On 2nd October, the AFPM filed a petition for rehearing en banc in the US Court of Appeals for the Ninth Circuit, which in a divided September 18th opinion reversed a lower court decision that had declared the California Low Carbon Fuel Standard (LCFS) unconstitutional.
The petition, building upon a dissenting opinion by Judge Murguia, contends that they panel’s recent ruling conflicts with well established Supreme Court precedent by applying the wrong legal standard to a regulation that discriminates against interstate commerce on its face. AFPM’s petition also highlights the fact that the panel ignored the state’s numerous admissions that California designed the LCFS specifically to grow a California biofuel industry at the expense of other states’ biofuel industries. Finally, AFPM’s petition also relies on controlling Supreme Court precedent in arguing that California cannot influence and control conduct beyond its borders under the Constitution’s Commerce Clause.
Comments on the filing
‘The Court’s ruling sets a dangers precedent, if California may penalise fuels based on the location of origin and the type of processes used to create them, it may likewise penalise every other imported product, whether it be oranges from Florida or cars from Michigan,’ said AFPM General Counsel Rich Moskowitz. ‘Despite the fact that the LCFS clearly discriminates against fuels produced in other states, the Ninth Circuit Court of Appeals chose to ignore controlling Supreme Court precedent. We believe the Ninth Circuit should reconsider the decision and agree to rehear the case.’
Read the article online at: https://www.hydrocarbonengineering.com/gas-processing/03102013/lcfs_rehearing_wanted711/