General Motors Can’t Have It Both Ways

Several media outlets are reporting that General Motors, Toyota, and Fiat Chrysler are intervening on the side of the Trump Administration in California’s lawsuit challenging the federal government’s yanking of the state’s permission to issue its own tailpipe standards for greenhouse gases and to require zero emissions vehicles.  (Cara described the lawsuit here. Julia and I provided background here and here.)   A spokesman for the three automakers claims that they still want to reach a “middle ground” between California and the federal government but intervened because they believe there should be only one national standard. Their spokesman claims that  “we hope this pathway leads to a solution amenable to all parties.”

Don’t take the companies’  word seriously that they want compromise. By throwing their heft  behind the Trump position that California lacks the authority to issue its own standards, GM and company are making it even less likely that California and the federal government will reach some sort of compromise. To begin with, the Trump Administration has from the beginning made clear that it wanted to freeze tough Obama Administration standards for model years 2021-2025 and revoke the waiver California has to issue its own standards. To date EPA has yet to roll back the tough nationwide standards but it has revoked California’s waiver. The federal government has repeatedly refused to engage in any meaningful conversation with California to find a “middle ground,”  either about overall standards or about California’s special authority. And since California settled with  Honda, Ford, Volkswagen and BMW, who have agreed to  largely follow the tougher Obama standards, the Trump Administration has engaged in a vengeful campaign against California and  the cooperating automakers.  Trump’s EPA and DOJ have threatened to withhold highway funds for Clean Air Act violations, sued to invalidate the linkage between California and Quebec’s cap-and-trade programs, accused San Francisco of violating the Clean Water Act because of debris near homeless encampments, and launched an antitrust investigation against the four settling car companies.

The idea that intervening in a case on the side of the Trump Administration could be part of a compromise is silly. GM’s position that California lacks authority to issue GHG and Zero Emissions standards will undoubtedly both please and embolden Trump and those administrative officials responsible for carrying out his revenge.

The GM position also overlooks just how important California’s special role has been over the past 54 years in providing leadership not just for those states that opt to follow the state’s tougher air pollution standards but also in prodding  the federal government to do more for the rest of the country. Since 1966, when California was given special status to issue its own standards even when other states couldn’t, an important pattern has emerged: the state leads by issuing tougher standards than the federal government and the federal government follows once California shows that the standards can be met. This was true in the development of the catalytic converter, in the adoption of tough fleetwide rules that have dramatically cut tailpipe standards, and in the Obama Administration’s adoption of the first and second rounds of greenhouse gas standards.  Without California’s leverage, not only would the Golden State’s air be a lot dirtier but so would the rest of the country’s.  GM may like that prospect — it has fought California’s leadership since the 1950s.  But don’t for a minute buy the argument that the company is seeking a middle ground.

There is one way GM, Toyota and Fiat Chrysler could prove me wrong.  When the Trump Administration finally issues its rule that either freezes or dramatically scales back the Obama GHG standards, a coalition of states and environmental groups has already indicated it will sue.  The intervening auto makers – if they really want a middle ground — should intervene against the Trump Administration rollback and support the Obama era tough standards.

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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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