EPA has now formally restored its waiver under § 209(b) of the Clean Air Act that allows California’s greenhouse gas emissions standards and Zero Emission Vehicle mandate, notwithstanding the preemption of state vehicle emission standards contained in § 209(a) of the CAA. EPA also restored the authority of other states under § 177 of the CAA to adopt the California standards.
In what we lawyers might describe as pleading in the alternative, EPA identified six separate justifications for its decision:
(1) EPA’s reconsideration of the waiver under the particular facts and circumstances of this case was improper;
(2) EPA’s reconsideration was based on a flawed interpretation of CAA section 209(b);
(3) even under that flawed interpretation, EPA misapplied the facts and inappropriately withdrew the waiver;
(4) EPA erred in looking beyond the statutory factors in CAA 209(b) to action taken by another agency under another statute to justify withdrawing the waiver;
(5) that agency has also since withdrawn the action EPA relied on in any event; and
(6) EPA inappropriately provided an interpretive view of section 177.
I’m confident that one or more of these justifications will be sufficient to survive judicial review, even by conservative SCOTUS justices.
It’s clear that we need to move aggressively to electrify transportation in order to have any chance of reaching a net-zero world by 2050. My friend J.B. Ruhl did a post recently showing that even under fairly aggressive scenarios for the phase-out of the internal combustion engine, it is likely that in 2050:
there would still be well over 100 million internal combustion engine cars and light trucks on the road.
That would necessitate a fairly substantial amount of fossil fuel consumption occurring in our then net-zero world. Time to get to work.