Wednesday, May 30, 2007

Battle Lines Drawn On California Waiver Request

May 30: [Editor Note: The following three article and referenced article from last week, summarize positions of major interest groups involved in the debate over the State of California's request regarding a waiver of preemption under the Clean Air Act for its Greenhouse Gas Emissions regulation for cars and light-duty trucks.]

Automakers Request More Time On CA Waiver

May 22: At hearings conducted by U.S. EPA on California's waiver request for the control of emissions from new motor vehicles or new motor vehicle engines in Washington, DC (May 22) and Sacramento (May 30) [See WIMS 5/21&23/ 07], the Alliance of Automobile Manufacturers (AAM) formally requested a 30-day extension to the comment period because of what it said was "the scope of the issues involved." The current deadline for submitting public comments to EPA is June 15, 2007.

AAM, representing nine manufacturers including BMW, DaimlerChrysler, Ford Motor Company, General Motors, Mazda, Mitsubishi, Porsche, Toyota and Volkswagen, delivered testimony at the DC hearing and stated its position on the California waiver request. AAM said:
"Three important points about the waiver request need to be considered. First, California has the initial burden of fully explaining the basis for its waiver request in this proceeding. The waiver application presented to EPA contains many assumptions and undocumented claims about the benefits of the regulation and how the industry can comply with it.

"California needs to fully document those claims in order for EPA to move forward. For example, there has been no demonstration by the State in its waiver application that the regulations would help address the issue of climate change or global warming in a concrete manner. If California cannot show that its regulation has a demonstrable impact on global warming, EPA should reject the waiver request. It is impossible to contend that any measure is required to meet a compelling condition if the measure has no impact on the condition. For that simple reason, EPA must reject California’s waiver request.

"Second, and equally important, the Clean Air Act’s primary goal is to improve air quality, and in particular, to ensure that the air is healthy to breathe. The waiver provision of the Clean Air Act requires EPA to review California’s evaluation of how the California regulations compare to the federal regulations in their ability to protect and improve air quality. The waiver application from California asserts that the California program is superior to the federal program as a method of reducing smog-forming emissions, but offers no direct comparison between federal and California programs taken as a whole. California’s omission of such a comparison requires EPA to deny the waiver.

"Finally, we believe that California’s threat to sue EPA is not helpful to this process. EPA must deliberately and thoroughly approach the questions raised by the waiver application, especially when that application contains no evidence that the new standards will have any beneficial impact on the environmental conditions of concern. In short, EPA can and should take the appropriate time needed to properly analyze and respond to the waiver request. The Alliance member companies are committed to improving energy security and fuel economy, but piecemeal regulation at the state level is not the answer. Moreover, California has not demonstrated a basis for this waiver request, and EPA should deny the waiver."

NACAA Testifies In Support Of CA Waiver

May 22: The National Association of Clean Air Agencies (NACAA, formerly known as STAPPA and ALAPCO) testified at U.S. EPA's public hearing in Arlington, VA offering strong support for full and prompt approval of California's request for a waiver of federal preemption under CAA Section 209(b), to permit enforcement of the State's new motor vehicle emission standards to control greenhouse gas emissions. California adopted its regulations in September 2005 and submitted its waiver request to EPA in December 2005.

Bill Becker, NACAA Executive Director urged EPA to respond to California's request without further delay and to grant complete approval of the waiver of Federal preemption. NACAA testified that EPA's role in considering a waiver request is narrow and deferential. NACAA said, "Under the law, EPA must grant California's request for a waiver unless it can demonstrate that California acted arbitrarily and capriciously in adopting its regulations, that there is no longer a compelling and extraordinary need for California to maintain its own motor vehicle program or that California's regulations are not consistent with Section 202(b) of the CAA." NACAA said that in the case of California's greenhouse gas regulations, none of these can be demonstrated and EPA does not have the discretion to deny the waiver request.

Sierra Club Testifies In Support Of CA Waiver

May 30: Testifying at the Sacramento, CA hearing on California's request for a waiver of Federal preemption under CAA Section 209(b), to permit enforcement of the State's new motor vehicle emission standards to control greenhouse gas emissions, Sierra Club denounced what it called "more than a year and a half of delay by the federal government that has prevented California and 11 other states from implementing a law to reduce greenhouse gas emissions from cars and trucks." Sierra Club called on the U.S Environmental Protection Agency (EPA) to immediately approve a needed "waiver" to the Clean Air Act permitting states to exceed Federal standards in combating pollution.

Sierra Club's regional staff director Carl Zichella, told agency officials that further delay in approving California's waiver was "making global warming more dangerous and difficult to solve." This failure to act was "unacceptable, irresponsible and immoral." Zichella said, "The debate over the science of global warming and the role of human activities in causing the problem is over. The debate over whether EPA has the authority to regulate CO2 is now also over. EPA has refused to act on California's request for more than a year and a half. It is now time for this unnecessary and dangerous delay to end. In the face of scientific and legal consensus, further delay amounts to playing politics with a lethal problem."

Sierra Club's testimony adds to the environmental group positions announced last week by Environmental Defense and the Natural Resources Defense Council (NRDC). Both groups indicated that they had filed a notice of intent to sue the U.S. EPA to force a long-delayed ruling on California’s request to establish new tailpipe emissions standards for carbon dioxide and other greenhouse gases. They indicated that they join California Governor Arnold Schwarzenegger and California Attorney General Jerry Brown in promising legal action to force a decision if EPA fails to take prompt action. Governor Schwarzenegger said in April that he would give the Agency 180 days to reach a final decision before filing a lawsuit. California and eleven states including: Connecticut, Maine, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Maryland; are awaiting the waiver decision from EPA.

Additionally, on May 22, the Senate Environment and Pubic Works (EPW) Committee, Chaired by Senator Barbara Boxer (D-CA) held a hearing entitled, Examining the Case for the California Waiver. Witnesses testifying included: Edmund G. Brown Jr., Attorney General State of California; Professor Jonathan H. Adler Director, Center for Business Law and Regulation, Case Western Reserve University School of Law, and Alexander B. Grannis, Commissioner New York State Department of Environmental Conservation.

Access the AAM testimony (
click here). Access links to the Federal Register notice and complete background information and documents on the California request (click here). Access the complete NACAA testimony (click here). Access a release from Sierra Club and the complete testimony (click here). Access a joint release from Environmental Defense and NRDC (click here). Access the EPW hearing website for links to testimony and the hearing webcast (click here). [*Air, *Climate, *Energy]