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EPA Denies California's Waiver Request:

Earlier today, the EPA denied California's request for a waiver of preemption under the Clean Air Act for California's regulation of greenhouse gas emissions from new motor vehicles. Based upon the EPA release, the passage of a federal energy bill that will impose more stringent automobile fuel economy standards is one of the justifications for rejecting the waiver. There is no question that California will challenge this decision in federal court (see here). Whether or not California succeeds will largely depend upon how well the Bush Administration defends its decision. As I've argued before (see also here), I think that there are reasonable legal arguments supporting a denial of a waiver. Nonetheless, I am surprised by the Bush Administration's decision.

I hope to have more to say about this decision once I have read the formal decision. In the meantime, here is news coverage from the Los Angeles Times and New York Times. Here, also, is Governor Schwarzenegger's response.

Mr. Liberal:
I see no reason to be surprised that the Bush administration took an anti-environment position. That is what I would predict they would do.
12.19.2007 11:40pm
Who asked the EPA?:
I was surprised to hear that one of the EPA's arguments was that they didn't think it was wise to have a "patchwork" of state regulations. Last time I checked, Congress decided it was OK for California (and its followers) to have a different set of regulations and didn't give the EPA the power to determine whether that was a good idea--only whether California met the criteria for the waiver.
12.20.2007 12:12am
Duffy Pratt (mail):
It's just another thing making it clear that Bush is a big government conservative. He gave some lip service to ideas of federalism, but he was doing what most politicians do when their lips are moving.
12.20.2007 1:07am
Daniel Chapman (mail):
I'd like to see this backfire... all the major automakers decide it's no longer worth doing business in CA.
12.20.2007 1:32am
Oren:
DC, I think hell will freeze over first.
12.20.2007 1:44am
Josh644 (mail):
From the NY Times article:


The [EPA] initially argued that it did not have the authority to regulate greenhouse gas emissions under the Clean Air Act. But earlier this year, the United States Supreme Court ruled that the agency could do so.


I'd love to see the reasoning behind that decision. Has the Supreme Court bought into the hysteria? Is carbon dioxide legally defined as a "pollutant" in this country now?
12.20.2007 2:21am
Lev:
12.20.2007 2:40am
Lev:
12.20.2007 2:58am
Cornellian (mail):
I heard somewhere that BMW sells more cars in California than the other 49 states combined.

So no, automakers won't be exiting the California market any time soon.
12.20.2007 3:52am
one of many:
Josh,

yes CO2 is now a pollutant in the US per order of US Supreme Court. I don't have a cite handy but it was Massachusetts v EPA decided back in april.
12.20.2007 3:56am
Pin Head (mail):
Even if California received the waiver, it might not have any significant effect. CA has a history of passing meaningless legislative gestures to promote the fiction that it is at the vanguard of world environmentalism, as expressed in Schwarzenegger's statement. A couple of examples are the mandates that 5% of vehicles would be "zero emission" and that 10% of power would be obtained from "alternative" sources. The deadlines for these mandates has long passed and they are not enforced because they would cause too much pain.
12.20.2007 9:44am
byomtov (mail):
all the major automakers decide it's no longer worth doing business in CA.

Right. And in the other 16 states that want to adopt the CA standard. It's true that the American auto companies often behave suicidally, but I doubt it's reached that point.

I eagerly await the objections to this decision from all the fierce federalists hereabouts.
12.20.2007 10:39am
Randy R. (mail):
According to the Washington Post, the leaders of the car industry met with Cheney about this very matter last week. So it's a pretty safe bet to say that good ole Dick called up the EPA and told them how to handle the situation. I'm sure the car manufacturers are happy they made those campaign contributions!

The article also stated that the lawyers for the EPA were unanimous that if the EPA were to veto this measure, they would lose in court. Jonathan Adler thinks it depends upon how vigorously the Bush Administration defends its action. So either the EPA lawyers are not very good attorneys, or Adler is wrong.

Another thing: Bush just signed a bill that would increase fuel mileage standards to a whopping 35 MPG -- by 2020! Boy, the Georgie. It takes real political courage to force a small increase 13 years from now.
12.20.2007 10:50am
Houston Lawyer:
I have no love for the car manufacturers. I'm still trying to figure out why my mother's Mercury Grand Marquis gets 25 miles per gallon while my smaller Explorer gets 16.

That being said, the EPA should be able to prevent regulations applied on a state-by-state basis based upon hysteria.
12.20.2007 10:53am
byomtov (mail):
That being said, the EPA should be able to prevent regulations applied on a state-by-state basis based upon hysteria.

Still waiting for the federalists to show up.
12.20.2007 10:58am
T.Platt:
More back room deals in Cheney's office with powerful special interests really don't suit the mood of the even Republican voters any more. I think Republican Arnold Schwarzenegger's outspokenness against the EPA decision will increase his popularity in California even more. The Republican presidential candidate may not be able to put enough distance between himself and Cheney. Perhaps Cheney has just handed the presidential election to the Democrats.
12.20.2007 11:06am
H. Tuttle:
Wait for the federalists all you want.

California has gone off the deep end in environmental regulations, and, like Wiley E. Coyote, is in midair, not realizing gravity is about to kick in. While I support the EPA's decision, I think CA should have been allowed to jump off the cliff they've been building for themselves. CA is a fiscal and political liberal trainwreck in the making. I think the EPA denied the waiver more because of the other 15 states that wanted, for purely political reasons, to pile on.
12.20.2007 11:23am
Ralph Phelan (mail):
Jonathan Adler thinks it depends upon how vigorously the Bush Administration defends its action. So either the EPA lawyers are not very good attorneys, or Adler is wrong.
Or the EPA lawyers are bluffing/lying for the sake of the environmentalist cause. Are they political appointees or career civil service?
12.20.2007 11:29am
Craig Oren (mail):
EPA lawyers are career employees. (The general counsel, on the other hand, is a presidential appointee.) EPA lawyers work with Department of Justice attorneys when agency action is challenged.

The Supreme Court did not designate carbon dioxide as a regulated pollutant. That decision is up to EPA, and has not yet been made. What the Supreme Court did do was to say (1) EPA has the authority to regulate greenhouse gasses if it chooses to do so; and (2) EPA's explanation for why it wouldn't regulate did not properly take into account the criteria that are relevant under the statute.
12.20.2007 11:49am
Duffy Pratt (mail):
Los Angeles has done a pretty good job of dealing with its air pollution. Anyone remember the early seventies? The idea that the same emissions standards need to apply in Nebraska and along the Pacific Coast is just silly. It's makes sense for the Feds to adopt some minimum acceptable standards. But those standards might not be the best thing for places with extreme traffic, as exists in the highly populated areas in California.
12.20.2007 12:55pm
Ralph Phelan (mail):
It's makes sense for the Feds to adopt some minimum acceptable standards. But those standards might not be the best thing for places with extreme traffic, as exists in the highly populated areas in California.

But how does that justify California having separate standards for CO2? Global warming is not a local problem.
12.20.2007 1:27pm
Duffy Pratt (mail):
I don't know the science very well. Isn't CO2 one of the gases that causes temperature inversion problems, or gets trapped at the base of mountains and causes pollution to stay trapped in the LA basin? That's not a rhetorical question; I don't know the answer. But if it is a contributing factor, then it would have everything to do with CA having higher standards.
12.20.2007 1:48pm
Pin Head (mail):

Isn't CO2 one of the gases that causes temperature inversion problems, or gets trapped at the base of mountains and causes pollution to stay trapped in the LA basin?


No.

It is the temperature inversion that traps the atmosphere in the LA basin, causing smog to be a larger problem than if it was swept away by the prevailing winds.

CO2 is not a traditional pollutant as it is a natural product of living organisms. Stop "polluting" and you stop living.
12.20.2007 2:16pm
Eli Rabett (www):
Duffy and Ralph, no that's mostly NOx (nitrogen oxides), OTOH, NOx and CO2 emissions are coupled to the degree that the more gas you use, the more NOx your car emits. It would be interesting if anyone could make a NOx free combustion engine for an auto. OTOH, Houston Lawyer might take his car in for a tuneup and stop running the engine at the drive-in if he wants better mileage.

(To be perfectly clear NOx emissions have been cleaned up considerably by the various emissions control regulations put in since the 1970s, however, I was just pointing out that there is a way that CA could impose limits on engine size and car weight consistent with local clean air requirements)
12.20.2007 2:18pm
KeithK (mail):
One you accept that the federal government has authority over environmental issues (not a bad idea but only tenuously supported by the enumerated powers) then it's not unreasonable to have the feds set standards for the whole country.

In theory I support the idea that California should have the right to set it's own standards that are higher than the rest of the country (even though I'm stupid enough to live in that state). I do get concerned when such standards may become de facto national standards due to the size of the California economy - no reason that the gerrymandered fools in Sacramento should get to set national policy. So that tension tempers my enthusiasm for federalism on some issues.
12.20.2007 2:23pm
Ralph Phelan (mail):
NOx and CO2 emissions are coupled to the degree that the more gas you use, the more NOx your car emits.

In the short term the NOx and CO2 stay trapped under the LA inversion layer. The NOx directly poisons Angelenos and so is a legitimate concern of the CA state government, and this is exactly why California was given special treatment by Congress. The extra CO2 is trivial compared to what's naturally in the atmosphere and has no health effect, and so is none of the CA government's business.

In the long run, the extra NOx and CO2 get evenly mixed into the entire Earth's atmosphere. The NOx breaks down. The extra CO2 reamins in existence long term, and many believe it will warm up the entire Earth, eventually flooding Bangladesh and Florida. Should this happen, California, with its mostly much steeper coastline, will suffer more than landlocked states but less than most other coastal states. So again there's none of the disparate local impact on California that was the reason for allowing them to set extra-stringent state pollution standards.
12.20.2007 2:44pm
Randy R. (mail):
Houston Lawyer: :"That being said, the EPA should be able to prevent regulations applied on a state-by-state basis based upon hysteria."

Any support for the notion that these regs are based on hysteria?

It's so strange that people really think that their own health isn't really that important, or at least not as important as oil company profits. What's a little asthma and cancer compared to good stock market returns?

Ralph: "Or the EPA lawyers are bluffing/lying for the sake of the environmentalist cause."

I guess it's pretty sad. Used to be we trusted our civil servants to have integrity to do their job. Now we assume that they bluff or lie for some reason. This isn't a partisan issue, as I realize that liberals have abused the public trust as much as conservatives have. But Bush has been in office for 7 years, and has done such a darn good job of abusing the public trust that we now all just assume that all gov't workers have a hidden agenda. Like Cheney. (see above).

The thing is, he could be a man about it, and just come out and say, I support car manufacturers over the environment. But that would require a modicum of integrity and transparency.
12.20.2007 3:02pm
Ralph Phelan (mail):
Used to be we trusted our civil servants to have integrity to do their job. Now we assume that they bluff or lie for some reason.

When an organizxations scientists are caught falsifying data (infamous planted lynx hair incident) and are not summarily fired, I think it beocmes rational to start distrusting anything that organization says.
12.20.2007 3:43pm
r78:
The Bush administration sides with the position advocated by oil companies and the auto industry and you think that was a surprise?

wtf?
12.20.2007 3:54pm
Pin Head (mail):

Randy R: What's a little asthma and cancer compared to good stock market returns?



CO2 is not associated with asthma or cancer.

California can regulate pollutants that are associated with asthma or cancer, but it chooses to do so on a political basis rather than on the basis of health risk.
12.20.2007 3:59pm
Colin (mail):
Should this happen, California, with its mostly much steeper coastline, will suffer more than landlocked states but less than most other coastal states. So again there's none of the disparate local impact on California that was the reason for allowing them to set extra-stringent state pollution standards.

In other words, "here is a way in which California could suffer impacts which are unlike both coastal and inland states. Therefore there is no disparate impact."
12.20.2007 4:15pm
Richard A. (mail):
It's highly unlikely that CO-2 gets trapped in the L.A. basin, since its presence in the atmosphere is inifinitesimal, just 380 parts per million. Has anyone ever shown a reading above that level in L.A.?
The argument against it has nothing to do with any local effect of high concentrations, but with the theoretical global effect. And under that theory it makes no difference whether the CO-2 is emitted in Malibu or Madagascar.
12.20.2007 5:42pm
3.14159 (mail):
Could someone please explain how federal law can keep California from placing whatever regulations they want?
12.20.2007 5:49pm
Colin (mail):
Could someone please explain how federal law can keep California from placing whatever regulations they want?

Preemption.
12.20.2007 6:02pm
ADB:
Preemption - Federal law trumps state law.
12.20.2007 6:44pm
byomtov (mail):
I do get concerned when such standards may become de facto national standards due to the size of the California economy - no reason that the gerrymandered fools in Sacramento should get to set national policy. So that tension tempers my enthusiasm for federalism on some issues.

Do you get concerned when Senators from places like Wyoming and Alaska and Oklahoma get to set national policies, despite the wishes of people in CA and NY, for example? Or is federalism just a good idea when it produces policies you like, a la Scalia?
12.20.2007 9:58pm
Brian K (mail):
Or is federalism just a good idea when it produces policies you like, a la Scalia?

this one. it's definitely this one.
12.21.2007 1:02am
KeithK (mail):
Do you get concerned when Senators from places like Wyoming and Alaska and Oklahoma get to set national policies, despite the wishes of people in CA and NY, for example? Or is federalism just a good idea when it produces policies you like, a la Scalia?

That's unfair and you know it. There's a big difference between the US Senate passing a law, even at the behest of a Senator from Alaska, and the CA legislature passing one. Californians and New Yorkers have representation in the US Senate. Alaskans and Oklahomans do not have representation in the CA legislature.
12.21.2007 4:16pm