Sunday, December 23, 2007

Mileage Talk

Last week, the Environmental Protection Agency denied a waiver sought by California for its state fuel emission stanadards. The reason--Congress recently adopted new mileage minimums (the so-called CAFE standards) requiring most cars to operate at 35 miles per gallon by 2020 (see Section 102). The California law "would have required a fleet average of 36 miles a gallon by 2016."

Connie of ConnieTalk calls the decision "shameful." Although she acknowledges the EPA reasoning--that "the law was pre-empted due to the new national energy bill President Bush signed earlier in the day"--she scores the decision as a defeat for efforts to slow global warming.

It was nothing of the sort. Rather, California attempted to legislate in an area already subject to Federal regulation, and sought permission to impose standards inconsistent with those later chosen by Congress. Section 209 of the Clean Air Act reads, in part:
(a) No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. . .

(b) Waiver
(1) The Administrator shall, after notice and opportunity for public hearing, waive application of this section . . . No such waiver shall be granted if the Administrator finds that -
(A) the determination of the State is arbitrary and capricious,
(B) such State does not need such State standards to meet compelling and extraordinary conditions, or
(C) such State standards and accompanying enforcement procedures are not consistent with section 7521(a) of this title.
EPA Administrator Stephen Johnson held that California's law flunked all three conditions.

What would Connie have done? California's standard was stricter than Federal law--an automaker could meet CAFE standards but flunk an inconsistent state standard. In order to avoid making multiple auto models, car makers otherwise would have had to stop selling in California or meet a more challenging rule nationwide. Simply put, California advocated a regime where one state, not Congress set fuel efficiency standards.

This wasn't about mileage or global warming. It was about Constitutional authority. The EPA acted within the law and denied California's request for waiver--because it was preempted; the EPA did not address whether California's approach was bad policy.

Connie and others are free to ask Congress to tighten the law. But 50 inconsistent state standards would be worse. And painting this Bush Administration decision as anti-environmental utterly misses the point.

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