Overruling EPA by Amending the Clean Air Act

As we reported yesterday, Senator Barbara Boxer (D-CA) has introduced legislation aimed at allowing California (and other states) to begin enforcing its landmark vehicle GHG emissions law. The bill, which has 17 original, bipartisan cosponsors (all from states that are cited as having enacted the CA standard or moving toward doing so), has been dubbed the "Reducing Global Warming Pollution from Vehicles Act of 2008." It essentially reverses EPA's decision to deny the waiver by amending Section 209 of the Clean Air Act to add the following subsection:

"(f) WAIVER.---Notwithstanding subsection (b) or any other provision of law, the application for a waiver of preemption dated December 21, 2005, submitted ot the Administrator pursuant to subsection (b) by the State of California for the regulation of that State to control greenhouse gas emissions from motor vehicles shall be considered to be approved."

All in all, this is a fairly modest piece of legislation, citing numerous findings (including the ongoing necessity of California's role as a "laboratory of emissions-control innnovations" and the rejection of relying on national fuel economy standards alone in Massachusetts v. EPA) to lead up to its conclusion that "it is the sense of Congress that the denial...is not supported by science, precedent, or applicable law."

Also, the resulting legislative solution is in itself fairly soft-spoken compared to what it could have (justifiably) said, putting aside the ongoing dispute over the application of subsection (b), which lays out the process and criteria for a waiver application. Instead, Congress would simply declare that notwithstanding various interpretations that may exist-- however patently ridiculous they may be-- this particular waiver application is well-founded and "shall be considered to be approved." The aforementioned language concerning the reversal also seems designed to make it clear that the waiver approval would still emanate from EPA as per the Clean Air Act's delegation of authority; and that Congress is not generally the vehicle for these determinations, this particular extraordinary circumstance aside. 

Boxer's legislation has formally been referred to the Environment and Public Works Committee, which she chairs, and which includes six of her original cosponsors as members (it would need ten votes overall to reach the Senate floor).

Comments

[Larry Fafarman]

--All in all, this is a fairly modest piece of legislation, citing numerous findings (including the ongoing necessity of California's role as a "laboratory of emissions-control innnovations" and the rejection of relying on national fuel economy standards alone in Massachusetts v. EPA) to lead up to its conclusion that "it is the sense of Congress that the denial...is not supported by science, precedent, or applicable law." --

The problem is that this "laboratory of emissions-control innovations" has become too big, now consisting of California plus the 11 states that have adopted the California standards plus the 5 states that plan to adopt those standards, all together having over half of the US population. The original idea of the California waiver provision was to save money by using California alone as a relatively small "laboratory of emissions-control innovations," and that innovations that proved themselves in California would then be adopted at the national level. Another purpose of the waiver provision was that California, which had the worst air quality in the nation at the time of the introduction of this provision, would be the first to benefit from those innovations.