I. Introduction.
The internal combustion engine has been central to the American way of life for generations. Personal transportation is one of the most important applications of energy to enhance life, promote individual liberty, and facilitate mobility in all senses of the word. Accountability and transparency in the regulation of vehicles are key. If regulations are making the type of car you wish to buy too expensive or scarce—let alone subjecting it to an outright ban—it’s important that you know just who is imposing such a policy on you so that you can raise your concerns through appropriate channels and seek redress. Constraining consumer choice in an area so integral to uniquely American conceptions of freedom and the good life must be done only after open debate, and certainly should never be attempted through the mousehole-cover of a single state’s regulations.
The Clean Air Act (CAA) appears to solve this accountability problem by preempting state and local governments from regulating vehicle emissions. Simple: the federal government is the one regulating your car in this regard, so you know whom to contact if you’re unhappy about it, right? Well, not so fast.
Congress created a special mechanism known to all as the “California waiver,” under which California—and only California—can ask the Environmental Protection Agency (EPA) to lift the preemption so that California can adopt and enforce alternative standards. This is a unique provision, and its origins are equally bespoke. Congress created it in 1967 because it recognized that California had uniquely vexing airquality problems, caused by so-called “criteria” pollutants whose elevated local concentration impaired health and visibility. And, for decades, consistent with this original Congressional intent, California sought and received waivers for its regulations designed to address those pollutants and the localized pollution problems for which local pollution is a but-for cause.
But in recent years, California and EPA have increasingly abused the waiver provision. California, through the California Air Resources Board (CARB), has begun to regulate vehicle greenhouse gas (GHG) emissions. This despite the fact that CARB’s stated concern, impacts from climate change, is no more caused by California vehicles’ emissions than by emissions from vehicles in New York, New Zealand, or New Delhi. GHG concentrations in the upper atmosphere, collected and circulating in a uniform global manner, are the pollution to which those impacts are attributed. It therefore makes no sense for the waiver, given its narrow purpose, to be applied to this type of regulation—yet under recent Democratic Administrations, that is precisely what EPA has allowed. Textual considerations discussed below independently weigh against this approach.
The Blue EPA appears to have one overriding principle when it comes to the waiver: California gets what it wants, when it wants it—text, purpose, and efficacy be damned. Constitutional considerations aside, Congress could have said that in the CAA. But it didn’t. It wrote many words, virtually all of which EPA reads out of existence, abdicating its responsibility in favor of serving as a rubber stamp for California’s wishes.
There are other flaws with applying the waiver to GHG regulation. Another statute, the Energy Policy and Conservation Act, preempts (with no waiver opportunity) states from regulating anything even “related to” fuel economy or average fuel economy, and that’s all that vehicle carbon dioxide (CO2) regulation is in essence. And to allow California to be the only state to decide in the first instance whether it should address through motor vehicle regulations a global pollution problem would be to give it a prerogative so unique and unequal to the other states as to raise serious constitutional concerns.
Defenders of the “when California says ‘jump,’ EPA says ‘how high?” approach claim it’s really “federalism” in action, because another CAA provision allows other states to adopt California’s standards once EPA waives preemption for them. But this is false federalism—a follow-the-leader approach where other states are consigned to follow either California’s lead or the federal government’s. No other state may seek the waiver. No other state may design its own regulations. While Congress made that initial decision in light of California-specific problems, it is pernicious (and illegal) to allow this to extend to problems that are not unique to California. (And that’s assuming Congress even had authority to give California special sovereign powers in the first place.) This abuse of the waiver creates a classic example of the familiar “elephants in mouseholes” scenario in administrative law, which undermines true federalism by subjecting 49 states to a regulatory duopoly of Washington and Sacramento.
In the Notice on which this comment is submitted, EPA declined to note that CARB’s waiver request for the “Advanced Clean Cars II” (ACC II) program (the Request) is a request to allow California to ban all sales of new internal-combustion-engine-driven vehicles by 2035. That’s quite a tell. And while EPA delayed more than half a year before giving the public notice of the Request, other states have begun purporting to adopt ACC II in whole or in part, despite the fact that the CAA explicitly forbids them from doing so unless and until EPA grants a preemption waiver.
EPA, in conjunction with California, is therefore engaged in an egregious end-run around accountability in environmental regulation. Unless it denies California’s Request, the Agency will have acceded to a backdoor ban of traditional vehicles in the nation’s largest state, without ever having to do that dirty work itself. EPA must adhere to the statute and common sense by denying the Request.
Comments on California State Motor Vehicle Pollution Control Standards; Advanced Clean Cars II Regulations; Request for Waiver of Preemption; Opportunity for Public Hearing and Public Comment
I. Introduction.
The internal combustion engine has been central to the American way of life for generations. Personal transportation is one of the most important applications of energy to enhance life, promote individual liberty, and facilitate mobility in all senses of the word. Accountability and transparency in the regulation of vehicles are key. If regulations are making the type of car you wish to buy too expensive or scarce—let alone subjecting it to an outright ban—it’s important that you know just who is imposing such a policy on you so that you can raise your concerns through appropriate channels and seek redress. Constraining consumer choice in an area so integral to uniquely American conceptions of freedom and the good life must be done only after open debate, and certainly should never be attempted through the mousehole-cover of a single state’s regulations.
The Clean Air Act (CAA) appears to solve this accountability problem by preempting state and local governments from regulating vehicle emissions. Simple: the federal government is the one regulating your car in this regard, so you know whom to contact if you’re unhappy about it, right? Well, not so fast.
Congress created a special mechanism known to all as the “California waiver,” under which California—and only California—can ask the Environmental Protection Agency (EPA) to lift the preemption so that California can adopt and enforce alternative standards. This is a unique provision, and its origins are equally bespoke. Congress created it in 1967 because it recognized that California had uniquely vexing airquality problems, caused by so-called “criteria” pollutants whose elevated local concentration impaired health and visibility. And, for decades, consistent with this original Congressional intent, California sought and received waivers for its regulations designed to address those pollutants and the localized pollution problems for which local pollution is a but-for cause.
But in recent years, California and EPA have increasingly abused the waiver provision. California, through the California Air Resources Board (CARB), has begun to regulate vehicle greenhouse gas (GHG) emissions. This despite the fact that CARB’s stated concern, impacts from climate change, is no more caused by California vehicles’ emissions than by emissions from vehicles in New York, New Zealand, or New Delhi. GHG concentrations in the upper atmosphere, collected and circulating in a uniform global manner, are the pollution to which those impacts are attributed. It therefore makes no sense for the waiver, given its narrow purpose, to be applied to this type of regulation—yet under recent Democratic Administrations, that is precisely what EPA has allowed. Textual considerations discussed below independently weigh against this approach.
The Blue EPA appears to have one overriding principle when it comes to the waiver: California gets what it wants, when it wants it—text, purpose, and efficacy be damned. Constitutional considerations aside, Congress could have said that in the CAA. But it didn’t. It wrote many words, virtually all of which EPA reads out of existence, abdicating its responsibility in favor of serving as a rubber stamp for California’s wishes.
There are other flaws with applying the waiver to GHG regulation. Another statute, the Energy Policy and Conservation Act, preempts (with no waiver opportunity) states from regulating anything even “related to” fuel economy or average fuel economy, and that’s all that vehicle carbon dioxide (CO2) regulation is in essence. And to allow California to be the only state to decide in the first instance whether it should address through motor vehicle regulations a global pollution problem would be to give it a prerogative so unique and unequal to the other states as to raise serious constitutional concerns.
Defenders of the “when California says ‘jump,’ EPA says ‘how high?” approach claim it’s really “federalism” in action, because another CAA provision allows other states to adopt California’s standards once EPA waives preemption for them. But this is false federalism—a follow-the-leader approach where other states are consigned to follow either California’s lead or the federal government’s. No other state may seek the waiver. No other state may design its own regulations. While Congress made that initial decision in light of California-specific problems, it is pernicious (and illegal) to allow this to extend to problems that are not unique to California. (And that’s assuming Congress even had authority to give California special sovereign powers in the first place.) This abuse of the waiver creates a classic example of the familiar “elephants in mouseholes” scenario in administrative law, which undermines true federalism by subjecting 49 states to a regulatory duopoly of Washington and Sacramento.
In the Notice on which this comment is submitted, EPA declined to note that CARB’s waiver request for the “Advanced Clean Cars II” (ACC II) program (the Request) is a request to allow California to ban all sales of new internal-combustion-engine-driven vehicles by 2035. That’s quite a tell. And while EPA delayed more than half a year before giving the public notice of the Request, other states have begun purporting to adopt ACC II in whole or in part, despite the fact that the CAA explicitly forbids them from doing so unless and until EPA grants a preemption waiver.
EPA, in conjunction with California, is therefore engaged in an egregious end-run around accountability in environmental regulation. Unless it denies California’s Request, the Agency will have acceded to a backdoor ban of traditional vehicles in the nation’s largest state, without ever having to do that dirty work itself. EPA must adhere to the statute and common sense by denying the Request.