Rob McKenna, the attorney general of the state of Washington, issued a press release on 01-02-08 to make clear that his state would intervene in the California emissions battle against the EPA and the Federal Government.

In an effort to defend Washington’s tough vehicle emissions standards law, Attorney General Rob McKenna today announced Washington state will join 14 other states in intervening in a California lawsuit filed earlier today.

The lawsuit filed today in the 9th Circuit Court of Appeals challenges the U.S. Environmental Protection Agency’s decision to deny California’s request for a waiver to implement its greenhouse gas emissions standards.

“The state of Washington followed California’s lead in adopting standards for vehicle emissions with the understanding California’s request for a federal pre-emption waiver would be granted in a timely manner,” McKenna said. “Now after nearly two years of waiting, EPA has denied the waiver, leaving states frustrated in their ability to address climate change concerns for their residents.”

The Clean Air Act generally preempts states from adopting their own vehicle emissions standards with the exception of California because of its efforts to address long-standing air pollution problems.  The Clean Air Act allows other states to adopt California’s standards as long as those standards are identical to California’s.

California adopted landmark vehicle emissions standards in 2005 and filed its waiver request in December 2005. Since then, 16 other states, including Washington, have also adopted or are considering adopting these standards.

None of these state laws may go into effect until California obtains its waiver of preemption from the federal government.

On Dec. 19, 2007, EPA Administrator Stephen Johnson notified California Gov. Arnold Schwarzenegger of EPA’s decision to deny the state’s waiver request.  Johnson stated he believed the problem of greenhouse gas emissions extends beyond state boundaries and calls for a national solution.  He also found that California’s standards were not needed “to meet compelling and extraordinary conditions.”

Today’s lawsuit, which seeks to reverse the EPA decision, was filed in the United States Court of Appeals for the Ninth Circuit.  The states or state agencies intervening in the suit are: Massachusetts, Arizona, Connecticut, Delaware, Illinois, Maine, Maryland, New Jersey, New Mexico, New York, Oregon, Pennsylvania Department of Environmental Protection, Rhode Island, Vermont, and Washington.

The Constitution was written under a simple principle – positive grant.  In short, what this means is this: The federal government is authorized to exercise only those powers which are specifically given to it in the Constitution.

Everything else is “reserved to the States, respectively, or to the People.”


The Tenth Amendment Center supports McKenna’s position – the federal government has no constitutional authority, whatsoever, to prevent individual states from implementing their own regulations.

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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