More than half the states in the U.S. are now intervenors in the lawsuit that challenges a Waiver granted to California to implement its Clean Trucks rule.

Following a petition filed in early June that allowed 19 states to challenge the waiver granted in April by the Environmental Protection Agency, the U.S. Court of Appeals for the District of Columbia Circuit on Monday agreed to add 18 states that are expected to back the waiver: Washington, New Jersey, Maine, Hawaii, Illinois, Maryland, Colorado, New York, Connecticut, Vermont, Rhode Island, North Carolina, California, Minnesota, Delaware, Oregon, Pennsylvania and Massachusetts. The list of intervenors also includes the cities of Los Angeles and New York and the District of Columbia.

All of the 19 states challenging the waiver have either Republican governors or a Republican attorney general. All 18 states expected to back the waiver have Democratic governors, except Vermont. 

Allowing the 18 states to join as intervenors now means that 38 states are participants in the case. But the list doesn’t stop there. The decision by the appellate court of the District of Columbia to let the 18 states into the mix also allowed several left-leaning organizations, including the Natural Resources Defense Council and the Environmental Defense Fund. 

The case now is known as Western States Trucking Association et al v. Environmental Protection Agency. It is a consolidation of five cases. The list of other parties under the category of et al is a long one made up primarily of oil-related trade groups, such as the American Fuel & Petrochemical Manufacturers and the National Association of Convenience Stores.

Parties that are let into a legal action as intervenors have the same status as the original defendants or plaintiffs, according to attorneys connected to the case. The end result is that the number of plaintiffs and defendants in Western States v. EPA will total several dozen.

At issue is the April waiver granted by the EPA that allowed California to adopt its Clean Trucks rule. That rule was formally approved by the California Air Resources Board in June 2020 and given final approval by the state’s Office of Administrative Law in March 2021. Although approval was announced in March, the waiver was not formally published in the Federal Register until April 5.

The Clean Trucks rule, which is a mandate on OEMs that sell trucks into California, works alongside the Clean Fleets rule, which governs the owners of trucks, toward a goal of a full fleet of zero-emissions vehicles in the state by 2045.

There has been no waiver granted for the Clean Fleets rule. The state of California has indicated it does not believe it needs a waiver for Clean Fleets, a stance that sources have said may eventually be challenged. 

In granting the waiver in April, the EPA, in a Federal Register notice, recapped that going back to 1967, the federal government has allowed California to set its own environmental standards but that in many cases it also needed to seek a waiver from EPA to do so.

That waiver must be granted, the EPA said, “if California determines that its standards are, in the aggregate, at least as protective of the public health and welfare as applicable Federal standards.”

There is a three-pronged test that the EPA must meet if it chooses to deny a waiver, dealing with whether the standards are necessary or inconsistent. And as attorneys connected to the ongoing litigation have noted, the EPA is not known to have ever denied such a waiver.

“I have determined that the waiver opponents have not met their burden of proof,” EPA Administrator Michael Regan said in granting the state’s waiver request.

The request to intervene by the 19 states seen as against the rule do not lay out their argument as to why the waiver should not have been granted. The states seen as backing the EPA waiver also have not been required to file their arguments, as a briefing schedule has not been established yet.

More articles by John Kingston

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