Trump could target Calif. pact with Canada on clean cars

Source: By Maxine Joselow, E&E News reporter • Posted: Sunday, October 27, 2019

The Trump administration may not be finished attacking California’s authority to combat climate change.

After the administration this week sued California over its cap-and-trade agreement with Canada, another suit could be coming over a similar agreement related to clean cars, critics fear.

The Department of Justice’s complaint this week took aim at the Golden State’s 2017 agreement with the Canadian province of Quebec to cooperate on a cap-and-trade program to lower emissions at power plants, at industrial facilities, and from oil and gas distributors (Greenwire, Oct. 23).

Earlier this year, the nation’s most populous state formed a similar pact with Canada to push for cleaner cars (Climatewire, June 27).

Officials in California and Canada agreed to share strategies and information on reducing greenhouse gas emissions from cars and trucks. They did not list specific goals or policies but pledged to collaborate on regulations, incentives for consumers and car dealers, and efforts to build more electric vehicle charging stations.

Dan Becker, executive director of the Safe Climate Campaign, said it’s possible the Trump administration could go after the agreement on clean cars, given the administration’s efforts to undermine state authority over vehicle emission standards.

“Who knows? It seems like they’re trying to single out California because they have the temerity to not vote for Donald Trump in large enough numbers,” Becker said.

Avi Zevin, a senior attorney at New York University School of Law’s Institute for Policy Integrity, acknowledged the possibility but declined to speculate.

“Given the administration’s practice of going out of its way to target California’s environmental policies, I wouldn’t want to speculate about what DOJ is likely to do,” he said.

Several sources said a challenge to the clean cars pact would be on shaky legal ground.

To justify its lawsuit over the cap-and-trade agreement, the Trump administration argued that California had violated the Constitution by inking a treaty with a foreign government.

“The state of California has veered outside of its proper constitutional lane to enter into an international emissions agreement,” Jeffrey Bossert Clark, head of DOJ’s environment division, said in a statement trumpeting the suit.

Yet the clean cars pact can hardly be considered a treaty, Zevin said.

“Calling this memorandum of understanding on cars a treaty would be silly,” he said. “It’s largely about information sharing and informal coordination and discussing opportunities to collaborate.”

Zevin pointed to a section of the clean cars pact that states: “The Participants acknowledge that this Memorandum of Understanding is only intended to provide for cooperation between the Participants and does not create any legally binding rights or obligations.”

That section is “the kind of thing that you craft intentionally to avoid many of the claims that DOJ makes in its other lawsuits,” he said.

David Bookbinder, chief counsel at the libertarian-leaning Niskanen Center, echoed these sentiments. “This is an information-sharing thing; no one is required to actually do anything,” he said.

More broadly, Bookbinder said the Trump administration’s recent attacks on California seem politically motivated, from its threat to withhold highway funding to its crackdown on San Francisco’s alleged water pollution problems.

“These are all political cases brought for the purpose of throwing meat to [Trump’s] base,” he said. “What matters is his base, and that the president can go out and talk about stomping on California.”

To that end, the administration could even claim that former California Gov. Jerry Brown (D) conspired with a foreign government by discussing climate change with Chinese officials, Bookbinder said.

“Nothing may be too small,” he said. “They may want to complain about how Jerry Brown went to China and met with the Chinese about climate issues. Maybe they want to accuse him of treason. I mean, these people are out of control.”

Regardless of what happens to the clean cars pact, EPA and the National Highway Traffic Safety Administration are already taking steps to block California from setting tougher vehicle emission standards than the federal government.

EPA is proposing to withdraw California’s Clean Air Act waiver for greenhouse gases, which enshrines the state’s legal authority to set the standards, while NHTSA is proposing to preempt the state under the 1975 Energy Policy and Conservation Act.

DOJ and the California Air Resources Board didn’t immediately respond to requests for comment.