Category Archives: Clean Air Act

Why California gets to write its own auto emissions standards: 5 questions answered

Repost from LEGALPLANET.org – BerkeleyLaw / UCLA LAW

Why California gets to write its own auto emissions standards: 5 questions answered

Authored by Nicholas Bryner and Meredith Hankins, Posted on April 6, 2018 10:02 am by Nick Bryner
Rush hour on the Hollywood Freeway, Los Angeles, September 9, 2016. AP Photo/Richard Vogel

This article was originally published on The Conversation. Read the original article.

Legal Planet editor’s note: On April 2, Environmental Protection Agency Administrator Scott Pruitt announced that the Trump administration plans to revise tailpipe emissions standards negotiated by the Obama administration for motor vehicles built between 2022 and 2025, saying the standards were set “too high.” Pruitt also said the EPA was re-examining California’s historic ability to adopt standards that are more ambitious than the federal government’s. Legal scholars Nicholas Bryner and Meredith Hankins explain why California has this authority – and what may happen if the EPA tries to curb it.

Where does California get this special authority?

The Clean Air Act empowers the EPA to regulate air pollution from motor vehicles. To promote uniformity, the law generally bars states from regulating car emissions.

But when the Clean Air Act was passed, California was already developing innovative laws and standards to address its unique air pollution problems. So Congress carved out an exemption. As long as California’s standards protect public health and welfare at least as strictly as federal law, and are necessary “to meet compelling and extraordinary conditions,” the law requires the EPA to grant California a waiver so it can continue to apply its own regulations. California has received numerous waivers as it has worked to reduce vehicle emissions by enacting ever more stringent standards since the 1960s.

Other states can’t set their own standards, but they can opt to follow California’s motor vehicle emission regulations. Currently, 12 states and the District of Columbia have adopted California’s standards.

Gov. Ronald Reagan signs legislation establishing the California Air Resources Board to address the state’s air pollution, August 30, 1967. CA ARB
What are the “compelling and extraordinary conditions” that California’s regulations are designed to address?

In the 1950s scientists recognized that the unique combination of enclosed topography, a rapidly growing population and a warm climate in the Los Angeles air basin was a recipe for dangerous smog. Dutch chemist Arie Jan Haagen-Smit discovered in 1952 that worsening Los Angeles smog episodes were caused by photochemical reactions between California’s sunshine and nitrogen oxides and unburned hydrocarbons in motor vehicle exhaust.

California’s Motor Vehicle Pollution Control Board issued regulations mandating use of the nation’s first vehicle emissions control technology in 1961, and developed the nation’s first vehicle emissions standards in 1966. Two years later the EPA adopted standards identical to California’s for model year 1968 cars. UCLA Law scholar Ann Carlson calls this pattern, in which California innovates and federal regulators piggyback on the state’s demonstrated success, “iterative federalism.” This process has continued for decades.

California’s severe air pollution problems have made it a pioneer in air quality research.
California has set ambitious goals for slowing climate change. Is that part of this dispute with the EPA?

Yes. Transportation is now the largest source of greenhouse gas (GHG) emissions in the United States. The tailpipe standards that the Obama EPA put in place were designed to limit GHG emissions from cars by improving average fuel efficiency.

These standards were developed jointly by the EPA, the U.S. Department of Transportation (DOT), and California, which have overlapping legal authority to regulate cars. EPA and California have the responsibility to control motor vehicle emissions of air pollutants, including GHGs. DOT is in charge of regulating fuel economy.

Congress began regulating fuel economy in response to the oil crisis in the 1970s. DOT sets the Corporate Average Fuel Economy (CAFE) standard that each auto manufacturer must meet. Under this program, average fuel economy in the United States improved in the late 1970s but stagnated from the 1980s to the early 2000s as customers shifted to purchasing larger vehicles, including SUVs, minivans and trucks.

In 2007 Congress responded with a new law that required DOT to set a standard of at least 35 miles per gallon by 2020, and the “maximum feasible average fuel economy” after that. That same year, the Supreme Court ruled that the Clean Air Act authorized the EPA to regulate GHG emissions from cars.

The Obama administration’s tailpipe standard brought these overlapping mandates together. EPA’s regulation sets how much carbon dioxide can be emitted per mile, which matches with DOT’s increased standard for average fuel economy. It also includes a “midterm review” to assess progress. Administrator Scott Pruitt’s new EPA review, released on April 2, overturned the Obama administration’s midterm review and concluded that the 2022 to 2025 standard was not feasible.

The EPA now argues that earlier assumptions behind the rule were “optimistic” and can’t be met. However, its review almost entirely ignored the purpose of the standards and the costs of continuing to emit GHGs at high levels. Although the document is 38 pages long, the word “climate” never appears, and “carbon” appears only once.

The EPA’s decision does not yet have any legal impact. It leaves the current standards in place until the EPA and DOT decide on a less-stringent replacement.

U.S. carbon dioxide emissions from transportation exceeded those from electric power generation in 2016 for the first time since the 1970s.  USEIA
Can the Trump administration take away California’s authority to set stricter targets?

The EPA has never attempted to revoke an existing waiver. In 2007, under George W. Bush, the agency denied California’s request for a waiver to regulate motor vehicle GHG emissions. California sued, but the EPA reversed course under President Obama and granted the state a waiver before the case was resolved.

California’s current waiver was approved in 2013 as a part of a “grand bargain” between California, federal agencies and automakers. It covers the state’s Advanced Clean Cars program and includes standards to reduce conventional air pollutants like carbon monoxide, nitrogen oxides and particulate matter, as well as the GHG standards jointly developed with the EPA and DOT.

The Trump administration is threatening to revoke this waiver when it decouples the national GHG vehicle standards from California’s standards. EPA Administrator Pruitt has said that the agency is re-examining the waiver, and that “cooperative federalism doesn’t mean that one state can dictate standards for the rest of the country.” In our view, this statement mischaracterizes how the Clean Air Act works. Other states have voluntarily chosen to follow California’s rules because they see benefits in reducing air pollution.

How would California respond if the EPA revokes its waiver?

Gov. Jerry Brown, Attorney General Xavier Becerra and California Air Resources Board Chair Mary Nichols have all made clear that the state will push back. It’s almost certain that any attempt to revoke or weaken California’s waiver will immediately be challenged in court – and that this would be a major legal battle.


Nicholas Bryner, Emmett/Frankel Fellow in Environmental Law and Policy, University of California, Los Angeles and Meredith Hankins, Shapiro Fellow in Environmental Law and Policy, University of California, Los Angeles

    EPA says oil train operator violated federal Clean Air Act at Albany facility

    Repost from Politico New York

    EPA says oil train operator violated federal Clean Air Act at Albany facility

    By Scott Waldman, 08/17/16 05:29 AM EDT
    Railroad oil tankers line up in Albany, N.Y.
    Railroad oil tankers line up in Albany, N.Y. | AP Photo/Mike Groll

    ALBANY — One of the main companies that transports crude oil through New York has violated federal clean air standards and may face significant fines, according to U.S. Environmental Protection Agency documents obtained by POLITICO.

    Last month, the EPA issued a notice to Global Companies LLC, saying the company violated the federal Clean Air Act at its oil transportation facility in Albany. According to the documents, Global could face fines of more than $25,000 a day and may have to obtain a new permit for one of its main East Coast shipping routes.

    According to the EPA, Global intentionally under-reported air emissions at the facility when it was granted permission to almost quadruple the amount of crude it could transport through Albany.

    In 2012, after Global received state permission to increase the amount of crude it transported through Albany from about 500,000 gallons a year to almost 2 billion gallons, the company reported an increase in air emissions of 39.5 tons per year of volatile organic compounds.

    But after a months-long investigation, the EPA determined the amount Global reported was far less than what it was actually emitting.

    The increase Global claimed is just under the 40-tons-per-year limit that would require a new set of air permits, and likely lead to costly equipment upgrades and additional project delays.

    “Global violated the (Clean Air) Act and the federally enforceable New York state implementation plan by increasing the throughput of crude oil at its petroleum storage facility located at 50 Church Street, Albany, New York without complying with the new source review requirements of the New York SIP,” wrote Dore LaPosta, director of the Division of Enforcement and Compliance Assistance at the EPA.

    Edward Faneuil, Global’s executive vice president, denied the facility was out of compliance.

    “With respect to the Notice of Violation issued by the EPA alleging violations of the Clean Air Act at its Albany facility, Global Partners is in compliance with regulatory and permitting requirements at that facility, including requirements under the CAA,” Faneuil said in a statement Tuesday. “We remain fully committed to operating all of our facilities in a safe, legal and environmentally responsible manner, and we will vigorously defend ourselves against any claims to the contrary.”

    Global needs to obtain air permits for the facilities it uses during the crude oil transportation process, which includes equipment to offload oil train tankers.

    Albany has become a national hub for crude oil trains, which bring the product from North Dakota and transport it to refineries along the East Coast. Public scrutiny of oil train safety has increased after a series of accidents in recent years, including one in July 2013 that killed dozens of people in Canada. In Albany, the oil trains run on tracks that are located next to a public housing facility and have been stored adjacent to a playground.

    On Wednesday, EPA officials will meet with local residents affected by the oil train surge in Albany.

    The Cuomo administration has allowed the oil transportation companies to increase the amount of crude they bring through Albany. Since it received permission to increase the amont of oil it transports, Global has also sought to add a crude oil heater that would allow it to bring in thick tar sands. However, the state Department of Environmental Conservation has delayed a decision on that proposal and is now locked in a legal battle with the company.

    Local residents, including many who live at the public housing project, have complained that emissions from the Albany facility are causing health problems. In 2014, state regulators determined that the air quality in the area was not harmful.

    The EPA investigation echoes claims of a lawsuit filed earlier this year by Albany County and a coalition of environmental groups, which contend Global Companies failed to obtain the proper air permits for its crude-handling facility at the Port of Albany. In the lawsuit, the groups claim Global failed to install proper pollution controls when it increased the amount of crude oil handled at the facility.

    View the EPA document here: http://politi.co/2bpiO6R

      Obama vetoes GOP push to kill climate rules

      Repost from The Hill

      Obama vetoes GOP push to kill climate rules

      By Timothy Cama – 12/19/15 08:35 AM EST 
      Getty Images

      President Obama has vetoed a pair of measures by congressional Republicans that would have overturned the main pillars of his landmark climate change rules for power plants.

      The decision was widely expected, and Obama and his staff had repeatedly threatened the action as a way to protect a top priority and major part of his legacy.

      The White House announced early Saturday morning, as Obama was flying to Hawaii for Christmas vacation, that he is formally not taking action on the congressional measures, which counts as a “pocket veto” under the law. “Climate change poses a profound threat to our future and future generations,” the president said in a statement about Republicans’ attempt to kill the carbon dioxide limits for existing power plants.

      “The Clean Power Plan is a tremendously important step in the fight against global climate change,” Obama wrote, adding that “because the resolution would overturn the Clean Power Plan, which is critical to protecting against climate change and ensuring the health and well-being of our nation, I cannot support it.”

      That rule from the Environmental Protection Agency mandates a 32 percent cut in the power sector’s carbon output by 2030.

      He had a similar argument in support of his regulation setting carbon limits for newly-built fossil fuel power plants, saying the legislation against it “would delay our transition to cleaner electricity generating technologies by enabling continued build-out of outdated, high-polluting infrastructure.”

      Congress passed the resolutions in November and December under the Congressional Review Act, a little-used law that gives lawmakers a streamlined way to quickly challenge regulations from the executive branch.

      Obama had made clear his intent to veto the measures early on, so the passage by both GOP-led chambers of Congress was only symbolic.

      The votes came before and during the United Nations’ major climate change conference in Paris, as an attempt to undermine Obama’s negotiating position toward an international climate pact.

      Sen. Jim Inhofe (R-Okla.), chairman of the Environment and Public Works Committee and a vocal climate change doubter, said it’s important to send a message about congressional disapproval, even with Obama’s veto.

      “While I fully expect these CRA resolutions to be vetoed, without the backing of the American people and the Congress, there will be no possibility of legislative resurrection once the courts render the final judgments on the president’s carbon mandates,” he said on the Senate floor shortly before the Senate’s action on the resolutions.

      Twenty-seven states and various energy and business interests are suing the Obama administration to stop the existing plant rule, saying it violates the Clean Air Act and states’ constitutional rights.

      They are seeking an immediate halt to the rule while it is litigated, something the Court of Appeals for the District of Columbia Circuit could decide on later this month.

      All Republican candidates for the 2016 presidential election want to overturn the rules.

      In addition to the veto, Obama is formally sending the resolutions back to the Senate to make clear his intent to disapprove of them.

      Obama has now vetoed seven pieces of legislation, including five this year, the first year of his presidency with the GOP controlling both chambers of Congress.