Obama Order to EPA: Make Things Even Harder for Detroit?

The news this morning is that the President has ordered EPA to reconsider a Bush Administration decision on California's request to regulate greenhouse gas emissions from new vehicles under the Clean Air Act. One of the key reasons the Bush Administration gave in rejecting California's 2003 request in March of 2008 was that the authority given California specially in the Clean Air Act was intended to cope with certain unique circumstances in that State, in particular the prevalence of air inversions and of auto-dependent land uses. There were other, more bogus reasons given for rejecting the waiver, too, but let's stick to the facially plausible ones here. EPA linked its rejection to its interpretation of the statute's language and history and found that it gave California no room to request waivers with respect to "pollutants" like GHGs.

The legislative history indicates that Congress' intent . . . was to allow California to adopt new motor vehicle standards because of compelling and extraordinary conditions in California that were causally related to local or regional air pollution levels in California.

I express no opinion here on the correctness of this interpretation. But consider one tricky legal question presented to an Obama EPA here -- and in other actions currently in the pipeline at EPA (as well as other agencies): To what extent can an incoming administration turn in exactly the other direction on statutory interpretations based on a new administration's policies. This is certainly an old and common question in administrative law. But it seems to be of new urgency today, given how many truly important policies the last administration linked directly to the agencies' legal standing in court with respect to their enabling statutes. Deference comes in many flavors today and I'm beginning to wonder what deference ought to go to an agency that changes its most basic statutory interpretations every few years.

Posted by Jamie Colburn