Judge Finds States are Doing What Congress Intended

by Liz Borkowski 

Bush appointees and polluting industries may oppose statesâ attempts to regulate greenhouse gas emissions, but courts have been ruling in statesâ favor. In April, the Supreme Court found that EPA, contrary to its insistence, does in fact have the authority to regulate carbon dioxide emissions. Last week, a federal judge upheld a Vermont law establishing reduced greenhouse gas emission standards for new cars sold in that state.

Like the Supreme Court justices, U.S. District Judge William Sessions found that state efforts to regulate greenhouse gas emissions are perfectly in line with what Congress intended when it passed the relevant legislation â and he also didnât buy assertions by the auto-industry plaintiffs that Vermontâs law would spell disaster for consumers and auto workers.

Here's the background: Under the Clean Air Act, the EPA is required to regulate new vehicle emissions, and states canât adopt their own emissions standards; however, California is able to request a waiver from EPA and adopt its own standards, provided they meet certain conditions. Then, other states can adopt a California standard that has received a waiver.

Californiaâs Air Resources Board adopted regulations of greenhouse gas emissions (for new vehicles beginning with model year 2009) and requested a waiver from EPA in December 2005. Since then, Vermont and 10 other states have adopted Californiaâs regulations. EPA has been dragging its heels in responding, but automakers have been quick to react â not by pouring their resources into new designs or technology, but by suing the states.

As Judge Sessions explains (PDF here), the Courtâs task in the Vermont case was to âdetermine whether the plaintiffs have carried their burden to show that Vermontâs GHG regulation stands as an obstacle to the objectives of Congressâ â specifically, Congressâs objectives when it passed the Clean Air Act (and its amendments) and the Energy Policy and Conservation Act. Judge Sessions decided that the plaintiffs did not carry their burden, and one reason was that Californiaâs regulations are actually doing exactly what Congress hoped they would:

Congress allowed California to avoid preemption not only because it was persuaded that California had uniquely severe air pollution problems and a burgeoning number and concentration of automobiles ⦠but because California had led the nation in establishing motor vehicle emission control requirements. It determined that there were potential benefits for the nation in allowing California to continue to experiment and innovate in the field of emissions control.

Plaintiffs also alleged that the GHG regulations would present an obstacle to EPCAâs objectives, which include requiring NHTSA to set fuel efficiency standards that are technological feasible and economic practicable. Here, again, Sessions invokes Congressional intent:

Congress deliberately chose a technology-forcing approach in the 1970 CAA amendments to require EPA to ââpress for the development and application of improved technology rather than be limited by that which exists today,ââ ⦠and to force the industry âto develop pollution control devices that might at the time appear to be economically or technologically infeasible.â â¦

EPCA also was a technology-forcing statute, âwith the recognition that âmarket forces . . . may not be strong enough to bring about the necessary fuel conservation which a national energy policy demands.ââ

As for the plaintiffsâ claims that GHG regulation would spell financial ruin (and, worse yet, consumer choices that might include fewer gas guzzlers!), Judge Sessions offered a reminder of claims surrounding the Clean Air Act:

Manufacturers were skeptical; in 1973 General Motors predicted that:

If GM is forced to introduce catalytic converter systems across the board on 1975 models, the prospect of an unreasonable risk of business catastrophe and massive difficulties with these vehicles in the hand of the public must be faced. It is conceivable that complete stoppage of the entire production could occur . . . Short of that ultimate risk, there is a distinct possibility of varying degrees of interruption with sizable dislocations. â¦

But General Motors did successfully install catalytic converters in its vehicles beginning in 1975. â¦Ultimately the automobile industryâs effectiveness at reducing emissions has been âone of the greatest success stories in environmental control in the world.â

The alleged financial ruin would, of course, spell unemployment for thousands of auto workers, but Judge Sessions didnât find that argument compelling, particularly in light of recent massive layoffs. (Sessions noted that U.S. automakersâ recent declining sales are attributable partly to their failure to predict growing demand for smaller, more fuel-efficient vehicles - which also answers the complaint about "consumer choice" suffering.)

In short, state efforts to spur innovation and technological advancement are completely in line with what Congress intended, and automakers should be able to meet state GHG emission requirements. This is good news for the 12 states that have already adopted such regulations, and will probably spur six additional states that have been considering their own similar requirements to join the list.

Of course, as Judge Sessions noted, this all hinges on EPA granting Californiaâs waiver. Members of Congress have already introduced legislation to force the agency to act on Californiaâs request (the Clean Cars Campaign has a handy timeline with links), and this recent decision will probably increase the pressure.

Liz Borkowski works for the Project on Scientific Knowledge and Public Policy (SKAPP) at George Washington Universityâs School of Public Health and Health Services.