Emerging Issue-EPA Denies Clean Air Act Waiver for California's GHG Regulation for Motor Vehicles

Emerging Issue-EPA Denies Clean Air Act Waiver for California's GHG Regulation for Motor Vehicles

In this Emerging Issues Commentary, Oscar Marrero and Gabrielle Sigel of Jenner & Block's Chicago office examine the Environmental Protection Agency's denial of California's request for a Clean Air Act (CAA) waiver, which was sought by the state so that it could implement its regulation to control greenhouse gas (GHG) emissions from motor vehicles (the CA GHG Regulation). After providing an overview of the CA GHG Regulation, the authors discuss the statutory background for California CAA waivers, legal challenges to the CA GHG Regulation, and timing of the CA GHG Regulation waiver request. They then report on the EPA's denial of the waiver on December 19, 2007; California's appeal on January 2, 2008; and other responses to the wavier denial. Practical advice is given as to how a court may handle the appeal in light of the Supreme Court's decision in Massachusetts v. EPA and two subsequent district court decisions from Vermont and California. Action by Congress and a new White House Administration is also considered.
The authors write:
EPA's decision to deny California's waiver request is a first for the federal agency. Given the Congressional directive promoting California's more stringent approach to vehicle emissions and the relatively narrow statutory bases for denying California's waivers, a court is likely to look critically at EPA's recent decision. The D.C. Circuit Court of Appeals is likely to rely on the recent Supreme Court's decision in Massachusetts v. EPA to support a decision that California has a right to control GHG emissions. Moreover, the Vermont and California district court decisions distinguishing motor vehicle emission standards from fuel economy standards is likely to undermine the validity of EPA's reliance on the recent fuel economy standards in EISA as a valid basis for a federal determination that the state's GHG Regulation is not needed to meet compelling and extraordinary conditions.

While California is appealing EPA's decision through federal court, Congress and a new White House Administration may trump any outcome resulting from this litigation. Congress may act to reduce GHG emissions on a federal level, including from the tailpipes of motor vehicles. Moreover, a Democratic Administration in the White House may direct EPA to rescind its decision and grant the waiver request, either through a negotiated settlement to pending litigation or otherwise.
For the complete commentary, click on the link below.