EPA Reconsiders California’s Request for Section 209(a) Waiver
In a complete reversal from the policies of the Bush administration, on Monday, January 26, 2009, President Obama directed the Environmental Protection Agency (“EPA”) to reconsider its former rejection of California’s application for a waiver under Section 209(b) of the Clean Air Act, which would have allowed California and fourteen (14) other states to regulate greenhouse gas emissions from motor vehicles.
On February 6, 2009, EPA headquarters issued a news release confirming that EPA’s newly appointed Administrator, Lisa Jackson, signed a Federal Register Notice announcing notice for hearing and comment on California’s request for reconsideration of previous waiver denial. The release quoted Ms. Jackson who stated, “EPA has now set in motion an impartial review of the California waiver decision. “It is imperative that we get this decision right, and base it on the best available science and a thorough understanding of the law.”
Jackson acknowledged the long-standing history of EPA granting waivers to the state of California. The release stated, “EPA believes that there are significant issues regarding the agency’s denial of the waiver” and it’s opinion that “[t]he denial was a substantial departure from EPA’s longstanding interpretation of the Clean Air Act’s waiver provisions.”
Section 209(a) of the Clean Air Act
While federal laws establish national minimum standards for the protection of the environment, these laws generally provide states with a mechanism by which to establish stricter standards than those enforced at the federal level. However, this is not the case with regard to the regulation of emission standards for mobile sources of air pollution. In fact, Title II, Section 209(a) of the Clean Air Act specifically prohibits states from “adopt[ing] or attempt[ing] to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines….” There is, however, an exception to the prohibition outlined in Section 209(a) of the Clean Air Act. Specifically, Section 209(b) provides that the EPA’s “Administrator shall … waive application of this section [Section 209(a)’s prohibition] to any State which has adopted standards for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, if the State determine that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.”
California was the only state to adopt standards for control of emissions from new motor vehicles before March 30, 1966. Therefore, California may seek the waiver provided for under Section 209(b) of the Clean Air Act.
However, Section 177 of the Clean Air Act, permits states with an EPA-approved State Implementation Plan (SIP) to “adopt or enforce for any model year standards relating to control of emissions from new motor vehicles or new motor vehicle engines … if (1) such standards are identical to the California standards for which a waiver has been granted for such model year, and (2) California and such State adopt such standards at least two years before commencement of such model year….”
On July 22, 2002, California enacted legislation intended to reduce greenhouse gas emissions from motor vehicles. To-date, fourteen (14) other states have announced their intention to adopt California’s GHG emission controls for motor vehicles. These states are: Arizona, Connecticut, Florida, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington. However, as a precondition for these states to adopt California’s GHG emission controls for motor vehicles, the EPA Administrator must grant California’s request for a waiver under Section 209(b) of the Clean Air Act. The EPA has consistently granted California’s requests for the Section 209(b) waiver since 1967.
Denial of California’s Request for a Waiver and Reconsideration Under a New Administration
On December 19, 2007, the EPA’s Administrator, Stephen Johnson, in December 19, 2008, announced EPA’s intention of denying California’s request for a waiver. The EPA, however, did not formally deny California’s request for a waiver, which presents procedural problems in that until such time as EPA formally denies California’s request for a waiver, California may not challenge the agency’s action.
Shortly after President Obama took office, on January 21, 2009, EPA received a letter from California outlining several issues for EPA’s new Administrator to review and reconsider about the previous denial of the waiver.
EPA will take public comment concerning the reconsideration of the waiver for a period of 60 days after publication in the Federal Register. There will also be a public hearing to be held on March 5, 2009 in Washington, D.C.
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