EPA, States, and the auto industry are again ratcheting up the battle over California’s authority to set vehicle GHG and Zero Emission Vehicles program.

The Clean Air Act generally prohibits a state from adopting its own motor vehicle emission standards.  However, since its inception, the CAA granted California the authority to request a waiver of preemption from EPA for setting these emission standards.  Specifically:

(1)  The Administrator shall … waive application of this section to [California] …, if the State determines that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.  No such waiver shall be granted if the Administrator finds that—

(A)  the determination of the State is arbitrary and capricious,

(B)  such State does not need such State standards to meet compelling and extraordinary conditions, or

(C)  such State standards and accompanying enforcement procedures are not consistent with section 202(a) of this part [42 USCS § 7521(a)].

(2)  If each State standard is at least as stringent as the comparable applicable Federal standard, such State standard shall be deemed to be at least as protective of health and welfare as such Federal standards for purposes of paragraph (1).

California sought and received its first waiver under the above standard in 1968.  The CAA also allows other states to follow California’s more stringent emission standards with 13 states and Washington D.C. currently electing to do so.  In 2013, EPA granted California a CAA waiver to regulate vehicle emission GHGs and establish a ZEV program.

In September 2019, the Trump administration’s EPA, for the first time ever, attempted to revoke California’s waiver, specifically with respect to its GHG and ZEV program.  In doing so, EPA found that “California does not need its GHG and ZEV standard to meet compelling and extraordinary conditions because:

  • “Those standards address environmental problems that are not particular or unique to California;
  • “They are not caused by emissions or other factors particular or unique to California;
  • “For which [] the standards will not provide any remedy particular or unique to California;
  • “The California waiver authority exists because California has uniquely difficult problems with ozone-forming pollutants; and
  • “The California waiver authority does not exist to allow California to address national and global issues such as climate change.”

Unsurprisingly, California and other states sued to stop the revocation.  However, before the case could be resolved, the Biden administration moved to reinstate California’s authority.  On March 14, 2022, EPA rescinded its 2019 waiver withdrawal and established a new standard for revisiting approved waiver determinations.

On May 12, 2022, the Ohio, Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, and West Virginia State Attorney Generals filed a petition for review of EPA’s final decision to reauthorize California’s authority to set vehicle emission standards.

In this petition, the states raised the following four issues.

  1. “Whether Section 209(b)(1) of the Clean Air Act violates the Constitution by allowing California, and only California, to set new-vehicle emissions stand­ards more stringent than the “applicable Federal standards.”
  2. “Whether the EPA violated the equal-sovereignty doctrine when it reis­sued California’s 2013 Clean Air Act waiver under Section 209(b)(1) of the Clean Air Act.”
  3. “Whether the EPA’s reissuance of the California’s 2013 Clean Air Act waiver is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law because EPA failed to consider whether its actions is consistent with the equal-sovereignty doctrine.”
  4. “Whether the EPA’s reissuance of the California’s 2013 Clean Air Act waiver is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or contrary to the constitutional power because Congress has broadly preempted state requirements that are “related to’ fuel-economy standards 49 U.S.C. 3291(a).”

As with the litigation challenging the withdrawal of California’s waiver, a number of cities and states intervened in support of restoring California’s waiver including California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, Massachusetts, Pennsylvania, and Washington D.C.  Interestingly, a number of the intervening states have not currently adopted California’s more stringent standards.

On May 13, 2022, another group also filed a petition for review of EPA’s final rule regarding California’s authority to set GHG and Zero Emissions Standards vehicle emission standards.  These petitioners argued that this rule “transforms a narrow program designed in the 1970s to allow California” to deal with its smog problem “into a tool for one state to control much of the nation’s automotive and climate policy.”  The petition further argued that rule “will have the perverse effect of increasing net greenhouse gas emissions.”

On June 7, 2022, Ford, Volkswagen, Honda, BMW, and Volvo joined the fight intervening in support of EPA’s decision to reauthorize California’s waiver.  This move was not surprising because all of these automakers, except Volvo, entered into a voluntary agreement with California to comply with the more stringent vehicle emission standards it proposed before the Trump administration revoked the waiver.

California’s ability to set more stringent emission standards – by regulating GHGs and Zero Emission Vehicles – is a key part of its, and the states adopting it, plans to combat climate change.

The post Energy & Climate CounselFoley Hoag LLP The Battle Over California’s Authority to Set Vehicle Emission Standards Continues first appeared on Law and the Environment.