Posted by Jonathan Adler:
EPA's Decision to Deny California's Waiver Request:
http://volokh.com/archives/archive_2007_12_16-2007_12_22.shtml#1198203866
In my view, the EPA�s decision to deny California�s application for a
waiver of preemption under the Clean Air Act for the state�s
greenhouse gas emission controls for new motor vehicles was good law,
if questionable policy. The EPA�s conclusion that California was not
entitled to a waiver of preemption is utterly defensible under the
Clean Air Act. Assuming the agency adequately explained the basis for
its conclusion, I find no legal fault with the EPA. This does not mean
that the agency�s decision made for good policy, however. Assuming
that the agency�s action was not compelled by the statutory text, I
also believe that the EPA could have adopted an alternative reading of
the act under which the waiver could have been granted. Insofar as I
favor giving states greater leeway to experiment in environmental
policy, granting California�s waiver would have made for good policy �
and would have been preferable to adoption of the federal energy
legislation recently passed by Congress and signed into law.
In [1]announcing the denial of California�s waiver application for
waiver of preemption, the EPA explained that the Bush Administration
was �moving forward with a national solution to reduce greenhouse gas
emissions from motor vehicles.� Explicit in the agency announcement
was a preference (shared by the auto industry) for uniform federal
emission standards for motor vehicles. The agency also cited the newly
enacted federal energy legislation that will increase federal fuel
economy standards (and thereby reduce carbon dioxide emissions) over
the coming decades (albeit at a slower rate than would have been
required under the California rules.
EPA Administrator Stephen Johnson explained that federal uniformity is
preferable to �a confusing patchwork of state rules.� This is the
rationale for federal preemption of state standards in the first
place. The invocation of a �patchwork� is a bit inapposite here,
however, as there would be no �patchwork� of variable rules from state
to state, as approval of California�s request would still have left
states with only two choices: adopt the California rules or settle for
the federal floor. The word �patchwork� implies that each state could
choose its own standard, making each jurisdiction different from all
the others, much like the panels of a patchwork quilt are highly
varied. A better metaphor would have been that of a checkerboard, or
some other dichromatic distribution.
The Administration�s stated preference for a uniform standard clearly
motivated its decision, but it is not a legally sufficient basis for
denying a waiver under the Clean Air Act. Rather, the law is quite
specific as to what factors are to be considered when evaluating a
waiver request. Under Section 209(b)(1), California must first make a
threshold determination that its proposed standards �will be in the
aggregate, at least as protective of public health and welfare as
applicable Federal standards.� Once such a determination has been
made, Section 209(b) provides that the EPA must deny the waiver
request if it finds that (a) California�s threshold determination was
�arbitrary and capricious�; (b) California �does not need such State
standards to meet compelling and extraordinary conditions; of (c)
California�s proposed standards and enforcement measures are
inconsistent with other Clean Air Act requirements. An EPA finding
that any one of these three criteria is met is grounds for denying
California�s waiver request.
Of these, only one finding is potentially at issue: Whether California
needs its own greenhouse gas emission controls on motor vehicles �to
meet compelling and extraordinary conditions.� Although I have not yet
seen the formal petition denial, the EPA announcement suggests that
this was the legal basis for rejecting the request (and distinguishing
this waver request from the dozens of such requests that the EPA has
approved in the past).
California�s current waiver request is distinct from all prior
requests. Previous waiver petitions covered pollutants that
predominantly impacted local and regional air quality. Greenhouse
gases are fundamentally global in nature, which is unlike the other
air pollutants covered by prior California waiver requests. These
gases contribute to the challenge of global climate change
affecting every state in the union. Therefore, according to the
criteria in section 209 of the Clean Air Act, EPA did not find that
separate California standards are needed to �meet compelling and
extraordinary conditions.�
As I have explore at some length in this paper, the EPA would appear
to be on strong legal ground in reaching this conclusion. Given the
global nature of climate change, California cannot claim that it needs
these measures (or any other emission controls) �to meet compelling or
extraordinary conditions.� Nothing California does to control
greenhouse gas emissions from new motor vehicles will mitigate the
threat of climate change to the state in any meaningful way.
Prior waivers were granted when California sought to control emissions
that contributed to the Golden State�s particularly severe urban air
pollution problems. In these cases, California could claim that
state-specific measures were necessary components of state-level plans
to meet federal air quality standards within the state. California�s
extreme air pollution problems were the �compelling or extraordinary
conditions,� and the measures were �needed� to �meet� these conditions
insofar as they would facilitate California achieving its goal of
reducing instate air pollution.
Global climate change presents a different type of problem, however.
It is a global phenomenon caused by the accumulation of greenhouse
gases throughout the global atmosphere. Unlike with ambient air
pollution, such as soot or smog, a local jurisdiction has no control
over local emission concentrations because the relevant gases disperse
throughout the atmosphere. Nor do local jurisdictions have any control
over ambient temperature, as global climate change is a consequence of
the global accumulation of greenhouse gases.
California policy makers sought to get around this problem by pointing
to anticipated California-specific effects of global warming, such as
local sea-level rise. It is certainly true that California will face
certain consequences of climate change that will not be faced by all
other states. It is even conceivable (though hardly demonstrated) that
California is uniquely threatened by climate change to a greater
extent than any other state. This does not matter, however, as
California cannot claim that its proposed vehicle emission controls
are necessary to meet these concerns, as they will not achieve any
meaningful protection for the state. No matter how much California
wishes to be a climate policy pathbreaker, that is insufficient to
meet the language of the Act under this interpretation.
I readily admit that there is some ambiguity in the language of
209(b), and there are reasonable interpretations of this language that
could justify approving California�s waiver request. The problem for
California, however, is that insofar as this language is ambiguous,
federal courts are required to defer to the EPA�s reasonable
interpretation under �step two� of the familiar Chevron analysis.
Thus, provided that the agency has dotted its �i"s and crossed its
�t�s in the formal decision, adequately explaining the basis for its
interpretation and its resulting conclusions, the waiver denial should
survive the inevitable legal challenge from California and other
states that wanted to adopt more stringent vehicle emission controls.
To be clear, my point here is not that the EPA was required to deny
California�s CAA waiver request, nor am I making a specific prediction
about future litigation over this decision. Rather I am making the
more modest claim that the language of Section 209(b) could well be
interpreted in a way that would justify, if not compel, the agency�s
decision, and hold up in court.
References
1.
http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/41b4663d8d3807c5852573b6008141e5!OpenDocument
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