executives in the coal, petroleum, and related industries who want to preserve the dominance of fossil fuels.  Especially as the Trump Administration has rejected the Paris Accord and other clean-energy initiatives, California has fought to keep up the momentum behind its efforts to slow global warming before it is too late.

The case heard before the Ninth Circuit earlier this week originated in the federal district court in Oregon.  That court rejected the government’s effort to have the case dismissed, and scheduled a trial for February 2018.  It is expected that the plaintiffs will present a broad array of expert scientific witnesses.  The government sought permission to take an immediate appeal, but the district court refused.  Determined to prevent the trial at all costs, the government was in San Francisco on Monday seeking a writ of mandamus (that is, an order directing the district court to dismiss the case).

Not that long ago, federal courts prohibited the possession of cameras in courthouses.  There has been huge progress on that front, and now the Ninth Circuit livestreams all of its arguments and then archives the recordings at its website.

If you would like to observe and evaluate this collision between the Trump Administration and those seeking to reduce Global Warning, you can watch the video here.  The fascinating argument took a little less than an hour.

Chief Judge Sidney Thomas of Montana (center seat) presided.  The seat on the left (from the viewer’s perspective) is Judge Alex Kozinski of California, who was Chief Judge of the Court (2007-2014).  On the right is Judge Marsha S. Berzon of California.