The energy bill saga is nearing it's conclusion, but the battle over greenhouse gas emissions and preemption is just heating up, as the headline in this morning's Christian Science Monitor aptly sums up. And if the last couple of days are any indicator, things will remain at quite a high pitch for some time to come.
Now that the Senate has finally passed a weakened energy bill, with the House's agreement to raise fleet-wide CAFE standards to 35 MPG by 2020 preserved, President Bush has signaled he'll sign the bill even though it lacks language limiting the authority of the EPA and states like California over auto emissions. Basically, the White House backed down-- for now- and Senator Carl Levin (D-MI) failed at last-ditch legislative efforts to do the auto industry's bidding.
Levin did get something, however-- a "colloquoy" in the congressional record in which Levin, bill co-author Sen. Dianne Feinstein (D-CA), and Senate Commerce Committee Chairman Daniel Inouye (D-HI) state their agreement that the bill's standards won't be "undercut" by any future EPA auto emissions standards. Press reports indicate that Levin threatened to vote against moving the bill forward if he didn't at least get this concession, which industry lawyers could (desperately, in our opinion) attempt to use in future legal and regulatory proceedings.
The legal effect of the colloquy, even on its own, is ultimately minimal. And even as Levin tried to assert NHTSA's supremacy (and thus contradict both the Supreme Court and Wednesday's ruling in California), he did pay lip service to Mass v. EPA. Still, it was puzzling that Senator Feinstein, after vigorously defending her state's authority, would agree to something that even slightly muddies the legal waters and provides California's lawyers with an extra headache.
Her office certainly heard similar complaints, and as Clean Air Watch reports, Feinstein and Inouye later inserted an additional colloquy into the record. Their agreement clarifies that the bill maintains co-equal status between EPA and NHTSA, fully preserves EPA's authority to protect human health and the environment, and in no way preempts California.