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EPA's Decision to Deny California's Waiver Request:

In my view, the EPA's decision to deny California's application for a waiver of preemption under the Clean Air Act for the state's greenhouse gas emission controls for new motor vehicles was good law, if questionable policy. The EPA's conclusion that California was not entitled to a waiver of preemption is utterly defensible under the Clean Air Act. Assuming the agency adequately explained the basis for its conclusion, I find no legal fault with the EPA. This does not mean that the agency's decision made for good policy, however. Assuming that the agency's action was not compelled by the statutory text, I also believe that the EPA could have adopted an alternative reading of the act under which the waiver could have been granted. Insofar as I favor giving states greater leeway to experiment in environmental policy, granting California's waiver would have made for good policy -- and would have been preferable to adoption of the federal energy legislation recently passed by Congress and signed into law.

In announcing the denial of California's waiver application for waiver of preemption, the EPA explained that the Bush Administration was "moving forward with a national solution to reduce greenhouse gas emissions from motor vehicles." Explicit in the agency announcement was a preference (shared by the auto industry) for uniform federal emission standards for motor vehicles. The agency also cited the newly enacted federal energy legislation that will increase federal fuel economy standards (and thereby reduce carbon dioxide emissions) over the coming decades (albeit at a slower rate than would have been required under the California rules.

EPA Administrator Stephen Johnson explained that federal uniformity is preferable to "a confusing patchwork of state rules." This is the rationale for federal preemption of state standards in the first place. The invocation of a "patchwork" is a bit inapposite here, however, as there would be no "patchwork" of variable rules from state to state, as approval of California's request would still have left states with only two choices: adopt the California rules or settle for the federal floor. The word "patchwork" implies that each state could choose its own standard, making each jurisdiction different from all the others, much like the panels of a patchwork quilt are highly varied. A better metaphor would have been that of a checkerboard, or some other dichromatic distribution.

The Administration's stated preference for a uniform standard clearly motivated its decision, but it is not a legally sufficient basis for denying a waiver under the Clean Air Act. Rather, the law is quite specific as to what factors are to be considered when evaluating a waiver request. Under Section 209(b)(1), California must first make a threshold determination that its proposed standards "will be in the aggregate, at least as protective of public health and welfare as applicable Federal standards." Once such a determination has been made, Section 209(b) provides that the EPA must deny the waiver request if it finds that (a) California's threshold determination was "arbitrary and capricious"; (b) California "does not need such State standards to meet compelling and extraordinary conditions; of (c) California's proposed standards and enforcement measures are inconsistent with other Clean Air Act requirements. An EPA finding that any one of these three criteria is met is grounds for denying California's waiver request.

Of these, only one finding is potentially at issue: Whether California needs its own greenhouse gas emission controls on motor vehicles "to meet compelling and extraordinary conditions." Although I have not yet seen the formal petition denial, the EPA announcement suggests that this was the legal basis for rejecting the request (and distinguishing this waver request from the dozens of such requests that the EPA has approved in the past).

California's current waiver request is distinct from all prior requests. Previous waiver petitions covered pollutants that predominantly impacted local and regional air quality. Greenhouse gases are fundamentally global in nature, which is unlike the other air pollutants covered by prior California waiver requests. These gases contribute to the challenge of global climate change affecting every state in the union. Therefore, according to the criteria in section 209 of the Clean Air Act, EPA did not find that separate California standards are needed to "meet compelling and extraordinary conditions."
As I have explore at some length in this paper, the EPA would appear to be on strong legal ground in reaching this conclusion. Given the global nature of climate change, California cannot claim that it needs these measures (or any other emission controls) "to meet compelling or extraordinary conditions." Nothing California does to control greenhouse gas emissions from new motor vehicles will mitigate the threat of climate change to the state in any meaningful way.

Prior waivers were granted when California sought to control emissions that contributed to the Golden State's particularly severe urban air pollution problems. In these cases, California could claim that state-specific measures were necessary components of state-level plans to meet federal air quality standards within the state. California's extreme air pollution problems were the "compelling or extraordinary conditions," and the measures were "needed" to "meet" these conditions insofar as they would facilitate California achieving its goal of reducing instate air pollution.

Global climate change presents a different type of problem, however. It is a global phenomenon caused by the accumulation of greenhouse gases throughout the global atmosphere. Unlike with ambient air pollution, such as soot or smog, a local jurisdiction has no control over local emission concentrations because the relevant gases disperse throughout the atmosphere. Nor do local jurisdictions have any control over ambient temperature, as global climate change is a consequence of the global accumulation of greenhouse gases.

California policy makers sought to get around this problem by pointing to anticipated California-specific effects of global warming, such as local sea-level rise. It is certainly true that California will face certain consequences of climate change that will not be faced by all other states. It is even conceivable (though hardly demonstrated) that California is uniquely threatened by climate change to a greater extent than any other state. This does not matter, however, as California cannot claim that its proposed vehicle emission controls are necessary to meet these concerns, as they will not achieve any meaningful protection for the state. No matter how much California wishes to be a climate policy pathbreaker, that is insufficient to meet the language of the Act under this interpretation.

I readily admit that there is some ambiguity in the language of 209(b), and there are reasonable interpretations of this language that could justify approving California's waiver request. The problem for California, however, is that insofar as this language is ambiguous, federal courts are required to defer to the EPA's reasonable interpretation under "step two" of the familiar Chevron analysis. Thus, provided that the agency has dotted its "i"s and crossed its "t"s in the formal decision, adequately explaining the basis for its interpretation and its resulting conclusions, the waiver denial should survive the inevitable legal challenge from California and other states that wanted to adopt more stringent vehicle emission controls.

To be clear, my point here is not that the EPA was required to deny California's CAA waiver request, nor am I making a specific prediction about future litigation over this decision. Rather I am making the more modest claim that the language of Section 209(b) could well be interpreted in a way that would justify, if not compel, the agency's decision, and hold up in court.

FantasiaWHT:

Insofar as I favor giving states greater leeway to experiment in environmental policy, granting California's waiver would have made for good policy -- and would have been preferable to adoption of the federal energy legislation recently passed by Congress and signed into law.


But the problem is that California by itself is such a massive economy that any standards it passes WILL become national standards, as manufacturers will build to satisfy the lowest (or rather, highest) common denominator to avoid having to make different product for each state.
12.20.2007 9:58pm
M. Simon (mail) (www):
If the EPA/California can control CO2 emissions does that mean your right to breathe is in danger? Will we have to kill all the animals on the planet to prevent CO2 emissions? We could start with farm animals I suppose. One big orgy of meat eating - then nothing. Deer would be next. One big hunting orgy - then nothing.

Suppose this policy of reducing CO2 pollution is wildly successful because we have found a zero cost way of removing CO2 from the atmosphere and we get the CO2 down below 50 ppm at which point the plants all die due to lack of CO2 nutrients. What then?

This is just crazy making.

Given that China is adding one Great Britain a year in coal fired electrical generating power this policy will have approximately zero effect on CO2 in the atmosphere what is the point?

Given that warmer is good for plants and CO2 is good for plants what do these folks have against plants?

When did "green" turn to black?

All I can say is thank the Maker for China. They managed to kick the can down the road for two more years at Bali.

BTW a number of solar scientists think we are headed for a little ice age. If so the restrictions on CO2 will kill us. Literally.

This CO2 mania is a lot like the Tulip mania in Holland without the tulips. The madness of crowds.
12.21.2007 12:08am
Jason Smith:
Is the one poster insane? Global warming will either kill us slowly or make it unbearable to live, or if the jet stream is shut off, which is entirely possible, because of the melting of the ice sheets due to global warming, yes, a little ice age could take effect, as during the Younger Dryas, which froze Britain. More than likely, because of the CO2 we produce, we have been able to postpone this dramatic global climatic shift. This is NOT a positive. The EPA is totally political thanks to Bush appointments and do not care at all about the environment; it is a misnomer....Gov. Schwarzenegger has the balls to sue the EPA and the intransigent fed govt....and he has science, reason, common sense, and the will of his people behind him. Bush and the EPA have none of this....the will of the people will prevail.....BTW, way to care for poor people in New Orleans, tear gas and mace them....is this still the US???? or are these people "enemy combatants"...this is the problem with "fighting terror"...Bush, in his delusional mindframe, can label anybody and anything "dangerous"....the climate is dangerous because it is not in our best interest, when we can't drill the arctic, so let's kill it....the latest energy bill is a hoax perpetrated on the public, and a total defeat for environmentalists....although a big win for coal/oil.....
12.21.2007 10:51am
James A Gates IV (mail):
What the president can't seem to wrap his little head around is; Yes, it would always be best to have a National Strategy, but a differing State Strategy that exceeds the National Strategy only helps the National Strategy achieve it's goal by convincing other states to follow suit. I mean, honestly, this isn't rocket science!

This is just another example of Bush's failure at realizing the big picture; he's so close minded and can't seem to think on his own. It's odd how the most powerful nation in the world has somehow managed to elect the biggest idiot in the world... twice!
12.21.2007 10:55am
Francis:
Professor, I believe that you're failing to recognize a better argument on behalf of the State, which goes something like the following:

1. California, among the 50 states, is uniquely exposed to the risks imposed by global climate change. The exposure includes, but is not limited to:

impacts to the various water projects (State Water Project, Central Valley Project, Colorado River Project) as the pattern and amount of annual precipitation changes,

impacts to endangered species (note that California has more listed species than any other state and only Hawaii is close),

impacts to the largest agricultural economy in the US as growing seasons change,

impacts to one of the largest fisheries economies in the US,

etc.

AND

California, being one of the largest economies in the world, is also uniquely positioned to serve as a "laboratory" for finding whether mobile sources may economically substantially reduce GHG emissions.
12.21.2007 12:08pm
Smokey:
'The madness of crowds' explains the current widespread delusion over the falsified conjecture that CO2 causes any meaningful climate change, global warming, or whatever is the always-morphing phrase du jour.

There is no credible evidence that CO2 causes any measurable climate change. None. The CO2 conjecture is built entirely on computer models - which are always inaccurate, and which do not match actual temperature measurements, either by satellite or by temperature proxies. As a matter of fact, increases in CO2 do not precede temperature rises; increases in CO2 follow rises in temperature. Cause can not precede effect. Rising CO2 is a subsequent effect of the natural climate cycles of the planet.

And relax, Jason Smith. The jet stream isn't going to shut off. The Second Law of Thermodynamics won't allow that to happen.

The basic question is: given the fact that the only basis for all the arm-waving over "climate change" is the always-inaccurate computer models, should we not do a little more research? Or, should we follow Al Gore over a cliff like lemmings, and completely disregard the peer-reviewed studies that falsify Gore's fantastic conjecture? After all, we're talking $trillions here.
12.21.2007 1:04pm
Houston Lawyer:
Smokey,

I agree, but that lemmings over a cliff thing was staged by Disney. We need a new metaphor.
12.21.2007 1:43pm
Larry Fafarman (mail) (www):
FantasiaWHT said, --

But the problem is that California by itself is such a massive economy that any standards it passes WILL become national standards

Not just "California by itself." Other states have adopted the California auto emissions standards -- Connecticut, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington. The governors of five states -- Arizona, Colorado, Florida, New Mexico and Utah -- intend to join this list.

BTW, what if some of these states don't want the proposed California CO-2 emissions standards? The California standards are supposed to be an all-or-nothing package deal.

-- as manufacturers will build to satisfy the lowest (or rather, highest) common denominator to avoid having to make different product for each state.

The solution for the automakers would be simple -- just sell fuel-efficient minicars in the California-standards states and fuel-guzzling SUV's in other states.

James A Gates IV said,
Yes, it would always be best to have a National Strategy, but a differing State Strategy that exceeds the National Strategy only helps the National Strategy achieve it's goal by convincing other states to follow suit.

The only way for other states to individually follow suit would be to adopt the California standards. A state may have to be an air-quality non-attainment state to be eligible to adopt the California standards -- I don't know.

Francis said,
California, among the 50 states, is uniquely exposed to the risks imposed by global climate change.

Wrong. For example, some states are threatened with coastal flooding if polar ice melting causes the oceans to rise.

I am all in favor of improving auto fuel efficiency and reducing CO-2 emissions -- but I agree with Jonathan Adler that using the California waiver provision is not a legal way to do it.
12.21.2007 5:38pm