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.
This is all a product of politics rather than good science. Ignoring for a moment the fact that scientists are still divided as to the cause of global warming, cars produce very little of this nation’s CO2 emissions. I would dare say that the country’s power industry, coupled with millions of people who insist on using wood-burning fire places and the rather dirty, gas-powered lawn implements taht exist today, contribute far more in the way of “green house gases.” The ancient technology of our homes–not to mention the unneeded size of our homes–wastes far more energy than our cars ever will.
This is another way for the politicians to appear green by slamming the US auto industry, an easy target for them, because they don’t need the big three to get or stay elected. If a stricter CO2 reg were to apply to industry, power companies, small engines, fireplaces / stoves, maybe it could be defended. But that hits too many special interests, and we can’t have that (look at how the recent CAFE bill was stripped of regs to apply to oil and other industries, for the same reason).
California’s past efforts of this kind, e.g to mandate electric cars in the 90’s, were fraught with problems: People weren’t going to be forced to buy a $40,000 car that only travels 80 miles to a charge. The right technology is coming, but government cannot force technological development by decree. If it could the Soviet Union would have had the highest standard of living in the world. The US government’s focus oought to be on working with the US auto industry to develop new technology (like batteris), as an ally, rather than regulating it to death as an enemy.
” Ignoring for a moment the fact that scientists are still divided as to the cause of global warming, cars produce very little of this nation’s CO2 emissions.”
1. The only scientists who disagree are paid by ExxonMobil or one of their 43 shell groups, or are cranks without legitimate degrees - at least, that’s the result of my own research in looking at the credentials of every single person I’ve been told disagrees. Should we be ignoring the melting of the ice-caps?
2. Cars produce a pretty good portion, and Congress is working on a bill to work on other sources.
” I would dare say that the country’s power industry, coupled with millions of people who insist on using wood-burning fire places and the rather dirty, gas-powered lawn implements taht exist today, contribute far more in the way of “green house gases.”
Probably. Again, these are being worked on. There are new power generation standards under way, states are working on renewable energy quotas, and rules for single-cylinder gas engines are in the works.
“The ancient technology of our homes–not to mention the unneeded size of our homes–wastes far more energy than our cars ever will.”
Well, yes, and so does unrestricted population growth. Indeed, if the current administration was not so hostile to the idea of contraception, we could do wonders in the LONG RUN to reduce carbon emissions. Were the population of the Earth 1/3 its current size, we could really waste oil to our heart’s content.
“This is another way for the politicians to appear green by slamming the US auto industry, an easy target for them, because they don’t need the big three to get or stay elected. ” Well, Democrats kinda do, since their power base is “everywhere but the South, + Florida and Texas.” I don’t recall many politicians slamming the US auto industry. I do recall Bush demanding that tax cuts for oil companies be maintained, and I do recall Democrats writing into the upcoming carbon bill a huge grant for domestic automakers. Half of all gas-guzzler fines collected also go to the domestic automakers, regardless of the hysteria of some poorly informed newswriters.
” But that hits too many special interests, and we can’t have that (look at how the recent CAFE bill was stripped of regs to apply to oil and other industries, for the same reason).” We’re on the same page here.
“The right technology is coming, but government cannot force technological development by decree. If it could the Soviet Union would have had the highest standard of living in the world. The US government’s focus oought to be on working with the US auto industry to develop new technology (like batteris), as an ally, rather than regulating it to death as an enemy.”
1. True and not true. The same argument was made in the 1960s (about both safety and emissions), in the 1970s, and in the 1980s, and it turned out to be false in those cases. California relented on their zero-emissions vehicle requirements because then the argument was true.
2. The government IS working with the US auto industry on new technologies including batteries.
The ice caps on Mars are also melting. Is that caused by SUV’s? The ice caps melted in the 1400’s, after a mini ice age–were there Hummers being driven then? No, there may well be natural causes as work. Man-caused global warming is a theory, that must be proved like any scientific theory; it is too convenient to dismiss those who question the orthodoxy of global warming as heretical lackeys of the oil companies.
See article below:
http://en.rian.ru/analysis/20080103/94768732.html
Even if man is shown, conclusively, to have caused this, does that mean man can stop it? Are we so narcisistic to beleive we can control the climate?
We could argue about these issues forever. I think most of us would agree we need to reduce our dependency on foreign oil, and become more efficient. Whether you come to that conclusion from an environmental standpoint or a national security standpoint, we agree on the results. But there is far too much hysteria, and it is far too convenient to single out the auto industry in order to make politicians, both left and right, “appear green.” Pres. Bush refused for six years to meet with the US auto execs, and was quick to sign off on the 35 mpg standards, yet would not support similar rules for the oil indistry. That tells me all I need to know. Democrats that supposedly care about the auto workers went along with that, republicans that are supposedly conservatives went along with that. You would not see any of them doing that to Microsoft or Oracle or ExxonMobil. Candidates Clinton and Obama have had harsh things to say about the US auto industry recently and what they would do to force fuel efficiency gains.
Most advances in safety were acheived by voluntary effort in the private sector: Chrysler hydraulic brakes, Chrysler padded dash, Volvo 3 point belts, Chrysler first antilock brakes, Chrysler air bags in all its cars, first airbag in minivan, SUV, pickup, first standard duals in its class (LH). Government can take credit for none of those advances. The same is true of fuel economy: the US government can’t take credit for the Prius, or the two-mode hybrid system in the Durango.
Reasonable, well meaning, people can disagree about what should be done. If we listen to AL GOre, the sky is falling, the crisis is coming at any minute. They’ve got school kids so scared global warming is coming, the polar bears are drowning, we’re willing to accept anything. We need to step back and think about the ramifications to our economy. We need to ask ourselves is this just being exploited by people who want more authority and political power over our lives. We need to ask how much money people are making off being green and advocating for these issues (carbon credits, anyone?). In reality, it’s not a zero sum game: we can protect the environment, maintain our standard of living, and protect industries that are vital to our national security (i.e. auto industry–all at the same time–if we approach these problems without overly politicizing them or exploiting peoples’ fears or emotions.
If you really listened to Al Gore, and followed through on the scientific evidence and proof, you would not have written that post.
The cost of ignorance is staggering. I have not yet heard from any source what the main heating unit of this planet is doing. The Sun. What is it doing? The situation with Al Gore is an inconvenient source of income, stupendous amounts from people who have not taken the time to truly research what the so called global warming is really all about. This while he burns through the atmosphere on his private jet blowing LOTS of greenhouse gas in the upper atmosphere! What is proposed then to stop it if it is so viable and real? Climatologists? Glorified meteorologists. The same guys who prognosticate your daily weather reports, and can’t get it right more than a day or two! Really listen to Al Gore and you will see that he truly MEANT that he invented the internet and that “LOVE STORY” was written about him and his wife! The fact is that the mean temperature of this earth has not increased in the past 10 years! In the 1980s the same “sky is falling” mentality was decrying that we were entering a new ice age, and everything was going to freeze over! Going green is merely a slight of hand reference to the hideous amounts of money that the global warming politicos are prepared to spend out of the public treasury for ignorance. You cannot listen to Al Gore nor any of those people hollering about global warming! DO YOUR OWN RESEARCH! It is a political sham, perpetrated by political sham artists who have the ear of elected officials WHO ALSO ARE IGNORANT but love the money!
Unlike most people who say “do your own research,” I have not only been trained to do my own research, but I HAVE done it.
As a certified Paralegal, I too am well trained in research. I unhesitatingly utilize those skills daily! I was not particularly directing my comments at you, David. I am cognizant of your skills, along with your computer related information sources. Be that as it may, I am flabbergasted that an intelligent, well informed individual that has truly done unbiased research, would buy into the Al Gore premise that the Earth is disintegrating under a ball of man made heat sources. It simply does not wash or hold truth. Nature is FAR more powerful than anything that mankind can do or even aspire to believe he can do. After having experienced 4 hurricanes in a row, I can tell you that whatever man does is so minuscule that it is literally non-existent! It is despicable that the politicians have grabbed onto this issue and are garnering it into a political landscape filled with huge black holes that they intend to fill with taxpayer money. Like all black holes, they have no bottoms, and will divert precious funds into programs that will not, can not, and never will accomplish anything except to make someone or some company disdainfully rich at tax payer expense!! What evidence has been accumulated that what is going on is a cycle in the myriads of cycles that this planet, and OTHER planets have gone through. There are plenty, and a lot of it is garnered with the US Government (I know - exercises in futility, as it were) in the National Oceanographic and Atmospheric Agency. Most flatly contradicts the Al Gore premise, which is largely based on SURMISES issues or trends but, not science. Yes, a lot of things SEEM to indicate there is a warming trend but the National Weather Bureau, (despite their faulty placement of monitoring equipment) states that the trend has actually been towards cooling, with no increases in the Earth’s mean temperature in the past 10 years.
Al Gore is a publicist, not a scientist, as far as I know.
Scientific research is very different from legal research, I suspect. It’s not a matter of who said what; you can look at the evidence for yourself, you can see the theories, and the researchers are required to say what’s missing. At this point the only people in the scientific world who deny the human contribution to global warming are a few hacks with no credibility or defensible research, and a lot of hacks paid for by ExxonMobil - through at least 40 different groups designed to hide ExxonMobil’s involvement.
As for the National Weather Bureau, I have no reason to believe any government agency’s reports in the last few years, since cases of the government stifling independent scientists have been clear, well known, and far too widespread - more so than under any prior administration, by at least one order of magnitude. This sort of thing didn’t happen under Nixon or Bush Sr.
We can disagree on this, but I’ve read enough of the ORIGINAL research articles - and all those purporting to provide real evidence that humans are not contributing to global warming - to be convinced. Now, we can get into whether autos or widespread cattle farming or clearcutting the forests of the world or electricity generation are the big causes, but if we’re arguing warming or not, there’s no point. Neither of us will convince each other or, probably, anyone else. I’m also not going to return ad hominem arguments against anyone in particular. I don’t think the character of the messenger is more than a distraction.
Oh, and by the way, there IS a theory that we’re in for global cooling rather than warming, but it’s not a very happy one. That theory says that global warming will continue to melt the ice-caps (quite well documented if you were wondering), and that as more land is flooded, the reflections of the increased water coverage will deflect enough sunlight to bring about an ice age after we’ve warmed up the Earth enough to eliminate the polar ice caps. At this point it’s just a theory and I have no allegiance to it, nor have I investigated it much. Either way, the solution is the same - if we reduce greenhouse gases dramatically, the ice age won’t be triggered either.
Whether we’re looking at cooling or heating, we need to cut our population by a billion or more people for everyone to live comfortably in the future. That would also cut global warming more than goofy CAFE measures or even real Adam Smith approaches like stiff carbon taxes.
I also can point out that cutting fuel usage hurts those terrorists and terrorist supporters out in the Middle East, and for that matter, doesn’t do your friend Hugo Chavez any good. I’d have thought that would be reason enough to take action, but people don’t seem to have much of a sense of civic duty these days.
As for me… well, I work from home which helps, but I gotta admit there are times when I do feel like a hypocrite with my PT sucking down fuel at the rate of 24 mpg or so…
Hugo Chavez…… MY FRIEND? What the hell is that about? Now that is a lot more than hypocritical on your part. I certainly didn’t insult you in that manner! Please recall that I have been advocating going to renewable energy sources, on this forum, and elsewhere before it was even popular or even mentioned! And while I am at it, don’t patronize me about research. You know good and well what I can accomplish. Research, applied to science, legalities, or history is still RESEARCH! Hugo Chavez, CITGO, and all instruments tied to Chavez should have been cut off long ago. How is it that this country just steps on it’s own foot all the time? Please stop quoting the Liberal Democrat Kool Aid about MobilExxon, the paid political hacks, and nefarious others who claim Global Warming is a fact. There are real credible, well established, legitimate, INDEPENDENT scientists who vehemently disagree! Then there is that theory that population cuts are needed, but exactly how do you accomplish that? Even China which doggedly enforces the one child rule is still growing it’s population, pushing into other areas of the earth, and sucking up oil sources as fast as it can get it’s hands on it. Right now, some 80 miles off Florida’s coast, thanks to the exploration of Texaco, where a HUGE oil deposit (bigger than ANWAR) was discovered this past summer, CHINA is side drilling to tap into to it. Due to the intractability of Florida’s legislators, the US is doing NOTHING to curb the efforts OR make the oil available to the original discoverers of it. Yes, the ice caps are melting. They are also shrinking on the planet Mars. How much affect does man kind have on the situation here? Little. It is a phase of the Sun, and this old Earth has endured this sort of cycle many, many times. It just never rose to the level of being a political football. Which is the fact that I rail against because uninformed legislators will lead millions of uninformed citizens down a prime rose path colored “GREEN”, calling it environmentally friendly stuff, while pouring billions of tax dollars into huge holes that do nothing to enhance anything except line someone’s pockets with the real “GREEN” that we all labor to acquire.
And now, back to the subject matter of the original post…
One important fact ties the hands of the EPA. The same law that gave California the ability to set its own emissions standards, also specifically excluded them from setting fuel economy standards. Since the desired combustion products of burning gasoline are carbon dioxide and water vapor, setting limits on carbon dioxide also sets limits on gas milage.
Also, setting such overall limits is different than any other pollutant. Generally, there are maximum safe levels of exposure allowed for pollutants before they impact health through toxicity or other direct health impacts. The EPA (or Cal EPA) takes steps to achieve them. In the case of carbon dioxide, this level has not been reached for people, plants, or animals. This does not extend to climate.
Because it is different, and (intentionally) has the result of setting fuel economy standards, the EPA would not have much choice in denying the permit. However, the proper course of action is to have Congress amend the law, striking the prohibition on California to set fuel economy standards.
And now, back to the Heretical Climate Deniers vs. the Anthropomorphic Warming True Believers… brought to you by http://www.climateaudit.org :-)