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EPA Rejects California’s Waiver Request for State-Specific Vehicle Emissions Standards

December 19, 2007

EPA announced on December 19, 2007 that the agency will deny the State of California’s request to set stricter vehicle emissions standards than required under federal law. California’s waiver request has been pending before EPA since December 2005. Fourteen other states[1] adopted California’s vehicle emissions standards, and three others have stated their intention to do so.[2] With EPA’s rejection of the waiver request, none of these states can implement their own standards.

EPA stated that it made the decision in order avoid differing regulations between the states: “The Bush administration is moving forward with a clear national solution — not a confusing patchwork of state rules. I believe this is a better approach than if individual states were to act alone,” stated EPA Administrator Stephen Johnson.[3] In addition, EPA also based the decision to reject the waiver, in part, on Congress’ recent approval of a nationwide boost in fuel economy regulations as part of the recently-passed Energy Bill, which precluded the need for state action.[4]

Section 209(a) of the Clean Air Act (CAA) explicitly preempts states from adopting or enforcing motor vehicle emission standards.[5] However, because California had already enacted automobile emissions standards several years before the federal government, it is permitted by section 209(b) of the CAA to set its own state vehicle emissions standards, as long as they are at least as protective of human health and the environment as federal standards. This “grandfather” provision for California to enforce stricter standards, however, is expressly conditioned in the statute on EPA agreeing to grant a waiver to enforce them.[6] Had EPA granted the waiver, other states would have been permitted to adopt identical standards to California’s, subject only to a two-year lead-time for implementation.[7]

California filed a lawsuit last month to compel EPA to act on its waiver request, joined by states that had already adopted California’s standards.[8] In related litigation, a federal judge ruled on December 11, 2007 that California had authority under the CAA to enact vehicle emissions standards, ruling that “both EPA and California … are equally empowered through the Clean Air Act to promulgate regulations that limit the emission of greenhouse gases, principally carbon dioxide, from motor vehicles.”[9] Prior to California’s lawsuit, EPA had previously announced its intention to promulgate federal rules to limit carbon emissions from fuels by the end of 2008,[10] but changed its position following the initiation of litigation and the announcement of the federal court decision upholding California’s authority to issue its own vehicle emissions standards.[11]

Governor Arnold Schwarzenegger said that he is prepared to file litigation to reverse the decision.[12]

For more information on this decision and other developments affecting climate change, please contact a member of our Climate Change and Sustainability Practice Group .

[1] States that have adopted California’s standards are Massachusetts, New York, Arizona, Connecticut, Illinois, Maine, Maryland, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington and Pennsylvania.

[2] The governors of Arizona, Colorado, Florida and Utah have each indicated that they intend to adopt the California emissions standards.

[3] M. Maynard, “EPA Denies California’s Emissions Waiver,” New York Times (Dec. 19, 2007).

[4] See EPA rejects Calif. GHG waiver request, Greenwire (December 19, 2007) (subscription required).

[5] 42 U.S.C. § 7543(a).

[6] 42 U.S.C. § 7543(b).

[7] See Central Valley Chrysler-Jeep, Inc. v. Goldstone, Eastern District of California Case No. CV-F-04-6663(AWI LJO) (Docket No. 656) (Order at 31).

[8] See California Files Suit to Compel Decision on New Motor Vehicle GHG Emissions Standards Marten Law Group Environmental News (November 28, 2007).

[9] See Central Valley Chrysler-Jeep, Inc. v. Goldstone, Eastern District of California Case No. CV-F-04-6663(AWI LJO) (Docket No. 656) (Order at 55).

[10] See Jonathan S. Martel, Climate Change Law and Litigation in the Aftermath of Massachusetts v. EPA, BNA Environment Reporter Vol. 38 No. 44. (Nov. 9, 2007).

[11] See Federal Court Upholds California’s Vehicle-Emission Standards, Subject to EPA Waiver Marten Law Group Environmental News (December 12, 2007).

[12] See California Governer Arnold Schwarzenegger’s press release.

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