EPA to Reconsider California's Clean Car Program

Karin T. O'Connell

On February 12, 2009, the Federal Environmental Protection Agency published notice in the Federal Register that it will reconsider its earlier denial of California’s request for a waiver under the federal Clean Air Act for a state law requiring automakers to meet new fuel economy standards.[1]  This notice was in response to President Obama’s January 26, 2009, directive to the EPA to reconsider its earlier denial of California’s request, which denial had come from the  Bush administration EPA and was viewed by many as both environmentally and legally unsound.

The California law and proposed regulations require annual reductions in average GHG (greenhouse gas) emissions from new vehicles beginning with the 2009 model year and phased in gradually over 8 years.  By the 2016 model year, emissions from new vehicles would be cut by 30 percent.[2]

Why does California need the approval of the federal EPA to implement its new law?  Because  under the federal Clean Air Act, states are not allowed “to adopt or attempt to enforce any standards relating to the control of emissions from new motor vehicles or new motor vehicle engines.” [3]  This is the province of the federal government only.  

However, a state may be allowed to implement its own emissions law by obtaining a waiver from the EPA of this general “preemption” rule.  And under the Clean Air Act, the only state which can request such a waiver is California, because at the time the CAA was enacted, California was the only state to have adopted standards for the control of emissions from new motor vehicles or new motor engines prior to March 30, 1966 (the year the first federal emissions standards were promulgated [4].)[5]  Despite the automotive industry’s preference for a single national standard, Congress had decided that California could lead in setting standards for motor vehicle emissions; as a car-dependent state with unique and severe air pollution problems (particularly in Los Angeles), California would be a good laboratory for emission control technology.[6]  

Why did former EPA Administrator Stephen Johnson deny California’s request for a waiver?  Under the Clean Air Act, the waiver can be granted if the state standards will be at least as protective  of public health and welfare as applicable Federal standards (which California’s clearly were) but the waiver will not be granted if the state does not need such State standards to meet “compelling and extraordinary” conditions.[7]

Administrator Johnson concluded that the waiver exemption was intended to allow California to address pollution problems that are local or regional only, and that GHG is a global issue;  in the alternative, he concluded that the effects of climate change in California are not “’compelling and extraordinary’ compared to the effects in the rest of the country” [8].  According to the California Air Resources Board (“CARB”), that decision is not only wrong legally, it is wrong scientifically.

Under the preemption waiver, California has historically been given great deference by the EPA, and the state has routinely obtained waivers in connection with regulation of its air quality through emissions standards, based only upon whether California continued to have general factors affecting California’s air quality (e.g., topography, meteorology, large human and vehicle population). In correspondence to then Administrator-Designate Lisa P. Jackson in January, 2009,  CARB argued that Administrator Johnson had improperly evaluated California’s need for greenhouse gas standards in isolation, rather than as part of California’s complete motor vehicle emission control program, and that that evaluation is contrary to the text and history of the waiver provision and its application.[9] 

Further, CARB claimed, the Administrator ignored the substantial evidence that GHG regulations will also reduce traditional smog-related emissions and wrongfully concluded that California does not face air quality and other resource impacts that are worse than in other parts of the country.

Administrator Lisa Jackson will now reconsider the denial from the prior EPA administrator.  Public comments are invited for 60 days.   

The Clean Air Act does allow states with approved state implementation plans to adopt emissions standards identical to the California standards for any vehicle model year so long as they are adopted two years before the commencement of such model year.  Right now, the following states have adopted the California standards: Arizona, California, Connecticut, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington.  Adoption of the standard in Illinois is under consideration. 

[1] 74 Fed. Reg. 7040

[2] Cal. Admin. Code tit. 13, Sec. 1961.1

[3] 42 U.S.C. sec. 7543(a)

[4] 31 Fed. Reg. 5170 (1966)

[5] 42 U.S. C. sec.7543(b)(1)

[6] ABA, The Clean Air Act Handbook,  Martineau, Jr., and Novello, eds. p. 324, 2004

[7] 42 U.S.C. sec 7543(b)(1)

[8] 73 Fed. Reg. 12156-57

[9] Correspondence to Admin.-Designate Lisa Jackson from CARB , Jan. 21, 2009

If you have any questions or would like a specific situation explored in more detail, please contact Karin T. O'Connell at 312.899.1616 (or by email at koconnell@gouldratner.com) or Richard R. Elledge at 312.899.1623 (or via email at relledge@gouldratner.com). 

The articles and opinions contained in The Gould & Ratner Environmental Update are summaries of current general legal matters. The opinions expressed are not intended to be construed as legal advice.

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