EPA grants California request for waiver, enabling states to set vehicle GHG emissions standards more stringent than national standards
The Environmental Protection Agency has reversed the Bush Administration's denial of California's request for a waiver to set its own, state-specific greenhouse gas emission limits from cars, and granted California's petition for a waiver. President Obama had issued a memorandum directing his newly appointed EPA Administrator to direct the agency to re-consider California's waiver petition.
“After review of the scientific findings, and another comprehensive round of public engagement, I have decided this is the appropriate course under the law,” EPA Administrator Lisa P. Jackson said. “This waiver is consistent with the Clean Air Act as it’s been used for the last 40 years.” Thirteen states and the District of Columbia have already gone through the formal process of adopting the California standards.
California had first asked for a waiver to impose its own, more stringent limits on greenhouse gas emissions in December 2005. The EPA at that time took the position that it did not have the authority to regulate those emissions under the terms of the Clean Air Act. That argument was rejected by the Supreme Court in 2007 in the case of Massachuetts v EPA, in which the Supreme Court ruled that EPA has the authority to regulate GHGs under the Clean Air Act if they cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. In that case, twelve states and several cities had brought suit against the EPA to force the agency to regulate carbon dioxide and other greenhouse gases as "pollutants" under the Clean Air Act. EPA had taken the position that it did not have the authority to regulate carbon dioxide and green house gases under the CAA because they were not "pollutants" pursuant to the terms of the Act. The Supreme Court disagreed, and required EPA to evaluate whether greenhouse gas emissions from cars – as "pollutants" under the Act – should be regulated.
After the Supreme Court's ruling, EPA reconsidered the issue and again refused to regulate carbon dioxide and greenhouse gas emissions. It also denied at that time California's petition for a waiver to set its own tailpipe emission standards.
In May 2009, the Obama Administration announced new national auto emissions standards that will require automakers to boost the average fuel efficiency of cars sold in the US from their current level of 25.1 miles per gallon to 35.5 miles per gallon starting in 2012. California's new auto emission standards, which are effective immediately, will apply for car models for the years 2009 to 2011. Subsequently, from 2012 to 2016, all carmakers that comply with the new national program will be considered to be in compliance with California's requirements. After 2016, California may again be able to set more stringent limits than the national limits existing at that time.
Obama directs EPA to reconsider denial of California waiver - enabling states to set stricter standards regulating vehicle greenhouse gas emissions
*Updated 1/27/09 - added link to text of memorandum.
President Barack Obama today issued a memorandum directing the EPA to reconsider a previous denial of waivers to California and at least twelve other states, allowing them to set auto emissions standards stricter than the current federal standard. The move would reverse a Bush administration decision denying California’s application for a waiver, and would open the door for stricter regulations in many other states. Some 17 states, including New York and Florida – accounting for up to 50% of the US population – have already adopted or are considering the stricter California standards, which require the EPA waiver of federal preemption in order to be enforceable.
As part of California’s aggressive effort to reduce greenhouse gas emissions, California passed a law to regulate vehicle emissions in the state, but enforcement of the regulations implementing the law was blocked by years of litigation, ultimately concluding that California could move forward only with a waiver from the EPA. Under the Bush administration, the EPA denied the waiver, contending that allowing states to set their own pollution rules would create an unenforceable and unworkable patchwork of regulations.
Last week, California Governor Arnold Schwarzenegger sent a letter to President Obama requesting reconsideration of the waiver denial, while California Air Resources Board (CARB) Chairwoman Mary Nichols appealed directly to new EPA administrator Lisa Jackson to open a “reconsideration process.”
While Obama’s directive does not explicitly demand that the EPA grant the waiver request, it is widely assumed that the agency will do so. At her Senate confirmation hearing earlier this month, Jackson indicated that she would reconsider the request and hinted that she would grant a waiver. A final decision from the EPA, however, is expected to take several months, and will likely face additional legal challenges.
Meanwhile, the auto industry is faced with the prospect of being forced to spend billions of dollars to comply with the stricter California emissions rules. Currently, only two mass-produced vehicles, the Toyota Prius and the hybrid Honda Civic, average at least 42 mpg. To reach that level fleetwide would require significant investment in new technologies, including hybrid vehicle technology. Auto industry estimates claim that the cost of compliance with the California standard could be as high as $5,000 per-vehicle. These costs and their impact are the subject of multiple lawsuits. (See Green Mountain Chrysler v. Crombie (D. Vt. 2007); Central Valley Chrysler v. Goldstene (E.D. Cal. June 2008); and Lincoln Dodge, Inc. v. Sullivan (D. R.I. Nov. 2008).)
The quick action the Obama administration on this issue – coming less than a week into his term in office – suggests an aggressive stance on climate change and could signal more far-reaching policy shifts to come.
