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EPA Issues Waiver to California on Greenhouse Gases

Today the EPA reversed its prior determination on the request by California for a waiver permitting more stringent emission standards for model 2009 and later year motor vehicles. In reversing the prior determination and issuing the waiver the EPA Administrator, Lisa P. Jackson found tha the waiver was appropriate under the Clean Air Act criteria “I am withdrawing EPA’s March 6, 2008 Denial and have determined that the most appropriate action in response to California’s greenhouse gas waiver request is to grant that request. I have determined that the waiver opponents have not met their burden of proof in order for me to deny the waiver under any of the three criteria in section 209(b)(1).”

The findings go on to state in part: “The text of section 209(b) and the legislative history, when viewed together, lead me to reject the interpretation adopted in the March 6, 2008 Denial, and to apply the traditional interpretation to the evaluation of California’s greenhouse gas standards for motor vehicles. If California needs a separate motor vehicle program to address the kinds of compelling and extraordinary conditions discussed in the traditional interpretation, then Congress intended that California could have such a program. Congress also intentionally provided California the broadest possible discretion in adopting the kind of standards in its motor vehicle program that California determines are appropriate to address air pollution problems and protect the health and welfare of its citizens. The better interpretation of the text and legislative history of this provision is that Congress did not use this criterion to limit California’s discretion to a certain category of air pollution problems, to the exclusion of others….Section 209(a) creates the explicit preemption of state emission standards, and at the same time leaves EPA to set federal emission standards, under the authority of section 202(a). Within the context of section 209, and the preemption of 209(a), section 209(b)’s waiver provision allows California the ability to set its own emission standards….The difference between emission standards and fuel economy standards is highlighted by comparing the two sets of standards at issue here. California’s greenhouse gas emission standards establish allowable grams per mile (“gpm”) levels for greenhouse gas emissions, including tailpipe emissions of carbon dioxide (CO2), nitrous oxide (N2O), and methane (CH4) as well as emissions of CO2 and hydrofluorocarbons (HFCs) related to operation of the air conditioning system. By regulating emissions of four different greenhouse gas pollutants, the standards do more than reduce tailpipe CO2 emissions resulting from fuel combustion. They do not directly equate to miles per gallon fuel economy reductions. Fuel economy standards, on the other hand, directly control miles per gallon (“mpg”) fuel economy levels. CO2 reductions will occur, but they are an expected indirect effect of improved fuel economy standards because the same technology that improves fuel economy effectively reduces CO2 emissions.”

The waiver goes on to state that in “evaluating its greenhouse gas standards, California’s protectiveness determination went beyond a simple numerical comparison of its greenhouse gas standards to non-existent federal greenhouse gas standards. Its protectiveness determination was also based upon its own analysis of the impact of its greenhouse gas standards on its larger program. California found that its new greenhouse gas standards would yield not only reductions in greenhouse gas emissions but also a net reduction in criteria pollutant emissions.”

In a press release which accompanied the issuance of the waiver the EPA Administrator summarized the decision reached today:

“This decision puts the law and science first. After review of the scientific findings, and another comprehensive round of public engagement, I have decided this is the appropriate course under the law. This waiver is consistent with the Clean Air Act as it’s been used for the last 40 years and supports the prerogatives of the 13 states and the District of Columbia who have opted to follow California’s lead. More importantly, this decision reinforces the historic agreement on nationwide emissions standards developed by a broad coalition of industry, government and environmental stakeholders earlier this year.”