California Defends More Than Climate With EPA Lawsuit

 Alan Neuhauser
  6th-May-2018

A LAWSUIT THAT California filed Tuesday challenging the Trump administration's plan to roll back vehicle emissions standards has more at stake than pollution limits: It might also affect whether the state can retain its unique power to chart its own course in regulating tailpipe emissions.

Since 1970, California has enjoyed authority from Congress to implement its own, tighter vehicle emissions standards, which more than a dozen other states also follow. Vehicle emissions last year ranked the greatest source of heat-trapping carbon dioxide emissions in the U.S.

The Environmental Protection Agency under President Donald Trump, however, reportedly plans to take aim at that authority. A document leaked last month outlined not only EPA's proposal to ease emissions standards implemented by the Obama administration, but also its intention to undercut California's waiver authority.

It's an issue that's separate from but potentially related to California's lawsuit Tuesday.

The lawsuit challenges a final determination by EPA Administrator Scott Pruitt on April 2, a so-called "midterm evaluation" that found the standards implemented under Obama were "not appropriate and should be revised." That conclusion effectively clears the way for the EPA to develop new vehicle standards – and, as indicated by the leak document, perhaps seek to eliminate or curtail California's waiver authority.

Such a development would be celebrated by the auto industry, which would have succeeded not only in rolling back the tougher federal regulation but also in maintaining national standards for products across the marketplace by preventing California and the states that followed its lead from imposing their own stricter requirements on the industry.

The lawsuit filed by California and 17 other states, however, could send the EPA back to the drawing board by showing that the evaluation was based on inadequate information.

"This is an aggressive move by California to say we're going to take control of the situation," Deborah Sivas, a professor of environmental law at Stanford Law. "The states are not waiting. They're saying, 'We're going to put you to the test now: Where is the evidence to support the rollback of the standards?'"

The lawsuit marks the 10th that California has brought against the EPA under Trump and the 32nd since the former real estate mogul took office.

The latest challenge, if successful, could win an injunction that would would effectively upend the EPA's midterm evaluation and therefore block the agency from moving forward with its rulemaking. Such injunctions, however, are generally rare.

Perhaps more likely, legal scholars say, the EPA will be allowed to proceed in developing new emissions standards even as California's lawsuit proceeds, provoking new legal challenges that would likely be folded into the case brought by California on Tuesday.

The EPA, meanwhile, "could basically ignore [California's] waiver and argue that California is pre-empted from setting standards" under the law that gives federal authorities the power to set fuel efficiency standards," or "EPA could decide to revoke it," says Jody Freeman, who served as the White House's counselor for energy and climate change from 2009-2010, and is a professor and director of the Environmental and Energy Law Program at Harvard Law School.

The lawsuit brought Tuesday might even move the administration to accelerate its decision on the issue, which was anticipated as early as this month.The EPA has been looking at the waiver authority for as long as Trump has been president, and California has long pledged legal action if the administration moves to rescind it

"One potential consequence of the filing of this lawsuit could be EPA changing its timeline on figuring out what to do with the California waiver," says Cara Horowitz, a professor of environmental law at the UCLA School of Law. "EPA is going to make that decision soon."

But, she adds, "it was going to make that decision soon yesterday, too," before the latest lawsuit was filed.

Pruitt, testifying before a House Energy subcommittee last month, said that the agency was "not at present" taking steps to repeal or curtail California's waiver authority and that "we've worked very closely with California officials on that issue." Notably, however, he appeared to leave open the possibility that the agency might take such action down the road.

Mary Nichols, who leads the California Air Resources Board, which sets the state's emissions standards, said at a press conference with Gov. Jerry Brown on Tuesday that "we have not heard that officially – or even unofficially – from anybody at EPA" about impending action that would undercut the waiver.

"That's why we try not to dignify it by saying it's true, because we sincerely hope it's not true. And if it is, then we've got – as the governor said – another problem on our hands," she said.

Brown, though a Democrat once dubbed Gov. "Moonbeam" during his first two terms as governor from 1975-83, has tried to chart a relatively centrist path for his state, inclined more to seek compromise with the Trump administration than antagonize it.

The state, however, has repeatedly found itself in Trump's crosshairs and painted as a left-wing outlier, particularly in the area of immigration enforcement. Attorney General Xavier Becerra, meanwhile, a former House Democrat, has regularly taken a leading role filing some of the highest profile lawsuits against the administration and said Tuesday that California "is not looking to pick a fight with the Trump administration – but we are ready for one." By one count it's won more than a dozen rulings against the Trump administration.

The lawsuit Tuesday against the EPA, though, may present an opportunity – perhaps unlikely – for compromise: California's current waiver to institute tighter standards, granted by the EPA under Obama in 2012, is set to expire by model-year 2025. President George W. Bush was the only president to reject a waiver request from the state – a decision that California challenged – and a similar decision by Trump's EPA is all but certain.

"There has been some talk whether a grand bargain can be struck," Horowitz says. "The lawsuit that was filed this morning gives California some additional leverage over EPA," which "might agree to a waiver past 2025 with certain conditions" – for example, if California drops its latest legal challenge.

"That conversation is happening as part of what folks are talking about this morning in the Halls of Auto Regulatory Power," Horowitz says.

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