The Trump administration's plan to revoke California's ability to set its own clean car standards promises to ignite a monumental legal fight between a dozen states and the federal government.
"We'll see you in court," California Attorney General Xavier Becerra (D) said yesterday.
His comments came after news broke that Trump EPA officials will announce a formal effort as soon as today to repeal California's ability to set vehicle standards that exceed federal requirements. Two sources familiar with the plans confirmed the event to E&E News after Bloomberg News first reported it (E&E News PM, Sept. 17).
California's special oversight of tailpipe pollution dates back to the 1960s when the state was grappling with high levels of smog. The 1970 Clean Air Act folded in California's authority to set its own standards, because the state's law predated the federal act. The Obama administration in 2009 extended California's authority to include greenhouse gas emissions from cars. Thirteen other states now follow California's rules.
"The evidence is irrefutable: today's clean car standards are achievable, science-based, and a boon for hardworking American families and public health," Becerra said in a statement. "It's time to remove your blinders, President Trump, and acknowledge that the only person standing in the way of progress is you. You have no basis and no authority to pull this waiver. We're ready to fight for a future that you seem unable to comprehend."
Trump's EPA and the National Highway Traffic Safety Administration have been working to relax vehicle fuel efficiency and greenhouse gas standards set by Obama. The Golden State in July announced a deal with four major automakers on standards that are tougher than those proposed by the Trump administration.
California Gov. Gavin Newsom (D) said yesterday the Trump administration was acting "on a political vendetta."
"It's a move that could have devastating consequences for our kids' health and the air we breathe, if California were to roll over," he said. "But we will not. We will fight this latest attempt and defend our clean car standards. California, global markets, and Mother Nature will prevail."
Former Gov. Jerry Brown (D) said EPA's plan "borders on the criminal."
In an interview, he said climate change "is a profoundly serious threat to people everywhere. ... I don't think the president thinks about it, I don't think he thinks about the increasing floods, intensity of hurricanes, the forest fires in California killing people. ... Trump is fiddling while the world is burning."
EPA Administrator Andrew Wheeler said yesterday at the National Automobile Dealers Association that "we embrace federalism and the role of the states, but federalism does not mean that one state can dictate standards for the nation."
"We will be taking joint action with the Department of Transportation to bring clarity to the proper — and improper — scope and use of the Clean Air Act preemption waiver" (E&E News PM, Sept. 17).
States that use California's car standards include Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington. Together they represent nearly 40% of the U.S. car market, said Dan Sperling, director of the Institute of Transportation Studies at the University of California, Davis.
Automakers are unlikely to change their plans in the short term, Sperling said, but are left trying to determine what EPA's announcement means for future rules. Automakers are already complying with more stringent emissions rules in Europe. The E.U. is restricting emissions to about 65 grams per kilometer by 2025. The U.S. standard under the Obama administration equals about 105 grams per kilometer, Sperling said.
"Car companies plan for many years in advance," he added. "They've designed and built their factories to sell certain cars and certain mixes of cars. They're not going to change that overnight or even [in] two years."
California's legal challenge, if it comes, will seek resolution in a new arena. There's no legal precedent for the planned EPA action, said Julia Stein, project director for the Emmett Institute on Climate Change and the Environment at UCLA School of Law.
"There's never been a waiver revocation in the entire 50 year history of the Clean Air Act," Stein said. "It's not even clear from the statute that there is authority to revoke a waiver once it's been granted."
That makes one wonder whether the agency will rely on its "inherent authority" under the Clean Air Act, said Thad Lightfoot, partner at Dorsey & Whitney law firm in Minneapolis.
"If I were EPA I would be concerned that there's no clear path, no clear procedure that's laid out in the Clean Air Act to do what it is they're proposing to do," Lightfoot said.
California additionally is likely to ask the court to put EPA's action on hold pending a court ruling on the merits of EPA's move, several legal experts said. If that's granted, California would keep its authority while the court decided whether the revocation is allowable.
The states that follow California's rule could join the action, Stein said.
The court is likely to look at a factor called "reliance interest," said Michael Wara, director of the climate and energy program at Stanford University. That's essentially how many companies, states and other parties rely on the existing rule.
"Once rules are put in place people act on them, and they rely on the rule," Wara said.
Many of the 13 states have complied with the Clean Air Act by using California's standards. At least 10 states would be out of compliance with U.S. National Ambient Air Quality Standards if they were forbidden from using California's car standards, Stein said.
Those states are "going to be faced with the challenge of not being able to meet standards for smog," he added.
California could use other incentives to cut car emissions, such as "feebates" — or charging fees on those who buy polluting cars — and by issuing rebates to people who purchase zero emissions vehicles, Sperling said. But the Golden State needs to keep the waiver for reasons beyond emissions in California, he said.
"What's important is that it's a model and a leader for other states and other countries," Sperling said. "So what California does is hugely important ... in terms of demonstrating that certain standards, certain types of vehicles are feasible."
Reprinted from Climatewire with permission from E&E News. E&E provides daily coverage of essential energy and environmental news at www.eenews.net.