In the face of EPA's decision last month to deny California's request for a waiver under the Clean Air Act, a Rhode Island federal court has given a preliminary green light to an auto industry lawsuit challenging the Rhode Island Department of Environment Management (RIDEM)'s decision to establish GHG emission standards for new automobiles mirroring the proposed California standards. Lincoln-Dodge, Inc. v. Sullivan, No. 1:06-CV-0070 (D.R.I., December 21, 2007)

The plaintiffs, several automobile manufacturers and dealers located in Rhode Island, seek a declaratory judgment that RIDEM's regulation is, among other things, pre-empted by the 1975 Energy Policy and Conservation Act. The regulation, though adopted, will not be enforced unless and until California's request for a CAA waiver is granted. RIDEM thus moved to dismiss the lawsuit, arguing that in the absence of the regulation's enforceability, plaintiffs' claims were not ripe for review. Plaintiffs countered that the ripeness test was satisfied because of the substantial lead time required to come into compliance with the regulation in advance of its enforcement.

In denying RIDEM's motion to dismiss, the court stated that the lawsuit "involves only one contingency, namely, whether California eventually will succeed in its quest for a waiver. That possibility has been diminished by the fact that, on December 19, 2007, just as this Memorandum and Order was about to be filed, EPA rejected California's waiver application. However, EPA's decision may be appealed, especially in light of the Supreme Court's recent holding in Massachusetts v. EPA, 127 S Ct. 1438 (2007), that EPA has both the authority and the responsibility to regulate greenhouse gas emissions." Thus, according to the court, plaintiffs face "a 'threatened or actual injury' that is 'real and immediate,'" allowing the claim to survive. One can only speculate as to whether a perceived likelihood of success for California on appeal influenced the Rhode Island court's decision.