The Pavley Cases. Green Mtn. Chrysler Plymouth Dodge Jeep v. Crombie, 2007 U.S. Dist. LEXIS 67617 (D. Vt. 2007), appeals pending, Nos. 07-4360-CV, 07-4342-CV (2d Cir.); Central Valley Chrysler-Jeep, Inc. v. Witherspoon, No. CV-F-04-6663 (E.D. Ca.). These cases derive their nickname from Fran Pavley, the California legislator who sponsored the law that is now being 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 is projected to reduce greenhouse gas emissions in California from passenger cars by 18 percent by 2020 and 30 percent by 2030. Click here (PDF) to view fact sheet. Eleven other states have now adopted this law, thus bringing the percentage of Americans living in states with this important emissions standard to 34%. We represent 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., DaimlerChrysler Corp., the Alliance of Automobile Manufacturers, and the Association of International Automobile Manufacturers. The industry is seeking to strike down these new state laws regulating greenhouse gas emissions. The industry argues that the state laws are 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. The Rhode Island federal district court then 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 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 (PDF). 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 lacks 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 (PDF). 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 (PDF). 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 (PDF). To read the testimony of Dr. Rock, click here (PDF). 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 has firmly rejected the skeptic view as inconsistent with the evidence. Highlights from the Court's decision include: