Every boneheaded Trump administration move has been met with a flurry of legal challenges. Last week's proposed rollback of future fuel efficiency standards will be no different.
The administration has proposed freezing passenger car fuel efficiency at 2020 standard of of 43.7 miles per gallon (mpg) through 2026 rather than raising it to 54.5 mpg. In addition to being terrible for the climate, the move is on shaky legal footing. Ditto for revoking the waiver that the Environmental Protection Agency (EPA) granted California to set its own state-specific auto standards. And it could lead to a massive legal showdown between states, environmental groups, and the administration, tying out the regulations in court for years.
California has had various waivers for decades to help improve air quality in its valleys where smog is a concern. Paul Cort, a lawyer with Earthjustice, told Earther that places like Los Angeles and the San Joaquin Valley wouldn't be able to meet air quality standards (set by the federal government no less) without the waiver. There are also a dozen other states that only register cars that meet California standards. And there are nine states that have adopted California's zero emissions vehicle standards, a different set of standards also on the chopping block which require manufacturers to produce and sell an increasing percentage of cars with no tailpipe emissions.
First things first, though. The proposed rule has a public comment period where any red-blooded American can tell their government how they feel about it. There are hundreds of pages of supporting documentation around the proposal and many groups are already sifting through them. State attorneys general are not impressed by what they have read so far.
"This has to be absolutely one of the most harmful and dumbest actions the EPA has taken," Maura Healey, Massachusetts' attorney general, said on a call with reporters. She also called it "totally stupid."
"My job as attorney general is to protect my state's rights and interest," Josh Shapiro's, Pennsylvania's attorney general, said. "The impact of this rule on family budgets could really be devastating."
Healey, Shapiro, and other attorneys general from other states will be submitting public comments about the proposal. But even before the proposal was announced, they were part of a 17-state coalition (plus Washington, D.C.) led by California that filed a preemptive suit in May along to preserve the Obama era standards. Even that is just the tip of the iceberg.
Cort said there are a couple likely avenues for states or environmental groups to sue the Environmental Protection Agency and the Department of Transportation, the two agencies in charge of the rule proposal, should they move forward to revoke the waiver and freeze standards at 2020 levels. They swirl around two laws that are already on the books: the Energy Policy and Conservation Act and the Clean Air Act. The former allows the Department of Transportation (DOT) to set fuel economy standards while the latter allows the EPA to regulate pollution, including greenhouse gas emissions from cars. The EPA can also issue waivers to the Clean Air Act, allowing states to set stricter standards.
In the proposed rule, the the DOT and EPA argue that the Energy Policy and Conservation Act gives the administration precedent to revoke California's waiver. The issue with their argument is that California's waiver pertains to the regulation of greenhouse gas emissions and not fuel economy.
The EPA under George Bush tried to make a similar argument in the landmark case Massachusetts vs. EPA, in which the state sued the EPA, arguing the EPA had to regulate greenhouse gases from auto emissions under the Clean Air Act. The EPA said no, citing the Environmental Policy and Conservation Act.
This case went all the way to the Supreme Court, where the EPA ultimately lost its argument in a 5-4 split. Here's what Justice Stephens wrote (h/t Legal Planet):
"...that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public health and welfare … a statutory obligation wholly independent of DOT's mandate to promote energy efficiency. The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency."
So yeah, history is not on the EPA's side. That said, Kennedy was the crucial swing vote in the decision. Any legal challenges to the new proposal will face a different court, though, with Kennedy's retirement. It's unclear how Brett Kavanaugh, the man Trump nominated to replace him, would rule if the challenge wound up before the Supreme Court, but his environmental record isn't a strong one.
One of the other EPA lines of reasoning to revoke the waiver is also pretty weak sauce. The agency says California "does not need its own standards to meet compelling or extraordinary conditions." Putting aside the fact that it can't meet air quality standards without the waiver, have you seen the state lately?
In the call with reporters, California Attorney General Xavier Becerra pointed to the deadly wildfires blanketing his state in a haze of toxic smoke as well as last year's fires, torrential rains, and mudslides. The state is already suffering from the effects of climate change, and it will only get worse. To say that's not compelling reason to allow California to do its part to cut carbon pollution is is to deny the reality on the nightly news.
The final issue centres around the EPA's climate change receipts. And there are lots of them. While the agency has been run by a climate denier and coal lobbyist under Trump, during the Obama years, it went through a lengthy process to define carbon dioxide as a pollutant that's a threat to human health regulated under the Clean Air Act. The end result was something known as the endangerment finding, which the EPA itself touts as paving a path toward improved fuel economy for cars and trucks.
"[The] fundamental problem EPA/DOT face: how can EPA have said — as it has — that greenhouse gas emissions from cars endanger public health and welfare and then fail to regulate them to get those emissions to decline," Ann Carlson, an environment law professor at the University of California, Los Angeles, wrote for Legal Planet.
The EPA clearly has some holes it will need to defend if it wants this proposed rule to go through and stay on the books. And states are ready for the showdown over a policy that sets U.S. climate policy back.
"We believe this is but a blip in history," Becerra said. "We're prepared to prove that in court if necessary because for us, failure is not an option."