Progressive States Petition Court to Declare Trump Pre-emption Rule Unlawful

by Marlo Lewis, Jr., CEI, September 20, 2019

A California-led coalition of 24 states and three cities today petitioned the D.C. Circuit Court of Appeals to declare unlawful the Trump administration’s One National Program Rule, which terminates California’s motor vehicle greenhouse gas emission standards and zero emission vehicle program.

Plaintiffs challenging the One National Program Rule are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, the District of Columbia, Los Angeles, and New York.

The One National Program Rule argues that California’s greenhouse gas standards and zero emission vehicle program are pre-empted under the Energy Policy and Conservation Act (EPCA), which specifically prohibits states from adopting or enforcing laws or regulations “related to” fuel economy standards. Although Obama administration officials would later deny it under oath when testifying before Congress, the Obama-era Environmental Protection Agency and National Highway Traffic Safety Administration plainly acknowledged in their first joint rulemaking in 2010 that the relationship between motor vehicle greenhouse gas standards and fuel economy standards is “very direct and close” (75 FR 25237).

As the agencies explained, almost 95 percent of motor vehicle greenhouse gas emissions is carbon dioxide from motor fuel combustion, and there are no commercial technologies to capture or filter carbon dioxide emissions from automobile engines or tailpipes (75 FR 25424). The only feasible way to substantially reduce motor vehicle greenhouse gas emissions per mile is to decrease fuel consumption per mile. Thus, regulating motor vehicle greenhouse gas emissions chiefly and inescapably regulates fuel economy.

The California-led plaintiffs make no real attempt to disprove the close relationship between motor vehicle greenhouse gas and fuel economy standards. Rather, they argue, citing 2007 federal appeals court cases in Vermont and California, that once the EPA grants California a waiver, under Section 209(b) of Clean Air Act, to implement its own motor vehicle emission standards, those standards become federal standards and, thus, are no longer subject to the EPCA preemption provision, which applies solely to state standards. The EPA granted California’s request for a waiver in July 2009. Hence, plaintiffs claim, EPCA does not preempt it.

Although somewhat clever, that argument does not withstand scrutiny. As the Supreme Court has stated, preemption standards apply “ab initio”—from the beginning. The EPA may lawfully grant a Clean Air Act waiver only for California emission standards that are legally valid. Because greenhouse gas standards are “related to” fuel economy standards, California’s motor vehicle greenhouse gas standards were already null and void before the EPA even decided to review them.

Plaintiffs claim that in its deliberations over the 2007 Energy Independence and Security Act, which amended EPCA, Congress “enacted a savings clause that expressly preserved existing state authority to regulate greenhouse gas emissions. 42 U.S.C. Section 7545(o)(12).” That’s bizarre. The provision clarifies that the Renewable Fuel Standard program’s classification of biofuels according to their relative greenhouse gas intensities does not “affect the regulatory status of carbon dioxide or any other greenhouse gas, or … expand or limit regulatory authority regarding carbon dioxide or any other greenhouse gas” under the Clean Air Act. The provision is only two sentences long. It says nothing about states or state regulatory authorities.

Plaintiffs also argue that ECPA does not “authorize NHTSA to issue a regulation declaring that state laws are preempted by EPCA.” That is even weirder. EPCA authorizes NHTSA to issue regulations under EPCA, and EPCA includes a pre-emption provision. Accordingly, NHTSA has statutory authority to reasonably interpret EPCA and issue a regulation setting forth its interpretation.

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Hawaii Attorney General Joins Lawsuit Challenging Preemption of California’s Authority to Maintain Longstanding Clean Car Standards

News Release from Office of Attorney General, Sept 20, 2019

HONOLULU – Hawaii Attorney General Clare E. Connors today joined a coalition of 24 attorneys general, the cities of Los Angeles and New York, and the California Air Resources Board, in filing a lawsuit against the National Highway Traffic Safety Administration (NHTSA). The lawsuit, led by California Attorney General Xavier Becerra, challenges the Trump Administration’s regulation designed to preempt California’s greenhouse gas emissions and Zero-Emission Vehicle (ZEV) standards, also known as California’s Advanced Clean Car Standards. These standards— authorized in 2013 by a waiver from the Environmental Protection Agency (EPA) and followed in part or whole by 13 other states and the District of Columbia — are a key part of state efforts to protect public health and the environment. In the lawsuit, the coalition asserts that this Preemption Rule is unlawful and should be vacated.

“The NHTSA does not have the authority to preempt California’s standards related to vehicle emissions and pollutants,” said Attorney General Connors. “This attack on California’s efforts hurts every state that is trying to protect its communities from pollution and environmental harm.”

Under the federal Clean Air Act, California may apply for a waiver from EPA to set its own vehicle emissions standards that are at least as protective as the federal government’s standards, and EPA must approve the waiver, unless it makes certain findings. Over the past 50 years, the EPA has granted 100 waivers to California. Thanks to California’s vehicle emissions program, the state and other who have adopted the standards have reduced emissions by hundreds of thousands of tons annually, encouraged the development of emission controls technologies, and paved the way for stronger federal standards.

In January 2012, California adopted its comprehensive Advanced Clean Cars Program for cars and light duty trucks in model years 2017 through 2025. The program combines the control of smog-causing pollutants and greenhouse gas emissions into a single coordinated package. The program improves air quality and curbs greenhouse gases while saving drivers money at the pump. On its own, the California program would reduce carbon dioxide emissions in the state by approximately 14.4 million metric tons a year by 2025 and 25.2 million metric tons a year by 2030. When accounting for emissions savings from other states that have adopted California’s standards, these emission reductions nearly triple.

Through its unlawful Preemption Regulation, NHTSA is attempting to declare the California greenhouse gas and ZEV standards preempted under the Energy Policy and Conservation Act (EPCA), based on arguments repeatedly rejected by multiple courts. In doing so, NHTSA oversteps the authority granted to it by Congress and ignores Congress’s careful and repeated preservation of California’s authority.

In the lawsuit, Hawaii asks the court to strike down the regulation as unlawful on the basis that NHTSA: 

• Purports to exercise authority that Congress has not granted the agency: namely, to decree what EPCA does or does not preempt; 
• Imagines an inherent conflict between two sets of rules, California’s GHG and ZEV standards and NHTSA’s fuel economy standards, that have co-existed for years; 
• Willfully misreads EPCA as preempting state emission standards it explicitly directed NHTSA to account for, and as implicitly repealing portions of the Clean Air Act; 
• Ignores the authority and intent of Congress, which has repeatedly reaffirmed and embraced California’s authority over the last four decades;
• Flouts the National Environmental Policy Act by failing to assess or analyze the damage that the agency’s Preemption Rule will inflict on the environment and public health; 
• Acts arbitrarily and capriciously by failing to explain about-faces from its previous positions or its reasons for acting; 
• Fails to respect states’ authority to protect public health and welfare; and 
• Disregards the role these standards play in helping California and other states meet National Ambient Air Quality Standards

Attorney General Connors joins this coalition led by California Attorney General Becerra and includes the attorneys general of Colorado, Connecticut, Delaware, Illinois, Maine, Massachusetts, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia; as well as the cities of Los Angeles and New York.