Mixed Success on State Efforts to Reduce Vehicle GHG Emissions
In the absence of federal regulation of greenhouse gas emissions from vehicles, states have tried to take action but so far have had mixed results in the legal arena.
In Massachusetts v. EPA, 127 S.Ct. 1438 (2007), the Supreme Court ruled that carbon dioxide is an air pollutant under the Clean Air Act. This decision obligates the EPA to set emissions standards if it determines that carbon dioxide causes or contributes to air pollution that may endanger public health and welfare. Despite the Supreme Court's order, on February 29th the EPA said it has "no specific timeline" for making that determination. Given the lame duck status of the current administration, I'd be very surprised if anything further happens before 2009.
More significant to regulating vehicle GHG's in the near-term is the status of California's 2005 request for EPA to waive Clean Air Act standards and thereby allow the state to implement standards that would regulate vehicle emissions more strictly. While the Act gives only California the right to request a waiver, if it is granted, other states may follow. Oregon is among 18 states that have adopted or are adopting California’s standards.
Under pressure from Congress, the courts and the states to make a decision, in December 2007 the EPA denied California’s waiver request. Ironically, the denial came mere hours after President Bush signed the Energy Independence and Security Act of 2007 which, among other things, increased automobile fuel efficiency standards for the first time in decades.
California and other states filed suit in the Ninth Circuit Court of Appeals to challenge the EPA denial. Since California’s standards have otherwise been upheld by the courts, obtaining the waiver is the last step needed to achieve significant GHG regulation of vehicle emissions in states representing about 45% of the U.S. population and a corresponding percentage of new auto sales. Currently the lawsuit languishes while an EPA motion to dismiss on a procedural technicality is resolved. At the same time, the usual Congressional investigations are underway to determine if the EPA denial was politically motivated.
And so we wait. Meanwhile, more than a third of our states are stymied in their efforts to significantly address vehicle emissions problem. But all is not lost -- check this space tomorrow to read about a state “win” regarding vehicle GHG emissions.
Posted by David J. Petersen, partner practicing in the Sustainability and Real Estate & Land Use Practice Groups.
