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 EPA will also claim that the California waiver is superseded by fuel economy standards issued by NHTSA and therefor is not valid, according to the report: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 At the same time, EPA will claim that California’s waiver to issue its own tougher standards is no longer valid.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.”
…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.
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