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.

Yesterday's Senate hearing on California's request for a waiver from federal preemption of its greenhouse gas emission standards for new motor vehicles was largely a platform for California Attorney General Jerry Brown and Committee Chair Barbara Boxer (D-CA) to complain about Bush Administration intransigence on climate change and failure to act on the waiver before now. It was not designed, or intended, to be a serious discussion of the issues. [This was not particularly unusual, as many Congressional hearings are political theater of this sort.]

According to Brown and Boxer, the EPA's failure to grant the waiver blocks California from acting to reduce greenhouse gas emissions. This is simply not the case. Whether or not California is precluded from adopting vehicle emission standards under the Clean Air Act (or the Energy Policy and Conservation Act, which may preempt the California rules irrespective of what the EPA does), there are many other actions California can take. If vehicular emissions of carbon dioxide are of the greatest concern, California could increase its gasoline taxes. This could produce far greater emission reductions in substantially less time than phasing in standards for new vehicles between 2009 and 2016. Such a policy is less attractive to California politicians, however, because it would impose clear costs on California consumers. A significant portion of the cost of emission standards for new vehicles, on the other hand, would fall on consumers and producers in other states. That portion of the costs borne in California would be folded into the cost of new cars and trucks. This is why California politicians would rather fight with Washington over federal preemption than take more direct action to curtail fossil fuel energy use.

The most interesting thing about yesterday's hearing for me personally was meeting Jerry Brown, the current attorney general and former governor of California (not to mention the former mayor of Oakland). After the hearing was officially over, we discussed the merits of California's waiver request for a bit about the waiver and climate change policy more broadly. He wants a waiver, to be sure, but he'd also be happy if the federal government adopted stringent vehicle emission standards of its own. I was struck by his genuine intellectual interest in the legal questions, apart from his political interests and policy preferences. I am sure Brown deserves his idiosyncratic reputation, but I left our encounter quite impressed.

The written statements and an archived webcast of the hearing are here. The Los Angeles Times and Washington Post also covered the Senate hearing, as well as the administrative hearing held by the EPA.

UPDATE: I have an NRO column on the waiver issue here.