A Wavering Federal Policy on Climate Change?

President Obama yesterday made official (sort of) his plan to fulfill a campaign pledge to grant the State of California authority to adopt pioneering greenhouse gas emission controls for vehicular sources.  That announcement, while expected, is a breath of fresh air when it comes to state-federal environmental policymaking.  It comes after eight frustrating years in which the Bush Administration both refused to address climate change at the federal level and did everything it could to block states from filling that policy vacuum.  Prospectively, as the President succinctly put it, “the federal government must work with-and not against-the states to reduce greenhouse gas emissions.”  Amen.

In 2002, the California Legislature directed the California Air Resources Board (CARB) to adopt rigorous standards reducing GHG emissions from cars and trucks.  After lengthy hearings, CARB did just that in 2005, adopting its “Pavley” standards (so named after the author of the 2002 legislation).  Since then, some 13 other states have “opted into” the CARB standards, as permitted under the federal Clean Air Act (CAA).  The automobile industry promptly filed numerous federal lawsuits, seeking to block the CARB standards–lawsuits which have proven singularly unsuccessful to date.

However, under the CAA, CARB’s Pavley standards can’t take effect unless approved by USEPA in the form of a “waiver.”  (Over the 40-year history of the CAA, Republican and Democratic federal administrations alike have routinely granted California such waivers.)  The auto industry had much better success convincing the Bush Administration than it did the courts: in December 2007, Bush’s USEPA Administrator denied the waiver California had requested.  California and the “opt in” states promptly sued the Bush Administration, and that case is pending in the D.C. Circuit Court of Appeals.

Technically, President Obama did not commit in his White House remarks yesterday to reverse the Bush Administration’s denial of the waiver.  (He said, instead, that that the Obama Administration would immediately review the earlier waiver denial and “determine the best way forward.”)  But his top representatives, including newly-confirmed USEPA Administrator Lisa Jackson, have indicated that that’s precisely what the new Administration plans to do.

The belated grant of CARB’s waiver application is a most welcome development will have several immediate effects.  It will render moot California’s pending D.C. Circuit lawsuit.  It allows CARB to proceed with implementation of the Pavley standards, which are in turn a critical component of California’s landmark commitment to reduce its aggregate GHG emissions to1990 levels by the year 2020.  And the waiver will simultaneously permit at least 13 other states-aggregating, with California, approximately half of the domestic auto market-to implement the identical GHG emission controls for new cars and light trucks.

But perhaps the most important aspect of the Obama Administration’s decision to grant the CARB waiver is that it sends a most dramatic signal that the White House government has reversed course dramatically when it comes to climate change policy.  “The days of Washington dragging its heels [on climate change] are over,” President Obama declared yesterday.   Amen to that as well.

Does this mean that the days of federal-state conflict over environmental policy are at an end?  Of course not.  One of the key, open questions relating to any federal climate change legislation, for example, is whether and to what extent pre-existing state GHG reduction programs such as California’s will be allowed to continue.  But the Obama Administration’s dramatic announcement yesterday sends a clear signal that Washington and the states are, finally, on the same page when it comes to the broader questions of climate change and environmental policymaking.  And that represents a clean-and most welcome–break from a desultory and conflict-ridden past.

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About Richard

Richard Frank is Professor of Environmental Practice and Director of the U. C. Davis School of Law’s California Environmental Law & Policy Center. From 2006-2010, …

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