California's data challenges EPA

The Golden State filed suit on Wednesday for the right to limit greenhouse-gas emissions from autos.

SOURCE: California Air Resources Board, "Technical Assessment," Jan. 2, 2008/Rich Clabaugh–STAFF
SOURCE: City police departments; Census population figures from 2006/AP

California's ambitious plan to regulate greenhouse-gas emissions of cars and trucks would be more than twice as effective in reducing such gases by 2016 than the new federal fuel-economy law, the state said as part of a new legal broadside against the US government this week.

Such factoids are among reams of statistical evidence offered by California in a lawsuit filed Wednesday to try to reverse the Environmental Protection Agency's rejection last month of the Golden State's request to limit such tailpipe emissions. Fifteen other states and five environmental groups quickly joined California's suit.

Just how effective California's plan would be is important because EPA Administrator Stephen Johnson has specifically cited the new fuel-economy law, which Congress approved last month, as a more effective national approach. He made that assertion when rejecting the state's request for a waiver from the Clean Air Act.

Aside from statistical evidence, California – whose plan could be the template for states containing nearly half of America's populace – is in a strong legal position to prevail in court, analysts say. That's due in part to EPA precedent granting 53 similar waivers already – and because the EPA appears to be relying on novel legal interpretations for rejecting California, they say.

"I'll be interested to see how [Department of Justice lawyers acting for the EPA] parse their way through this one. It won't be easy," says Bruce Buckheit, an environmental consultant who directed the EPA's air-enforcement division until 2003.

The EPA declined to comment on the lawsuits Wednesday, though it reiterated comments Mr. Johnson made last month when he said the Bush administration was "moving forward with a clear national solution – not a confusing patchwork of state rules" to cut vehicle emissions. The EPA also said the new national fuel-economy standard "would be more effective than a partial state-by-state approach."

But according to California's newly unveiled analysis, the US Corporate Average Fuel Economy (CAFE) statute, which mandates a 35-mile-per-gallon fleet average by 2020, would cut greenhouse gas emissions by only 8 million metric tons – compared with 17 million metric tons by 2016 for California's plan.

If a dozen other states that have already adopted California's proposed standards joined the Golden State, the impact would reduce greenhouse tailpipe emissions by nearly 60 million metric tons nationwide by 2020 – about 60 percent more than would be accomplished by CAFE, the California analysis showed.

EPA has yet to unveil its own technical analysis, which is expected to support Johnson's contention that the CAFE law is a superior mechanism. Also yet to be unveiled is EPA's legal argument.

Hints as to EPA's legal position may be found, however, in Johnson's Dec. 19 letter to Gov. Arnold Schwarzenegger denying California's request. It was, he said, fundamentally different from past waivers the EPA has granted. But legal analysts say EPA's basis for denying California must go further and pass four legal tests under the Clean Air Act, including:

•Prove that California's request was arbitrary and capricious.

•Show that state standards and enforcement would present an unreasonable risk to public health.

•Show that the state doesn't need such standards to meet compelling and extraordinary conditions.

Indeed, California has presented a detailed case that global warming presents compelling and extraordinary risks – including loss of coastline due to sea-level rise as well as loss of vital water supplies through reduced snow pack and wildfires.

Others insist there is no "patchwork," as Johnson contends, and that this argument isn't relevant.

"You would have two systems – not many – and that's the same system as we have today," Mr. Buckheit says. "We have California cars and cars from other states. That's it."

Mary Nichols, chairman of the California Air Resources Board, during a teleconference Wednesday rejected EPA administrator Johnson's reference to a confusing patchwork of state laws as a valid reason for denying California's request.

Gov. M. Jodi Rell (R) of Connecticut, who leads one of the 15 states that have joined California's suit, also had harsh words for the EPA. "The EPA has become a roadblock to states that want to pass tougher clean-air standards," she said. "This is a shame and a disgrace. They are not serving the people or the health of the public by preventing states from improving their environments."

Another key EPA argument is that California's climate-change problem isn't unique and doesn't require a unique solution because global warming "is not exclusive or unique to California, and [the waiver request] differs in a basic way from previous local and regional air-pollution problems addressed in prior waivers," as Johnson put it in his letter to Governor Schwarzenegger.

Environmentalists say recent court rulings undermine such arguments: two by US district courts and one by the US Supreme Court in April that said the EPA had authority to regulate greenhouse-gas emissions under the Clean Air Act. By contrast, Johnson's position would turn the Clean Air Act, which from its inception has allowed California to take a lead position on air pollution, on its head, they say.

"The idea that California can't address greenhouse gases because of its global nature, and therefore hasn't demonstrated a compelling need for a more protective standard, is absurd," says Vickie Patton, deputy general counsel for Environmental Defense. "Under this EPA Humpty Dumpty view of the world, the most widespread and damaging problems would go unaddressed."

Given its complexity, California's suit filed at the Ninth Circuit Court of Appeals is likely to last at least a year. A new tenant of the Oval Office, however, might direct the EPA to grant California a waiver after all – something that could occur before any court ruling, Buckheit says.

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