Three days ago I suggested - naively - that perhaps the Bush Administration would turn in the right direction on climate change and grant California a waiver to regulate greenhouse gas emissions from automobiles. It hasn't and the EPA didn't. Continuing its record as the worst environmental administration in history, Bush's EPA yesterday denied California's request to implement its regulations. Without a waiver, the other 14-16 states that have either enacted or expressed interest in enacting the California regulations cannot do so either.
Governor Schwarzenegger has already announced he will sue the federal government. But the regulations -- one of the centerpieces of California's plan to roll back the state's emissions to 1990 levels by 2020 -- will almost certainly not be implemented on schedule. The state's regulations are supposed to take effect for model year 2009 cars. A new president - who could reverse the EPA's decision - won't take office until January 2009. It seems highly doubtful that California's lawsuit to overturn the EPA decision will be decided before 2009 model year cars begin to roll off assembly lines. Meanwhile, the globe warms and greenhouse gas emissions grow at a rate even faster than predicted.
There's also the not insignificant question whether California will succeed in overturning the EPA's decision. From a legal perspective, there are several important questions. The first is whether the EPA followed statutory requirements under the Clean Air Act in deciding to deny the waiver. The Clean Air Act requires the EPA to grant the waiver unless California "does not need" new greenhouse gas standards "to meet compelling and extraordinary circumstances." The EPA says California doesn't have compelling and extraordinary circumstances, that climate change is a global problem not unique to the state. California says the state is facing drought, water shortages, wild fires and worse smog and needs the regulations to address its contributions to global warming. Unfortunately, courts reviewing the question are likely to defer pretty heavily to the EPA's decision. On the other hand, EPA's own lawyers apparently believe that the agency is likely to lose the case. See Washington Post article here:
But California may have a better legal argument based on statements made yesterday by the EPA's head, Stephen Johnson. He says we don't need California standards because Congress just raised fuel economy standards that will reduce greenhouse gas emissions. We don't, he argues, need "a patchwork" of state regulations. As a factual matter his argument is plain wrong. California's standards regulate carbon dioxide and other greenhouse gases; the federal government's fuel economy standards regulate fuel economy. While there's a correlation between fuel efficiency and the amount of carbon dioxide emitted from gasoline-burning engines, the standards are regulating two separate things (a federal court decision in California made this clear just last week, based on a United States Supreme Court decision, Massachusetts v. EPA). It's also more than curious that Johnson based much of his public justification for denying the waiver on legislation that passed just this week even though he's had almost two years to consider the California waiver request. Moreover, granting the waiver wouldn't produce a patchwork of standards but rather only two, the California standards (which many other states would adopt) and no standards (which the other states would follow). And finally, as a legal matter, Johnson and his EPA can't consider whether it's a good idea or not to let California have its own standards. Congress and courts that have considered the issue already have said the state can regulate separately as long as it meets Clean Air Act requirements.
So California may have a good legal claim. The better and faster route, though, is to elect a president who will reverse the EPA decision come January 2009.