by Jeff Wennberg

President Coolidge once said, “If you see ten troubles coming at you down the road, rest assured nine of them will be in the ditch before they get to you.” 

To this I add: A successful leader knows which one will avoid the ditch and is ready when it arrives.

Under the federal Clean Air Act the Environmental Protection Agency sets emission standards for motor vehicles, but in recognition that the State of California had done so prior to the passage of the Act, California was allowed to set standards more stringent than EPA’s. And other states were given the option of adopting California’s standards in lieu of EPA’s. The exception to this is EPA reserves the sole authority to regulate vehicle efficiency – miles per gallon – through a set of regulations called CAFÉ – Combined Average Fleet Efficiency. 

Vermont has been a “California Car” state for many years, along with several of our neighbors. So, when the California Air Resources Board (CARB) adopted new vehicle standards limiting greenhouse gas emissions, Vermont, New York, Massachusetts, Maine, Connecticut, Rhode Island, New Jersey and seven others followed suit. Up to this point, neither EPA nor California had attempted to limit carbon dioxide (CO2) emissions from automobiles. Car manufacturers cried foul.

Associations of both foreign and domestic manufacturers opposed the new rules, arguing that CO2 emissions were a surrogate for fuel efficiency, and the effort to limit these emissions amounted to a back-door attempt to regulate mileage, which is reserved to EPA alone. And EPA maintained that under the Clean Air Act neither they nor California had the authority to regulate greenhouse gas emissions. 

Lawsuits wallpapered the CARB and some of the California Car state environmental departments. Every previous challenge to a CARB rule was litigated in California first. If the plaintiff prevailed in California, the other states would repeal their rules and the lawsuits would stop. If California prevailed the plaintiff would have to decide whether to pursue a victory elsewhere.

This time the manufacturers filed suit in one state in each federal appeals court circuit. In the First Circuit, which includes Massachusetts, Maine, New Hampshire, Rhode Island, and Puerto Rico, they sued in Rhode Island. In the Second Circuit, which includes New York, Connecticut, Vermont, and the Virgin Islands, they sued in Vermont. Their strategy was clear; they sued in the smallest California-Car jurisdiction in each circuit, hoping to overwhelm these states in federal court and achieve a victory somewhere. This could force the US Supreme Court to decide between the 9^th Circuit’s ruling in California, which was likely to go against them, and their victory or victories elsewhere.

As the Department of Environmental Conservation Commissioner, I had signed the Vermont rule that resulted in the lawsuit, earning me the distinction of being a named defendant in one of the most important environmental lawsuits in decades. And while it was DEC rule, it fell to Vermont’s attorney general – Bill Sorrell – to defend it. Vermont’s federal district lawsuit was given to Vermont Federal District Court Chief Judge William K. Sessions III, who had a reputation for liking technically complex cases. 

The auto manufacturers expended millions of dollars in preparing their case, and California did the same in preparation of their defense. Vermont did nothing. Only one attorney in the AG’s office was following the case, and he had zero trial experience. DEC’s Air Quality Division staff and I had periodic meetings with the AG’s staff attorney to follow progress on the case, with ANR’s General Counsel Scot Kline sometimes sitting in. California repeatedly requested delays of the trail date for various reasons, and these were always granted by the court. From the beginning Judge Sessions scheduled Vermont’s trial date 30 days after California’s, and every delay in California resulted in a corresponding delay in Vermont.

In every one of these meetings, I urged the AG’s office to prepare for the lawsuit. Judge Sessions wanted this trial in his court and was consistently scheduling it immediately after California. I speculated out loud that he hoped to issue his opinion before California’s three-judge panel released theirs. I argued that Sessions wanted to be the first federal judge to rule on this landmark national case, and the trial would proceed here regardless of events on the west coast. The attorneys insisted that the matter would be resolved in California, so all they needed to do was monitor what was happening there.

Then, in 2006, one of the three California Judges retired. The California court pushed the trial date back yet again to allow time for a replacement to be seated, and Sorrell dutifully petitioned Judge Sessions to once again follow suit. But he didn’t. In May of 2006, Sessions rejected the petition and told all the parties to be prepared to go to trial as scheduled. 

The Attorney General’s office was in a state of total panic. California and New York realized that an adverse ruling in Vermont would seriously undermine chances of ultimate success in California and kill the rule in New York, which shares the second federal circuit with Vermont. California dispatched their lead attorneys to Montpelier, and New York loaned us one of theirs, to try to graft California’s defense onto Vermont’s case as a stopgap against our total failure to prepare. Sorrell hastily created an “environmental law division” within the AG’s office and hired ANR’s GC, Scot Kline, to lead it.

Multiple motions were filed by Vermont including seeking dismissal, and then asking for a ruling based on law only, eliminating the need for a trial. All were rejected or deferred by the court. The manufacturers smelled blood, and, having amassed one of the most expensive and experienced legal teams ever assembled, closed in for the kill.

At this point AG Sorrell sent his staff attorney to meet with me without advance notice. He entered my office assuming a posture that could only be described as submissive. 

“What’s up?” I asked.

“I need to explain first,” he replied, avoiding eye contact. “You know how nervous we are about the lawsuit. The Attorney General believes our chances of success are poor at best. And what you may not know is the manufacturers have included a commerce clause claim in their pleading. What that means is if they prevail, and if the court agrees we have violated the commerce clause of the constitution, Vermont will be on the hook for all of their legal and court costs to date.”

I thought a moment and said, “You mean all of the money they have spent to prepare for the California trial would have to be paid by Vermont because our trial is going first?”

“Exactly.”

“And how much do you estimate they have expended so far?”

“We are not sure of course, but most think it is in the range of fifteen million dollars, give or take.”

“So, if we lose, you are saying there is a chance the taxpayers of Vermont could be on the hook for not only our costs, but also around $15 million we would have to pay the manufacturers, is that right?”

“Yes.”

“What do you want from me?” I asked, knowing I was not going to like the answer.

“Well,” he paused a bit to get the words just right, “If your department were to repeal the rule, the case would go away – there would be no basis for the lawsuit, and the case would go back to California where it really belongs.”

I could not believe what I was hearing. I had begged them to prepare for this and now they wanted me to pull the plug because they didn’t listen? Notwithstanding the fact that I was furious, the poor fellow sitting in front of me was no more responsible for this mess than I was. And given what I was about to tell him to say to his boss I knew his day was about to go from bad to miserable.

“Okay, normally a decision like this would be way above my paygrade,” I started, “but I am pretty sure I can give you an answer right now to take back to the Attorney General. Vermont has been a California Car state for decades. If we pull the rule, we are reversing that; in effect repealing decades of past emissions regulations. The governor’s opponents will field-clean him in the legislature and the press, and it was he who approved adopting the rule in the first place. So, if the consequence of losing this case means Vermonters will have to pay $15 million to the auto manufacturers, then you better damn well win.”

With his eyes firmly affixed on his shoes he thanked me and left.

As soon as he was out of the office I ran to my desk and called Governor Douglas’ office. I explained what had just happened to DEC’s gubernatorial liaison, who dragged the governor out of a meeting to put him on the speaker phone. I went through it again, and everyone on the other end said I had done the right thing.

The trial began on April 10, 2007 and proceeded, with interruptions, until May 8^th. Only about two weeks before trial the lead California attorney, who had been deputized by Sorrell and was poised to try the case for Vermont, dropped out, out of fear that he could be barred from doing so again when proceedings in California finally got underway. Like a Broadway understudy thrust into the leading role on opening night, Kline assumed the responsibility of representing Vermont in federal court.

In what could only be explained as divine intervention, eight days before the trial the United States Supreme Court unexpectedly ruled on a case brought by Massachusetts against EPA. Massachusetts challenged EPA’s assertion that EPA had no authority to regulate greenhouse gas emissions under the Clean Air Act. The Supreme Court had not been expected to issue its decision for several months, but on April 2, 2007, by a 5-4 vote, the Court held that EPA not only had the authority to regulate GHGs, it had an obligation to do so. All the parties in our case filed motions to delay the trial to allow time to digest this Supreme Court decision and ponder its implications for the California Car case, but Judge Sessions would have none of it. 

By all reports Scot Kline was brilliant, and Judge Sessions, true to form, dove into the esoteric details of combustion chemistry and its relationship to vehicle efficiency. On September 12, 2007, Judge Sessions issued a 240-page Opinion and Order rejecting the automobile industry’s claims. In all, the trial took 16 days, involved 4,000 pages of transcripts, approximately 700 exhibits, and 24 live witnesses, thankfully not including me. The opinion was so bulletproof the lawsuits in the other jurisdictions did not proceed.

Jeff Wennberg served as Rutland’s school board president, mayor, and public works commissioner (not all at once), and as environmental commissioner for the State of Vermont under Governor Jim Douglas. A long-standing advocate for universal school choice, he now resides in North Carolina where his principle retirement activity is spoiling his grandchildren.