When Congress passed the Clean Air Act in 1966, it prohibited states from making their own automobile-emissions regulations, with one major exception.
“Any state which has adopted standards … for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966,” may be granted a waiver to impose standards more stringent than those imposed by the Clean Air Act…
Only one state fits that category: California. But Congress also granted the other 49 states in the union the right to copy any new standards adopted in California, if California should successfully receive such a waiver.
With that in mind, you have the context to understand why Tuesday’s ruling by California District Court Judge Anthony Ishii holding that the state of California has the right to regulate greenhouse gas emissions from automobiles is so crucial. The decision isn’t just a major defeat for the auto industry in California, it also opens up a pathway for any other state to copy California. Now all eyes turn to the Environmental Protection Agency, which is currently mulling over whether to give California that all-important waiver.
The purpose of the California exception, wrote Ishii in his 57-page opinion, was for California to have the “broadest possible discretion in selecting the best means to protect the health of its citizens … Congress clearly intended that California, having established itself as having both particular needs with regard to air quality regulation and particular expertise in developing regulations to address its needs, should be empowered to develop alternative and more protective regulations for the control of air pollutants.”
Ishii’s decision builds on two other recent critical judicial decisions, the ruling by the Supreme Court on April 22 in “Massachusetts vs. E.P.A.” that held that the Clean Air Act required the EPA to regulate greenhouse gases, and a Vermont District Court decision on Sept. 22 ruling against the auto industry’s attempt to stop Vermont from instituting automobile greenhouse gas emission standards identical to California’s. Ishii’s opinion is refreshing, because he is careful to note how the decisions in both cases negated some of his own earlier rulings in the California case. You don’t often hear a District Court judge call his own reasoning “erroneous.”
The most amusing part of Judge Ishii’s decision was his barely concealed scorn at the auto industry’s argument that California’s attempt to restrict greenhouse gas emissions interfered with the federal government’s sole right to conduct foreign policy. The argument posed by the auto industry was that the Bush administration’s efforts to get other countries to enact greenhouse gas emission cuts would be hurt if individual U.S. states started willy nilly making their own cuts. The presumption being that the U.S. would then lose the “bargaining chip” of being able to promise other nations that if they cut their emissions the U.S. would then cut its own emissions.
Order! Order in the court! I’m warning you, if you don’t stop giggling I’ll hold you all in contempt!
While the court will accept as factual Plaintiffs’ allegation that it is United States foreign policy to secure commitments of other developing nations before committing itself to international treaty obligations to reduce greenhouse gas emissions, the court finds that Plaintiffs’ contention that it is also United States foreign policy to hold in abeyance internal efforts to reduce greenhouse gas emissions in order to leverage foreign cooperation is completely without factual support… The court further finds absolutely no evidence of any “policy” on the part of the Administration to restrain state-based activities to curb greenhouse gas emissions in order to leverage international cooperation.
To anyone familiar with how the EPA has gone about its business under the Bush administration, the prospects for the agency granting a waiver that would allow California to fundamentally change the rules under which the automotive industry must live seem pretty slim. Gov. Schwarzenegger has threatened to sue the EPA if the agency declines the application. One imagines that such a case — California vs. EPA — would also end up in the Supreme Court, further delaying any immediate implementation of a law passed in California in 2003.
It’s slow, tedious work, attempting to clean up the mess we’re making. But somebody’s gotta do it.