For Earth Day, Bush Buys California a Trojan Horse

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.

Comments

[Larry Fafarman]

--"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."--

Wrong -- the Supreme Court did not say that they are separate. The Supreme court said in Mass. v. EPA that the two obligations -- regulating fuel efficiency and regulating greenhouse-gas emissions -- "may overlap":

--" EPA finally argues that it cannot regulate carbon dioxide emissions from motor vehicles because doing so would require it to tighten mileage standards, a job (according to EPA) that Congress has assigned to DOT. See 68 Fed. Reg. 52929. But that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public’s “health” and “welfare,” 42 U. S. C. §7521(a)(1), a statutory obligation wholly independent of DOT’s mandate to promote energy efficiency. See Energy Policy and Conservation Act, §2(5), 89 Stat. 874, 42 U. S. C. §6201(5). The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency. "--
-- from
http://www.law.cornell.edu/supct/html/05-1120.ZO.html

Not only "may" the two obligations overlap, they actually do overlap -- fuel efficiency and green-house gas emissions are inextricably tied together in conventional vehicles.

No one is more in favor of stringent standards for fuel efficiency and GHG emissions than I am -- it is just that I feel that there should be uniform national standards instead of separate federal and California standards. One of the original main purposes of the California waivers -- if not the most important original purpose -- was to use California as a "testing area" for new emissions control technologies. As a result, differences between California-certified vehicles and federally-certified vehicles were usually small and short-lived (a big exception was the zero-emissions vehicle (ZEV) electric-vehicle program). The California waiver request for GHG emissions requires huge, expensive and long-term differences between California and federal vehicles and thus would be a hardship on the auto industry, auto dealers, and others.

I think that rising fuel costs -- oil recently hit $118 per barrel and gasoline is now in the range of $4 per gallon -- are going to make these laws and regulations moot. I saw a report of a big surge in the sales of fuel-efficient hybrid vehicles.