Yesterday, the National Highway Transportation Safety Administration (NHTSA) released its 417-page "Notice of Proposed Rulemaking" for implementing the new CAFE standards that Congress enacted late last year. The document was initially greeted with cautious praise, as it proposes a sharper increase than expected in the short term, between 2011 and 2015 (keep in mind that this is a not a final regulation). But California Attorney General Jerry Brown notes-- as we predicted would happen last week-- that the document errantly tries to bolster the administration's stance against California's still-more-aggressive tailpipe emissions law, and ignores language in Mass. v. EPA that rejected NHTSA's purported supremacy over the states:
Today’s vehicle standard, an increase to 31.6 miles per gallon by 2015, falls short of state efforts which curb greenhouse gas emissions directly and are estimated to be equivalent to 36 miles per gallon by 2016.
The Energy Independence and Security Act (EISA) required the Bush Administration to increase gas mileage standards. But today’s regulations, buried on page 378, there is an attempt--in violation of law--to ignore the Supreme Court’s ruling in Massachusetts v. EPA and two district court opinions which affirm that gas mileage standards are separate from state greenhouse gas regulations.
Today’s regulations purport to preempt "any state regulation regulating tailpipe carbon dioxide emissions from automobiles...” This violates legal precedent which clearly established that pollution emissions from cars, including greenhouse gases, are regulated by the U.S. Environmental Protection Agency and the State of California, not NHTSA.
NRDC's Roland Hwang similarly tells the San Francisco Chronicle that this language is an attempt to bolster the industry's case, while industry spinsters deny any coordination with the Bush administration. The Chronicle also sheds some more light on NHTSA's rationale, and its potential plans to go further in specifying its agreement with the industry's legal position:
In its new document, the Transportation Department said, "We respectfully disagree with the two district court rulings" and noted that an appeal has been filed by automakers.
Agency officials wrote that the new fuel economy standards had increased the conflict between state regulations and federal law. They added: "A conflict between state and federal law arises when compliance with both federal and state regulations is a physical impossibility or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."
The agency said it is considering adding language to its final rule stating that "any state regulation regulating tailpipe carbon dioxide emissions from automobiles is expressly preempted" under federal law.
Emphasis especially added to NHTSA's deliberately broad language about the "full purposes and objectives of Congress," as California lawmakers ensured that December's law would remain neutral on the state's efforts. House Speaker Nancy Pelosi indicates that much in a statement that explicitly mentions "Congress' decision to reject the Administration's position" on preemption.