July 12, 2018
Scott Pruitt may have left the U.S. Environmental Protection Agency through a revolving door of ethics scandals, but the Trump administration shows no sign of slowing down its agenda to gut environmental protections with acting EPA chief Andrew Wheeler at the helm of the agency.
Amongst other protective measures, the future of the nation’s clean car protections is still on the table.
Several months ago the Trump administration forewarned that it will roll back clean car standards and, strikingly, try to stop states from leading efforts to clean up our air through vehicle emissions protections. That’s important because while the federal government sets standards on how much air pollution cars and trucks can emit under the 1970 Clean Air Act, a provision of the law allows states to set more protective standards.
The Trump administration would rather force everyone to breathe the same higher levels of pollution. Who benefits? The oil industry. Who’s harmed? More than a hundred million Americans who live in states that set higher expectations for their air.
Fortunately, the law in this case is long established and sits squarely behind the people, not the polluters.
The Clean Air Act of 1970 expressly gives California the authority to set emission standards for cars and trucks. The provision has been in place for nearly half a century.
Congress wrote these provisions into the law because California was already way ahead of the federal government in tackling smog. In fact, the California Air Resources Board predates the U.S. EPA. California passed the country’s first tailpipe regulations a decade earlier in 1960 in response to its notorious smog problems that at times cut visibility down to three city blocks in Los Angeles, soured the air with the smell of bleach, and stung people’s eyes. The leaders of the post-War era brought us out of this brown-and-orange haze with sensible rules of the road for automakers, with California setting the pace.
To require manufacturers to go beyond federal standards, California need only meet three conditions:
- The state must show necessity for stricter standards.
- It must show that the state standards are at least as stringent as the federal ones.
- The state must show that the regulations are otherwise consistent with federal standards.
If these basic conditions are met, EPA must “waive” federal preemption and allow the California standards. The current waiver for California’s low emission vehicle standards met the three conditions when it was approved in 2009. Other states can then opt into to California’s more protective standards.
Twelve other states, and the District of Columbia, adopted California’s greenhouse gas standards under Section 177 of the Clean Air Act (Colorado, Connecticut, Delaware, Massachusetts, Maine, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington), and another nine have adopted its zero emissions vehicle standards that set goals for the percentage of electric cars sold in a state.
In the 2000s, the Bush administration tried to deny a waiver application on the grounds that it wasn’t necessary, but the administration ultimately failed in that fight.
In this case, Wheeler would be trying to revoke an already-approved waiver. No administration has tried to outright revoke a state waiver.
Press reports indicate that the EPA might attempt to build a legal argument that Congress silently took away California’s authority through other laws. This is not a winning argument.
In many legal disputes, courts will defer to agency legal interpretations where the law is unclear. But in the case of preempting state authority to protect the health and welfare of its residents, agencies do not get that deference. Add to that Congress’s explicit protection of California’s authority, and the lawyers at EPA are holding a losing hand.
The health of 113 million Americans could be negatively impacted if the administration succeeds in revoking the Clean Air Act waiver to those states opting for stricter standards. Vehicles are the main source of dangerous forms of air pollution, including ozone —a key factor in asthma and bronchitis — and particulate matter, which is blamed for up to 30,000 premature deaths each year. They are also the main source of localized pollution problems such as nitrogen dioxide, which primarily affects those communities, often low-income or communities of color, that border major roads and freeways.
When the Trump administration talks of throwing the waiver rules into reverse, they are threatening the engine of progress on healthier air across the country. If the administration succeeds in undermining the waiver, the ability of states to protect their residents and the air they breathe would be overruled.
Additionally, the transportation sector is now the No. 1 source of greenhouse-gas emissions in the United States. State governments that recognize climate pollution as an existential threat would be prevented from using a key tool to act faster to save the planet.
The EPA formally began the process to rewrite the nation's clean car standards in May, and rumors persist that in doing so the EPA will attempt to go after states' authority to set more protective standards. The new vehicle emissions rule has not been released to the public. It remains to be seen whether the Trump administration will decide to ultimately attempt to take away states' authority to protect their air quality.
However, if the administration persists, expect to see strong pushback from environmental organizations including Earthjustice, California’s attorney general and Air Resources Board, and the 13 states that have adopted the stricter standards. In the face of the administration’s threats, Colorado’s governor has already announced the state will refuse to use Trump’s weaker vehicle emissions standards, and instead opt in to California’s vehicle emissions standards.
Earthjustice has filed more than 100 lawsuits to protect clean air, clean water, public land and endangered wildlife from the Trump administration's anti-environmental actions. Many of these lawsuits are challenging reckless decisions at the EPA. We have won most of the cases that have been decided so far.
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