California is seeking permission from the federal government to implement and enforce regulations controlling greenhouse gas emissions from new motor vehicles. Under the Clean Air Act, states are preempted from adopting their own vehicle emission standards. Section 209(b) of the Act, however, authorizes the EPA to waive this preemption for standards adopted by California meeting certain requirements. Once standards are adopted by California, other states may follow suit, adopting California's rules in lieu of the background federal standards.
In December 2005, the California Air Resources Board applied for a waiver of preemption for the state's new greenhouse gas emission controls. The EPA has yet to act. According to California Governor Arnold Schwarzenegger, this is solely due to Bush Administration intransigence. Writing in the Washington Post with Connecticut Governor Jodi Rell, Schwarzenegger argues that "it borders on malfeasance" for the EPA to "stonewall" California's waiver request. According to the two Republican governors, the EPA has a legal obligation to grant California's waiver request and not "stand in the way" of state efforts to control greenhouse gas emissions.
If only it were that simple. Contrary to the impression left by Schwarzenegger and Rell, the EPA has had good reasons to delay acting on the waiver request. Moreover, it is not clear that the EPA is even allowed, let alone obligated, to grant this specific waiver. At the time the request was first submitted, the EPA was enmeshed in litigation over whether it had authority to regulate greenhouse gases. If not, as the EPA had claimed, it is not clear that the EPA could have granted the waiver. In any event, it hardly "bordered on malfeasance" to postpone ruling on the waiver until the litigation concluded.
Now that the Supreme Court has concluded that the EPA does have authority over greenhouse gas emissions, it is still unclear that the California waiver request meets the statutory requirements of Section 209(b). If not, the EPA cannot grant the waiver, whether it would like to or not. Under the text of the Act, the EPA is not to grant a waiver if it is not necessary for "compelling and extraordinary conditions." This was an easy standard for California to meet when it sought to adopt vehicle emission controls to help address California's notoriously bad urban air pollution problems. In the case of climate change, however, it is not clear how California can claim to face "compelling and extraordinary conditions" that greenhouse gas emission controls are necessary to address. Because climate change is a global atmospheric phenomenon, California is in the same boat as every other state, and nothing California does on its own to reduce emissions will have much effect. Therefore, not only would the EPA be fully justified in denying California's request for a waiver, it may even be obligated to do so.
The Senate Committee on Environment and Public Works is holding a hearing on this issue today at which I will be testifying (along with California Attorney General Jerry Brown and New York Department of Environmental Conservation Commissioner Alexander Grannis). I will post a copy of my testimony and reactions after the hearing.
UPDATE: My testimony from the hearing is now available here.
Related Posts (on one page):
- California Waiver Hearing:
- California Wants a Waiver:
The EPA can easily grant this waiver to California--and should do so immediately.
Mr. Freedman, I am not persuaded by that argument. Using states as experimental labs might make sense if states had flexibility to try different approaches, but they don't. It's either the federal standard or California's standard; that's hardly a broad enough set of choices to tell us anything meaningful about which among a menu of choices might work best. Why should I believe that technocrats in Sacramento have a better ability to divine the right answer than technocrats in Washington, DC?
Meanwhile the third world burns entire countries in the name of agricultural production. Take a look at the MODIS satellite photos sometimes and see which countries are on fire when. If there was a planetary emergency as the Goracle states, surly people would be clamoring to shut down the process of agricultural burning and setting fire to forests for land clearing — And please do something about forest fires, the state of Florida still stinks from the smoldering lightening caused fires ... yuke.
huh?
The EPA would love to help solve global warming but finds that (a) regrettably the Clean Air Act gives them no authority to do so but at the same time (b) bars any state from doing so and that (c) the act's grant of waiver power to the EPA, when we get around to considering it, will be no help because how can the EPA waive a restriction on something it doesn't itself have the power to do and (d) since it would be much more effective for the EPA to address the problem than a state, the state's claim for a "compelling" reason to get the waiver isn't quite strong enough and (e) well it's all been such a kerfuffle in litigation that to do anything at all wouldn't be right ... in fact it would be against the law.
The idea that the EPA is doing any of this because the law compels it to do so is ridiculous. The EPA could settle this now but doesn't because this administration is intent on barring effective greenhouse gas controls and appointed people to the EPA to make sure that's what happened. They had to be taken to court to be forced to accept an interpretation of the Clean Air Act that they could have accepted to begin with but were politically inclined not to. Now that they dragged that out as long as they could, you propose to give them another interpretation of the law they can use to throw up their hands in despair at how the law is preventing them from doing what everyone wants.
If the administration and the EPA wanted to let California do this, they could find a perfectly legal way of doing it, particularly with a Democratic Congress to help them along, in minutes. As fascinating as the details of the Clean Air Act are, this fight is about an administration that does not want greenhouse gas controls because it still doesn't believe there's a problem and doesn't like any of the proposed solutions.
Curious? Check out Christopher Ruddy
Oops. China and Europe have stricter emission standards than the US, (and higher gas mileage). We are officially followers, not leaders. Hooray ! We're number 35!
So now we have to yet another excuse why we can't limit emissions. Oh, yeah, if we try to put regs on the auto industry, it will cost us jobs!
Oops. The auto industry has already lost plenty of jobs all by themselves.
Okay, so now we need another excuse why we can't deal with emissions. Anyone?
As for "special cars" for special places... My understanding is that the car companies attempt to make their cars satisfy California's requirements and then sell them elsewhere. Thus, California's rules drive the car companies. I think that is what the California delegation had in mind when it agreed to approve the EPA (I would think it would not have passed if 10% of the House was against it).
Detroit does not like the California proposal. Detroit controls the EPA (one way or another). But, for political reasons, the EPA cannot deny the waiver (afraid of a new law). Consequently, there is a stalemate.
My hypothesis is that EPA's delay is due to politics, not due to consideration of the merits of the waiver request.
This is my understanding as well. But this brings up the question, is it fair for the state government of California to effectively dictate environmental rules for all 50 states? Whether or not you agree with result it doesn't seem quite fair.
2) Nonetheless, we have to accept that the EPA apparently has the power to adopt regulations concerning the emission of a gas that you and I and all other animals emit with every breath we take. (How that can be a "pollutant" boggles the mind.)
3) Even so, there is absolutely no reason for the EPA to give California a waiver. The only purpose of such a waiver is to allow California to destroy the auto industry for the political benefit of a few politicians. There is not the slightest possibility that anything that California could do with respect to CO2 emissions by automobiles would have even a measurable effect on California's climate, let alone global climate. To the extent that anything should or needs to be done about industrial CO2 (versus all the CO2 that you and I expel every day), which remains an open question, pace all you members of the Church of Global Warming, it should be done on a national basis.
4) Five or ten years from now, people will laugh about the global warming hysteria. It's funny how in this secular age people have seized upon environmentalism as a kind of faith-based belief system.
Houston Lawyer wrote at 5.22.2007 1:12pm:You just had to give them more ideas, didn't you?
I'll bet yhou're a big federalist and states rights guy when the state in question wants to outlaw homosexual sodomy - but not in this case, eh?
Once again, the lofty ideals of federal-state separation of powers is but a plaything for those fighting about the underlying policy issues.
If the latter, it's possible that some states will retreat from the California standard to the 49-state standard if California makes the CO2 standard too tight, if the deem the additional cost to themselves of meeting that standard to exceed the benefits of meeting the other standards.
-dk
Just because a law would be a good idea -- or not! -- does not mean that either courts or the executive should pretend that the law exists.
And no, Randy, China does not have stricter standards than the U.S.
Interesting testimony and mostly even-handed. I think, however, that your failure to discuss the size of the California economy as a measure of the global economy, and the share of California's emission of GHG eq gases as a percentage of global emissions, was unfortunate. Both of those factors should be under consideration.
Similarly, your citation to one model of the effect of Kyoto compliance is inapposite. California is not trying to comply with Kyoto. The Kyoto Protocol is not even mentioned in AB 32. Instead, like for stem cells, California is trying to become a research and development center for mobile and stationary source GHG reduction.
Perhaps because the environmental technocrats in Sacramento are actually trying to do their jobs, and not just insider zealots warming the seat waiting for a "better" appointment?
Do you have data to support that claim? It's easy to infer that some reduction in emission would have an aggregate effect, but harder to assert that it definitely would not have any effect at all. Besides, the States-as-labs approach extends the effect, and it would if productive become national by default as most economically efficient.
Have you ever been to the paradise that is California? The majority of people in the centers of population don't need excessive air conditioning or absurdly large house-trophies-acting-as-compensation-for-other
-insecurities. 80 degrees is fine when it's not oppressively humid, Houston.
To the community, I apologize for the targeted ranting. I'm too frustrated to be more constructive than this. -Skyywise
1. You read the CAA as requiring that the threat to California be more compelling and extraordinary than elsewhere. There’s little in the text to support this. Surely, if global warming poses a compelling and extraordinary threat (as compared to more ordinary threats) to everyone on the planet, that includes California.
2. Accepting arguendo your reading of the Act, why do you so easily reject the possibility that the threat will be more compelling and extraordinary for California, due to loss of snowpack and other drinking water supplies, more deadly fires, loss of coastal land, etc., as compared to, say, Minnesota?
3. In arguing that California’s standards will be ineffective (even with the adoption by other states), you confuse necessity with sufficiency. The standards can be necessary even if they would prove to be insufficient if not supplemented by other actions. The Act doesn't require Cal. to show that its standards will solve the problem alone.
Best,
Tim Dowling
This is just plain false. If climate change were to result in increased sea levels, this would have a much more severe effect in California, a state bordering the Pacific Ocean than say, Cleveland, Ohio.
More generally, you have to wonder what Republican Senators were thinking to invite Mr. Adler to testify. Given Mr. Adler's ideological bias against government regulation, his testimony is certain to be less persuasive to the Democrats who control the committee than it would be coming from a less suspicious (i.e. less ideological) source. This problem is compounded given the carelessness that Mr. Adler used in formulating his testimony. You just cannot argue with a straight face that a phenomena that could potentially (and if unchecked, is likely to) raise sea levels would not have a greater affect on a state with an 840-mile coastline than elsewhere. This was a major error on Mr. Adler's part and one that is so obvious that it would not likely be made by someone not inclined to reach a particular result. It makes it pretty clear that Mr. Adler's testimony is more likely ideological advocacy rather than trustworthy legal and factual analysis.
The production of CO2 by the internal combustion engine cannot be controled or diminished by any manufacturing change or design at this time for any reasonable cost whatsoever. The only way in which the production of CO2 can be reduced in the motor vehicle fleet is by burning less fuel for the amount of work done. If California was serious about this they would be proposing to ban the sale of vehicles in California that don't meet a milage standard that would produce the result that they think that they want. The laws of physics don't prevent people from being ignorant as is quite obvious. There are no technocrats anywhere on the face of the earth that can prevent CO2 from being a by-product of the combustion of hydrocarbons or even seriously reduce the percentage of CO2 produced from burning a given quantity of fuel. If California is proposing that there are any ways of reducing vehicle emmited CO2 besides raising fuel economy, they should do it themselves, and save the world. Otherwise their request for a waiver is pure political theatre and sophistry to boot.
I am not following your point.
You first argue:
Assuming you are correct about the state of current technology, why should California handcuff automobilie manufacturers to a specific approach? Even if there were only one feasible approach given current technology, that doesn't mean that automobile manufacturers should not be allowed to immediately make use of any technological breakthroughs they or others develop that enable them to comply with the regulations in another manner.
I do not see how you can say that the regulation is not "serious" merely because it doesn't handcuff automobile manufacturers to a particular approach. Do you think that such manufacturers will be able to somehow evade the regulations unless fuel economy is addressed specifically?
Again, California is merely setting that standards. It is not proposing any particular approach to meeting those standards. The automobile manufacturers and the free market are in the best position to implement the standards. Perhaps some companies will decide to compete by developing new technologies. However, even if they decide not to go that route, surely their is no harm in keeping this option open and allowing competing companies in a free market make that choice.
It seems to me, that you go from a false assumption (that micromanaging rather than standard setting is required to demonstrate "seriousness") to absurd accusations that the standards in question are nothing more than "pure political theatre" and "sophistry."
What is worse, you use the British spelling rather than the American spelling of the word theater. Thereby demonstrating that you are nothing more than a malicious foreign influence determined to destroy America via global warming!
First, the fact that global warming presents an "extraordinary or compelling" threat to the world or nation, as a whole, cannot be sufficient for Section 209(b), as this would effectively make the test for Section 209(b) the same as that for the endangerment finding that triggers federal regulation under Section 202. Both the text and the structure of the Act indicate that California itself must "need" the standards to meet "extraordinary and compelling conditions." This was an easy test to meet for traditional pollutants, not so easy for climate.
Second, that California may experience distinct -- and perhaps even more severe -- effects from global warming is also insufficient. Global warming -- the problem the standards purport to address -- is a global phenomenon, even if the effects may vary in kind and effect from place to place. There are all sorts of policies that could address, and therefore be "needed," to address California's unique vulnerabilities, but emission reduction regulations do not.
Further, California cannot argue it "needs" these standards to address such consequences (such as sea level rise) because the standards will do nothing to reduce projected sea-level rise -- indeed, they would have no meaningful effect on future sea-level rise even if adopted nationally. Miniscule changes in projected sea-level rise may be enough for standing, as the Supreme Court held in Mass. v. EPA, but I do not believe they are enough for Section 209(b).
Third, as a policy matter, it may well be a good idea to let California go ahead so that it can push the EPA, other states, and perhaps even other countries to take more action (although I think there are many ways to do this that do not externalize costs on other jurisdictions the way this plan does). I certainly favor greater flexibility for state innovation than environmental laws currently allow. The problem is that the Clean Air Act specifies the bases upon which California's waiver request is to be evaluated, and this is not one of them.
Finally, as to why I was invited to the hearing. I think the primary reason was that I am an outspoken advocate of giving states greater flexibility in environmental law, and therefore my reservations about the legality of this proposal would be taken seriously (as I believe they were, given my extended discussion with Committee staff and AG Brown afterwards).
Thanks for the comments, more later.
JHA
Leaving the significant legal issues aside, of course. Thought you did nicely yesterday. Seemed to be some lack of realism about administrative agency behaviors esp. from Sen. Whitehouse regarding "parallel tracking" in federal agencies. I've evaluated federal programs for 10 years and I've never met a manager who would devote scarce funds to developing a program that might or might not be mooted based on the outcome of a court case.
I am glad to see that you have backed off the statement in your testimony where you asserted:
Clearly, if global warming were to cause "more severe" effects in California, it would be a more "compelling and extraordinary" threat than elsewhere. I gladly accept your concession, and applaud for your intellectual honesty for making it.
This is especially true since for a threat to be "compelling and extraordinary" it is not the case that the problems arising from the environmental effect must be entirely unique to California. After all, it is not as if California cities were the only ones that faced serious pollution problems when previous waivers were granted.
Furthermore, when discussing effectiveness (which seems relevant to whether proposed standards "meet" a compelling and extraordinary threat) it seems that you are not explicit in how you make the assessment. First, it should be noted that changes in sea levels, like changes in air pollution is a continuous, not a discrete phenomenon. Previous air pollution control standards adopted by California have not eliminated California's pollution problems - they have only mitigated them. Likewise, the standards here need only mitigate the problems caused by global warming, not prevent such problems entirely to be said to "meet" the environmental threat. Furthermore, that China and India, for example, may be increasing their own emissions of CO2 at an alarming rate is also not relevant. The question is not whether the standards would make the situation better compared to a (admittedly superior) hypothetical world where such emissions from foreign countries are curtailed, but rather whether the standards will improve the situation compared to a situation where such standards are not adopted.
You write:
As we learn when practicing to take the LSAT, beware of extreme language. This statement that there will be absolutely no effect fundamentally mistates the phenomenon, which is a continuous in nature, not discrete.
If more CO2 produces increased average temperatures, and if the higher temperatures rise, the more sea levels rise, then you cannot say that California's regulation will "do nothing" to mitigate the problem (compared to a world with no such standards) as long the reduced CO2 production that results has some effect on average temperature. Any decrease in average temperature means that sea levels will be lower than they otherwise would be.
I have no problem with you arguing that this change will not be "meaningful." What is or is not "meaningful" is debateable, after all. My only hope is that when you make such an argument, you are explicit in your definition of what you personally consider to be "meaningful." In constrast, I do have a problem with you arguing that changes in CO2 emissions will "do nothing" (compared to a situation without such standards, rather than compared to a situation where India and China curtailed their own CO2 emissions). Such an extreme statement suggests that you fundamentally misunderstand global climate change, which is a continuous rather than discrete phenomenon. Changes in CO2 emissions do not either "do nothing" or "do everything" to solve the problems associated with global warming. Instead, the correct framing of the issue is to ask "how much" impact would the changes have on CO2 emissions.
We probably do agree on one thing. Focusing on international cooperation will likely "do more" to reduce CO2 emissions that California's actions. But, the two things are not mutually exclusive.
Climate change is already affecting the Colorado River and the snowpack upon which California relies. The existing water supply system, including the CVP, SWP, and Colorado River water rights, is a multi-billion dollar system that operates on a series of assumptions about the time and intensity of winter storms. These assumptions are being proven inaccurate.
Adapting to inevitable climate change will cost billions. Preventing worsening climate change will save even more billions.
After further consideration, Prof. A, your failure to recognize the unique impacts of climate change on a unique water system does put your comments in a worse light.
But California could increase fuel efficiency in a straightforward and unquestionably legal manner, by increasing its gas tax a few dimes per gallon. That would also increase the revenue the state government seems to need to run its prison system, etc.
Francis,
I don't think that these two things are mutually exclusive. Though, perhaps as you suggest, effects on water supplies are the larger problem.
But if your reasoning was sound -- that identification of a more significant factor renders consideration of a less significant factor silly -- then it would follow that California's regulations are silly, since a more significant factor in regulating CO2 would be coordinated worldwide action via a treaty, rather than California specific regulation.
In fact, I think the more sound view is to aggregate (rather than take the problems as somehow competing) all of the costs of global warming to California, and assess how California reducing CO2 production will mitigate all problems in California.
On another front, I wonder whether global warming increases the probability of a unusual weather patterns causing problems in California.
It has already been established by the Supreme Court that the EPA has authority to regulate green house gas emissions.
Of course many pollution problems are "continuous," rather than "discrete," in nature. Yet under federal law, urban air pollution is treated as a "discrete" problem: the EPA sets National Ambient Air Quality Standards that all metropolitan areas must meet or face federal sanctions. This is relevant because at the time the waiver provision was adopted, California faced particularly severe air pollution problems, and could make an argument that more stringent vehicle emission standards were necessary to meet the federal standards given California's "extraordinary" conditions. California could argue, as it did, that tighter emission standards, combined with other measures, would enable it to meet the standards.
In this context, California cannot claim that its GHG standards are necessary to solve a particular problem, either alone or in combination with other measures, as nothing California has proposed will have any meaningful effect on any of its climate-related concerns. A policy that, given exceedingly optimistic assumptions, would reduce projected sea-level rise by less than two centimeters over the next century is hardly something California can claim it "needs" to meet "compelling and extraordinary conditions." The same can be said for other practical effects of climate change, whether effects on water supply, urban air pollution levels, or whatever.
Insofar as the nation as a whole faces threats from climate change, this is a reason for federal regulation under Section 202, not a state waiver. Indeed, given the Supreme Court's holding in Massachusetts v. EPA, I would agree that the federal government has the legal authority, and likely the legal obligation, to adopt national vehicle emission standards, perhaps even as stringent as California has proposed. At the same time, I believe the EPA has the authority, and perhaps even the obligation, to reject California's request for a waiver.
JHA
Any course of action to deal with the problem will be opposed by substantial factions, so we'd all be better off if Congress fought it out first and told the EPA what it was supposed to do, rather than leaving it to bureaucrats to make up something and then to judges to tell the bureaucrats that they guessed wrong.
Sorry for the mis-spelling. I can assure you that it was completely a domestic mistake rather than a foreign one. I will try to eleminate these errors, although I can make no promises since spelling is not my forte.
One thing that I do know something about is the combustion process in automotive engines. So, allow me to state things in as clear a manner as posible.
1. There is no way, I repeat, NO WAY to alter the quantity of production of CO2 emissions from the combustion process. The chemical reaction that takes place from combustion will produce CO2 in direct proportion to the amount of hydrocarbons in the fuel.
2. Given #1, the only way to reduce CO2 from vehicular emissions is to BURN LESS OF IT. (at this point in time there is no way to capture it from a motor vehicle after production.)
3. Given #2, the only way to reduce CO2 emissions in motor vehicles is to make them have HIGHER MILAGE RATINGS. (less fuel burned per mile driven.)
4. Given 1,2,and 3, The only way that California can reduce the amount of CO2 emitted in California by motor vehicles is to require higher fuel economy from the vehicles sold and/or driven there.
Given these facts, what California is actually asking the EPA to be able to do is to require auto manufactures to increase fuel economy standards. As I understand it, this is not how they are stating their case, rather they are asking for a waiver from the EPA to impose more stringent regulations of greenhouse gases as a pollutant. Problem; CO2 is not a pollutant and has never been regulated under the CAA. CO2 is a greehouse gas but, no reasonable definition of pollutant would include CO2, although 5 supreme court justices just managed to do that in reguard to the definition of pollutant within the CAA in the case of MASS v. EPA.
Given that California has managed to require that a certain portion of the vehicle fleet will be zero emissions in a time frame. I think that California could ban the sale of vehicles that didn't meet a milage standard that would produce the reduction of CO2 that they are claiming that they want to achieve without a waiver from the EPA. My point is that since they have not persued this direct approach to CO2 reduction in California that they are blowing political smoke.