An Extraordinary Reading of "Compelling and Extraordinary"

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). 

Comments

[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.