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Can the Golden State Catch a Greenhouse Waiver?

California would like to become the first U.S. jurisdiction to regulate greenhouse gas emissions from automobiles. It has already adopted regulations to this effect. Yet before the rules can be enforced, California must obtain a waiver of preemption from the Environmental Protection Agency (EPA). Without such a waiver, the new standards will be preempted by the Clean Air Act.

The political pressure favoring a waiver is strong. California Governor Arnold Schwarzenegger has threatened to sue the EPA if a waiver is not issued. Several other states have also taken up California's cause, hoping to adopt the regulations as their own if and when a waiver is granted. But will there be a waiver? That is the question.

Although California has received numerous Clean Air Act waivers before, I am not convinced that California is entitled to this waiver under the law. As I testified before Congress earlier this year, I think there is a reasonable argument that a waiver for greenhouse gas emission controls -- unlike waivers for controls on other pollutants -- may not satisfy the statutory requirements. At the very least, I think that the statute is sufficiently ambiguous that the EPA could safely deny the waiver request.

This does not mean that the EPA will or should deny the waiver, however. As a practical matter, I expect the EPA to grant California's waiver request near the end of the year, and I suspect that decision will be upheld in court. (Though California's rules may still be preempted by other provisions of federal law.)

As for what the EPA should do, I think that is a closer call. There is a a very strong argument for granting states greater flexibility in environmental protection. I believe states should be able to obtain waivers from all manner of federal environmental requirements where local conditions warrant. But that still does not mean California should get this specific waiver. As a policy matter, the case for waivers is strongest where environmental problems are localized and the costs of protection measures are not externalized to other jurisdictions, and weakest where the environmental problems and the costs of protections extend beyond jurisdictional bounds. I would be much more comfortable with a California waiver here were there greater opportunities for waivers throughout environmental law.

This is basically the argument I put forward in a short paper analyzing California's waiver request, Can the Golden State Catch a Greenhouse Waiver?. The abstract and full text are available on SSRN here. My prior blog posts on California's waiver request are here.

Smokey:
The global warming/carbon credits industry gets its incorrect data from highly questionable sources like these. And neither Al Gore, David Suzuki or James Hansen are willing to debate their glonal warming conjecture with the opposition.

How can these people call what they do science, when they run and hide from any legitimate debate? [scroll down to the bottom of the page to view the debate challenge].
8.13.2007 2:27pm
The General:
If global warming could be "solved" using market-based measures and without mass governmental controls over our daily lives, these alarmists like Gore would lose their interest in it and move on to the next "crisis." To them, global warming is nothing more than a means to achieve socialism and their unquestioning faith-based followers are sheep.
8.13.2007 2:42pm
A Texan:
If California wants to burden itself with restrictions that will encourage businesses to relocate to other states, I think the only proper national policy is to let California do it.
8.13.2007 3:39pm
TokyoTom (mail):
Jon, the link to your paper isn't working (but it is a reworking of you May testimony, right?).

Do you see any ironies, after the Bush administration has done what it could to block climate change action at the federal and international level, as fifty flowers start to bloom at the state level (and thousand more at local levels) that you find yourself arguing in favor of federal preemption?

In this do you side with law prof. Stephen Bainbridge , who is now arguing for federal action in order to cut off private, civil litigation on climate change?

It's a shame that Republicans and libertarians couldn't have been on the same page during the Bush administration, when it might have made a very big difference. The opportunity for a "grand bargain", that would exchange federal regulation of GHGs for a broad unwinding federal energy and environmental regulation in favor of local regulation, enhanced private property rights action and greater flexibility seems to to be slipping away. Rent-seeking by those who consider themselves to have homesteaded a right to export the costs of climate change around the world seems to have gotten in the way.
8.14.2007 1:52am
Mary Katherine Day-Petrano (mail):
I think the EPA should regulate The Florida Bar and Florida Courts use of hard paper copies instead of electronic formats on the Internet superhighway, to (1) reduce harmful carbon emissions from unnecessary vehicle trips, and (2) reduce harmful carbon emissions and tpoxic pollution from all the paper and pulps mills in Florida.

Maybe Florida should be taken to task in "Mass v. EPA II." Why don't all the other states have an interest in Florida's carbon emission problem, since I have read Florida is the #2 carbon emission source in the Nation.

And it will be the first to go underwater as the sea levels rise.
8.15.2007 5:12am
Mary Katherine Day-Petrano (mail):
Come to think of it, the California Bar, Bar Court, and California Courts could stand some of the same improvement from their outdated past, but at least in that state, there are SOME Virtual Internet Courthouses.

Amazing that California's carbon emissions are less than Florida's, when Florida is a smaller land area.
8.15.2007 5:15am
Mary Katherine Day-Petrano (mail):
"Do you see any ironies, after the Bush administration has done what it could to block climate change action at the federal ... level"

Huh???!!

The Bush Administration, for one of the most right things it has done, HAS taken carbon emission reduction actions. Just go to e-Stragety.gov, and it is pretty clear that, unlike Florida, the Bush Administration has really enhanced the use and accessibility of the Internet superhighway, thereby reducing carbon emissions from unnecessary vehicle trips and reducting hard paper copies that cause enormous paper and pulp mill and paper production carbon emissions (as well as toxic pollution).

Moreover, the Bush Administration's efforts to enhance the Internet superhighway, and remove interstate Internet blockages such as The Florida Bar and Florida State Courts resistant grip on their outdated hard paper copy-based Judicial system by amending Title V of the Rehabilitiation act to incorporate Sec. 508 standards in Title II of the Americans With Disabilities Act, serves National Security by eliminating the hard paper copy obstruction to National surveillance.

Why are people being so hard on the Bush Administration? The President just does things a different way. That does not mean his Administration is anti-global warming.
8.15.2007 5:24am
Mary Katherine Day-Petrano (mail):
"reducting"=reducing
8.15.2007 5:26am
markm (mail):
Amazing that California's carbon emissions are less than Florida's, when Florida is a smaller land area.


Is that counting the carbon emissions from generating all the electrical power that CA imports from other states?
8.15.2007 1:48pm