Posted by Tim Dowling
In his Feb. 29 “Notice of Decision" for his denial of California’s request for a preemption waiver, EPA Administrator Johnson determined that California is not faced with “compelling and extraordinary conditions” as that phrase is used in the Clean Air Act’s waiver provision, section 209(b). Among other things, Johnson found that the harm caused and threatened by climate change in California is not compelling and extraordinary compared to the effects in the rest of the country. This determination has been getting considerable press attention and well-deserved criticism.
Less attention has been given to the interpretation of section 209(b) that underlies Johnson’s waiver denial. This interpretation concerns whether the “compelling and extraordinary” determination should be made with respect to California’s motor vehicle program as a whole, or instead only with respect to its proposed standards for greenhouse pollution. Although this interpretive issue might strike some people as a snoozer, Johnson’s resolution of it is absolutely extraordinary, and perhaps unprecedented in the history of American jurisprudence.
(More after the jump)
Here's the background. Section 209(b)(1)(B) provides that EPA cannot grant a preemption waiver if California “does not need such State standards to meet compelling and extraordinary conditions.” For more than 20 years, EPA has read this provision as requiring an inquiry into whether California needs its motor vehicle pollution program as a whole to meet compelling and extraordinary conditions, not whether any given standard for a particular pollutant is necessary to meet such conditions. EPA Administrator William Ruckelshaus adopted this reading in 1984 to support his granting of a waiver for California’s tailpipe standards for soot (49 Fed. Reg. 18887 (May 3, 1984)). In that proceeding, carmakers argued that the waiver request should be denied because soot standards were not necessary to meet compelling conditions, but Ruckelshaus emphatically rejected this contention for several reasons.
Ruckelshaus first observed that the statutory text reflects a compromise between industry’s desire for uniformity and Congress’s desire to retain California’s groundbreaking auto emissions program, which predated the federal program. As Ruckelshaus explained, the issue of “need” under section 209 goes to the question of whether to have one set of standards (just federal), or two sets (federal and California). Once EPA determined early on that California needed its separate program to address compelling and extraordinary conditions, the inquiry was complete and decided in favor of two programs. Ruckelshaus concluded there is no need to revisit that determination with each new standard added to the California program to address additional pollutants. On this reading, EPA would need to revisit this factor only in the unlikely event that California no longer needs a separate emissions program at all, and no one (not even John Dingell) takes that position now.
Ruckelshaus also concluded that this reading is borne out by what he called the “plain meaning” of the Act. In particular, he noted that the phrase “does not need such State standards” in section 209(b)(1)(B) refers back to the phrase “State standards . . . in the aggregate” that appears in the first sentence of 209(b)(1). Ruckelshaus concluded that in amending section 209 in 1977 to provide that California’s standards “in the aggregate” must be as protective as the federal standards, the Congress expressly allowed for California to adopt a mix of standards that might include some that are less stringent than the federal standards. And he correctly determined that applying the “compelling and extraordinary conditions” requirement to each individual pollutant would conflict with this congressional intent. Ruckelshaus further noted that the use of the plural “standards” confirms his reading that the determination should not be made for each pollutant, but rather for the program as a whole.
Moreover, Ruckelshaus observed that the Act’s legislative history suggests that the “compelling and extraordinary conditions” contemplated by the Congress include general circumstances such as California’s topography, thermal inversions, and the high number of cars that exacerbate its air pollution problems generally, factors that support allowing California to proceed with its separate auto emissions program as a whole, without regard to the level of any particular pollutant. Thus, it made no difference to Ruckelshaus whether California’s soot problem was as serious as its smog problem, or whether its soot problem threatened compelling and extraordinary harm by itself, because California’s program as a whole is justified by compelling and extraordinary conditions. Again, once that determination is made, it it unnecessary to revisit it with respect to new waiver requests.
As a result of his reading of the Act, Ruckelshaus concluded that because the "manufacturers have not demonstrated that California no longer has a compelling and extraordinary need for its own program, which now includes these amended particulate standards, I cannot deny the waiver on this basis.”
This 20+-year interpretation left Johnson with two, and only two, mutually exclusive choices: either (1) adhere to this longstanding reading and grant the waiver request for the greenhouse pollution standards (because everyone agrees that compelling and extraordinary conditions still justify continuation of California’s overall program), or (2) discard this longstanding reading and adopt a new reading that allows for denial of the waiver.
Incredibly, Johnson opted for both. He first reaffirmed that the Ruckelshaus reading is absolutely correct. Johnson stressed that for air pollution problems that are local or regional in nature, EPA "is not suggesting the need to change such interpretation.” But then, quite amazingly, he adopted an alternative reading for purposes of greenhouse pollution, requiring consideration of whether “compelling and extraordinary conditions” exist with respect to this class of pollutants, precisely the reading Ruckelshaus rejected in 1984.
Let me be clear. Johnson is not applying the same interpretation of statutory language to two different sets of facts to reach disparate outcomes, something that happens every day in administrative law. Rather, he is adopting and simultaneously holding two different readings of precisely the same statutory provision, and applying these two different meanings as he sees fit to reach the desired policy result.
To be sure, Johnson offers policy reasons for his new interpretation, including the fact that climate change is global, not regional or local, and is not affected by things like California’s topography or climate. He even offers arguments based on statutory text and legislative history for why he views section 209 as ambiguous and why his alternate reading is a permissible one. That is all well and good.
What is not well and good is his simultaneous embrace of two diametrically opposed readings of the very same statutory text, and asserting that he will apply both readings in the future, depending on the factual context. Factual context can affect the application of a statutory text, but it can’t affect the fundamental meaning of that text.
You’re not allowed to do this legally, and it's no wonder his legal staff urged him to grant the waiver. Johnson argues that his alternative pollutant-by-pollutant approach is a plausible and permissible reading of the Act and as such, must be upheld by any reviewing court. Let’s assume for the sake of argument that this alternative reading is in fact plausible (though Ruckelshaus seems to have disagreed). It is certainly true that under the doctrine of Chevron deference, when Congress delegates interpretive authority to an agency, courts will uphold a reasonable agency reading even if there is a competing reasonable reading. But Chevron requires the agency to choose among competing reasonable readings. The agency is not allowed to adopt and embrace two competing readings of the same statutory text and apply them interchangeably depending on which one best reaches the desired result.
To my knowledge, never in the history of the universe has an agency head adopted and simultaneously embraced two diametrically opposed readings of the same statutory text. If readers know of another example, please let me know in the comments (Mr. Johnson, that means you too).