Would Dingell’s legislation overturn Mass v EPA? (Pt. 1)


(Note: This post is somewhat lengthy, so it’s split into several parts.)


Last week (June 7, 2007), a panel of the House Energy and Commerce Committee held a hearing on Chairman John Dingell (D-MI) and Subcommittee Chair Rick Boucher’s (D-VA) discussion-draft legislation concerning alternative fuels, infrastructure, and vehicles. The bill is laden with mandates and new spending authority. Among other provisions, the bill would:

  • Compel refiners, blenders, and importers to sell 35 billion gallons per year of “alternative” motor fuels by 2025;
  • Establish a first-ever low-carbon standard for motor fuels;
  • Increase fuel economy standards from 27.5 to 36 mpg by 2021 for passenger cars (a 31% increase) and from 20.7 to 30 mpg by 2024 for SUVs and other light trucks (a 35% increase);
  • Establish an escalating production quota for vehicles capable of running on both gasoline and E-85 (a motor fuel blended with 15% gasoline and 85% ethanol), such that flexible-fuel vehicles make up 45% of all vehicle sales in 2012 and 85% of all sales in 2020;
  • Require motor fuel retailers to install E-85 dispensaries in areas where flex-fuel vehicle market penetration reaches 15%; and
  • Authorize $1.4 billion in grants for installation of alternative fuel pumps in service stations during FYs 2008-2014, plus “such sums as may be necessary thereafter.”

Now, you might think the Kyoto crowd would be pleased with this “first step” in saving us from the alleged twin perils of oil imports (without which gasoline prices would easily be $10 a gallon) and global warming (which during the past century coincided with an estimated 1,800% increase in global GPD). After all, passage of the bill would not preclude Congress from enacting a carbon cap-and-trade scheme or a national set-aside program for wind and solar power.


But the Kyotoites are up in arms because Title VII of the discussion draft would ensure that the authority to administer new-car fuel economy standards would remain where Congress put it more than 30 years ago—in the National Highway Traffic Safety Administration (NHTSA). They want to shift the power to regulate fuel economy to the Environmental Protection Agency (EPA), the State of California, and other States opting to follow California’s lead.


The California greenhouse gang—Speaker Nancy Pelosi, Rep. Henry Waxman, Sen. Barbara Boxer, Gov. Arnold Schwarzenneger, and Atty. Gen. Jerry Brown—complain that the Dingell-Boucher legislation would overturn both California’s “landmark” program to regulate greenhouse gas (GHG) emissions from new motor vehicles and Mass v EPA, the recent case in which the Supreme Court essentially told EPA to begin regulating GHG emissions from new cars and trucks. Pretty strong accusations—are they valid?


In 2004, the California Air Resources Boards (CARB) issued regulations requiring GHG emissions from the average car sold in the State to be 30% below 1990 levels by 2016. A coalition of automakers filed suit against CARB, arguing that the law establishes de facto fuel economy standards, and therefore violates the 1975 Energy Policy and Conservation Act (EPCA), which prohibits states from adopting laws or regulations “related to” fuel economy.


Carbon dioxide is the main GHG emitted by internal combustion engines, and the automakers argued—correctly—that no commercially available technology exists that can capture or destroy CO2 emissions from internal combustion engines. Consequently, to meet standards requiring new vehicles to emit fewer grams of CO2 per mile, automakers would have to redesign cars and trucks to burn fewer gallons per mile. CARB’s new emission standards are just fuel economy standards by another name, and as such, violate EPCA.


In Mass v EPA, a dozen state attorneys general, three cities, and numerous environmental groups sued EPA for rejecting a petition to regulate motor vehicle GHG emissions. In a superb interveners’ brief filed in the case, the automakers, again explaining that vehicular CO2 emission standards are de facto fuel economy standards, pointed out that Congress authorized NHTSA, not EPA, to administer fuel economy standards. EPA-designed CO2 emission standards would either conflict with or wastefully duplicate NTSHA-administered fuel economy standards—results Congress presumably did not intend.


The 5-4 majority on the Court failed to engage this argument, instead simply asserting that there is “no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.”


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