July 30, 2018
California and like-minded states are girding for a legal battle with the Trump administration on whether those states have gone too far in controlling greenhouse gases, a prospective case that legal scholars say — barring a last-minute settlement — is sure to reach the U.S. Supreme Court according to a July 24, 2018 McClatchyDC report.
The Environmental Protection Agency and other federal agencies are expected to announce, as soon as this week, a rollback of national fuel economy standards for vehicles. They could also revoke California’s ability to set its own, tougher, air pollution limits.
If the Trump administration challenges California’s longstanding latitude to set its own emissions rules, it would be wading into untested legal waters, said Deborah Sivas, a law professor and expert on the Clean Air Act at Stanford University.
“It will be a giant case,” Sivas said, adding that multiple states will join California in suing the federal government.
“There’s no question it will be litigated at every turn, and no doubt it’s going to make it to the Supreme Court,” with a new mix of judges, possibly including President Donald Trump’s latest nominee, Brett Kavanaugh, she added.
The upcoming announcement stands to be the first major decision involving Andrew Wheeler who became the acting EPA chief this month following the resignation of Scott Pruitt. Citing unnamed sources on July 23, Bloomberg News reported that Wheeler and the While House will seek to revoke California’s regulatory authority over greenhouse gases while also rolling back Obama-era national rules on vehicle fuel efficiency.
If the Trump administration moves to revoke California’s authority on regulating vehicle greenhouse gases, the administration would likely deploy two legal arguments, say Sivas and Holmstead.
Under the 1970 Clean Air Act, California is allowed to set rules stronger than the federal government’s, to confront “compelling and extraordinary conditions,” among other provisions. California has long suffered from the nation’s worst air pollution, one reason it started restricting smog-forming emissions long before passage of the Clean Air Act.
In its legal analysis, Holmstead said, EPA could determine that California did not face “compelling extraordinary conditions,” compared to other states, in needing to reduce greenhouse gases, such as carbon dioxide. The state’s large population and geography contribute to serious smog problems, he said, but “when it comes to CO2 emissions, you know, California’s really in the same place as anyone else.”
The federal government could also argue that the 1975 statute that governs automobile efficiency — the Corporate Average Fuel Economy law — preempts California from setting its own fuel economy standards. Although California argues its rules are not fuel economy standards in word or practice, “they are very much related to fuel economy,” Holmstead said.
Sivas said the argument over federal preemption will likely be part of any future court case, but is weaker than the legal theory that California does not face “extraordinary circumstances” is setting its own greenhouse gas rules.
“It’s an open question whether that provision (in the Clean Air Act) was intended to only deal with local pollution involving extraordinary conditions,” said Sivas, who was an attorney for Earth Justice, an environmental law firm. “It has never been fully litigated.”
What this means to you
If the Trump administration challenges California’s longstanding latitude to set its own emissions rules, it would be wading into untested legal waters, says Deborah Sivas, a Stanford University law professor and Clean Air Act expert. “It will be a giant case,” Sivas says, adding that multiple states will join California in suing the federal government.
MIRATECH can help
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