Pavley Cases

Green Mtn. Chrysler Plymouth Dodge Jeep v. Crombie, 2007 U.S. Dist. LEXIS 67617 (D. Vt. 2007), appeals withdrawn, Nos. 07-4360-CV, 07-4342-CV (2d Cir.); Central Valley Chrysler-Jeep, Inc. v. Witherspoon, No. CV-F-04-6663 (E.D. Cal.)

These cases derive their nickname from Fran Pavley, the California legislator who sponsored the law that was challenged by the automobile industry. Under the federal Clean Air Act, California may set more stringent limits on automobile pollution and other states may then adopt California’s standard. Acting under this authority, California in 2002 enacted a law, A.B. 1493, requiring reductions in greenhouse gas emissions from new motor vehicles sold in the state. In 2004 the state adopted regulations to implement the law. The law was projected to reduce greenhouse gas emissions in California from passenger cars by 18 percent by 2020 and 30 percent by 2030. Eleven other states adopted this law, thus bringing the percentage of Americans living in states with this important emissions standard to 34%. We represented the Natural Resources Defense Council, Sierra Club, and Environmental Defense as defendant-intervenors in two parallel cases filed against the states of California and Vermont by General Motors Corp., Daimler Chrysler Corp., the Alliance of Automobile Manufacturers, and the Association of International Automobile Manufacturers. The industry sought to strike down these state laws regulating greenhouse gas emissions and argued that the state laws were preempted by the federal statute regulating fuel economy and by the federal foreign affairs power. The Vermont case was tried in 2007 and, in a historic and sweeping victory after an intense and hard-fought litigation, the court upheld the law. The case is notable for being the first in which the science of global warming was put on trial. The court held the science of global warming to be legally reliable and found global warming presents real and severe threats that merit prompt action to reduce emissions.In December, 2007, the California federal district court ruled in favor of California and the environmental groups represented by the Pawa Firm. In another parallel lawsuit filed by industry, the Rhode Island federal district court subsequently dismissed the automobile manufacturers’ and trade association’ claims. The automobile companies and trade associations appealed all three cases but in April, 2010 dismissed their appeals as part of a national settlement brokered by the White House that federalized the state greenhouse gas regulations.

The Pawa Firm’s Involvement

The Pawa firm became involved in the Pavley cases after they had already been underway for some time and the environmental groups found themselves in need of outside counsel. In the California case our first action was to seek evidence from the industry regarding its knowledge of the harmful effects of global warming. The domestic automobile industry refused to produce the information and we filed a motion to compel its production. A magistrate judge initially rejected the motion. The auto industry’s lawyer threatened to seek its legal fees if the environmental defendants pushed the issue further. We nonetheless appealed the magistrate judge’s ruling to the District Court and argued that the requested documents were relevant to the automobile industry’s Commerce Clause claim, which requires evaluation of the benefits of a challenged law. The District Court agreed and ordered industry to produce nearly all of the requested documents. To read the court’s decision on the motion to compel, click here. The domestic industry then lost its Commerce Clause claim in the California case and decided to drop its Commerce Clause claim in the Vermont case rather than produce the evidence.

In the Vermont Pavley trial, Mr. Pawa cross-examined Detroit’s first witness in the case, Alan Weverstad. Based in part upon admissions from Weverstad, the court rejected industry arguments that it lacked the technology to meet the new emissions requirements. The evidence included GM’s development of hybrid and plug-in hybrid vehicles, advances in clean diesel technology, flex-fuel vehicles that can run on either E85-ethanol or gasoline, and improvements in gasoline engines such as six-speed transmissions. To read the transcript of the Weverstad testimony, click here. Mr. Pawa and his team also handled the global warming science issues in the Vermont trial. In this capacity Mr. Pawa deposed the notorious climate skeptic Pat Michaels, after which Dr. Michaels refused to appear for trial. The automobile industry then retained Dr. John Christy of the University of Alabama at Huntsville as its science expert, whom Mr. Pawa cross-examined at trial. To read the trial transcript of the Christy testimony, click here. The Pawa firm also presented the testimony of Dr. James Hansen on the global warming crisis and Dr. Barrett Rock on the impacts of global warming on Vermont. The court rejected the industry’s attempt to exclude the testimony of Drs. Hansen and Rock as unreliable (“Daubert motion”). To read the testimony of Dr. Hansen, click here. To read the testimony of Dr. Rock, click here. The Vermont Pavley case is the first court case in which the climate skeptics have peddled their reasons for inaction on global warming; the court firmly rejected the skeptic view as inconsistent with the evidence. Highlights from the Court’s decision include:

• “The fact that global warming will not be solved by changes in any one industry or by regulation of any one source of emissions in no way undercuts the vital nature of the problem or the validity of partial responses; rather, it points to the necessity of responses, however incomplete when viewed individually, on any number of fronts.” And “evidence presented to this Court also supports the conclusion that regulation of greenhouse gases emitted from motor vehicles has a place in the broader struggle to address global warming.”
• The court found that, according to the evidence, a business-as-usual approach to greenhouse gas emissions will result in global warming by the end of this century so large that it would commit the large ice sheets of Greenland and Antarctica to a cycle of destruction. The end result, according to the evidence, is that “the entire East Coast of the United States would be underwater, including most of Florida. Populous areas such as Bangladesh and many parts of China would also be underwater.”
  “Climate change also presents a risk of species extinction,” the court found, because “temperature zones are moving more rapidly than migrations are occurring” and “many species are confined to specific reserves so that migration is not a realistic possibility.”
• “Scientific evidence likewise emphasizes the severity of the effects that global warming may have on the state of Vermont in particular. Dr. Barrett Rock testified that global warming poses severe risks to Vermont’s economy; specifically, Rock outlined risks to the continued survival of maple trees in Vermont, as well as more short term effects on foliage, maple sugar production and the ski industry.”
• The Court held, in sum, that the state law, enacted under authority from the federal Clean Air Act, was within the legislative and executive authority of the States to determine “the proper balance between a small step toward averting potential environmental disaster and its potential effects on the automobile industry.”