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Up in the Air: Examining the EPA’s Proposal to Revoke California’s Clean Air Act Preemption Waiver

Up in the Air: Examining the EPA’s Proposal to Revoke California’s Clean Air Act Preemption Waiver

Eric Brandies

            The United Nation’s Intergovernmental Panel on Climate Change (IPCC) warns that inundated coastlines, severe food shortages, increased poverty, intensified wildfires and droughts, and mass die-offs of coral reefs loom in the near future.[1]In early October, the IPCC issued a special report examining the “impacts of global warming of 1.5℃ above pre-industrial levels.”[2]The report found that the planet will begin experiencing the detrimental effects of climate change decades sooner than previously expected.[3]It asserts that governments around the world must make drastic changes to address greenhouse gas (GHG) emissions to avoid such severe impacts.[4]In the United States—the world’s second largest emitter of GHG emissions—transportation now constitutes the single largest source of GHG emissions.[5]These findings show that the transportation sector constitutes an ideal candidate for more stringent emission standards.

            However, the Trump administration has consistently weakened the United States’ emissions standards,[6]despite the overwhelming data showing the impacts of human-caused GHG emissions on global warming.[7]On August 24th, 2018, the Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) proposed The Safer Affordable Fuel-Efficient Vehicles Rule (SAFE).[8]Through SAFE, these agencies intend to rollback many of the recent strides America has made towards reducing its GHG emissions.[9]Under this rule, emissions and fuel economy standards imposed on passenger cars and light trucks would freeze at the 2020 standards for vehicles manufactured through model year 2026.[10]This stands in sharp contrast to the auto emissions standards the Obama administration enacted.[11]The previous rules imposed progressively more stringent emission standards on an annual basis through model year 2025.[12]This rollback spurred seventeen states, representing forty-four percent of the country’s population, to sue the EPA.[13]

            As a part of this rule, the EPA and NHTSA intend to withdraw California’s current Clean Air Act (CAA) preemption waiver and essentially abrogate state regulation of vehicle emissions altogether.[14]The CAA contains an express preemption clause in § 209(a) stating that “[n]o State . . . shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles.”[15]However, § 209(b) provides a sole exemption for California.[16]In addition, § 177 allows other states to adopt identical standards as those California enacts through a § 209(b) preemption waiver.[17]The EPA and NHTSA intend to revoke California’s current §209(b) waiver and prohibit future state emissions standards enacted under these CAA provisions.[18]The agencies argue that the express preemption clause of the Energy Policy Conservation Act (EPCA) precludes any state regulation relating to the fuel economy standards of passenger vehicles.[19]In addition, they assert that the CAA calls for rescinding California’s current waiver for GHG emissions and ZEV mandate.[20]

            This Note will examine the arguments SAFE proffers for rescinding the current preemption waiver and abrogating the state regulation of vehicle emissions. Part I of the Note will analyze the validity of the proposed preemption of state emissions regulations in a general, constitutional context. Part II of the Note will address the agencies’ arguments for preemption under the EPCA. Finally, Part III will examine SAFE’s contention that the current § 209(b) waiver does not meet the requirements imposed by the Clean Air Act. This Note concludes that the agencies should not promulgate this portion of SAFE because the arguments in support of preemption do not withstand scrutiny. If the agencies continue with this section, states should seek, and courts should grant, injunctions against this section of SAFE.

[1]Coral Davenport, Major Climate Report Describes a Strong Risk of Crisis as Early as 2040, N.Y. Times (Oct. 7, 2018), https://www.nytimes.com/2018/10/07/climate/ipcc-climate-report-2040.html.

[2]Press Release, Secretary-General, Do What Science Demands “Before It’s Too Late,” Secretary-General Stresses in Statement on Special Global Warming Report, U.N. Press Release SG/SM/19282-ENV/DEV/1893 (Oct. 8, 2018).

[3]Id.

[4]Id.

[5]Sources of Greenhouse Gas Emissions, EPA, https://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions (last visited Oct. 22, 2018).

[6]Nicholas Kusnetz, 17 States Sue EPA Over Auto Emissions Standards Rollback, Inside Climate News (May 1, 2018), https://insideclimatenews.org/news/01052018/states-lawsuit-epa-vehicle-emissions-standards-fuel-efficiency-rollback-pruitt-climate-change.

[7]Scientific Consensus: Earth’s Climate Is Warming, NASA, https://climate.nasa.gov/scientific-consensus/ (last visited Oct. 22, 2018).

[8]The Safer Affordable Fuel-Efficient Vehicles Rule for Model Years 2021–2026 Passenger Cars and Light Trucks, 83 Fed. Reg. 165 (proposed Aug. 24, 2018).

[9]Timothy Cama & Miranda Green, Trump Moves to Rollback Obama Emission Standards, The Hill (Aug. 2, 2018), https://thehill.com/policy/energy-environment/400036-trump-submits-rule-to-weaken-iconic-obama-car-efficiency-standards.

[10]Id.

[11]Id.

[12]The Safer Affordable Fuel-Efficient Vehicles Rule for Model Years 2021–2026 Passenger Cars and Light Trucks, 83 Fed. Reg. 42,986, 42,987 (proposed Aug. 24, 2018).

[13]Kusnetz, supra note 5.

[14]The Safer Affordable Fuel-Efficient Vehicles Rule for Model Years 2021–2026 Passenger Cars and Light Trucks, 83 Fed. Reg. at 43,232.

[15]42 U.S.C. § 7543(a) (2012).

[16]42 U.S.C. § 7543(b) (2012).

[17]42 U.S.C. § 7507 (2012).

[18]The Safer Affordable Fuel-Efficient Vehicles Rule for Model Years 2021–2026 Passenger Cars and Light Trucks, 83 Fed. Reg. at 43,232.

[19]Id.

[20]Id.

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