The California Air Resources Board may soon get its wish. Back in 2005, ARB first requested a waiver from the U.S. Environmental Protection Agency, to allow California to regulate motor vehicle greenhouse gas emissions. EPA denied the waiver two years later, after California threatened to sue EPA to force the agency to take action on the request. The very day after President Obama’s inauguration into office, ARB filed with EPA a request for reconsideration of its waiver request. Several days later, President Obama himself signed a Presidential Memorandum directing EPA to assess whether denial of the waiver was appropriate in light of the Clean Air Act. Last Friday, Lisa Jackson, head of the EPA, issued a Notice for Public Hearing and Comment on California’s request for consideration of the previous waiver denial, which officially initiates reconsideration by EPA. Discussion at the public hearing on March 5, 2009 may get interesting, as the Notice’s ‘supplementary information’ included a brief discussion on how the waiver denial had "significantly departed from EPA’s longstanding interpretation of the Clean Air Act’s waiver provisions and from the Agency’s history, after appropriate review, of granting waivers to California for its new motor vehicle emission program." Stay tuned.
California ARB’s request for a waiver is premised on the Clean Air Act provision that allows states to enact stricter motor vehicle emission standards than the federal government’s, provided EPA has approved a waiver for the state to do so. Under the Clean Air Act, EPA must grant a waiver unless it finds that the state:
- was arbitrary and capricious in its finding that its proposed standards are in the aggregate at least as protective of public health and welfare as applicable federal standards,
- does not need such standards to meet compelling and extraordinary conditions, or
- has proposed standards not consistent with section 202(a) of the Clean Air Act.
In denying ARB’s original waiver request, the EPA administrator at the time, Stephen Johnson, noted that President Bush had just signed an energy bill that would work to reduce emissions throughout the U.S. and that increased fuel economy standards. The energy bill increased fuel efficiency for new cars and light trucks by 40% by 202, to an average of 35 mpg. This is in fact the biggest increase by Congress in fuel economy standards since the program was created in 1975. As Johnson announced in December 2007, "The Bush administration is moving forward with a clear national solution, not a confusing patchwork of state rules." It’s true that if the waiver is granted, California would enact a more stringent fuel economy standard than in any other state. But, 16 other states have pledged that if California can move forward with its higher standard, they would in turn adopt California’s standard as their own.