By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
California has long enjoyed a special position in regulating car emissions since the Clean Air Act was passed in 1970, and has been allowed to set its own standards, under various grants of regulatory authority. The Trump administration revoked a waiver that since 2013 allowed California so set stricter standards, but this March, EPA administrator, Michael Regan, restored the permission.
The Wall Street Journal summarized the state of play in a March article:
The Biden administration restored California’s ability to set stricter air-pollution limits for auto makers, ending a conflict with the state’s air-quality regulators that began under former President Donald Trump.
U.S. Environmental Protection Agency officials said Wednesday that their decision to restore California’s ability to set emissions standards for passenger cars and trucks would improve air quality and combat climate change.
California, the nation’s biggest car market, had long set emissions standards that exceed requirements set by the federal government, using the power of a waiver it was granted under the Clean Air Act. More than a dozen states follow its regulations, and auto makers have used California’s standards as their guidelines to avoid manufacturing different cars for varying standards.
League of Conservation Voters Board Chair Carol M. Browner, who led the EPA during the Clinton administration, said Wednesday’s move to boost fuel efficiency and electric vehicles “is especially welcome news” as the Russian invasion of Ukraine is helping to drive “up the price of oil and gasoline.”
Marlo Lewis, a senior fellow at the Competitive Enterprise Institute, called the administration’s move an effort “to rig auto markets in favor of high-mpg and electric vehicles” that “will be challenged in court, and the administration deserves to lose.” He said the “EPA’s action will have no discernible impacts on air quality, energy security or climate change. It will, however, further restrict auto makers’ freedom to produce the vehicles consumers want at prices they can afford.”
Last Friday, seventeen Republican attorneys general sued to overturn the California exemption. Per The Hill:
The lawsuit alleges EPA Administrator Michael Regan violated the Constitution’s doctrine of equal sovereignty by allowing California an exemption from the Clean Air Act, which the Golden State used to impose more stringent emissions limits than the nationwide limit.
“The Act simply leaves California with a slice of its sovereign authority that Congress withdraws from every other state,” West Virginia Attorney General Patrick Morrisey (R) said in a statement. “The EPA cannot selectively waive the Act’s preemption for California alone because that favoritism violates the states’ equal sovereignty.”
Other plaintiffs in the lawsuit include the attorneys general for Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas and Utah.
Since automakers don’t wish to produce different models – one California-compliant, and otherwise – allowing California to set its own standards establishes a de facto nationwide floor for vehicle emissions standards. Per the Los Angeles Times:
California’s vehicle emission standards are some of the toughest in the nation, and the 17 Republican attorneys general argue the EPA’s decision to let the Golden State set its own rules forces the rest of the country to follow suit. The state first developed the standards in 2004 but was barred from implementing them until 2009, when the EPA granted California permission to impose tough restrictions on greenhouse gas emissions from cars and trucks.
…[The seventeen states] claim the EPA’s decision would require all states to adopt California’s strict vehicle emission standards for all new cars under the authority of the Clean Air Act.
Missouri Atty. Gen. Eric Schmitt said in a statement that if California is allowed to set nationwide standards, then manufacturing would become “astronomically expensive, and those additional costs are passed onto consumers.” He added that the Golden State’s standards are “oppressive.”
This isn’t the first time that Republican attorney generals have targeted EPA regulatory efforts. While neither party has covered itself in glory on environmental policy, particularly that pertaining to climate change, the Democrats have been somewhat better than Republicans. Republican AGs and industry groups previously sued to thwart implementation of the 2015 Clean Power Plan. They have larger ambitions, and have mounted a wider challenge – currently pending before the United States Supreme Court – to EPA authority to regulate emissions under the Clean Air Act. According to The Hill:
[West Virginia AG Patrick] Morrissey is also suing the EPA in a pending Supreme Court case that could have major implications for the agency’s authority to regulate emissions under the Clean Air Act. In addition to several fossil fuel companies, other plaintiffs in the case include many of the same states involved in the Friday lawsuit, as well as Alaska and South Dakota.
The current Supreme Court has not shied away from reconsidering well-settled precedent. So, I wouldn’t be surprised if the current conservative majority were to take the opportunity presented to it to scale back EPA emissions Withregulatory authority.
California’s stricter emissions standards became a major partisan issue during the Trump administration.The LA Times fleshes out historical detail that I only briefly summarized in my lead paragraph:
California first negotiated its own set of tougher emission standards with Congress during the passage of the Clean Air Act in 1970. The state has a carve-out agreement in the Clean Air Act but each year requires a waiver from the EPA. The 2009 update reinstated a 40-year interpretation of the act that was rescinded by the Bush administration and reinstated under the Obama administration.
In 2019, the EPA threatened to cut federal transportation funds to California for not submitting timely pollution-control plans. The open feud between the state and the Trump administration seemed to come to a head after California secretly negotiated a deal with four major automakers to voluntarily follow the state’s emission rules and increase fuel efficiency.
At the time, the EPA rescinded a decades-old rule that allowed California to set tougher-than-required car emissions standards than those required by federal regulators. After the waiver was rescinded, California sued the federal government, arguing the tougher standards were necessary to improve air quality in the state.
Three years later, under the Biden administration in 2022, the EPA reversed its hostile stance toward California’s vehicle emission standards and reinstated the waiver under the Clean Air Act. Multiple attorneys general called California’s special treatment unconstitutional, including many of the states that joined the recent petition.
In March, Rep. Cathy McMorris Rodgers of Washington, Republican leader of the House Energy and Commerce Committee, said, “President Biden’s strict auto emissions regulations are yet another example of this administration putting a radical rush-to-green regulatory regime ahead of restoring America’s energy dominance and leadership.”
It looks increasingly likely that Republicans will recapture control of Congress in the upcoming midterms, thus threatening the Biden administration’s modest environmental regulatory agenda, let alone necessary measures that might mitigate the looming climate catastrophe.