Posted by Tim Dowling
Well, that didn't last long. Within hours of the signing ceremony for the new energy bill, EPA Administrator Stephen Johnson denied California's request for a preemption waiver under CAA 209 for California's rules limiting greenhouse gas emissions for new cars and trucks. In denying the waiver, Johnson reiterated the bogus rhetoric of the auto industry, asserting that a waiver grant would result in a "confusing patchwork" of state regulations. But as we've explained many times, there would be no "confusing patchwork" at all, but instead just two programs, the federal program and the California program, which is exactly how the Clean Air Act has worked for decades. The act allows other states to adopt the California program (and a total of 18 states have adopted or pledged to implement the program), but those other state programs must be identical to California's. Johnson failed to explain how EPA has been able to grant (in whole or in part) EVERY other 209 waiver request in history without creating a confusing patchwork, but can't do so here.
But Johnson has bigger concerns than that.
The Washington Post reports that in a recent briefing, EPA legal staff advised Johnson that the waiver denial will be challenged in court, and California will likely prevail because the waiver denial is legally indefensible and contraveves the plain requirements of the Act. In the words of EPA's powerpoint slide, "EPA likely to lose suit." Let the litigation begin.