The New EPA Plan To Roll Back Auto Emissions Standards and “Supersede” the California Waiver is Legally Indefensible

It is also terrible for the planet

The Los Angeles Times is reporting that EPA will propose to roll back greenhouse gas emissions standards for automobiles to 2020 levels.  EPA will also claim that the California waiver is superseded by fuel economy standards issued by NHTSA and therefor is not valid, according to the report:

Administration lawyers argue that the law gives NHTSA  [the National Highway Transportation Safety Administration] power to pre-empt California’s authority to set its own rules. NHTSA’s authority, according to the draft plan, supersedes the special waiver the EPA has given California to pursue targets more aggressive than those set by the federal government.

I have explained in detail here how the auto standards work and California’s special role in issuing them.   Today’s L.A. Times report suggests that the Pruitt EPA is proposing essentially eliminating tougher auto standards for passenger cars for model years 2021-2025 and simply freezing the 2020 standards through 2026.  At the same time, EPA will claim that California’s waiver to issue its own tougher standards is no longer valid.

California has special authority under the Clean Air Act to issue tailpipe standards to reduce air pollutants from cars so as long as it has a waiver from EPA.  The Obama Administration approved such a waiver for California to issue its own greenhouse gas standards, currently identical to the federal standards Pruitt proposes revoking. If the LA Times report is correct, Pruitt will implicitly revoke the waiver the Obama Administration granted.  And he will argue as  the basis for doing so that a separate statute, the Energy Policy and Conservation Act (EPCA), which preempts all states, including California, from issuing fuel economy standards, allows the administration to ignore the waiver.  Pruitt will apparently argue that EPCA allows the NHTSA to override California’s waiver under the CAA.  This argument, is frankly, ridiculous.

Let’s start with the fact that California’s standards do not regulate fuel economy, they regulate  greenhouses gases.  So on its face, California is not regulating fuel economy.  Moreover, nowhere in the EPCA is NHTSA given the authority to override California’s waiver, and nowhere does the statue say that NHTSA’s authority “supersedes” California’s special waiver authority under the Clean Air Act.  But there’s more.  EPA and auto manufacturers have lost this argument three separate times.  In two district court cases, auto manufacturers argued  that an earlier version of California’s greenhouse gas emissions standards for cars was preempted by the EPCA. They lost.  EPA tried a similar argument in the landmark U.S. Supreme Court decision Massachusetts v EPA.  The Court in Mass v. EPA held that greenhouse gases are air pollutants under the Clean Air Act and that EPA had a statutory obligation to consider whether these pollutants endanger public health and welfare. EPA tried to argue that  EPA itself could not regulate greenhouse gases from automobiles  because NHTSA and the Department of Transportation had the responsibility to regulate fuel economy.  Here is the way the Supreme Court described EPA’s argument that it could not regulate greenhouse gases from automobiles under the Clean Air Act:

The agency  [explained] that if carbon dioxide were an air pollutant, the only feasible method of reducing tailpipe emissions would be to improve fuel economy. But because Congress has already created detailed mandatory fuel economy standards subject to Department of Transportation (DOT) administration, the agency concluded that EPA regulation would either conflict with those standards or be superfluous.”
The Court categorically rejected EPA’s argument:
…that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public health and welfare … a statutory obligation wholly independent of DOT’s mandate to promote energy efficiency.  The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.
The logical conclusion of Mass v. EPA is that  a) since greenhouse gases are “air pollutants” under the Clean Air Act; b)  and because EPA has a statutory obligation to consider whether to regulate greenhouse gases from automobiles; c)  California has statutory authority to regulate pollutants (including greenhouse gases) from automobiles; and d) the EPCA preemption provision over fuel economy does not prohibit the state from doing so because the statutory authority California has is “wholly independent from” the fuel economy standards.
Rolling back the auto standards to 2020 also appears to be legally indefensible.  Administrator Pruitt just released a midterm review of auto standards for model years 2022-2025.  There are many reasons to think that the midterm review itself is a legally tenuous basis for rolling back the 2022-2025 standards given the flimsy and auto manufacturer-produced evidence on which it relies.  But the midterm review casts no doubt on the adequacy of the 2021 model year standards.  Yet the proposal would eliminate the 2021 standards and apply 2020 standards through 2026 with no basis in the record whatsoever.  It is hard to imagine a court upholding the agency’s right to withdraw the standards with no evidence in the record for doing so. . Instead, this seems to be a flagrant attempt to say, “we aren’t going to regulate you at all” given that manufacturers have already had to factor the 2020 standards into their production decisions given the long production time for cars.

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Reader Comments

7 Replies to “The New EPA Plan To Roll Back Auto Emissions Standards and “Supersede” the California Waiver is Legally Indefensible”

  1. Great post. Here’s an additional argument. The CAA waiver predates the law establishing CAFE standards and its preemption provision. The canon against implied repeals creates a strong presumption that NHTSA preemption should not operate as a repeal of the earlier CAA provision.

  2. Dear Ann,
    California does need a waiver from EPA because its tailpipe standards have no measurable effect on global climate and do not reduce atmospheric temperature nor reduce sea level. California’s tailpipe standards do not mitigate climate change at all.

    A waiver from EPA would not prevent premature deaths from air pollution because atmospheric levels of carbon dioxide do not cause human health effects. Carbon dioxide is a fake air pollutant, it does not cause premature death nor other health effects.

    Let us all rejoice and celebrate because Secretary Pruitt is upholding sound science at the EPA and getting rid of old worthless junk science that formulated California’s tailpipe standards.

    1. Though BQRQ can’t address it, I’ll leave this here to clarify his ignorant argument CO2 emissions don’t affect the global climate. This is the conclusion reached by the world’s climate scientists, which BQRQ is not one of:

      “It is extremely likely [95 percent confidence] that more than half of the observed increase in global average surface temperature from 1951 to 2010 was caused by the anthropogenic increase in greenhouse gas concentrations and other anthropogenic forcings together.”

      Scott Pruitt is a lackey of the fossil fuel industry and in particular the oil billionaire Koch brothers. He has received hundreds of thousands of dollars in campaign contributions from them.

      “The email exchange from October 2011, obtained through an open-records request, offers a hint of the unprecedented, secretive alliance that Mr. Pruitt and other Republican attorneys general have formed with some of the nation’s top energy producers to push back against the Obama regulatory agenda, an investigation by The New York Times has found.

      Attorneys general in at least a dozen states are working with energy companies and other corporate interests, which in turn are providing them with record amounts of money for their political campaigns, including at least $16 million this year.”

      Of course this is all uncomfortable information for BQRQ, so he will just file it away as “fake news.”

  3. My First Climate Change Conference, A View From The Other Side:

    “……..I descended into the heart of liberal darkness, Berkeley, California and attended the Tenth International Conference on Climate Change: Impacts & Responses

    Her method was to ask questions of tourists like (paraphrasing) “if the sun on the beach became too hot, would you stop traveling to Florida or would you vacation somewhere else?” and “if all of the beaches disappeared in Florida would you stop going there?” Needless to say, with those kinds of questions (look up “pre-suasion”) she got the results she desired, she did the math and claimed billions in damages due to Climate Change

    She immediately called me the “D-word.” I had to be a climate change “denier” to challenge her work, so of course, the obvious move was ad hominem……….”

    1. BQRQ shows us the kind of sources he uses to base climate denialist views on. His source, “,” is rated by Media Bias/Fact Check as “Tin Foil hat” on their Conspiracy level scale, the highest rating. It is also has a “Strong” rating on their “Pseudo-Sci level” scale. For “Factual reporting” they are rated as “Low.” This website of BQRQ’s, besides denying man-made global warming, claims that the government is hiding that they have been in contact with aliens, that the government is spraying us with toxic “chemtrails” from planes, and of course that 9/11 was an inside job.

      BQRQ’s lack of discernment is so egregious that he doesn’t seem to have understood that the conference the author was attending, the “International Conference on Climate Change,” or ICCC, is a climate skeptic organization! Google it. The name for that conference was intentionally chosen so that when its results are presented to lawmakers and the public, that they would sound authoritative as a result of their name sounding similar to the actual authoritative body on the subject, the IPCC, or Intergovernmental Panel on Climate Change. It seems that is why they let the author of this article make a presentation at their conference: all nutballs welcome! And the fact that they even had some token non-deniers presenting at their conference shows that even for science-averse conservatives, the level of stubborn ignorance that BQRQ displays is no longer palatable.

      This tactic of mimicking names of authoritative bodies has a long history and goes back to the days when the Republican party was bought by a different industry, big tobacco. Then too were phony organizations created with names similar to scientifically authoritative ones in order to confuse the laymen, like BQRQ.

      So there is a whole lot of confusion and misdirection baked into this article, which sets up BQRQ to fill in the holes with what he wants to believe. It goes to show, it doesn’t matter at all if a source is trustworthy, as long as it tells him what he wants to hear he will gladly accept what it says.

      1. Remember that conservatives in general are much more fear motivated than liberals, and this probably goes back to our monkey ancestors or before; a band of monkeys needed fearful/angry protectors and also members who would explore into new territories and try to eat (or whatever) unfamiliar things. (This isn’t just true of monkeys; anyone who has trained dogs knows that dogs vary as individuals as to their preferred motivations, so it probably goes a lot further back.) This is built into us, is shown by FMRI studies, and in evolution was a good solution, and there are valuable roles for fear motivated individuals in today’s society as well.

        However, fear motivation in the face of an existential threat often results in denial rather than being open to a solution, and there is no way to change this, again it is built in. It’s sort of like Wyle E. Coyote not falling as long as he doesn’t look down.

        Deniers are pulling the blankets over their heads so that the monster in the closet won’t get them and there is no way that they can be persuaded otherwise, and they will constantly come up with ever more creative ways to avoid facing a threat. Consider the ultimate existential threat; death, and the various solutions people have come up with to deny it.

        A few hours with a physics text on the subject of heat transfer is proof that global warming must occur in the face of increased triatomic (or more; methane is 5) gases in the environment, and the result is as inevitable as gravity, and that is why it has been understood since Fourier, (better known for the Fourier series and transform), Tyndale and Arrhenius (before 1899). There are even two simple spectral plots that tell the story in one PowerPoint slide. You don’t need scientists to understand the basic threat. Despite this even people who own and use an infrared thermometer (on sale at Harbor Freight for $19.95 with an online coupon), which works on the same basic principle will not accept the science. (You can even use the thermometer to set up a crude experiment and prove it.)

        Deniers are paralyzed by fear and can only deny the threat. Frank Herbert (in the SF novel Dune) notes that “Fear is the mind killer.”, and that is what is happening with deniers, and it is built into their brains. They can no more be persuaded otherwise by rational argument than you can get some people not to fear snakes or flying; they also will not offer rational arguments, and it’s not about rational arguments anyway. Therapy or drugs might help, but in practice we can only recognize this as a basic metal characteristic and mainly ignore it.

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About Ann

Ann Carlson is currently on leave from UCLA School of Law. She is the Shirley Shapiro Professor of Environmental Law and was the founding Faculty Director of the Emmett I…

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About Ann

Ann Carlson is currently on leave from UCLA School of Law. She is the Shirley Shapiro Professor of Environmental Law and was the founding Faculty Director of the Emmett I…

READ more