In A Turn Away From Federalism, Trump Will Revoke California’s Clean Air Act Waiver
In a rebuke to traditional conservative views of Federalism, the Trump Administration intends to revoke California's authority to set its own clean air standards,
For the last several decades, California, in recognition of both its widely varied climate and that importance of that climate to its vibrant tourism and agricultural industries, has had the authority to set its own standards with respect to automobile emissions and other environmental measures. One side effect of that authority has been the fact that California has had the ability to essentially set a standard for much of the rest of the nation due to the fact that it is, generally speaking, cost-prohibitive for automakers to make one set of cars that meet the basic Federal automotive guidelines and another set that meet California’s standards, which have typically been higher than those set by Washington. Indeed, those standards set by California have been adopted by thirteen other states and the District of Columbia, meaning that the California standards directly impact more than half the U.S. population due both to existing law and the fact that “California” compliant cars are widely available in their state due to the fact that its easier for manufacturers to adhere to the more stringent standards in California than try to differentiate car sales by state.
Now, the Trump Administration wants to do away with a great deal of that authority and force California to accept the standards set by Washington:
WASHINGTON — The Trump administration is expected on Wednesday to formally revoke California’s authority to set auto emissions rules that are stricter than federal standards, taking a major step forward in its wide-ranging attack on government efforts to fight climate change.
The formal abolishment of one of California’s signature environmental policies — tailpipe pollution is the largest source of greenhouse gas emissions in the United States — will be announced Wednesday afternoon at the Washington headquarters of the Environmental Protection Agency, according to two people familiar with the matter. Mr. Trump at the time will be traveling in California, where he is scheduled to attend fund-raisers in Los Angeles and Silicon Valley.
Lawyers said the action takes the administration into uncharted legal territory in its battle with the state, which has vowed to fight the change all the way to the Supreme Court.
“This is unprecedented and a tremendously big deal,” said Richard L. Revesz, a professor of environmental law at New York University, noting that no administration has ever revoked a state’s authority to regulate its own air quality in the past.
In a speech on Tuesday, Andrew Wheeler, the head of the E.P.A., said, “We embrace federalism and the role of the states, but federalism does not mean that one state can dictate standards for the nation.”
The attack on California is only the latest in a broad array of efforts to weaken climate change regulations by a president who has repeatedly expressed skepticism about the scientific consensus that global warming is human-caused. The administration plans to weaken auto emissions standards nationwide, has rolled back rules governing coal-burning power plants and eased restrictions on energy companies governing leaks of methane, a powerful greenhouse gas.
A revocation of the California waiver would have national significance. Thirteen other states follow California’s tighter standards, together representing roughly a third of the national auto market.
Legal experts said that if Mr. Trump’s move was ultimately held up by the Supreme Court, it could permanently block states from regulating vehicle greenhouse gas pollution. If it was rejected by the Supreme Court, it would allow states to set separate tailpipe pollution standards from those set by the federal government.
The outcome could split the United States auto market, with some states adhering to stricter pollution standards than others. For automakers, that would be a nightmare.
Opponents of the move noted that weakening California’s authority on emissions is directly at odds with the administration’s position on other vital issues — such as gun restrictions and abortion laws — that individual states have the right to set their own rules. “Trump has married his administration-wide hostility to the environment to his personal vendetta against California,” said Dan Becker, director of the Safe Climate Campaign, an advocacy group.
The Trump administration plans this week to revoke California’s long-standing right to set stricter air pollution standards for cars and light trucks, the latest step in a broad campaign to undermine Obama-era policies aimed at cutting greenhouse gas emissions to combat climate change, two senior administration officials said.
The move threatens to set in motion a massive legal battle between California and the federal government, plunge automakers into a prolonged period of uncertainty and create turmoil in the nation’s auto market.
The Environmental Protection Agency declined to comment on the matter. But in a speech Tuesday to the National Automobile Dealers Association, EPA Administrator Andrew Wheeler made his intentions clear.
“We embrace federalism and the role of the states, but federalism does not mean that one state can dictate standards for the nation,” he said.
Already, 13 states and the District of Columbia have vowed to adopt California’s standards if they diverge from the federal government’s, as have several major automakers. California leaders on Tuesday said they will fight any challenge to their autonomy.
“While the White House has abdicated its responsibility to the rest of the world on cutting emissions and fighting global warming, California has stepped up,” Gov. Gavin Newsom (D) said. “It’s a move that could have devastating consequences for our kids’ health and the air we breathe, if California were to roll over. But we will not.”
Echoing the governor, state Attorney General Xavier Becerra, who has sued the Trump administration on a range of issues, vowed to head back to court, saying California’s clean car standards are “achievable, science-based, and a boon for hard-working American families and public health.”
The official announcement had been scheduled for Wednesday, during President Trump’s trip to California, but after the news broke Tuesday, the administration postponed the policy rollout by at least a day.
Trump’s move is likely to be unpopular nationwide and in California, with Americans widely supportive of stricter fuel efficiency standards. A Washington Post-Kaiser Family Foundation poll released Friday found 66 percent of Americans oppose Trump’s plan to freeze fuel efficiency standards rather than enforce the Obama administration’s targets for 2025.
A nearly identical 67 percent majority says they support state governments setting stricter fuel efficiency targets than the federal government.
Among Californians, the survey found 68 percent oppose Trump’s relaxation of mileage standards, while 61 percent support California’s stricter standards.
By seeking to strip California of its autonomy, Trump officials are forcing auto companies to choose whether they will side with the state or with the federal government. As part of July’s deal with the California Air Resources Board, the four carmakers agreed to support the state’s right to set its own tailpipe standards.
Environmentalists promised to join California in its legal opposition.
“There’s nothing in the Clean Air Act or EPA regulations providing for this unprecedented action,” Martha Roberts, a senior attorney at the Environmental Defense Fund, said in an interview. “The legislative history is explicit about broad authority for California. This is very well established legal authority that’s firmly anchored in the Clean Air Act.”
Marlo Lewis, a senior fellow at the conservative Competitive Enterprise Institute, predicted in an interview that the move actually could make it easier for automakers to embrace the White House’s proposed rollback of gas mileage standards.
“The only reason the automakers are not on board with Trump is because they’re afraid of the retaliation from California if Trump loses,” Lewis said.
It is unclear who would prevail in a legal fight over California’s waiver.
The state’s air regulators have consistently argued that they are limiting carbon dioxide emissions from vehicles, rather than overtly setting mileage standards.
Margo Oge, who directed the EPA’s Office of Transportation and Air Quality from 1994 to 2012, said in an interview that California can make a strong case that it needs to curb these pollutants because climate change worsens ozone, which helps create smog.
“California has demonstrated that by getting a greenhouse gas emissions waiver, it can also reduce ozone pollution, because the data is very strong,” she said.
But even Obama administration officials acknowledged that efforts to curb CO2 emissions from autos are inextricably linked to stricter mileage standards. The 2010 rule published by EPA and the National Highway Traffic Safety Administration noted that nearly 95 percent of emissions from cars and light trucks stem from motor fuel combustion.
Auto industry officials said they continue to hope that federal and state officials can compromise on a single national standard, despite no evidence of a deal in sight.
“Automakers have said many times that we support year-over-year increases in fuel economy standards that align with marketplace realities,” said Gloria Bergquist, a spokeswoman for the Alliance of Automobile Manufacturers, “and we support one national program as the best path to preserve good auto jobs and keep new vehicles affordable for more Americans.”
Leaving the environmental and scientific arguments, to the side for those with more expertise to comment on, what strikes me about this anticipated move by the Administration the most is the extent to which it abandons long-standing Republican and conservative beliefs in the Federalism in favor of apparent fealty to the oil and gas industry. Traditionally, Republicans and those on the right have favored the idea of allowing states more authority to set policy in areas that have traditionally been the province of the Federal Government.
During the Reagan and both Bush Administration’s, for example, conservatives spoke positively of the idea of the states acting as “laboratories of democracy” where ideas that might or might not work on the national level can be implemented and, if they worked, perhaps implemented on a broader basis nationwide. It has also been the case that Republicans have worked on implementing policies at the Federal level that attempted to devolve Federal Government authority to the states where, presumably, policies that more closely match the needs of individual states and regions of the country can be drafted, passed into law, and implemented. Based on this idea, Republicans have given states more authority in areas ranging from the environment and education to welfare policy and criminal law.
The California waiver, which was rooted in provisions of the Clean Air Act of 1970 which was passed by a bipartisan Congress and passed into law by President Nixon, is rooted in this idea. Among the reasons that California was given broader authority to regulate environmental standards was due to issues such as smog and other forms of pollution which used to inundate areas such as Southern California, The intention was to allow California to adopt rules specifically designed to deal with its unique environmental issue without necessarily requiring the rest of the country to do the same.
For the most part, this waiver has been successful, California and the 14 other jurisdictions that have followed its standards have benefited from this as has the auto industry and the nation as a whole, especially to the extent that California’s standards have helped to set the pace for the rest of the nation. They’ve also been entirely consistent with the Republican/conservative belief in Federalism. Now, though, this Republican Administration is prepared to abandon Federalism and force California and these 14 other jurisdictions to follow one set of rules set in Washington rather than adopt standards that might be more appropriate for the environment in those states. From a philosophical point of view, this is obviously hypocritical since it is a fundamental abandonment of the principles of Federalism that conservatives used to believe in and to play right into the hands of the oil and gas industry, which would seem to be the primary beneficiary of the end of the California waiver.
No doubt, the decision to revoke the waiver will be followed by litigation by the states and possibly other Plaintiffs. I can’t comment on the legal basis for those claims at this early stage,of course, but it strikes me that the states at least have a strong claim to make regarding the revocation of authority that has been in place for nearly 50 years and the fact that the Administration does not appear to be following proper procedures in revoking the waiver. Additionally, it’s worth noting that the auto industry appears to be on California’s side in this battle and, earlier this year, signed a deal in which each of the major manufacturers agreed that they would continue complying with California’s standards and join in any legal effort to oppose their revocation. That could prove to be problematic for the Administration in its effort to defend the revocation in Court.