We still haven't seen a EPA's actual waiver decision, but EPA now has posted this news release on its website. It suggests that the basis for EPA's refusal to grant the waiver is the Clean Air Act's test that EPA must find that the state rules address "compelling and extraordinary circumstances." This seems odd, right? How can you say that the global warming crisis is not compelling and extraordinary? Well it appears, EPA doesn't view that as the question at all. Here's the key paragraph of EPA's release:
California’s current waiver request is distinct from all prior requests. Previous waiver petitions covered pollutants that predominantly impacted local and regional air quality. Greenhouse gases are fundamentally global in nature, which is unlike the other air pollutants covered by prior California waiver requests. These gases contribute to the challenge of global climate change affecting every state in the union. Therefore, according to the criteria in section 209 of the Clean Air Act, EPA did not find that separate California standards are needed to “meet compelling and extraordinary conditions.
EPA appears to be attempting to add a new test to the Clean Air Act. They seem to be requiring, for the first time, that California show that a compelling and extraordinary pollution problem is also a localized one. But that was not the rationale for the waiver provision. California has a history of leading the nation in addressing air pollution problems. The waiver provisions allows California to continue to lead the nation (and other likeminded states to follow) and a second more protective standard up from a minimum federal floor.
EPA appears to be trying a sleight of hand similar to the one they tried in denying the Massachusetts petition seeking regulation of greenhouse gases under Section 202 of the Clean Air Act. There, like here, EPA tried to answer the question it wanted to answer, not the question the Act posed. In that case, the Supreme Court smacked them down in Mass. v. EPA. Hopefully, EPA's decision here will meet a similar fate.