The Gears in Motion: California Likely to Regulate GHGs from Mobile Sources (Again)
The Environmental Protection Agency (EPA) announced yesterday that it is formally reconsidering the Trump Administration’s withdrawal of a waiver of preemption that previously allowed California to regulate greenhouse gas (GHG) emissions from cars and light trucks. The EPA’s action follows a similar proposal issued last week by the National Highway and Traffic Safety Administration (NHTSA) to repeal a rule regarding preemption of state and local laws related to fuel economy standards. Because EPA’s preemption waivers do not require rulemaking, the EPA notice is largely descriptive, in addition to identifying questions commenters should address. But the likely outcome is no secret: The EPA and NHTSA actions are a first step toward reinstating California’s authority, and that of states opting into California’s program, to enforce California’s GHG emission standards for cars and light trucks, and reflect the Biden Administration’s focus on restoring local efforts to combat climate change.
In 2013, EPA granted a waiver of preemption for California’s Advanced Clean Car (ACC) program, which includes GHG emission standards for cars and light trucks and California’s zero emission vehicle (ZEV) mandate. In 2019, however, the Trump Administration revoked portions of that wavier in a final rule promulgated jointly with NHTSA. EPA received multiple petitions for reconsideration from states and non-governmental organizations urging the Agency to reconsider the withdrawal of the waiver. In the Notice of Reconsideration signed by EPA Administrator Michael S. Regan last week and announced yesterday, EPA granted the petitions for reconsideration and sought public comment on whether the prior Administration “properly evaluated and exercised its authority in reconsidering a previous waiver granted to CARB and whether the withdrawal was a valid exercise of authority and consistent with judicial precedent.”
California is currently administering the affected portions of its program on a voluntary basis. If the waiver is ultimately reinstated, however, California may begin to enforce its standards again, potentially creating a bifurcation in standards across the United States with the more stringent ACC GHG standards applicable in California and opt-in states and the rolled back SAFE 2 standards applicable in the rest of the country, at least until EPA might complete rulemaking to revisit the SAFE 2 standards.
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