California’s Environmental Fight Against the White House

Fuel-economy standards could be the opening salvo in a long legal battle.

AP Photo/Rich Pedroncelli
March 7, 2017, 8 p.m.

In the weeks after Donald Trump’s election, amid widespread fears about a federal clampdown on climate-change action, California Gov. Jerry Brown delivered a fiery message to Washington: “We’ve got the scientists, we’ve got the lawyers, and we’re ready to fight.”

Now Brown’s threat could be put to the test.

The Trump administration is expected this week to reopen a decision by the Environmental Protection Agency under President Obama that maintained emissions standards for cars and light trucks through 2025. That action—sought by automakers after Trump’s election—could weaken the long-term standards, although the administration could also simply tweak the regulations or opt to leave them in place.

Any significant lowering of the standards is likely to trigger a response from California, which agreed to harmonize its own fuel-economy standards with the federal rules in 2012. What’s more, The New York Times reported over the weekend that the administration could also explore action to revoke California’s waiver—granted under the Clean Air Act—to impose stricter fuel-economy standards.

Any action against that waiver could set off the opening round of a bruising fight between the Golden State and the Trump White House over climate change.

“Don’t tinker with what we’ve done,” said Sen. Dianne Feinstein of California, who cowrote 2007 legislation on federal fuel-economy standards.

“I see California being willing to go it alone if they have to,” she added. “There will be all kinds of efforts to stop that, but Jerry Brown’s been a strong governor in that respect.”

California has positioned itself as a bulwark against the Trump administration’s environmental agenda. Along with other left-leaning states, California is gearing up to sue over immigration policy, criminal justice, and environmental rules (former Rep. Xavier Becerra was named the state’s attorney general in December, and the state has hired former U.S. Attorney General Eric Holder to represent it in federal court battles).

The state also has one of the nation’s most rigorous climate-action plans, with a goal of reducing greenhouse-gas emissions by 40 percent of 1990 levels by 2030 and deploying 1.5 million electric vehicles by 2025. The state has entered into some international agreements on climate change that would be unchanged by federal action.

Speaking to a meeting of the American Geophysical Union in January, Brown even bragged that if Trump canceled climate research from NASA or the National Oceanic and Atmospheric Association (which has been threatened in early budget discussions), “California will launch its own damn satellite.”

The leader of the state Senate, Democrat Kevin de León, introduced legislation that would set current federal policy on the environment and worker safety as state law, maintaining it in the event of any attempt to weaken it on the federal level. In a statement, de León said the bill mirrored legislation passed under the George W. Bush administration and was meant to “preserve the state we know and love, regardless of what happens in Washington.”

The fuel-economy waiver would be a hard-fought opening round. Under the Clean Air Act, California can appeal to the federal government to set more-stringent emissions standards for vehicles, which it used to help fight the smog that was choking traffic-clogged cities. More than a dozen states have also agreed to adopt California’s standards.

A waiver has never been revoked, and one has been rejected only once, by the Bush administration in 2007. In that application, California had sought to regulate vehicles’ greenhouse-gas emissions (previous applications had applied only to air pollutants named in the Clean Air Act) and the administration said that would result in a patchwork of standards.

California sued, but the challenge was dropped after President Obama’s election. California ultimately joined with the government in 2012 to agree to rules projected at the time to get fuel economy to 54.5 miles per gallon by 2025.

Automakers, however, have feared California’s independent authority over concerns it would have to essentially market two fleets to two distinct U.S. markets (the so-called waiver states make up roughly 40 percent of the U.S. market). In his confirmation hearing, EPA administrator Scott Pruitt declined to say how he would treat the waiver, saying “would not want to presume the outcome.”

Brown’s office declined to comment on the fuel-economy discussions, but it’s almost certain that the state would sue if the waiver were touched. Ann Carlson, a professor of environmental law at University of California, Los Angeles, said since the 2007 lawsuit was dropped, there are still big questions to be answered.

Not only would a court have to decide if EPA can revoke a waiver—which is not written into the Clean Air Act—but it would also likely weigh in on whether California can get a waiver for greenhouse-gas emissions.

“We really don’t know. These are big questions that the D.C. Circuit will have to answer,” Carlson said. It’s also possible, she added, that Pruitt could open up an even bigger fight with the state by rejecting waiver authority for the traditional criteria pollutants.

The fuel-economy issue likely wouldn’t set legal precedent for California’s other independent climate work, but environmentalists say it would send a signal on the state’s power. Sen. Kamala Harris said the reach of California’s economy—the sixth largest in the world—meant that even beyond fuel economy, any state-level climate action was setting a “model for the country” that impacted consumers across the nation.

“California has a big stake in the outcome … in terms of our responsibility and our authority,” she said. “I absolutely oppose any suggestion that it’s time to roll back the progress we’ve made. That’s counterproductive and could be harmful.”

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