California vs. The Fed (Climate Change Edition)
Since the Environmental Protection Agency was founded in late 1970, the United States government has accepted the responsibility for mitigating climate change and ensuring the wellbeing of its citizenry through such regulation. While some presidential administrations have taken more action than others, the previous three administrations — George W. Bush’s, Barack H. Obama’s, and Donald J. Trump’s — have been the most polarizing, so much so that states have taken climate change mitigation into their own hands. California has been at the forefront of not only enacting its own regulations to protect its residents, but has fought with the federal government and demanded it do more; California’s fights and subsequent victories have had everlasting implications that manifest far outside its own borders. Recent federalism clashes between the Trump Administration and the State of California has drawn increased anticipation amid the massive staredown between the two. The Trump Administration is likely planning to challenge California’s right to mitigate climate change not only for the rest of the country, but on a fundamental level within its own borders. Historically, when there is gridlock between the federal government and a state there is only one solution to ending the chaos: turn to the courts. And to the courts we will turn.
The Science — In Brief
Since environmental law bases its roots in science, before dissecting the political actions enacted by participants in the federalist system and the court opinions on the matter of air quality, it is first necessary to understand how climate change and global warming affects the air quality in the first place. The CDC explains that as humans burn fossil fuels, we release carbon dioxide into the atmosphere, which in turn traps radiation leaving Earth’s surface and causes an increase in surface temperature. The trapped heat consequently disrupts several interconnected systems in the environment, which consequently result in longer warm seasons and subsequent pollen seasons – which can increase allergic sensitization and asthma episodes for people vulnerable to such conditions. It can also lead to an increase in ozone, a harmful air pollutant. According to the National Climate Assessment, climate change will affect human health by increasing ground-level ozone and/or particulate matter air pollution around the world. Ground-level ozone – not to be confused with atmospheric ozone, which prevents the sun’s UV radiation from penetrating the Earth – is a key component of smog and is associated with many health problems, including diminished lung function, increased hospital admissions and emergency department visits for asthma, and increases in premature deaths.
All burning of fossil fuels releases particulate matter, abbreviated with a simple PM, into the atmosphere. PM is a general description for microscopic particles in the air that are tremendously harmful to humans. PM is classified as either PM10 or PM2.5. The numbers signify how large the radius of the particle is, in nanometers. Any particle with a diameter between 10-2.5 nanometers is classified as PM10, and any particle whose diameter is smaller than 2.5 nanometers is classified as PM2.5. For context, the average human hair is some 50-60 micrometers in length.
PM is dangerous to humans because these particles are small enough to get deep into the lungs and bloodstream, creating adverse respiratory and cardiovascular health problems, potential cancer, and premature death. Children, the elderly, and people with asthma are the most susceptible. Increased air pollution would also have other environmental consequences, including reduced visibility and damage to agricultural crops and to forestland. As is probably evident by now, it is an important government interest and responsibility to mitigate climate change and to reduce air pollution.
The landscape of California, particularly the Greater Los Angeles Area in Southern California, has made it especially susceptible to smog and poor air quality. The valley nature of this metropolitan area traps smoke, smog, and pollution and is in large part a reason why this part of the country suffers from some of the worst air quality. Couple this geography with Los Angeles’ tremendous population and lack of efficient public transportation, forcing its residents to use automobiles, and the air quality just gets worse in terms of the amount of particulate matter in the air.
California Taking Charge
California has taken a variety of steps to mitigate its poor air quality. This paper focuses on one specific measures the state legislature has taken: technology-forcing standards for automobiles. In environmental law, “technology forcing standards” refer to governmental standards requiring technology that does not yet exist. These seemingly-impossible, futuristic requirements push companies to search for technological advancements. The most obvious example in environmental law is car smog standards, an area of the law California pioneered.
California Inspiring International and Regional Climate Initiatives California’s novel approach to fighting climate change has inspired the international community and several regional groups in the United States to create their own uniform standards.
The Western Climate initiative (WCI) was created in 2007 by the governors of Arizona, California, New Mexico, Oregon and Washington. The group planned to study ways to reduce their carbon and other GHG emissions. Eventually, the initiative grew to include seven Western States and 4 Canadian provinces. The aim of the WCI partners was to reduce GHG emissions by 15 percent below 2005 levels below 2020 as well as requiring participating members to implement California’s Clean Car Standard.
California’s Battles With The Fed
Clean Air Act Lawsuit
In the Nixon Presidency, the Clean Air Act was enacted. It put limits on the emissions of substance deemed harmful to human health. As science advanced and humans became more conscious of the carbon footprint they were leaving on the planet, states began asking the EPA to regulate greenhouse gas emissions (GHG). The EPA under President George W. Bush refused. The refusal was in all likelihood political, since Bush’s opponent in 2000, Al Gore, made climate change a major part of his campaign. Bush’s EPA claimed they did not have the proper jurisdiction to regulate GHG. In response, a group of petitioners including the states of California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington, the cities of New York, Baltimore, and Washington, D.C., the territory of American Samoa, and the organizations Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth, Greenpeace, International Center for Technology Assessment, National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and the U.S. Public Interest Research Group, sued the EPA asking for relief at equity and for a court order that would force the EPA to regulate GHG. The petitioners were represented by James Milkey of the Massachusetts Attorney General’s Office. The Bush Administration sided with a group of more conservative states to fight the lawsuit. The respondents of the suit included the Environmental Protection Agency, the Alliance of Automobile Manufacturers, National Automobile Dealers Association, Engine Manufacturers Association, Truck Manufacturers Association, CO2 Litigation Group, Utility Air Regulatory
Group, and the states of Michigan, Alaska, Idaho, Kansas, Nebraska, North Dakota, Ohio, South Dakota, Texas, and Utah.
The case centered specifically around Sectection 202(a)(1) of the Clean Air Act (CAA), 42 U.S.C. § 7521(a)(1), which requires the Administrator of the Environmental Protection Agency to set emission standards for “any air pollutant” from motor vehicles or motor vehicle engines “which in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” The EPA’s argument was twofold; they first argued that they lacked authority under the legislation to regulate CO2 gas and GHGs for climate change purposes and secondly, that even if the courts did find they have the authority, the EPA has the right to refuse setting emissions standards for vehicles.
The U.S. Court of Appeals for the District of Columbia found in favor of the EPA in 2005. The decisions was appealed, and the U.S. Supreme Court ruled in 2007 that GHG emissions are, in fact, pollutants and should be subject to EPA regulation, if scientific investigation demonstrated that they were endanger the public health and welfare. As a result, two years later in their “endangerment finding,” the EPA under the Barack Obama Administration found that concerns for human health and welfare are well-grounded. This finding allowed the EPA to regulate emissions without further congressional action.
California has been at the forefront at requiring automobile companies to improve their technologies, so much so that the car companies were tired of innovating and sued the state for violating the Interstate Commerce Clause of the U.S. Constitution, arguing that only the federal government can create stricter smog regulations. Because of Los Angeles’ unique landscape that made car smog a particular danger to residents, California had developed its own regulations before the Clean Air Act of 1970. Indeed, through a series of court actions, California came out the victor. In fact, the Clean Air Act, lays out a special exception for the State of California to create its own emission standards in place of the EPA. According to the law, California may receive a waiver from the EPA to create its own standards if its standards will be “at least as protective of the public health and welfare as … federal standards.” The EPA can deny such a waiver if it finds that the standards are not necessary to “meet compelling and extraordinary circumstances.”
The EPA has allowed California to create its own car emissions standards, and 12 other states have joined in on requiring California’s standards. This means that 30 percent of the United States’ cars are held to this standard. As such, instead of car companies creating different models for different states, they sell the same technologically-advanced, smog-reduced cars to the entire United States population. California was the spark that led to this decrease in United States car emissions.
Non-Auto GHG Emissions Regulation
Recently, California has tried to push its luck. The State asked the George W. Bush Administration to recognize special circumstances that would allow the state to created tougher greenhouse gas emission regulations from factories and other non-automobile emitters. The Bush Administration declined in 2008, and the battle was taken to the courts. However, this case was dismissed because before it could be resolved by the Courts, the Barack Obama Administration took office and granted California this waiver in 2013, making the case moot. As of today, California has an EPA greenhouse gas emissions standard waiver for 2021-2025. California’s waiver, issued by EPA in 2013, is broad in scope. It covers not just the GHG emissions standards
but also an extension of California’s conventional air pollutant regulations for cars and trucks (otherwise known as the LEV III standards). It also expanded California’s Zero Emissions Vehicle program to require just about 25 percent of the state’s passenger vehicle fleet to produce zero emissions by 2025.
President Donald Trump Creates Complications
California and the Obama Administration jointly agreed on a series of standards in order to reduce carbon emissions from automobiles and other vehicles. California agreed not to issue its own standards as long as the federal standards were implemented. The jointly agreed upon standards were for car model years 2021-25. They require manufacturers to meet average fuel economy standards of 54.5 miles per gallon for passenger vehicles by 2025. Since President Donald Trump’s Administration took office, however, there have been added complications. While President Trump has signaled that he will likely refuse using the joint-standards California and the Obama Administration agreed to, the California Air Resources Board has already voted to reinstate these standards within their own borders should such as decision be made. The real complications would arise should the Trump Administration challenge California’s right to set their own standards in the first place. President Trump’s EPA Administrator Scott Pruitt has said that the agency is re-examining the waiver that his predecessors already granted. “Cooperative federalism doesn’t mean that one state can dictate standards for the rest of the country,” Pruitt said in a 2018 interview. In other words, Pruitt is considering revoking California’s already-granted waiver. This would be an unprecedented move for the EPA, and is one that would certainly draw backlash in the courts.
The Likely Legal Arguments
If the Trump Administration goes through with Pruitt’s plan, they would likely use the Bush Administration’s planned argument in the moot: they would likely argue that California’s authority to issue emissions standards was limited to standards addressing local or regional air pollution. Therefore, because climate change is a global problem that affects all states (and countries), not just California, the state failed to meet “compelling and extraordinary circumstances.
California will likely present a two-part defense. First the state will argue that setting its own GHG emissions standards is necessary, as is evident from the state’s history with air pollution, the same reasoning for why California has its own automobile emission exemption. Secondly, the state will argue it does face “compelling and extraordinary circumstances” in the fight against global warming. The first of these arguments is more supported by precedent, seeing that the EPA has historically agreed and understood that California has unique circumstances (geography, terrain, population, etc.) that warrant it to set its own standards. California will have to argue that given how intertwined the three components of emissions (LEV III, ZEV and GHGs) are, they all contribute to California’s need to set its own standards.
The state also has plenty of evidence to support a finding that it has compelling and extraordinary circumstances, including melting of the state’s snowpack, a history of extreme drought exacerbated by higher temperatures, several more frequent and more intense wildfires, and increased air pollution as a result of hotter weather. 2018 was a year of unfortunate disasters for the state, which can serve as aids to their case should one go forward.
There is one potentially novel argument the EPA could make in response to California’s argument; the EPA may simply revoke California’s waiver under CAA, 209(b)(1)(C), which states that the waiver must be denied if the state’s standards provide “inadequate lead time to permit the development of technology necessary to meet those requirements, given appropriate consideration to the cost of compliance within that time.” Pruitt has already laid down the groundwork to make this argument should a case go forward. On April 01, 2019, Pruitt and the EPA released their midterm evaluation of the 2021-2025 automobile emissions standards, in which the EPA found that California’s plans are infeasible to comply with given the time frame. It should be noted that the Obama Administration’s EPA reached the exact opposite conclusion less than a decade ago. Pruitt has already addressed this concern, saying “The Obama Administration’s determination was wrong. Obama’s EPA cut the Midterm Evaluation process short with politically charged expediency, made assumptions about the standards that didn’t comport with reality, and set the standards too high.” California would also fight back with evidence of increased technology such as hybrids and other battery technology that would show the standards are indeed realistic and feasible. Additionally, California may be able to point to evidence that many counties within the state and region still have PM level above the national average and above what has been deemed healthy by the EPA. This has the potential to give power to California to create tougher GHG emissions standards in the future.
The Trump Administration has already relaxed several EPA regulations on substances including mercury, water, coal, and CO2 emissions nationally. However, President Trump and EPA chief Scott Pruitt have yet to revoke the California GHG waiver as they have alluded to and promised. So long as the California waiver remains in place, the state can enact legislation and regulations to cap emissions. This would ensure that the state, and particularly the Greater Los Angeles Area, do not suffer from pollution danger. While it is hard to predict what the Trump Administration has in store for California, experts believe that President Trump will follow through on his promise once there are no political repercussions — that is, if he is guaranteed an additional four years in office. At that point, it would simply be an act of vengeance against California or as part of a deal with corporate leaders. Should he indeed follow through, the nation will be heading for one of the most important legal battles of environmental law. The battle in the courts would be a landmark federalism case since the founding of the EPA, one that tests the proposition that the government has a responsibility to regulate and manage air pollution.
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