April 9, 2018
California Becomes an Emissions Battleground
By Eric Kulisch
WASHINGTON — EPA Administrator Scott Pruitt, departing from his federalist track record, has launched a first strike against the so-called California waiver, publicly questioning the state’s right under the Clean Air Act to set stricter air-quality standards than the rest of the nation.
How well that waiver withstands the federal fire could have big implications for the auto industry and the administration’s effort to relax emissions and fuel economy rules.
In announcing his decision last week to rewrite the nationwide emissions standards negotiated with the auto industry under the Obama administration for 2022-25 vehicles, Pruitt signaled that his idea of a revised harmonized program would require California to buckle to national standards developed by the EPA and NHTSA, rather than a compromise among the parties on tweaks that would still give automakers more flexibility with compliance.
“Cooperative federalism doesn’t mean that one state can dictate standards for the rest of the country,” Pruitt said in a statement. “EPA will set a national standard for greenhouse gas emissions that allows auto manufacturers to make cars that people both want and can afford — while still expanding environmental and safety benefits of newer cars.”
Yet the pro-business EPA chief, who faces battles on a number of fronts, is also mindful of automakers’ desire for a program that would allow them to sell the same vehicles in all 50 states. Agency officials were continuing to negotiate with California regulators last week on how to preserve some measure of uniformity under relaxed federal standards, The New York Times reported.
The most potent bargaining chip — for both sides — is the California waiver. As long as California has one for emissions rules, it can complicate the administration’s efforts to relax the 2022-25 standards. But as long as the EPA has some power to revoke the waiver, it can try to persuade California to stand down.
How the EPA would go about revoking California’s waiver is unclear. The 1970 Clean Air Act doesn’t specify such a process, and it has never been tried. Over five decades, the California Air Resources Board has received more than 100 waivers, including ones to regulate particulate emissions and, in 2009, greenhouse gas emissions from vehicles.
Granting a waiver requires the EPA to offer it for public comment before making a final decision, “so I would think they would have to go through a similar process” to cancel one, said Janet McCabe, a senior law fellow at the Environmental Law & Policy Center who was acting chief of the EPA’s Office of Air and Radiation under President Barack Obama.
The only criteria under which the EPA can deny a waiver application are if the proposed program is “arbitrary and capricious,” doesn’t meet an urgent need or doesn’t fall within the EPA’s jurisdiction.