SAN FRANCISCO -- California's unprecedented regulations to reduce the carbon footprint of transportation fuels appears to face a smoggy future in the courts.
During nearly an hour of arguments here Tuesday, the 9th U.S. Circuit Court of Appeals expressed concerns that California's aggressive approach to curtailing greenhouse gas emissions goes too far, conflicting with federal law by reaching into the business practices of other states. The three-judge panel was hearing the appeal of a Fresno federal judge's ruling last year declaring the 2006 California law unconstitutional.
"Is there no other way to achieve this goal?" 9th Circuit Judge Mary Murguia asked the state's lawyer at one point. "Is there no other means?"
An array of gas, trucking and farming industry interests has challenged the regulations, which seek to reduce California's greenhouse gas emissions to 1990 levels by 2020 by favoring gas, diesel and ethanol producers who use cleaner production methods. The industry argues that the law violates the federal commerce clause, discriminating against producers in the Midwest and elsewhere by illegally favoring California industries.
At least nine Midwestern states have sided with the fuel industry, urging the 9th Circuit to strike down the law.
Peter Keisler, a fuel industry lawyer, told the court the California law is aimed directly at Midwest competitors, likening it to "a lobbyist for Coca-Cola getting a (law passed)
Lawyers for the state and environmental groups assured the judges that law is intended to reach the low carbon fuel standards, not to tilt business to California producers. Federal law allows the regulations, and California's law is the only way to reach the state's clean air goals, Deputy Attorney General M. Elaine Meckenstock told the judges.
But Murguia and Judge Dorothy Nelson appeared dubious, citing language in the law that pointed to it aiding California employment and tax revenues.
"Isn't this unambiguous evidence ... of protectionism?" Nelson wondered.
Seven states have backed California in the court case, saying they hope to enact similar regulations to curtail greenhouse gas emissions.
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz.