Wednesday, September 18, 2019

Trump's Planned Revocation of California's Clean Air Authority is Illegal

by Michael C. Dorf

A provision of the Clean Air Act requires the EPA Administrator to waive federal regulatory authority over vehicle emissions for states that wish to enforce their own standards if those standards are "at least as protective of public health and welfare as applicable Federal standards" and necessary "to meet compelling and extraordinary conditions." The waiver provision only applies to states that regulated pre-March 30, 1966 or to states that adopt the standards of such states.

As nearly all readers of this essay undoubtedly realize, in practice that means that California and states that adopt California's standards regulate air pollution more strictly than does the federal government. Various versions of the waiver for California and other states that voluntarily choose to participate have been in place for decades, under both Republican and Democratic administrations. But Donald Trump and EPA Administrator Andrew Wheeler find clean air threatening, so they plan to revoke California's waiver.

California Governor Gavin Newsom and state AG Xavier Becerra responded to the proposal by announcing their intention to sue. Here I shall explain why they have a good chance of succeeding.

Let's begin with the statutory text. It says that the EPA Administrator "shall . . . waive" the federal requirements and thus allow state regulation where state regulation is at least as protective as federal standards. There is no question that California's standards are more protective than federal standards. Thus, unless one of the statutory exceptions applies, Wheeler has no authority to revoke California's waiver.

The statutory provision set forth above includes three exceptions. Exception (A) disallows waivers where the state standards are "arbitrary and capricious." That exception could, perhaps, be invoked to disallow one or more new California standards, but the fact that EPA has granted the waiver for the existing California standards and that they have been working well in practice makes it very difficult to argue persuasively that California's existing regulatory regime is arbitrary and capricious.

Exception (C) disallows waivers for standards and enforcement procedures that contradict -- as opposed to going further than -- the federal rules and standards. It does not appear to be relevant here.

That leaves exception (B), which I quoted above: the stricter state standards must be needed "to meet compelling and extraordinary conditions." Prior administrations of both parties have routinely found such conditions. Is there any plausible argument that they have ceased to exist?

One might try to argue that the original basis for finding compelling and extraordinary conditions was the very poor air quality in Southern California and some other parts of the state but that air quality has improved. That might have been a good argument fifteen years ago, but as a collection of maps showing air pollution in a July 2019 LA Times article illustrates, air quality improved from 1980 to 2005 but has gotten substantially worse since then. The same article indicates that Los Angeles continues to have substantially worse air quality than New York and Houston. If California needed its standards to meet compelling and extraordinary conditions for decades--as every administration concluded it did--it continues to need them now.

And of course, that's just local pollution. California also has a waiver (granted during the Obama administration) for its fuel-efficiency standards, which reduce local air pollution and also reduce greenhouse gas emissions. One could say that California is not situated in a "compelling and extraordinary" way relative to global warming, which will have impacts everywhere, but even if so, one would need to point to some change since the waiver was granted that justifies its revocation.

Here's what we can expect to happen next: The Trump/Wheeler EPA will rescind the waiver and promptly be sued by California, which will argue that the rescission is arbitrary and capricious. Under a 1983 SCOTUS ruling involving airbags, an administration must provide a reasoned explanation based on data for rescinding a regulation like California's waiver. If there is any justice (an open question), it will not be able to do so. After all, Trump apparently was motivated by his desire to "punish California," not by any legitimate public policy considerations.

Yesterday, I wrote a column in which I praised an EPA initiative on animal testing, which I deemed good public policy regardless of the motives of Wheeler and Trump. The planned revocation of California's Clean Air Act waiver is terrible public policy driven by terrible, petty motives. If there is any good news here, it is that the inevitable litigation could forestall implementation of the waiver revocation until after January 2021, when there could be a different administration in power.