by Bethany Blankley
A coalition of 16 states is urging the U.S. Environmental Protection Agency to not reinstate a waiver allowing California to implement its own carbon emissions standards that essentially regulate the automotive industry for the rest of the U.S.
Texas Attorney General Ken Paxton joined a coalition led by Ohio Attorney General Dave Yost, which also includes attorneys general from the states of Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, Oklahoma, South Carolina, South Dakota, Utah and West Virginia.
Under the Clean Air Act, the Trump administration created national standards for vehicle carbon emissions for model years 2021 through 2026. The policy revoked a waiver previously granted to California in order to treat all states as equal sovereigns subject to one federal rule, the attorneys general explain in their 12-page letter.
The waiver falls under Section 209 of the Clean Air Act first enacted in 1967. It preempts states from setting emissions standards for new cars and new engines, with two exceptions. It allows California – and only California – to set emissions standards that are more stringent than those adopted by the federal government, and it allows states with air quality below federal standards to adopt an emissions standard “identical to the California standards.”
As a result, 49 states may depart from the federal standard if and only if they adopt “a standard identical to an existing California standard.”
The Biden administration has proposed that California’s waiver be reinstated. It was initially created decades ago to allow California to manage its severe smog problem. Instead, the attorneys general argue, the waiver has been “abused by California to target fuel efficiency and global warming” regulations.
In the letter, they argue, “By allowing California and only California to retain a portion of its sovereign authority that the Clean Air Act takes from other States, [the waiver] is unconstitutional and thus unenforceable. Any waiver granted to California is thus ‘repugnant to the constitution’ and ‘void.’ In our union of equally sovereign States, the Golden State is not a golden child.”
Texas Attorney General Paxton asked, “Under the U.S. Constitution, it clearly explains that all States are created equal, so why does ‘the Golden State’ get the unconstitutional authority to change how vehicle manufacturers set standards for their vehicles?
“A federal law giving one state special power to regulate a major national industry contradicts the notion of a union of sovereign states,” he argues.
Yost notes that giving California special treatment “will have concrete negative effects in other States, especially Ohioans. Allowing California to set carbon-emission standards requires vehicle manufacturers to make changes to the entire vehicle.”
Given the choice between creating two separate vehicle fleets, one to comply with California, and another for 49 states, manufacturers “have no real choice at all,” he argues. Opting out of the California automobile market and losing significant income, or manufacturing vehicles that aren’t governed by Ohio’s standards or the federal government’s standards but rather by California’s standards, appear to be car manufacturers’ only options, the states argue.
The consequence of the waiver “not only offends the Constitution,” Yost argues, but “makes bad policy. The annual household income for a family in Ohio is almost $19,000 less than the annual income for a family in California. Ohioans may not be able to afford drastic changes mandated by California, leading Ohioans to drive older vehicles for longer and exacerbating the problem California believes it is solving.
“Ohio and California have different key industries, different commuting patterns, and different access to alternative fuel stations,” he adds. “It makes no sense to let California regulate Ohio’s vehicles. While Ohio ceded some of its sovereignty to the Federal government in joining the Union, at no point has Ohio ceded its sovereignty to California, which is precisely what granting California a waiver would amount to.”
The California Air Resources Board states that the EPA has granted California waivers for decades because “California’s standards are at least as protective as federal standards, and that the state’s determination of that fact was not arbitrary and capricious; are needed to meet compelling and extraordinary conditions; and are not inconsistent with certain Clean Air Act provisions related to technical feasibility and lead time to manufacturers.”
According to the Institute for Policy Integrity at New York University School of Law, from 1967 to 2018, the EPA granted more than 50 waivers for California alone, fully denied one in 1980, which was subsequently reversed, and revoked zero.
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Bethany Blankley contributes to The Center Square.
