THE CALIFORNIA AUTO EMISSIONS WAIVER – THE NEXT BIG CLEAN AIR ACT BATTLE?

Posted on July 26, 2017 by Charles S. Warren

The California Waiver is a unique provision of the Clean Air Act that lets California set its own auto emissions standards, which can then be adopted by other states as their emission standards.  Section 209 of the Clean Air Act basically provides that no state or other political subdivision can adopt or enforce any auto emission standards different from the federal auto emission standards.  The exemption in Section 209 allows for a waiver whereby California can adopt its own standards unless the EPA Administrator finds (1) the determination of the State is arbitrary and capricious, (2) such State does not need such State standards to meet compelling and extraordinary conditions, or (3) such State standards and enforcement procedures are not consistent with the federal standards in Section 202 of the Clean Air Act.

Section 177 of the Clean Air Act allows other states to adopt and enforce other auto emission standards if they are identical to the California standards for which a waiver has been granted.  This provision has allowed many other states to adopt the California standards which have had a profound effect on the auto industry and air pollution efforts.  At this point, 16 states have either adopted or are moving to adopt the California standards, including New York, New Jersey, Pennsylvania, Florida, Washington and Oregon.  This adds up to at least 135 million people or about 40 percent of the country.  In addition, car dealerships in states bordering states that have adopted the California standards are legally allowed to sell California compliant cars.  This means that there are many more people who will be buying cars that meet the California standard.  The result of all this activity is that cleaner cars are being sold in a great many areas of the country.

Since 1970, EPA has granted California 50 waivers and has only once denied a waiver.  That denial came from the George W. Bush EPA and dealt with a waiver covering greenhouse gas emissions in 2007.  California sued to challenge the denial of the waiver but the case was mooted by the subsequent granting of the waiver in 2009 by the Obama administration EPA.  The current waiver applies to model years 2022-2025 and was granted in 2012.

Earlier this year, the Trump administration was indicating that it might seek to revoke the California waiver.  There is no statutory provision for revoking a waiver and there has never been an attempt to revoke a waiver.  Any such attempt would provoke a titanic battle and many lawsuits.  The revocation effort seems to have lost some steam at this point and it appears the real battle will come when California requests a waiver for the model years 2025-2030.  Any action by the EPA to deny the next California waiver would likely be based on the contention that the waiver as it is applicable to greenhouse gas emissions is not needed by California to meet compelling and extraordinary conditions, since that provision was referring to conditions that affect California directly and locally.  The argument would be that pollutants dealing with climate change affect the whole world and are not unique to California.  This position would be strongly contested and it would be up to the courts to decide how it turns out, although the pro-environment side will likely prevail.

There is a great deal riding on this decision since the California standards have played a huge role in reducing pollution from mobile sources and are closely tied to increased fuel economy standards, which are an important part of the battle against climate change.



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