InsideCounsel » April 2008
California Clash
State fights EPA to enforce its tailpipe emissions standards.
ONLINE EXCLUSIVE: To read exclusive analysis of the federal and California auto standards, click here.
Since the birth of the modern Clean Air Act in 1967, California and only California has had the authority to deviate from federal rules to set its own standards for tailpipe emissions from motor vehicles. To be enforceable, California’s standards must be more stringent than federal rules and must be granted an EPA waiver after the agency determines that California faces “compelling and extraordinary” conditions. Other states can then choose between following the federal standards and the California standards.
To date, the EPA says it has granted California about 50 such waivers and denied it just one—the state’s most recent request to regulate greenhouse gas emissions from motor vehicles.
The EPA issued its long-awaited written decision Feb. 29 detailing why California lacked the “compelling and extraordinary” conditions to merit the waiver. The decision itself was no surprise—EPA Administrator Stephen Johnson had months earlier written a letter to California Gov. Arnold Schwarzenegger informing the governor of his intentions. California had even filed a lawsuit in January against the EPA challenging its denial.
Although the decision blocked just one rule, it represented a roadblock to state efforts to fight climate change, a movement growing in response to a federal government that so far seems reluctant to directly address greenhouse gas emissions. And the subsequent lawsuit marks another round in the states’ struggle to aggressively push forward with climate change regulations as the federal government pushes back.
“The auto industry is so large and affects so many people that how this turns out in its own right will be important,” says Adam Kahn, coordinator of Foley Hoag’s environmental practice group in Boston. “The larger context is an increasing focus in the courts, in the states and in the federal government on climate change regulation, and this is one more step.”
Agency Inaction
California, though, is one step ahead. In July 2002, five years before President Bush would direct federal agencies to regulate greenhouse gases, California’s then-Gov. Gray Davis signed into law AB 1493. While previous state and federal regulations had addressed nonwarming air pollutants such as particulate emissions, AB 1493 for the first time set forth regulations aimed directly at greenhouse gases, which trap heat in the atmosphere, thus contributing to global warming. Carbon dioxide, the primary greenhouse gas produced by fossil fuel combustion, accounts for 84 percent of California greenhouse gas emissions. Since the bill’s passage, at least 19 other states have adopted or pledged to adopt the standards.
“Historically, California has often set [tailpipe pollutant] standards which are then adopted nationally and over time become international standards,” says David Doniger, policy director of the Natural Resources Defense Council’s climate center and former director of climate change policy at the EPA. “We see California playing the same leadership role with global warming emissions.”
California’s so-called Clean Car law would require cars sold in California and adopting states to begin reducing carbon dioxide and other global warming emissions in model year 2009 vehicles, with the goal of cutting greenhouse gas emissions 30 percent by 2020. The backlash from automakers was immediate, and so were the lawsuits, which charged federal regulations pre-empted the rule.
As for the EPA, it appeared to do nothing at all.
