In a ruling last Wednesday — potentially as significant as the CAFE standards of the energy bill — United States District Judge Anthony W. Ishii rejected a lawsuit challenging California’s 2002 Clean Car Act (AB1493), which calls for vehicles to produce less greenhouse gas emissions.
California’s Air Resources Board (CARB) adopted regulations in response to the Act that will phase in and ramp up over eight years to cut global warming emissions from new vehicles by nearly 30 percent by model year 2016. To date, California’s standards have been adopted (or plans to adopt have been announced) by 17 states representing almost half of the U.S. population.
In a detailed analysis of the plaintiffs’ claimed conflict between the Clean Air Act and Energy Policy and Conservation Act (EPCA), Judge Ishii wrote:
Given the level of impairment of human health and welfare that current climate science indicates may occur if human-generated greenhouse gas emissions continue unabated, it would be the very definition of folly if EPA were precluded from action simply because the level of decrease in greenhouse gas output is incompatible with existing mileage standards under EPCA.
One more barrier exists before California can begin put its plans for cleaner cars into effect: a waiver from the EPA. Judge Ishii’s analysis hinges upon this waiver since it makes the conflict between two Federal agencies, instead of the Federal government and a state. Over the past 30 years the U.S. EPA has granted California more than 40 such waivers, denying none. California requested the waiver in 2005 and in the past the EPA has acted quickly. About such waiver requests, Judge Ishii wrote in his opinion:
Section 209 of the Clean Air Act imposes three conditions on state regulations that are submitted to EPA for waiver of preemption (other than the requirement that they be proposed by California). First, the proposed regulations must be, in the aggregate, at least as protective of the public health an welfare as applicable Federal standards. Second, EPA must determine the state regulations are necessary to to meet compelling and extraordinary conditions, and that the regulations were not promulgated in an arbitrary and capricious fashion. Finally, the proposed regulations must be consistent with section 7521(a), which requires that air pollution standards be formulated in consideration of technological feasibility, the time necessary to apply the requisite technology, the cost of compliance, and energy and safety factors associated the application of the technology.
If EPA concludes that California’s regulations meet these three requirements, EPA is obliged to grant the waiver application.
The EPA’s lack of action has lead to speculation that the White House may be interfering to thwart California’s attempt to reduce greenhouse gas emissions. The long delay may have also been an attempt to wait for court decisions, such as Wednesday’s, and so avoid the political repercussions of either granting or not granting the waiver. The agency has been lobbied by auto companies to deny the request. Judge Ishii’s ruling now means the White House and the EPA can no longer duck the issue.
Because of the delay, California has sued the EPA demanding action upon the waiver request. The EPA has said it intends to rule by the end of the year.
The lawsuit was originally filed by 13 car dealers and the Alliance of Automobile Manufacturers. The Association of International Automobile Manufacturers later piled on. Between them, the two trade groups represent all of the major car makers.
Now we wait to see if the Environmental Protection Agency will grant a waiver to allow California to protect the environment.
— Earl K.