CARB, EPA, and the law: clarifying the history and the future
Since 1967, the EPA has consistently said that California can make its own emissions rules. In fact, California’s ability to do this is embodied in federal law. With yesterday’s refusal to grant an additional waiver, the EPA has put itself on very shaky legal ground. Many people think this is really a delaying tactic to put the matter in the courts until the current administration is out of office.
The legal issues
Because it had its own air pollution agency and laws before the federal laws were passed, California is exempt from the various Clean Air Acts (including a specific exemption in the Clean Air Act of 1977) as long as it obtains a waiver from the federal government and its rules are more stringent than applicable federal standards.
In forty years, the EPA has never, until now, denied a waiver to California. The EPA has not, in spite of an executive order issued in May, enacted any federal CO2 standards, therefore California’s standards meet the test (some is more stringent than none). The EPA only denied a specific waiver; it did not, and cannot (despite various headlines) override the law permitting California to create its own standards. Furthermore, the EPA’s decision can be appealed in the courts of the United States and the US Supreme Court has already said that greenhouse gases can be treated as a pollutant, so the legal precedents and existing case law are all on California’s side. In all likelihood, the only thing the EPA has done is delay the implementation of the California laws, probably until after the end of the Bush Administration unless a federal court and a federal appeals court decide in their favor and the Supreme Court allows the case to be fast-tracked.
Again, the EPA did not say California couldn’t make its own rules any more; it doesn’t have that authority. It simply refused to grant a waiver. California does have the right, guaranteed by the current federal law, to enact its own standards so long as they are more stringent than existing federal standards. For whatever reason, the EPA has not set greenhouse gas standards, despite the fact the courts have already said they can be treated as pollutants. California’s right to enact restrictions in the absence of federal standards has been established numerous times from the earliest days of restrictions on auto emissions.
The EPA decision may not be legal. The EPA is going to have to show cause, in conformance with the law, for denial of the waiver in the absence of any standards of its own. This is exactly why California has the exemption it does; it had a regulatory agency and required compliance with emissions standards before the federal goverment did. The fact the EPA is currently under an executive order to promulgate such standards and has not done so makes its stance even less likely to stand up to close scrutiny.
I don’t know why Congress, which up until January 2005 could have passed legislation vesting sole power for this type of standard in the EPA, did not do so. I do know why they can’t do it and I am somewhat concerned about what might happen in a year or so, when the matter either makes it through the courts or a new EPA administrator grants the waiver. Like I said, the bulk of legal precedent is on California’s side and they are quite likely to prevail and then proceed to enforce their standards with a vengeance, which would be disastrous for the entire auto industry, among others.
If the EPA’s decision is reversed by the courts, not only do the CARB standards become law in California, they also become law in the other states that have decided to adopt the California standards because current law allows any state to adopt the California standards. The issue has already been decided in the federal courts. So, again, it’s not a case of one set of standards for one state, another for the other 49; it’s a case of 17 states, Arizona, California, Colorado, Connecticut, Florida, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Utah, Vermont and Washington, or just over one-third of the states, containing over 46% of the U.S. population, with one standard and the rest with another, although they are also free to choose to adopt the California standards whenever they want.
The patchwork argument
The main argument of the auto industry is that this decision was needed, and that the EPA is saving customers thousands of dollars on each car they buy, because otherwise there would be a patchwork of different rules for different states. However, CARB rules are not just for California; a number of other states, including New York and Massachusetts, have signed on and their decisions have been upheld in three separate court cases, including one in Vermont. So it’s not 49 states and one; it’s a number of states where a sizable percentage (nearly half) of the American people live.
As far as a patchwork goes, I live in a state where the EPA, under the current administration, has different rules for different cities. We can’t have a 70 mile-per-hour speed limit in Harris County, our vehicles have to pass a stricter (and more costly) annual emissions test, we even have special rules governing how long trucks can idle. This is Texas, hardly what one would call a bastion of liberalism.
If you want a one country-one rule standard, it’s quite simple. The EPA can adopt the California standards nationwide and industrywide, rendering the issue moot. Or Congress could pass a law that says the EPA has sole jurisdiction in this type of issue.
I am all for a single set of standards but the EPA has to set them, and I don’t see that happening in the current administration which is hostile toward anything to do with greenhouse gases. California standards are unrealistic at this time and there is a large middle ground between the California standards and those implied in the new energy law that should have been addressed by both the CARB and the EPA before they came to loggerheads.
In the end, it doesn’t matter whether you’re a Hemi-hugger or a tree-hugger, a single set of standards that allow industries to function while making an effort to advance technology and allowing time for the development of infrastructure of one kind or another (hydrogen filling stations, better distribution of ethanol, etc.) needs to be worked out. Sadly, no one on either side seems to want to do this.
Even if California wins, instead of the so-called patchwork of standards, there are really only two: California and federal. All states must adhere to one or the other.
Other arguments
Let’s start with the title of the AutoBlog entry, “Sorry CARB: EPA says states can’t regulate their own emissions.” That’s factually incorrect, because, as I have repeatedly pointed out, California can regulate emissions. California has done so many times since the 1960s. Also, as I repeatedly pointed out, the EPA cannot, by law, prohibit California from regulating emissions; it can only approve or decline the federally mandated waiver.
Next, “In short, it means that California and the 16 other states vying for independent CO2 regulations are completely helpless in forcing automakers to be held to a separate, higher standard. Of course, California is now threatening to sue the EPA, which will provide interesting headlines but likely no alternative outcome.” That’s wishful thinking; California is extremely likely to prevail because every court decision to date, including a Supreme Court decision on greenhouse gases, and existing federal law support their position. In addition, they have ample precedent in that no previous waiver has been declined and the California statutes comply with the standards established by existing federal law.
Finally, “Having multiple regulations would set back R&D spending for years, as automakers would be chasing their own tails trying to comply with multiple regulations.” The maxiumum number of standards, if California prevails, is two: California or federal. Yes, that’s a multiple, and quite possibly the highest number the blog author can count without assistance, but a rather low one and it’s a situation automakers have had to deal with for years. Plus they all have the option of designing their new vehicles to meet a single standard, California’s, which would also meet the federal standards by exceeding them.
So Arizona, California, Colorado, Connecticut, Florida, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Utah, Vermont and Washington, far from being completely helpless, have plenty of ammunition and a superior strategic and tactical advantage in this matter.