Even as President Trump pulls back on regulations governing car emissions, part of a broader policy of overturning environmental protections enacted by the Obama administration, California is determinedly headed in the opposite direction with stricter rules it alone is authorized to enact.
During a visit to Detroit last month, Trump halted the imposition of standards that would cut car emissions almost in half by 2025, including greenhouse gases that are responsible for global warming. The administration instead will reopen a review of the standards at the request of the major automakers, giving them the chance to argue that the rules should be eased.
"This is going to be a new era for American jobs and job creation," Trump said in Detroit.
But California is moving forward with the more stringent tailpipe rules, setting up an expected showdown with the Trump administration. A week after Trump's announcement, the California Air Resources Board not only voted to reaffirm the standards and but also began to consider new ones to take effect after 2025. Likely to join the fight will be the dozen other states that follow California's standards rather than the national ones. States can choose either.
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"The Trump administration really is very aggressively proclaiming that we should not be addressing climate change at the federal level," said Sean B. Hecht, the co-executive director of the Emmett Institute on Climate Change and the Environment at the UCLA School of Law. "And the auto companies have taken this as an opportunity…to say, 'Hold on, let's try to back out of this deal where we have these federal fuel economy standards through 2025.'"
Trump has had a mixed record in his first 100 days in office. He began dismantling former President Barack Obama's major climate change policy, the Clean Power Plan, with an executive order lifting carbon restrictions, but has made little headway on many of his other campaign promises. His travel ban is tied up in the courts and an overhaul of Obamacare was withdrawn from the House because it had little support. Now California and other, mostly blue states are vowing to fight any easing of regulations governing car emissions.
California needs to control emissions to meet its ambitious plans for battling climate change, with zero-emission vehicles such as electric cars from Tesla and Chevrolet part of the mix. Last year, legislators passed a bill requiring that by 2030, the state cut its greenhouse gas emissions to 40 percent below its 1990 levels. To send a message about their willingness to take on Trump, Democratic leaders of the California legislature hired former Attorney General Eric Holder to represent them in legal fights with the White House.
California Gov. Jerry Brown and the state's other top Democrats called Trump's move to roll back the emissions standards a cynical ploy.
"President Trump's decision today to weaken emission standards in cars is an unconscionable gift to polluters," Brown wrote to the EPA Administrator Scott Pruitt on March 15. "Once again you've put the interests of big oil ahead of clean air and politics ahead of science."
Electricity production accounted for most of the greenhouse gases produced in 2014 at 30 percent, but transportation was right behind at 26 percent, according to the Environmental Protection Agency's website. In California, that percentage was even higher: Transportation generated 37 percent of its emissions in 2014.
"For sure California is gearing up," said Deborah Sivas, an environmental litigator at Stanford Law School. "Part of it depends on the next moves by the administration."
The EPA did not respond to a request for comment about its plans for the emissions standards. In a statement last month, Pruitt said that along with the Department of Transportation, the EPA would consider whether the emissions standards were good not only for the environment but also for consumers.
"These standards are costly for automakers and the American people," he said. "We will work with our partners at DOT to take a fresh look to determine if this approach is realistic."
Transportation Secretary Elaine Chao echoed his statement, calling Trump's position a "win" for the American people.
Attempts to undercut the standards will prompt drawn-out litigation from states such as California or New York, Sivas predicted. To reverse an earlier decision, the EPA will have to go through the same series of elaborate steps that were taken to put the rules into place.
"They can't just say, 'Oh yeah, well forget that,'" Sivas said.
California earned its unique authority to set regulations tougher than national ones through its pioneering efforts to curb air pollution. When Congress amended the Clean Air Act in 1970, it gave the EPA authority to restrict air pollution from tailpipes as a way to tackle smog. But because California had established its own laws a decade earlier, and because it successfully argued that its air pollution was naturally worse than other states', it was given special status in the law. California may ask the EPA administrator for a waiver to restrict pollution more stringently than the federal government if, in the law's language, the state's standards are at least as protective of public health and welfare and needed to meet compelling and extraordinary conditions.
The EPA has denied California's request for a waiver just once, during the administration of President George W. Bush, when California first moved to regulate greenhouse gases in addition to more traditional pollutants. California sued but the case was never decided because Obama was elected.
If the Trump administration were to deny future waivers, California would certainly push back.
Hecht said that in the past, California has argued that it has compelling and extraordinary circumstances because it has a very large economy and sells many cars, and so its efforts to reduce greenhouse gases will make a difference. It also has said that climate change will have specific, negative effects on the state: the loss of the snow pack which will threaten its water supply, for example.
"They were accepted by the Obama administration, and the question will be, Will California win that court fight?'" he said.
Nor is there anything in the law giving the EPA administrator the authority to withdraw a waiver already granted.
"It doesn't speak to the issue one way or the other," said Richard Frank, an environmental law professor at the University of California-Davis.
The Trump administration would likely argue that it has the discretion to revoke any waivers granted by a previous administration, while California would say that absent specific language in the law, the EPA lacks the authority, he said.
"Given all that it will be tough for EPA to say we're going to rescind your waiver," Sivas said. "So I think California has the upper hand in that fight if it comes down to that."
At Pruitt's confirmation hearing, he refused to commit to keeping the waiver in place. Pressed by California's Sen. Kamala D. Harris, a Democrat, he said, "I don't know without going through the process to determine that. One would not want to presume the outcome."
If the Trump administration were to try to withdraw the waiver, Sivas thought California would win in court.
"It's pretty clear under the statue that the deference goes to California not to the EPA on whether the waiver is appropriate," she said. "The Congress wrote the statute that way."
The EPA has already concluded both that elevated levels of greenhouse gases in the atmosphere "may reasonably be anticipated to endanger" public health and that emissions from new cars contribute to the dangerous levels of greenhouse gases.
The so-called "endangerment finding" came about after Massachusetts sued the EPA under the George W. Bush administration to force it to regulate carbon dioxide emissions. The U.S. Supreme Court determined that greenhouse gases fit well within the Clean Air Act's "capacious definition of 'air pollutant,'" meaning the EPA had the statutory authority to regulate their emissions from new cars and other vehicles.
When it was challenged, the finding was upheld in a federal court, and the U.S. Supreme Court declined to hear an appeal.
"It is there, and it needs to be enforced and respected," Pruitt said during his confirmation hearing. "There is nothing that I know that would cause it to be reviewed."
Massachusetts — which along with Connecticut, Delaware, Maine, Maryland, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington follow California's lead — is committed to the stricter standards, said Ed Coletta, a spokesman for the Massachusetts Department of Environmental Protection.
As with California, Massachusetts is relying on lower car emissions to achieve its climate change goals. The administration of Republican Gov. Charlie Baker wants to place 300,000 zero-emission vehicles on the road in Massachusetts by 2025 as part of a multi-state effort.
"Any weakening of those standards would raise concerns about Massachusetts' ability to meet emissions reduction goals and maintain ozone standards," Coletta said.
New York's Department of Environmental Conservation also said it would stick with the California standards to try to reduce greenhouse gas emissions 40 percent below 1990 levels by 2030, and 80 percent by 2050.
"While federal leadership is essential, New York will not stand idly by while clean air protections are eviscerated, and will take any and all actions necessary to ensure public health and our environment are protected," it said.
Meanwhile, the attorneys general of eight of the states plus the District of Columbia and Pennsylvania's Department of Environmental Protection criticized Trump's position as a dramatic wrong turn for the country that would undermine successful efforts to combat pollution.
"An extensive technical study by the Environmental Protection Agency already found that the standards are fully and economically achievable by the auto industry," their March 16 statement said. "Relaxing them would increase the air pollution that is responsible for premature death, asthma, and more – particularly in our most vulnerable communities."
The standards that Trump wants to ease were set in 2012 in an ambitious effort that also created consistency across the country. The agreement, which grew out of an accord that Obama crafted in 2009 after the financial melt-down, brought together the Obama administration, the car manufacturers and the California Air Resources Board. The rules require each company's fleet of vehicles for the model years 2022 through 2025 to achieve on average 54.5 miles per gallon and they enable the manufactures to avoid making two versions of vehicles for different states.
As part of the agreement, the EPA undertook an evaluation mid-way through the period, but expedited its analysis just before Obama's term ended. In November, with Trump about to take office, it announced it would leave the regulations in place.
That decision left many of the car companies crying foul, saying the review had been rushed, and urging Trump to intervene and weaken the standards. Manufactures warned of price hikes over what consumers could pay, and the loss of 1 million automotive jobs, and pointed to the popularity of pickup trucks and other less fuel-efficient vehicles.
"The Trump Administration has created an opportunity for decision-makers to reach a thoughtful and coordinated outcome predicated on the best and most current data," the Alliance of Automobile Manufacturers said in a statement after Trump’s announcement.
Now that the review has been reopened, a final decision from the EPA could come as late as April 2018.
Meanwhile in court, the alliance is arguing that the EPA's speeded up review was arbitrary and capricious. California responded by asking the U.S. District Court for the D.C. Circuit that it be allowed to defend the feasibility of the standards in court.
An earlier analysis by the EPA found that the standards would reduce oil consumption by nearly 40 billion gallons of refined gasoline and diesel fuel, decrease greenhouse gas emissions by 540 million metric tons and save consumers more than $1,650 per vehicle, the California politicians said.
"Your action to weaken vehicle pollution standards — standards your own members agreed to —breaks your promise to the American people," Brown wrote to the automobile manufacturers. "Please be advised that California will take the necessary steps to preserve the current standards and protect the health of our people and the stability of our climate."