Amid the flurry of anti-regulatory actions taken by the Trump administration in 2019, none have consistently garnered national attention quite like its efforts to revoke California’s ability to set its own, highly stringent auto emissions standards. On September 19th, the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) and the U.S. Environmental Protection Agency (EPA) jointly issued a final action entitled the “One National Program Rule” that, as part of the larger proposed “Safer, Affordable, Fuel-Efficient (SAFE) Vehicles Rule,” effectively revoked California’s long-standing authority under the Clean Air Act (CAA) to set its own emissions standards that are stricter than those required by the federal government. Because California already had existing state air quality regulations (California’s 1947 Air Pollution Control Act was in fact the first air quality regulation in the U.S.) at the time of the CAA’s passing in 1963, the CAA contains a special waiver provision for California allowing it to apply, subject to EPA approval, for a waiver to set its own stricter emissions standards.

To date, the EPA has granted over 100 waiver requests to California, the last one occurring in 2013. The Trump administration’s move to preempt California’s emissions standards and revoke its waiver has raised several novel legal questions, principally, whether or not such a waiver can even be revoked. The CAA itself does not mention any revocation process, and although the Trump administration will likely argue that the right to revoke is implicit in the right to grant a waiver in the first place, this argument faces significant legal hurdles. Per the text of the CAA, the EPA administrator is only permitted to deny the waiver under limited circumstances, such as a finding that California’s actions are less “protective of public health and welfare as applicable Federal standards” or are not needed to meet “compelling and extraordinary conditions.”

Assuming a court will apply the denial standards to a revocation, California likely has a strong case. Any argument claiming California’s stricter emissions standards are less protective of public health and welfare will likely be dismissed as absurd. And California’s location as a coastal state with a recent of history of extreme weather-related disasters provides a compelling argument for the state to show greenhouse gas-induced climate change poses an “extraordinary” threat to the state. Coupled with California’s (and the 13 other states that have also adopted California’s more stringent emission standards) overwhelming reliance interest in its emissions standards as a means of achieving other federal environmental requirements and the disconcerting uniqueness of EPA’s first-ever attempt to revoke a waiver, the Trump administration faces a steep uphill legal battle before it can actually revoke California’s waiver.

Bryan Davidson




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