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D. Paulus-Jagric

Despite Mass v. EPA's conclusion that GHGs are air pollutants that the EPA could regulate under the CAA, the fact remains that EPA has not chosen to do so. I question Tim Dowling's use of the word "requisite" as I don't see how federal non-action preempts any state action. As Ms. Witherspoon appears to acknowledge in a footnote to her 12/21/2005 request for a waiver, I see no reason why any "new waiver is required for California to adopt or enforce the subject regulations." Perhaps someone could explain.

Tim Dowling

Thanks for your comment. You raise an interesting point. California's 2005 waiver request (footnote 1) certainly does reserve the right to argue in the future that no waiver is required, but that argument appears to be predicated on the assumption that greenhouse gases are not "air pollutants" under the Clean Air Act. After the waiver request was submitted, however, the U.S. Supreme Court ruled that greenhouse gases are air pollutants under the Act, in Mass. v. EPA. This ruling is important to the issue of whether a waiver is required because section 209 of the Act generally preempts State emission standards for motor vehicle air pollutants, but provides an exception for California, subject to EPA's waiver, and then allows other States to adopt the California standards. Although section 209 does not use the term "air pollutant," it applies to "emission standards," a term defined in section 302(k) as limits on air pollutants.

Everyone now appears to be proceeding on the assumption that a waiver is required before California and the other states may implement the California standards, but if there still are arguments to the contrary, notwithstanding Mass. v. EPA, I'd be interested in hearing them.

California's 2005 waiver request is available at: http://www.arb.ca.gov/cc/docs/waiver.pdf

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