The fight over California’s greenhouse gas and ZEV automotive standards continues
UCLA Clinic files amicus transient on behalf of Sen. Carper and Rep. Pallone to uphold standards
Of the numerous achievements of California’s legendary legislator Fran Pavley, probably the most remarkable is then-Assemblywoman Pavley’s modest bill, AB 1493, which directed California to grow to be the primary jurisdiction within the country to regulate greenhouse gas emissions from cars. That bill, introduced in 2001 and passed the subsequent yr, told the California Air Resources Board to create such standards using ARB’s special powers under the Clean Air Act to develop more strict air pollution controls for cars than the federal government (explained here).
Not surprisingly, Pavley’s proposal was subject to relentless attack from the get-go. As Pavley wrote in describing opposition to the bill as its prospects grew:
The powerful oil and auto industries suddenly engaged, with some suggesting that voluntary programs could achieve the identical goals. The opposition called the bill poorly crafted and an end-run across the Federal fuel-efficiency standards. But we weren’t setting a miles-per-gallon standard. We were regulating tail pipe emissions.
Every little thing old is recent again, and the fight rages on–even on similar terms. Today, nearly 22 years after Pavley first gathered her staff to brainstorm the introduction of AB 1493, opponents are litigating within the DC Circuit to overturn EPA’s decision to reinstate a set of California’s GHG and ZEV standards that had been approved under President Obama, withdrawn under President Trump (remember the “SAFE Rule“?), and now have been restored. One in all the arguments that challengers make on this case is that these GHG and ZEV standards are really fuel economy standards in disguise and are due to this fact preempted by the federal statute controlling fuel economy standards, the Energy Policy Conservation Act of 1975.
Late last week, through the Frank Wells Environmental Law Clinic at UCLA, some colleagues and I filed an amicus transient in support of California’s standards. We filed on behalf of two other legendary legislators, Sen. Tom Carper and Rep. Frank Pallone, Jr., each of whom has chaired the important thing Senate and House committees with jurisdiction over the Clean Air Act. In our transient, we describe 50 years of unbroken Congressional commitment to California’s ability to craft automotive standards equivalent to these. We argue that
[n]othing within the 1975 Act indicates an intent to invalidate elements of the Clean Air Act. Congress understood that the fuel-economy improvements it sought through the 1975 Act might be affected by the vehicle-emissions standards created under the Clean Air Act . . . But Congress struck the balance between these two goals in favor of public-health and air-quality goals: it made exceptions within the 1975 Act to prioritize Clean Air Act emissions reductions over fuel-economy improvements, not the opposite way around. In doing so, Congress explicitly required that § 209(b) standards [aka California’s standards] be considered in setting fuel-economy requirements under the 1975 Act. Thus, reading the Act to preempt § 209(b) standards that affect fuel economy each contradicts Congressional intent and makes the Act nonsensical.
The transient also points to more moderen laws, including a provision of the Inflation Reduction Act crafted by Sen. Carper, Rep. Pallone and others, that affirms and ratifies the validity of those California automotive standards. (You may read more in regards to the foundations of this argument in a hot-off-the-presses ELR paper by Greg Dotson and Dustin Maghamfar here.)
For a lot of a long time, California has led the approach to stronger, more health-protective automotive standards, creating models for regulation which are then followed throughout the U.S. and the world. Here’s hoping it continues to give you the chance to play this critically vital role within the climate change context. And three cheers for Fran Pavley.