Politics & Policy

Can California Catch a Waiver?

The Golden State wants to make its own global-warming policy.

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.

Another problem for California’s case is that adopting new car-emission standards will have no meaningful effect on the climate-related threats that California fears. Even once California’s standards are adopted in a dozen states, this will do nothing to reduce the threat of sea-level rise that Californians’ face. That climate change may present a “compelling” threat to the nation or the world is not relevant as a legal matter, as the Clean Air Act proscribes other considerations. California was granted the ability to seek waivers to enact measures addressing pollution problems in California, not a roving authority to drive environmental policy for the nation as a whole.

California Governor Arnold Schwarzenegger complains that the EPA’s failure to act “will result in California losing its right as a state to develop forward-thinking environmental policies.” This is nonsense. The lack of a waiver simply takes one policy option off of the table. Scores of alternatives remain available, and many states are exploring climate policy options that do not conflict with federal law. Nothing stops California from imposing emission controls on industrial and commercial facilities, and other sources of greenhouse gases, other than the political will to impose regulations on producers and consumers within the state.

If reducing greenhouse-gas emissions from automobiles, and encouraging auto efficiency, is really so important, California can increase its tax on gasoline. This would be a much more effective way to curb vehicular carbon emissions, particularly as it would reduce consumption by all car owners, not just those who purchase new cars. It also could be implemented far more quickly than vehicle-emission standards that will not take effect for years. The problem, of course, is that the cost of such a policy would be readily identifiable, and clearly felt, by Californians. Thus it has less appeal to politicians than a vehicle-emissions regulation the costs of which will be buried in new car prices, and also dispersed to consumers and workers in other states.

There is certainly an argument to allow California and other states greater flexibility to adopt environmental measures of their own. This case is particularly powerful in the context of local or regional environmental concerns, such as land-use patterns, local drinking-water quality, and the siting of polluting facilities. I have argued elsewhere that states should be able to seek waivers from all manner of federal environmental requirements. Decentralizing environmental policy in this way could spur ecological innovation and

The case for such flexibility is weakest where an environmental problem spans many state boundaries or where the costs of one state’s policy are imposed on other states. Global climate change is a textbook example of the former, and state regulations on products manufactured in other states for sale in national markets is a good example of the latter. If a state adopts an environmental measure, and is willing to bear the costs itself, I am more than willing to give it free reign. Yet when a state wants to commandeer national product markets, more caution is in order.

California first asked the EPA for a waiver in December 2005, but the federal agency stalled. With related litigation pending, the EPA was in no hurry to approve California’s request. This spring, however, the EPA has started the process to review California’s request. Nonetheless, the Golden State is getting impatient. “If we don’t see quick action from the federal government, we will sue the EPA,” Schwarzenegger proclaimed in a recent speech. In an April letter to the Environmental Protection Agency (EPA), he warned that California would sue if a waiver were not granted within 180 days. Writing in the Washington Post with Connecticut Governor Jodi Rell, Schwarzenegger argued that the EPA’s refusal to grant a waiver to date “borders on malfeasance.” Yet even were the EPA to grant California’s waiver forthwith, the decision could be litigated for years.

Testifying before the Senate Environment Committee on Tuesday, AG Brown, himself a former governor, suggested an alternative tack: “Congress has to allow California to blaze its own trail with a minimum of federal oversight.” If Californians really want freedom from federal preemption, and a change in federal climate policy, they are better off getting Congress to act than seeking relief from the EPA.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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