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.

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