Reaction to the Department of Transportation's Earth Day proposal of fuel economy rules, claiming to preempt state auto emissions standards, has continued to be swift and categorical. Governor Arnold Schwarzenegger, joining with 11 other governors, has petitioned the White House to reconsider before the rules become final-- adding a clear legal threat at the end:
NHTSA has no authority to preempt states from regulating greenhouse gases. Congress and two federal district courts have rejected NHTSA's claim to such authority. Furthermore, this attack completely undermines the cooperative federalism principles embodied in the Clean Air Act, and is an end run around 40 years of precedent under that law.
Our states intend to comment on the proposed rulemaking and, if necessary, will sue NHTSA, just as California and other states have sued the U.S. Environmental Protection Agency, to ensure that states retain the right to reduce global climate change emissions...
The group also wrote to congressional leaders in both parties, asking them to lobby against rules that clearly "would directly usurp congressional authority and patently subvert the clear intent of Congress." The administration's tacit response to that implication, expressed by DOT spokesman Brian Turmail in the Sacramento Bee, would likely have seconded that argument. Mere months after the White House threatened to veto the energy bill unless its granted DOT supremacy and preempted the states-- only to back down and sign legislation that clearly maintained California's authority under existing law-- Turmail argues that the burden to act was really on Congress:
"It's our feeling that when Congress declined to include language allowing state-specific fuel economy standards in its current bill, that it indeed wanted to have national fuel economy standards," Turmail said. "From our point of view, these efforts by states would undermine and render moot a national fuel economy standard."
The references to "our feeling" and "our point of view" don't exactly display confidence in the legal certitude of this
revisionist history argument. Perhaps DOT will change its mind after all, and put off yet another easily-avoidable lawsuit.