A key lawsuit was filed last week in the California Eastern District Court in Fresno, California, one of the US District Courts in the Ninth Circuit. The lawsuit is NPRA v Goldstene, with the National Petrochemical and Refiners Association (NPRA) as lead plaintiff, and James Goldstene, Executive Officer of California’s Air Resources Board (ARB) as one of the defendants. This lawsuit seeks to overturn California’s Low Carbon Fuels Standard law, a part of AB 32 that requires gasoline and diesel fuel sold in California to contain not only much more biofuel than that required under a federal law, but the biofuel must be produced locally. Other defendants include the other ARB board members, California’s Governor Schwarzenegger, and California Attorney General Jerry Brown. (see this link for more on LCFS). (The complaint can be seen here.)
The two legal grounds asserted in the complaint are that the LCFS (the California law) violates 1) the Commerce Clause of the United States Constitution, and 2) the Supremacy Clause of the United States Constitution. The lawsuit seeks a declaratory judgment declaring the law unconstitutional and unenforceable, and a temporary and prohibitory injunction to prevent the law from being enforced. Plaintiffs demand a jury trial, and seek court costs plus attorneys fees.
This lawsuit is a crucial event in the battle to restore government to producing laws based on good public policy, which in turn is created by following sound science. AB 32 was passed in 2006, and was based on bad science – the mistaken belief that CO2 (a product from burning fossil fuels such as natural gas, oil, coal, charcoal, wood, and petroleum coke) creates runaway global warming. Earlier, a crucial event in the battle was the US Supreme Court’s decision in Massachusetts vs EPA, in which the Court held that the US EPA had the authority to include CO2 in the list of air pollutants, if in EPA’s opinion, arrived at by the usual and proper procedures, CO2 had or has a harmful effect on the environment. Note that the Court did not declare CO2 to be a pollutant, as many writers have wrongly asserted. They left that determination up to the EPA. The EPA, in fact, did not declare CO2 to be a pollutant under the George W. Bush presidency, but did so declare as one of the first acts taken by President Obama.
This case, NPRA v Goldstene, will likely conclude in NPRA’s favor, as it is indisputable that the LCFS violates the Commerce Clause. It is not as clear that the Supremacy Clause is also violated, and more on that in a moment.