In mid-December, a federal judge threw out an auto industry challenge to California clean car standards. Federal District Court Judge Anthony Ishii rejected U.S. automakers' claims that federal law preempts the state standards which would more strongly regulate global warming pollution from vehicles. This represents "strike three" for the automakers, building on the April Supreme Court decision directing the Environmental Protection Agency (EPA) to regulate global warming pollution from autos, and the September Vermont court decision upholding states? rights under the Clean Air Act.

This victory has added momentum for the adoption of the landmark clean car standards by California and 13 other states - including New Mexico, which just adopted the standards last November. Activists in New Mexico sent more than 300 letters in support of the clean car standards, part of a record setting public comment period in the state. Nationwide, concerned citizens have sent tens of thousands of letters to the EPA asking Administrator Stephen Johnson to obey the Clean Air Act and make a ruling on the waiver California and all other states need to implement the clean car standards.

Unfortunately, the Bush administration continued to stall on a decision all the way through the president's signing of the increased fuel economy standards in the Energy Bill. As promised, California Governor Arnold Schwarzenegger initiated a lawsuit against the EPA in November. Interestingly, states besides California and the 13 other adopters are weighing in on both the standards and the waiver. For example, the state of Illinois, which hasn?t decided to adopt the standards, has joined California?s lawsuit against the EPA and has also joined in a letter signed by 16 attorneys general, including Iowa and Minnesota, demanding that Congress not attempt to legislatively stop states from considering the clean car standards.

On December 19, Administrator Johnson denied the clean car waiver, citing the Energy Bill?s fuel economy standards as rationale. In doing so he rejected historical precedent, as no waiver of this kind had been rejected by the EPA since 1967, when California was granted the authority to establish regulations stronger than those made by the EPA. He also rejected the directives of Judge Sessions in Vermont, Judge Ishii in California, and the U.S. Supreme Court. Their decisions clearly indicated that the court considers fuel economy standards, meant to protect U.S. energy security, and global warming pollution standards, meant to protect the health and wellbeing of Americans, to be distinct standards.

This decision gave no legal basis for the EPA to reject California's waiver petition. California Attorney General Jerry Brown promised a lawsuit at the earliest possible date. This was to be expected. Indeed the Washington Post reported that the EPA's lawyers and policy staff had reached the same conclusion. In a PowerPoint presentation prepared for the administrator, aides wrote that if Johnson denied the waiver and California sued, "EPA likely to lose suit."

On January 2, the State of California filed a lawsuit in the Ninth District Court to compel the EPA to grant the waiver. Eighteen other states (Arizona, Connecticut, Delaware, Florida, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington) have so far joined this lawsuit, including three states that have yet to commit to the clean car standards (Arizona, Delaware, Florida, Illinois, Iowa, and Minnesota). A strong showing of support from states who have not yet adopted the clean car standards would further strengthen the case against the EPA, and further isolate the administration's ill-conceived decision.