Killing Calif. waiver could spark fight on climate science

Source: Camille von Kaenel, E&E News reporter • Posted: Thursday, April 5, 2018

The Trump administration’s decision to relax federal limits on car pollution could lead to a rare courtroom debate on climate science as part of a major legal fight with California.

The Clean Air Act allows California to exceed national standards for cars because of its “extraordinary” air quality problems. Smog once plagued its cities. Now, droughts and wildfires do. For the last 10 years, the state has relied on its special Clean Air Act waiver to reduce greenhouse gases from cars as a linchpin in its efforts to tackle climate change.

A challenge to that special authority — and, potentially, to decades of science on greenhouse gases — could loom on the horizon.

U.S. EPA Administrator Scott Pruitt’s decision to weaken the federal pollution standards for model years 2022 to 2025 sets up a confrontation with California, which is promising to defend the use of its strict Obama-era requirements in court. Federal and state officials are trying to hammer out a deal to avoid a collage of differing rules for automakers. If they fail, EPA has the authority to repeal California’s waiver or deny its next one.

That would land the battle in the courts.

“If they want to do that and if the car companies want to be supporting what is essentially an effort to prevent California from protecting its people from really serious health impacts, that fight will be a major and ugly one,” said Sean Donohue, co-counsel for the Environmental Defense Fund. “But they’re going to lose it, I think.”

‘Déjà vu’

The legal fight will pick up where it left off 10 years ago.

It started in 2002. A state bill in California required limits on greenhouse gases from cars — the first ever, anywhere in the world. A couple of years later, the state asked EPA for a waiver under the Clean Air Act for the new rules.

Things stalled.

Finally, in 2008, the George W. Bush administration denied the request. It was the first time in more than 40 years that EPA denied California a waiver for air pollution. The Bush administration argued that the state’s greenhouse gas emissions didn’t meet the “compelling and extraordinary conditions” laid out in the Clean Air Act for such a waiver.

The Bush lawyers argued that carbon dioxide is not local or regional in nature, so California’s regulations would have “little or no impact” in addressing the problem of climate change. They also argued that the effects of rising temperatures in California were not “sufficiently different” from those in other areas of the country, and the risks didn’t justify a more stringent program.

That led California’s Republican governor at the time, Arnold Schwarzenegger, to sue. Automakers joined the fight on the side of the Bush administration.

But before the courts reached a decision, President Obama took office and granted the waiver to California. He said the state faced “extraordinary” challenges from climate change. Automakers consented to drop their lawsuit as part of the administration’s historic 2009 deal to set fuel economy and greenhouse gas emissions rules under one national umbrella. Those regulations are shared by the Transportation Department and EPA.

Now, some groups are floating that argument about greenhouse gases again.

“It’s déjà vu all over again,” said Jody Freeman, an architect of the Obama deal with automakers and now a law professor at Harvard University.

Some officials might seem familiar: Bill Wehrum, who argued for the Bush administration to deny California’s wavier in 2008, is negotiating the tailpipe standards as EPA’s air chief. He has said he doesn’t want to repeal the waiver “right away.”

10 years of drought, wildfires and sea-level rise

Twelve other states and Washington, D.C., have signed on to California’s car rules, representing a third of the U.S. auto market. They are coastal, Democratic states with ambitious climate goals to in part address rising seas.

The legal question would be: Are their climate effects more extraordinary than those felt in Iowa, Oklahoma or other states that would abide by the relaxed car standards being shaped by Pruitt?

Jeff Holmstead, a former EPA air chief under President George W. Bush who is now at Bracewell LLP, said “it’s not clear” whether California can make that claim.

But it will be up to the Trump administration to prove otherwise, because the Clean Air Act is written to favor California.

“If EPA is going to take a position that that is not true, it is going to have to show in the facts why, and that’s even more difficult,” said Donohue of EDF. “There are more patent impacts than there were 10 years ago.”

Sea-level rise is exacerbating floods and erosion along California’s 840 miles of coastline. Wildfires caused billions in damage last year. Scientists have linked a severe drought that hit the state from 2011 to 2017 to human-made global warming.

“The influence of climate change on traditional pollutants alone would be compelling,” said Donohue.

Meanwhile, groups like the Competitive Enterprise Institute argue that the Clean Air Act was only meant to reduce traditional pollutants, like those causing smog.

Who can regulate fuel economy?

Another legal route the Trump administration might go down concerns fuel economy.

Under the 1975 Energy Policy and Conservation Act, Congress made fuel economy the sole jurisdiction of the Transportation Department. The Trump administration could argue that California’s greenhouse gas rules are too similar to fuel economy standards and should be pre-empted by the federal government.

“I actually think that there’s a pretty good case for saying that California doesn’t have its own authority to set fuel economy standards, and that’s effectively what these standards would do, I do think,” said Holmstead. “It’s exactly the same thing. For years we’ve had these [corporate average fuel economy] standards, and it’s a pretty broad pre-emption.”

Freeman, the former Obama aide, disagrees.

“They sound like the same thing, but pollution is controlling bad stuff and fuel economy is trying to make cars go farther, and those are different tasks,” she said.

In the landmark Supreme Court case Massachusetts v. EPA, it was determined that EPA needed to regulate greenhouse gases as a threat to public health. The justices also wrote that EPA and the Transportation Department could regulate tailpipes together. Freeman argues that’s a point in California’s favor.

There’s some more legal precedent to support two sets of tailpipe rules, one for fuel economy and one for pollution. A 2007 decisionin a federal court in Vermont found that California could set greenhouse gas limits without infringing on the Transportation Department.

Before it can even bring these arguments to the table, the Trump administration would have to surmount the political and legal challenges of repealing an existing waiver. That goes against 40 years of precedent.

“Congress in giving California this special authority was reflecting and respecting the state’s long pioneering history of regulating pollution from cars in a cost-effective way,” said Cara Horowitz, co-director of the Emmett Institute at the UCLA School of Law. “Congress understood that it’s useful to have a pioneering state out there.”

Repealing the waiver wouldn’t necessarily require leaping over higher legal hurdles, said Holmstead.

“The same statutory standards would apply,” he said. “As with every EPA action, they will have to engage in reasonable discourse and explain why they believe the waiver shouldn’t have been granted.”

Others disagreed with that assessment.

“This is uncharted ground,” said Richard Frank, a law professor at the University of California, Davis, adding that “there are more hurdles to the federal government revoking a previously granted waiver.”

“It’s definitely a higher political lift,” he said.