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Larry Fafarman

--"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."--

In 1977, there was a trade-off between CO control and NOx control -- tightening CO control tended to increase NOx emissions and vice-versa (now that we have 3-way catalytic converters, this trade-off no longer exists). California wanted to prioritize NOx control because NOx is an ingredient in smog formation, so the California waiver provision was rewritten -- using the words "in the aggregate, at least as protective of public health and welfare as applicable Federal standards" -- in order to allow California to ease up on the federal CO standards in order to have NOx standards that were tighter than the federal NOx standards. But there is no trade-off involved in California greenhouse gas standards -- having tighter greenhouse gas standards does not require easing up on the federal standards for other pollutants. Also, the CO v. NOx issue involved trade-offs in direct effects on health -- greenhouse gas emissions have no direct effects on health (except in extreme concentrations). The "in the aggregate" provision was motivated by trade-offs and greenhouse gas emissions do not involve trade-offs.

The legislative history of the California waiver provision shows the following main original purposes of the waivers: (1) to save money and effort by using California as a relatively small "testing area" or "laboratory" for new emissions control technologies and equipment, and (2) California -- which then had a truly extraordinary air pollution problem -- would be the first to benefit from those new technologies and equipment (because of the high mobility of motor vehicles and air pollution, the protectiveness of the California standards is limited in the states under the California standards). As for the first purpose, this "testing area" has become too large -- over half the US population will soon be in states under the California standards. As for the second purpose, the states under the California standards are not necessarily more vulnerable to the effects of global warming than other states -- several states under the federal standards face the possibility of heavy coastal flooding as a result of polar ice-cap melting. Also, as Johnson pointed out, global warming is a global problem and the ability of the California-standards states to protect themselves by having extra-stringent greenhouse gas emissions standards is very limited.

Also, under the California greenhouse gas standards, many new-vehicle dealers in the California-standards states would be at a competitive disadvantage compared to new-vehicle dealers in the federal-standards states. No other California waiver request has ever required such large and expensive differences between California-certified and federally-certified vehicles.

It may seem that I am playing the devil's advocate here. I am as much concerned about global warming and energy conservation as anyone else -- it is just that I feel that things should be done legally.

Of course, I am very annoyed that the EPA has not released the advice that the EPA staff gave to Administrator Johnson.

Brian Schmidt

Am I remembering incorrectly, or has the EPA modified (but not rejected) CA waiver requests in the past? Hard to see how that fits the description of Ruckelshaus' determination, unless it was done to satisfy the "more protective in the aggregate" condition.

Tim Dowling

Brian -- As you note, there are other reasons to modify that have nothing to do with the "compelling and extraordinary conditions" requirement. One would need to analyze the particular modification to see if there's any tension with the Ruckelshaus reading. But I think Johnson's endorsement of that reading for every waiver except the greenhouse gas waiver establishes that EPA continues to follow it.

Tim Dowling

Larry -- The ability of other states to opt into the California program cuts against reading the CAA waiver provisions as limited to situtations in which California serves as a "small testing area."

On your second point, the fact that other states face compelling and extraordinary threats from global warming does not make California's threats less compelling and extraordinary.

Larry Fafarman

--"Larry -- The ability of other states to opt into the California program cuts against reading the CAA waiver provisions as limited to situtations in which California serves as a "small testing area.""--

IMO the "small testing area" idea was the real main original purpose of the California waiver provision -- the opt-in ("piggyback") provision allowing other states to adopt the California standards came much later. IMO the "extraordinary and compelling conditions" provision was mostly just window-dressing -- Congress knew that the protectiveness of the California standards would be very limited because of the high mobility of motor vehicles. The idea was that new technologies and equipment that proved themselves in California would be quickly adopted at the federal level.

Brian Schmidt

"IMO the "small testing area" idea was the real main original purpose of the California waiver provision -- the opt-in ("piggyback") provision allowing other states to adopt the California standards came much later."

Sounds like the original intent had been modified then, and you can't rely on that part of the leg history to determine the intent of the CAA as modified.

Larry Fafarman

Brian Schmidt said,
--"Sounds like the original intent had been modified then, and you can't rely on that part of the leg history to determine the intent of the CAA as modified."--

IMO the California waiver provision has long outlived its usefulness and should be repealed. Soon the states under the California standards will have over one-half of the US population, so we might as well just have one uniform set of national standards. To me the real issue is not the denial of the present California waiver request but is whether the federal greenhouse gas standards are stringent enough.

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