Climate Change Law and Policy Lawyers & Attorneys : McKenna Long & Aldridge Law Firm : Climate Change Regulation, Green Strategies, Environmental Policy

It’s a fine mess, the climate traffic jam. Led by California, some eighteen states have asserted a primary role in controlling vehicle greenhouse emissions. But the Environmental Protection Agency attempted to close off independent state action by denying California the Clean Air Act waiver it had to have before it (or any other state) could proceed on its own. Having blocked the states, and having lost a Supreme Court case in which it tried to avoid a role in greenhouse gas regulation, the EPA has begun to scour the Clean Air Act to establish its own primacy, not only over vehicle greenhouse emissions, but over a variety of other greenhouse gas sources as well (see accompanying blog).

The state-EPA-court dispute was bad enough, but it gets worse. The National Highway Traffic Safety Administration recently dealt a blow to both EPA and the states by proposing preemptive federal fuel economy standards (corporate average fuel economy or CAFE standards)  that render the states’ efforts a clashing nullity and directly challenge EPA’s lead on vehicle emissions. Will the courts, Congress, or a presidential administration sort out the traffic jam over authority to reduce vehicle greenhouse emissions? At this writing, horns blare, voices are being raised (the governors’ above the rest), but resolution is nowhere in sight.

The dispute focuses attention on the fact that vehicle mileage standards and direct emissions controls are inextricably intertwined approaches to combating greenhouse emissions. Altering one unavoidably clashes with the other. States like California want to set both mileage requirements and emissions controls under their own laws, and the EPA wants to control (well, may be forced to control) direct vehicle emissions under the Clean Air Act, but the NHTSA says that the 2007 Energy Independence and Security Act put it in charge by empowering it to set uniform national mileage standards that must not be impaired either by inconsistent state mileage standards or by state or federal tailpipe emissions standards. That makes NHTSA the lead agency on vehicle emissions, and other climate regulatory wannabes must step aside.

The details are that NHTSA has proposed standards for 2011-2015 model years that would culminate in a 2015 standard for cars of 35.7 mpg and 28.6 mpg for light trucks, which represent substantial increases in mpg over existing CAFE standards. It is very important to understand that these proposed new standards explicitly will take carbon dioxide impacts into account for the first time. NHTSA lost a Ninth Circuit appeal when it tried to bypass consideration of CO₂ impacts by arguing that it could not put a value on a ton of CO₂ emissions. Although it has asked for reconsideration of this decision, it has nevertheless apparently read the handwriting on the wall and decided to issue a proposed CAFE rule that takes carbon control benefits into account.

The big news recently has been the outrage a dozen governors expressed in companion letters to the President and congressional leaders on April 23^rd regarding NHTSA’s “cynical attempt” to “subvert,” “usurp,” and “assault” congressional authority and “rewrite” the Clean Air Act’s provisions covering air pollution, “including greenhouse gases.” The governors could not have been clearer (could they?) that they view state authority to control greenhouse emissions as guaranteed by the Clean Air Act and principles of federalism and that, as far as they are concerned, the only relevant federal greenhouse gas control law is the Clean Air Act (with which they are not entirely pleased, but they like it better than putting the federal Department of Transportation in control).

The NHTSA may not appear at first glance to be an environmental protection agency, but the National Environmental Policy Act (NEPA) may be the “vehicle” for an enforced education for NHTSA in climate science and policy. NHTSA’s debut in climate policy takes the form of a comprehensive NEPA environmental impact statement that the Administration has announced that it will draft on climate science and alternative ways to reduce vehicle greenhouse emissions (Federal Register Notice). The public and other agencies of federal and state government will be asked to provide comment. NHTSA wants to make its own collection of studies of  greenhouse gas impacts on temperature, water, biological resources, human health and welfare, regional differences, and the time frame in which impacts may occur. If this sounds somewhat familiar, keep in mind that NHTSA comes somewhat new to the climate debate.

Thus, while EPA is asking for public comment on using the Clean Air Act’s provisions for climate management in the US, the NHTSA is creating another parallel public forum on the topic using the NEPA process and the triggering “major federal action” of its proposal of corporate average fuel economy (CAFE) standards under the 2007 Energy Independence and Security Act. While Congress continues to review climate bills and hold hearings, the federal agencies are far from silent. While this election year grinds on, maneuvering for position quietly goes forward among the states and the federal agencies most involved with climate policy development.