Can California Catch a Waiver?
The Golden State wants to make its own global-warming policy.


Jonathan H. Adler

California Attorney General Jerry Brown came to Washington this week, urging the federal government to let California impose the first regulations on greenhouse-gas emissions from automobiles. The Golden State has adopted regulations under which automakers must reduce greenhouse-gas emissions from new cars sold in California beginning in 2009. By 2016, new vehicle greenhouse-gas emissions must decline by nearly 30 percent. If the federal government won’t take decisive action on climate change, Brown declared, “California will take action.”

The problem for California is that it cannot enforce its new regulations without a waiver of federal law. Under the federal Clean Air Act, states are generally precluded from adopting their own vehicle-emission standards. According to Congress, regulating motor vehicles is a federal job. California gets special treatment, however. California is authorized to seek a waiver of federal law when it adopts vehicle-emission regulations. Once a waiver is obtained, and only then, other states may follow suit.

California’s special status in air-pollution law dates to the early days of federal environmental regulation. California adopted the nation’s first vehicle-emission standards in the 1960s. Afraid that other states would soon follow suit, the automakers went to Washington, D.C. seeking a uniform federal standard that would preempt the states. The automakers hoped they would get less stringent rules from Washington, D.C., but preferred a tighter federal rule than a polyglot of state rules. From the automakers’ perspective, it was essential that a car rolling off an assembly line in Pontiac, Michigan, could be sold in any state.

With support from the nation’s automakers, federal air-pollution legislation surged ahead. Federal vehicle-emission standards were adopted to preempt all state vehicle standards with one exception. California could seek a “waiver” of preemption. Congress subsequently amended the Clean Air Act so other states could adopt California’s standards too, but only after California obtained a waiver from the EPA. As a result of the compromise, instead of one set of vehicle-emission standards, there are two: One set in Washington, D.C., another in Sacramento.

California regulators relish their role as environmental trendsetters, and often speak of California’s “right” to set its own vehicle-emission standards. Yet waivers are not automatic. Under the Clean Air Act, the EPA cannot issue a waiver unless certain conditions are met. Among other things, California must show that its rules are no less protective than federal standards and can be consistently implemented and enforced. Most importantly, the EPA must conclude that California “need[s] such State standards to meet compelling and extraordinary conditions.” This was an easy standard to meet when California sought tighter emission controls to reduce air pollution in smog-choked Los Angeles. Whether this standard allows for a waiver when the target is global warming is a different question. Testifying before Congress this week, Brown said there is “no question” that the EPA must grant a waiver, but the law itself is not so clear.

The waiver provision was designed to ensure that California could adopt tighter emission controls where necessary for California cities to meet federal air-quality standards. California had the worst air pollution in the nation, and there was a strong argument that what would clear the air in Houston or Chicago might not work so well in southern California. So, over the past 30 years, California sought and obtained tens of waivers to help control soot and smog. In each case, California could argue that more stringent auto-emission rules were necessary to meet the “extraordinary conditions” that California faced.

Global climate change, however, is a global phenomenon. The relevant airshed is not the Los Angeles basin or South Coast Air Quality Management District, but the global atmosphere. The degree of warming experienced by California is a consequence of atmospheric concentrations of carbon dioxide and other greenhouse gases, not local conditions or controls.

California may face specific threats from the effects of global warming, but the climate-forcing of carbon dioxide and other greenhouse gases is dispersed throughout the world.