President Trump Threatens to Revoke California’s Waiver under the Clean Air Act: Can he do it?

By:  Robert Bryson

President Trump, as part of the Administration’s goal of rolling back regulations designed to combat climate change, has threatened to rollback a waiver granted to California to pursue stricter vehicle emissions standards. Under the Obama Administration, the federal government and California collaborated on preparing the currently-enacted vehicle standards.[1] The waiver was granted to California to enable it to pursue stricter vehicle emission standards if the federal government failed to adopt a set of comparable vehicle standards.

The Trump Administration wants to revoke California’s waiver to prevent a split auto-market because if the Administration rolls back the Obama regulations, the waiver would still empower California to continue using the standards or to adopt stricter standards. Moreover, the Clean Air Act allows states to follow either California or federal standards. Right now, California and eight other states, including New York, follow California’s emissions standards.[2]

The Clean Air Act: The California Waiver

The Clean Air Act was adopted in 1963 and a short four years later, in 1967, Congress amended it to include Section 209(b) which provides for two programs to control emissions of new motor vehicles: the Environmental Protection Agency (“EPA”) and California. Implicit in this waiver, granted to no other state, was the understanding that California could serve as a pioneer and laboratory for the country in setting new motor vehicle emission standards. Congress deliberately structured the waiver to grant California broad discretion to pass laws to protect the health and safety of its residents. The waiver further allows any state to adopt either the California or EPA standard.

Section 209(b) compels the EPA to grant California’s waiver it if determines the standards are at least as protective of the public health as the federal standards. In particular, the EPA may deny the waiver only if it makes one of three findings:

  • The determination of the state is arbitrary and capricious;
  • The state does not need the standards to meet compelling and extraordinary conditions; or
  • The standards and procedures are not consistent with section 7521(a) of the Clean Air Act. Section 7521(a) requires the rules to be adopted pursuant to an open and deliberative process which the current rulemaking process in California and the federal government already utilizes.

Therefore, California is granted a waiver under the Clean Air Act, but it must apply to the EPA for the waiver to take effect. In 2009 and 2013, the EPA granted California’s request for an exemption from federal vehicle emissions standards. The 2009 waiver was part of a package of laws originally passed in 2005 wherein California first conceived its cap and trade program and other laws designed to combat climate change.[3]

So, the fight isn’t about changing the Clean Air Act to revoke California’s right to apply for waivers, but about revoking California’s specific waivers as they relate to gas emissions. However, it isn’t apparent that the Administration has the authority to revoke a waiver once granted.

Procedure to Revoke Waiver

Rescinding a waiver has never been attempted. There are two options: (1) the EPA would rescind California’s waiver to increase standards for cars and light trucks and/or (2) the EPA could rescind California’s zero-emissions vehicle program which encourages automakers to ensure that a certain percentage of vehicle sales compose electric or hydrogen vehicles.[4]

The EPA would bear the burden of proof to show that California’s emissions program meets one of the three factors outlined above. However, it faces an uphill battle because the EPA already made extensive factual findings that the waiver is necessary. Essentially, the EPA would have to prove that all the previous evidence no longer applies. In general, the courts “look with skepticism on agency policy reversal that contradict[] earlier factual findings.”[5] A more likely scenario would be the Administration working with California to create standards that all parties can agree with.  



[3] ns-vehicles-and-engines/california-greenhouse-gas-waiver-request



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