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EPA Tells California And 14 Other States “No” On Request To Regulate Greenhouse Gases From Automobiles

On December 19, 2007, EPA denied California’s 2005 request to impose greenhouse gas emission controls on new motor vehicles. California filed the waiver request based on claimed injuries to the state’s coastlines, snow pack and air quality caused by global climate change.

EPA based its denial on those same global changes, finding that California’s alleged injuries were not exclusive or unique to California. On January 8, 2008 California filed an appeal of EPA Administrator Johnson’s decision to the Ninth Circuit, claiming that EPA’s decision did not make a finding of “nationwide scope or effect” as required by Section 307(b)(1) of the Clean Air Act.  

Under Section 209(b) of the Clean Air Act, California is allowed to impose emission control requirements on motor vehicles which are different than federal emission control requirements. Historically, California imposed emission controls on cars several years before the federal government enacted emissions regulations. When Congress wrote the mobile source provisions of the Clean Air Act, it allowed California to retain this regulatory right, provided EPA expressly agrees to waive preemption for each proposed California regulation. On July 22, 2002, California passed just such a law (AB 1493), requiring the reduction of greenhouse gas emissions from motor vehicles.   

Under the California law and effectuating regulations passed in 2004 by the California Air Resources Board, greenhouse gases are defined as carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. For purposes of the motor vehicle air emissions rules, only the first four contaminants are subject to control. The California emission controls apply to motor vehicles manufactured in the 2009 model year and thereafter, or to vehicles manufactured two model years after EPA grants the waiver, whichever comes first. Fleet average vehicle emissions must be reduced by 30% from 2002 baseline levels by 2016, or within seven years after the first affected model year, again whichever comes first.    

Based on this state regulatory system, California petitioned EPA for a preemption waiver on December 21, 2005. Administrator Johnson’s December 19, 2007 rejection of California’s waiver request came in a letter to California Governor Arnold Schwarzenegger, which said, “I have decided that EPA will be denying the waiver and have instructed my staff to draft appropriate documents setting forth the rationale for this denial in further detail ….”  As of February 23, 2008, EPA has not issued such a rationale.   

Accordingly, the finality of EPA’s decision and its ripeness for appeal are questionable. Further, Congressional Democrats are pushing EPA for background documents showing how and why EPA rejected California’s waiver request. It is certain that California’s waiver request, and the motor vehicle greenhouse gas emission controls it proposes, will be active sources of legislative, executive and judicial activity for the foreseeable future. 

For more information, contact Jim Price or Baerbel Schiller in Spencer Fane’s Kansas City, Missouri office:  jprice@spencerfane.com or bschiller@spencerfane.com.