In 2019, we discussed the dire situation between then president Donald Trump and the State of California. For decades, since the Clean Air Act came into effect, the EPA has allowed California and other states to have more stringent emission standards than federal regulations. But, for various reasons, Trump wants to remove California from that authority and set a low standard across all 50 states (and territories, districts, etc.). With the end of the Trump administration, the challenge ended and California regained its clean air exemption, but several states opposed it in court.
Before we get into how Ford got involved with this latest case, let’s do some background.
Why California Can Set Its Own Rules
To understand this situation, you have to go back to the Clean Air Act of 1970. In that law, the idea was for the federal government to regulate emissions in all 50 states, and that law gave the EPA the criteria they would use to determine clean air rules.
Sounds easy, but by then, California was already using state authorities to regulate emissions. To respect the state’s rights and allow California to continue to do what it does, they added an exception to the law. California may request a waiver from the EPA, and the EPA must grant a waiver, unless the following is true:
- arbitrary and capricious in its findings that its standards, on the whole, at least protect public health and well-being as applicable federal standards
- does not require such a standard to meet interesting and extraordinary conditions
- these standards and accompanying enforcement procedures are inconsistent with Section 202(a) of the Clean Air Act.
The state’s latest waiver was granted under the Obama administration, but only after a similar request was rejected by the Bush administration. Regardless, the fact remains that states have a waiver and the waiver took effect in 2019. While the Act gives the EPA the power to review requests and grant or deny them, no authority is granted in the Clean Air Act to review them. previously granted waivers or to revoke existing waivers.
Trump Action 2019
While not having the authority to do this, Trump’s EPA leadership thinks they have loopholes they can use to revoke California waivers. To justify the revocation, they indicated in their response to the lawsuit over the action that the EPA had denied waivers in the past, and was subsequently granted waivers following a second request. So, they claim the ability to refuse and then approve it gives them the power to review past grants and disapprove of them.
So they lifted the California waiver and tried to unify the state with all the other states under weak Clean Air rules. The law doesn’t give Trump the authority to remove the Clean Air rules altogether, so he’s made the weakest rules he could and tried to force everyone to follow those rules instead of the stricter ones.
“Two courts have upheld California’s emission standards, rejecting arguments raised by the Trump Administration to justify a misguided Preemption Rule. However, the Administration is adamant on attacking California and other state authorities to tackle air pollution and protect public health,” California Attorney General Xavier Becerra said at the time. “The Oval Office is not really a place for on-the-job training. President Trump should at least read the instruction manual he inherited when he was President, particularly the chapter on respecting the Rule of Law. Mr President, see you in court.”
There was a lawsuit over this, and several automakers sided with California in the lawsuit. Ford was one of the few to side with California at the time, and said they were the only major automaker to do this.
In the end, the lawsuit ended not because one side won, but because Trump ended up being kicked out of the White House sooner than he wanted (and we all know how dramatic that episode was). Right early in the Biden administration, the action to revoke California’s clean air waiver was overturned, and the lawsuit went out of whack.
Problems That Won’t Just Disappear
Technically, Biden didn’t just hit Ctrl+Z at what Trump did. Because he gave California their waiver back, it gave the conservative state attorney general a chance to prosecute.
Their argument? That the law that gives California authority that other states don’t have is unconstitutional. Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah, and West Virginia were states that filed lawsuits last month. They further argue that when a large and influential state like California sets their own standards, it attracts the entire auto industry to do things the Californian way and robs them of their ability to regulate automakers in their own state.
California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington and the District of Columbia and the cities of Los Angeles and New York all filed in support of letting California maintain its waiver. They argue that the Clean Air Act has been in place and allowed California to set the second rule for more than half a century, and that it’s fair to all states because it balances things out.
In reality, these states are aligned with the state’s ruling party, so this is yet another battle between Democrats and Republicans (as usual) over the environment.
Rather than tell you what Ford thinks, I’ll just give you some of the quotes they gave us in their press release:
“Ford is fighting climate change. We support the recent EPA Waiver Decision to allow California and other states to protect public health and combat climate change by setting and enforcing air pollution standards and zero-emissions vehicle requirements. This is the right thing to do for people and the planet – but it is also critical to the future success of the automotive industry. It brings us closer to the future of zero-emissions transportation, and it creates regulatory stability and an equal regulatory playing field for the entire industry.” — Steven Croley, Chief Policy Officer and General Counsel
“Ford is proud to be the only American automaker to side with more aggressive emissions standards in 2019 and we are the only ones to do so today. By joining this action, we are joining a coalition of diverse countries and communities already feeling the effects of climate change to advocate for the health, economic and mobility benefits that electric vehicles can deliver.” — Bob Holycross, Chief Sustainability, Environment and Safety Engineering Officer
Republicans Might Get the Last Laugh
Today, the Republican vote for the Supreme Court runs the place. I’ll explain why, but to do so, I’ll have to write another long article. But, you probably already know the story. The timing of these lawsuits and their favorable position could lead to California waivers like Roe v Wade. That would be another bad outcome for the environment.
Or Will They?
On the other hand, I would argue that clean vehicle technology is now in too strong a position to be discontinued by weak standards. Just because states set minimum standards for clean vehicles doesn’t mean that buyers have to want vehicles that are dirty (and expensive to operate), or that automakers have to build vehicles that are inefficient. Even if Republican states take these to the Republican Supreme Court and win, it’s highly likely that industry and the public will continue to clean the air without them.
So, that’s why it’s important that we don’t depend on the law and courts for everything. We must fight this battle not only there, but for heart and mind. If enough people want clean, instant torque vehicles that run on American fuel, no politician will stop them.
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