The EPA will have a hard time ending California’s emissions rules — here’s why (op-ed)

In the latest step in the Environmental “Protection” Agency’s (EPA) losing battle against clean air and clean cars, the agency plans to announce a revocation of California’s well-established authority to regulate vehicle emissions tomorrow, reports Automotive News.

This move is no surprise, as ever since oil industry pawn Scott Pruitt was nominated as head of the EPA (later replaced by coal stooge Andrew Wheeler), the agency has been signaling its intent to revoke California’s ability to set its own emissions standards.

A short recap

The federal government has been fighting this fight against clean cars for the last few years.

At first, it began with automakers lobbying for a repeal of Obama-era standards, which were being achieved ahead of schedule and under budget. A vast majority of the US agrees that these higher fuel economy standards are a good thing.

When the EPA announced they would slash rules even more severely than automakers expected, California responded by stating that they would not be changing their standards. Automakers then realized that this would result in a split market, which would cause them great difficulty.

Automakers lobbied the government to reconsider, and then made a deal with California to mostly keep the higher standards, to avoid the specter of having a split market. California’s Air Resources Board has a meeting this Thursday to discuss this voluntary agreement.

After California and the automakers settled this whole situation on their own, this administration responded in the petty way we’ve come to expect by investigating the automakers for voluntarily agreeing to meet higher standards.

The law in question

Since 1967, per the “Section 209” amendments to the Clean Air Act, California has had the authority to regulate pollution from vehicles with stricter regulations than the national standard. This exception was set up for California because when the Clean Air Act was implemented, California already had its own clean air legislation, so the law allows the state to keep its stronger regulations.

California has sought and been granted more than 50 waivers since the imposition of the Act. There is no language within this Act that allows the EPA to revoke a waiver, merely to decide whether to grant one. This process is described on the EPA’s own website, where revocation is not mentioned. A legal discussion of the issue can be found here.

The Act also allows other states to adopt California’s Clean Air standards. Thirteen states currently do so. These are referred to as the “CARB” (California Air Resources Board) states, named after the California agency that writes these standards. These states are responsible for about one-third of the US auto market.

In addition to these CARB states, other states joined California in suing the federal government over planned fuel efficiency rollbacks. That lawsuit has been brought by 17 states and DC, representing 140 million Americans and about 43% of the US car market.

It should be noted that California’s clean air regulations have been phenomenally successful, and contributed to a 98% reduction in certain vehicle-based pollutants in the LA basin over the last 50 years according to the National Oceanic and Atmospheric Administration.

Who will win?

So California has the authority to set higher standards, the EPA can grant that authority but has no explicit authority to revoke it once granted, and California has the support of not only a sizeable chunk of the country but also the automakers in question who already agreed to voluntarily meet higher standards.

The path forward from here, if the EPA does attempt to revoke the waiver as planned, will surely involve battles in federal court. In these battles, the EPA will have to establish their ability to revoke a waiver once granted, which does not appear in the legislation in question, and there is no legal precedent establishing it for this Act.

It will also have to defend itself from the obvious appearance of “arbitrary and capricious” rule making, with this waiver being revoked just weeks after they were dealt a significant loss by California’s announcement of its voluntary agreement with automakers.

Finally, these arguments will have to pass through federal court before another administration takes over, as it is unlikely that the next administration would actually be interested in fighting these needless battles against clean air. Regardless, even if they do move through courts that quickly and do succeed, all California would have to do is ask for another waiver, as soon as we get an EPA administrator who is interested in protecting the environment. Or work in the meantime to address this issue in any number of other ways that are within its authority.

One thing is certain: California will not roll over.  Gov. Gavin Newsom called this move part of a “political vendetta” against California and vowed to fight and that “California, global markets and Mother Nature will prevail.” California Attorney General Xavier Becerra also stated that the EPA has “no basis and no authority” to revoke the waiver.

And all the while, automakers will still be free to exceed federal standards, and will still be bound by EU and China standards which will inform their R&D and manufacturing decisions.  And the EV market will continue to grow at a fast pace, as more and more consumers are exposed to the benefits of clean cars.

So it seems quite unlikely that this is a winning fight being undertaken by the EPA.  It doesn’t make much sense why they would spend so much effort on a fight they won’t win. But then again, long-term thinking and picking winning fights have not been the forté of this administration.

Meanwhile, this is just another example of the GOP fighting against the interests of just about everybody simply because they are angry at having to obey the law. They are fighting against the interests of consumers (save money on fuel), businesses (automakers’ desire for regulatory certainty), and the environment (cleaner air). All this because they don’t want California to have its legitimate, long-held authority to make the world a better place.

If you live in California or a CARB state and would like to send a comment to California’s Air Resources Board with your opinion on the voluntary agreement that California made with automakers, you can email the Clerk of the Board at cotb@arb.ca.gov. Mention discussion item 19-8-5 (Public Meeting to Consider Automobile Manufacturers’ Framework for Vehicle Emissions). The meeting is Thursday, September 19.