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Clean Air Act (Title II) generally prohibits states from adopting or “attempt[ing] to enforce” their own emission standards for new motor vehicles or engines. In general, it allows only federal standards for motor vehicle emissions.
There is an exception to this rule in Section 209(b) (42 U.S.C. 7543(b)), which provides that:
The [EPA] Administrator shall, after notice and opportunity for public hearing, waive application of this section to any State which has adopted standards (other than crankcase emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, if the State determines that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.
Unless:
- California was “arbitrary and capricious” in determining that its standards will be, in the aggregate, at least as protective of public health or welfare as applicable federal standards;
- California does not need such state standards to meet compelling and extraordinary conditions; or
- Such state standards…are not consistent with section 202(a) of the Act.
Only California adopted such standards before March 30, 1966, so only California can seek such a waiver.
Background
California has previously requested waivers under Section 209(b) and while EPA has never fully denied a waiver request the agency has not always granted waivers in full. On at least six occasions prior to the 1977 Clean Air Act amendments, the agency granted a waiver in part, while denying other parts of the request. In 1975, it denied a waiver for the 1977 model year, but granted it for 1978. Since the 1977 amendments -- when the Act was amended to require that the California standards will be, in the aggregate, at least as protective of public health and welfare as applicable federal standards -- there has been one instance in which EPA made a determination that California’s requirements were technologically feasible in part, granting a waiver for the 2007 through 2011 model years, but making no decision for model years after that.
Since 1967 California has submitted approximately 50 full waiver requests and another approximately 45 requests for “within the scope” (of prior waiver) determinations. Six of these were granted with conditions or partial approvals. Conditions/partial approvals were based on need for more lead time or lack of technological feasibility to meet the standard on the full time period (e.g., waiver granted but with a limited time period).
With regard to length of time of the process, in two notable waiver decisions -- the Low Emission Vehicle I and II programs (LEV I and LEV II) and Zero Emission Vehicle Program (ZEV) -- where California had significantly modified its regulations – EPA has taken 6 to 9 months between beginning of the comment period and a final determination.
Timeline
- In 2002 California passed a law placing increasingly strict limits on greenhouse gas (GHG) emissions from vehicles.
- In 2004, the California Air Resources Board published final regulations setting GHG emissions standards for motor vehicles.
- On December 21, 2005, California requested that EPA grant a waiver of preemption under Clean Air Act § 209(b).
- On February 21, 2007 Acting Assistant Administrator William L. Wehrum wrote to Ms. Catherine Witherspoon, Executive Officer of California Air Resources Board stating that the Massachusetts v. EPA U.S. Supreme Court case could be relevant to the waiver decision and therefore that EPA intends to proceed with the waiver request after the Supreme Court issued its decision.
- In April 2007 the Supreme Court ruled GHGs are CAA ‘air pollutants.’
- On April 24, 2007, EPA’s notice of a public hearing and opening of comment period regarding California’s request was published.
- The Agency held two public hearings on the waiver, one on May 22, 2007 in Washington, DC and one on May 30, 2007 in Sacramento, CA, and later declined requests to extend the public comment period. The comment period closed on schedule on June 15, 2007.
- On June 21, 2007, Administrator Johnson wrote to Governor Arnold Schwarzenegger indicating that he would make a decision on the California waiver request by the end of the year. There is no statutory deadline for a decision.
- On December 19, 2007, Administrator Johnson wrote to Governor Arnold Schwarzenegger indicating his decision on the California waiver request.
