California’s Battle over Greenhouse Gas Emissions Standards
Marcy Gallo

Late last year, California’s request to adopt and enforce its own greenhouse gas emissions standards for new motor vehicles was denied by Environmental Protection Agency (EPA) Administrator Stephen Johnson. This action is a continuation of a posture by an administration that is failing to enable actions to address climate change.

Under the Clean Air Act, federal law generally trumps state law in setting regulations on emissions from new motor vehicles. States can request a waiver of this pre-emption if they show extraordinary conditions, however. The California Air Resources Board originally requested such a waiver in September 2005, but EPA stated they would not review the request until after the U.S. Supreme Court ruled on Massachusetts v. EPA.

That occurred in April 2007, when the Supreme Court ruled against EPA, stating that under the Clean Air Act, the agency does have the authority to regulate carbon dioxide as an air pollutant if it finds these emissions could endanger public health or welfare. Since then, however, EPA has not moved forward on the endangerment finding required by the court — much to the dismay of scientists and policymakers who recognize that steps must be taken sooner rather than later to avoid a climatic tipping point.

States are often testing grounds for federal policies, enabling successful policies to be adapted and scaled up. California is generally at the forefront, and in the case of vehicle emission regulation, it’s at the top. It is the only state allowed to regulate vehicle emissions differently from federal standards, an ability the state acquired because it enacted vehicle emission standards prior to the Clean Air Act of 1970, which authorized the federal government to develop regulations to limit emissions from stationary and mobile sources. To implement its own standards, California must seek a waiver from EPA, and the standards as a whole must be as protective to public health and welfare as the federal standards.

The issuance of the waiver is at the discretion of EPA’s administrator, who can deny a waiver if it fails to meet any of three criteria set out in the Clean Air Act. Over the last 40 years, California has requested and been granted more than 50 waivers to alter its emission standards. EPA has never denied a waiver in full — until now.

Johnson denied this latest waiver based on his belief that greenhouse gas emissions — specifically the concentration of carbon dioxide — and climate change are global problems rather than local problems, and thus the request does not meet one of the Clean Air Act criteria: establishing that the state’s particular conditions are extraordinary. Despite the exhaustive list of effects California may face as a result of climate change — increased wildfires, water supply declines, negative impacts on agriculture, increased temperatures and rising sea levels — Johnson stated, “In my judgment the impacts of global climate change in California, compared to the rest of the nation as a whole, are not sufficiently different to be considered ‘compelling and extraordinary’ that merit separate state greenhouse gas standards for new motor vehicles.”

The state, however, claims the predicted increase in ozone associated with climate change alone is enough to grant the waiver — in fact, California’s long history of ozone problems has been the basis for prior waivers.

The initial denial was announced on Dec. 19, 2007, following the enactment of the latest energy bill, which included fuel economy standards requiring fleet-wide averages of 35 miles per gallon by 2020.

Johnson says the federal fuel economy standards will be more effective at reducing carbon dioxide than a “confusing patchwork of state rules.” Other states can adopt California’s standards once a waiver has been granted, and 15 states comprising more than half the U.S. population have passed identical greenhouse gas emissions legislation in the hope of quick action following the waiver decision.

Some analyses, however, suggest that state rules can be valuable. The California Air Resources Board found that if California adopted its emission standards, greenhouse gas reduction in the state would be 74 percent greater than the reduction obtained by federal fuel economy standards. The assessment also found that if federal fuel economy standards and California emission standards were implemented in all the states seeking to do so, there would be a 28 percent decrease in cumulative greenhouse gas emissions in the United States.

California, along with 15 other states and five environmental groups, has filed separate petitions asking the courts to reverse EPA’s denial. The lack of movement by EPA to issue an endangerment finding as required by the Supreme Court, as well as the waiver denial for California and 15 other states is disconcerting, as some of the scientific predictions of climate change are already being observed.

On March 13, 2008, House Oversight and Government Reform Chairman Henry Waxman, D-Calif., issued a subpoena for EPA documents related to the waiver denial. The subpoena highlights concerns about the administration’s undue influence on EPA’s decision and the agency’s move away from science-based environmental policy to policy driven by politics.

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