States gamble on beating Trump in court

Source: By Maxine Joselow, E&E News reporter • Posted: Thursday, September 26, 2019

New Mexico, Minnesota and other states may be forging ahead with tougher clean car standards because they expect to prevail over the Trump administration in court, observers said.

Both New Mexico and Minnesota this week pledged to adopt California’s more stringent tailpipe pollution rules (E&E News PM, Sept. 25).

The states vowed to press ahead with their plans, despite the Trump administration’s proposed revocation last week of California’s Clean Air Act waiver for greenhouse gases.

The waiver enshrines the Golden State’s legal authority to set the tougher tailpipe pollution rules. And under Section 177 of the Clean Air Act, other states can choose to adopt those rules. Thirteen states and the District of Columbia have already done so, representing more than 40% of vehicle sales in the country.

The Trump administration argues California and its allies have been illegally setting fuel economy standards for decades. It contends that states are preempted from setting their own standards by the 1975 Energy Policy and Conservation Act (EPCA), which gives that power solely to the Department of Transportation.

But New Mexico, Minnesota and other states clearly expect this argument won’t hold up in court, said Andrew Linhardt, deputy director of advocacy for the Sierra Club’s Clean Transportation for All campaign.

“I’m sure all of the Section 177 states are pretty nervous about these attacks on the Clean Air Act,” Linhardt said. “But we feel pretty confident in their legal arguments. … We feel pretty confident that the Section 177 states will prevail.”

A spokeswoman for New Mexico Gov. Michelle Lujan Grisham (D) agreed.

“New Mexico isn’t waiting for the courts to prove that Trump’s EPA is wrong,” spokeswoman Nora Meyers Sackett said in an email.

The state “is moving forward because it’s the right thing to do for public health, the environment, car manufacturers and consumers,” she added.

Courts have previously rejected similar arguments about preemption by the EPCA.

In the landmark 2007 court case Massachusetts v. EPA, lawyers for the Bush administration tried to argue that the Department of Transportation already set fuel economy standards under EPCA, so EPA shouldn’t have to issue greenhouse gas emissions standards for vehicles under the Clean Air Act.

But the Supreme Court rejected this notion. The court ruled that the two statutes weren’t mutually exclusive and that EPA had the authority to set greenhouse gas emissions limits for cars and light trucks.

Also in 2007, federal courts in California and Vermont rejected auto industry lawsuits that claimed the federal fuel economy standards preempted California’s clean cars program.

In Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, the Vermont federal district court ruled that state law is “not preempted where the required increase in fuel economy is incidental to the state law’s purpose of assuring protection of public health and welfare under the Clean Air Act.”

Still, even if California prevails over the Trump administration in court, the fate of other Section 177 states remains murkier, said Jack Lienke, regulatory policy director at New York University’s Institute for Policy Integrity.

“Even if this withdrawal of California’s waiver is successfully challenged and California’s standards are reinstated, then we’ll also have to deal with this new EPA interpretation that says whether California has the waiver to set greenhouse gas standards or not, other states can’t adopt it,” Lienke said.

It would be unclear whether other states “actually have the ability to piggyback on the California standards,” he added.

Even without the California standards, though, states have other tools at their disposal for curbing emissions from transportation, such as investing in public transit and electric vehicle charging infrastructure.

In addition, a group of Northeastern and Mid-Atlantic states is working to launch the Transportation and Climate Initiative, a proposed cap-and-trade program for the transportation sector (Climatewire, July 10).

Reporter Jennifer Hijazi contributed.