Auto Emissions and Environmental Protection
In turning down California’s request to set stricter limits on greenhouse gas emissions from new automobiles, George W. Bush’s Environmental Protection Agency has struck a blow against both states’ rights and the future of our grandchildren.
Unless the decision is reversed, new cars sold in Oregon and elsewhere in 2009 will not limit greenhouse gases, as they could and should, beyond the limits contained in the new energy bill.
Oregon should join California Attorney General Jerry Brown and Gov. Arnold Schwarzenegger, who have announced they will “sue at the earliest possible moment” to overturn the EPA decision. The states should push for an expedited hearing.
How successful are the states likely to be? They have a good chance to win on legal grounds, but a court decision cannot be handed down quickly enough to affect 2009 models of automobiles. And if we have to wait until a new president is in office who can approve a new request from California, we will have lost at least two more years in the battle against global warming.
Can Congress make a difference? U.S. Sen. Barbara Boxer, D-Calif., said she was “prepared to take all measures to overturn this harmful decision.” But that offers little hope, for “all measures” taken by the Congress would likely draw a veto by this president.
Probably the most effective response to this latest contribution to global heating (it’s not just warming) would be a strong political reaction. But let’s examine the likely success of a lawsuit by California, Oregon and others anyway.
First, some background:
The first government in the world to tackle the problem of pollution from automobiles was California, which started mandating standards for newly produced automobiles more than 40 years ago. The auto industry lobbied for national standards and a law that would block individual states from regulating automobile design. The prospect of numerous states having differing standards drove Detroit to seek a uniform, national program.
Although all other states were pre-empted from having their own standards, California was able to hang on to its legal right to act as a leader in forcing the development of new technology. The federal Clean Air Act specifically granted this right. In 1977, the act was amended to allow other states as well to adopt standards stricter than the national standards — as long as they were the ones that California was imposing on the industry. In that way there would be two sets of standards in the United States — the more progressive California-and-others standards and the laggard EPA standards. It was a good solution that respected the role of the states as “laboratories” for experimentation, while giving a major industry some certainty in its planning and production processes.
But the law also gave the EPA the power to veto the California-and-others set of standards. Section 209 of the Clean Air Act says the EPA should not grant a waiver for separate California-and-others standards unless they are needed “to meet compelling and extraordinary conditions.”
On Wednesday, EPA Administrator Steve Johnson said: “Previous waiver petitions covered pollutants that predominantly impacted local and regional air quality. These gases contribute to the challenge of global climate change affecting every state in the union.”
In other words, the Bush administration has concluded that global warming (or, more accurately, heating) is not “compelling” or “extraordinary” because it is not local or regional, but national and global. The reasoning takes one’s breath away.
A court challenge to the EPA’s decision will turn on a question of administrative law that I ask my law students: “Who interprets the laws passed by Congress — the courts or the executive branch?”
A Supreme Court case in 1984 titled Chevron v. NRDC established a two-step test for answering that question.
Step One: If the law is clear, the courts interpret it and can overturn the government decision (or, shall we say, they just apply the law).
Step Two: If the law is not clear, the courts “defer” to the interpretation by the administrative agency — as long as it is “permissible” (reasonable).
The best way to challenge a federal agency is to win in Step One. If the court goes to Step Two because of ambiguous statutory language, it often upholds the agency.
Regarding this Step One interpretation, several years ago, when the Supreme Court was deciding whether the FDA could regulate cigarettes, it said the courts are not limited to examining only the bare words of the statute in order to determine whether it is clear. They also can consider “legislative intent” (committee reports, other background material), including the context of the legislation.
Consider this: Congress in 1977 allowed all states — not just California — to adopt the stricter California standards. It did this in order to address the widespread problems of air pollution in our nation. But Congress did not limit this reinstatement of states’ rights to only states that had their own local or regional problems. It allowed any state to adopt the stricter standards, regardless of the local situation.
This suggests that Congress intended that the states be able to address “compelling and extraordinary circumstances” that are national or even global, despite the EPA’s administrator claim in vetoing the stricter greenhouse gas standards last week.
Even if the odds of defeating EPA in court are good, the courts take some time to rule. But the planet doesn’t have much time.
George Bush’s administration is fiddling while the planet burns. This is not the same EPA for which I worked (during the Nixon, Ford and Carter administrations). In those days, we tried to follow the law, and Administrator William Ruckelshaus even invited California to apply for approval of stricter standards.
The present EPA is putting the interests of the oil and automobile industries ahead of the interests of our children and grandchildren. We have to regain an EPA in which the initials really do stand for “environmental” and “protection.” While the courts can help, the real answer lies with parents of the next generations. And the real answer lies at the ballot box, not in the courtroom.
John E. Bonine joined the Environmental Protection Agency in 1972 as a staff attorney in the Office of General Counsel. He held supervisory positions during the Ford and Carter administrations, rising to associate general counsel, before leaving in 1978 to join the faculty of the University of Oregon School of Law.
© 2007 Oregon Live LLC
The term Enviromental Protection, is a contradiction of terms.
KEM…It’s also an oxymoron to the morons who put greed above air, water, and all Life!
Did the EPA file an environmental impact statement to needlessly delay better gas milage and thereby lower polution? How many Americans will be simply murdered and maimed for a few dollars more? Is it that King George of the Coprophagous Smirk cares nothing for his subjects? Will we get to vote for the poisoning of our children?
the democrats in congress are absurd in their claim that impeachment will get in the way of other necessary business. in fact, we must have impeachment in order to get on with the rest of our lives.
Even California’s proposed emission requirements were a bunch of hooey. People need to get a grip on reality. It will take much more fundamental change — and sacrifice — to slow down global warming. Most people, even those who consider themselves more “progressive” minded, such as the people who post here, will not admit this obvious reality. How much would you personally be willing to sacrifice in order to stop this impending disaster? For example, would you be willing to have the speed governor on your vehicle capped at 40 mph, so that your car (regardless of what type of vehicle your drive) could never exceed 40 mph? If humans would agree to this single change, we would not only eliminate most of the more than ONE MILLION people worldwide who are KILLED in motor vehicle crashes each year, but also very possibly bring to a screeching halt any further serious damage to the environment. Most of the damage that occurs, in terms of vehicle emissions, happens above 40 mph. So, would you be willing to make this one admittedly big sacrifice, or would you rather continue looking for an easy way out?
You just lean back in that nice comfortable seat and go for a nice long leisurely ride. We’re taking take of all the problems.
“…but a court decision cannot be handed down quickly enough to affect 2009 models of automobiles.
Rindscheisse! Maybe it won’t but it sure as hell can.
For those with a diesel engine car you can run on pure waste/vegetable oil - this is a great niche until more start doing it. I have converted several VW Jetta’s and other diesel vehicles this way - they work great! (I like the greasecar.com version). Germany now has nearly 6% liquid fuel as pure unrefined/unaltered oil. So, as we work through these crises, I see that new sources of energy will HAVE to be imployed - fuel cell, wind, geo-thermal, hydro - more and more locally based and sustainable. If you transport corn over 200 miles rail or 50 miles by truck you use up the energy gain. The key is locally based energy; AND mass transit, of course. Then there is the real possibilty that cold fusion or some radically more efficient energy source will make itself known. 2-3,000 papers claiming repuducible results must give some indication that main-stream nuclear folks seem to want to suppress. France has a reactor as I recall, that is experimenting in this field. Why not the U.S.? Lets REALLY decide we want energy security huh?
I think a lot more Americans will be ticked off about their choices of new cars and small trucks being pretty much limited to hybrids starting in 2009 than are ticked off about the EPA overuling the California regs.
So many people think global warming is just another debate on CNN and FOX or an occasional story in the paper or on TV. The polar bear plight goes away when Charlie Gibson signs off and its time to watch “Jeopardy”. Those who still trust the administration are hearing what they want to hear.
Sometimes I can see the supertankers anchor off Cape May and smaller tankers take the crude up the bay to the Philly area refineries. How many millions of barrels every year? No idea, and the Philly refining district is just a drop in the bucket. We aren’t going to replace all that with hemp plantations or waste vegetable oil.
There is a nuclear technology race going on all over the world. Russia, France, China, India, even Canada. The US is going to end up being the fossil fuel dinosaur in an all electric peak oil / global warming world.
I guess the question is how long will it take, or how much climate change damage will it take for the majority of Americans (leadership and citizens) to decide some combination of sacrifice and investment in non-GHG power sources is necesary. And will it be too late when that time comes?
lf The Gov in Ca. had the guts to slap a $5.00 tax on a gallon of gasoline people would find alternatives real quick and the feds couldn’t stop that.
There is only one solution.
California, Oregon and Washington must form a single commonwealth and secede from the U.S.
They can observe a ’special status’ with the U.S., like Canada and Australia do with the U.K., but these states, the most progressive in the nation, really have very little in common with places like Alabama and Mississippi.
Do it Arnold!
We’ve past global warming and are on the brink of ice age. Carbon emissions will check the ice age onset until they’re cut. The fed gov knows this and is buying time to build robot attack jets (a.k.a. UCAV, Unmanned Combat Air Vehicles)…
This article covers ice age well enough:
http://www.commondreams.org/views04/0130-11.htm
Carbon emissions will be cut on short order though. Doctors Duncan and Youngquist predict permanent blackouts by the year 2012 due oil production dropping below what is required to maintain this industrial society.
Vehicles used to put out what reads at an inspection station as 25.0, now they put out about .25! So there’s really not much more that can be done by way of vehicle emissions to normalize global weather. What’s the difference between .25 and .125? Not much.
Emissions in the news is a way of placing the blame on consumers. There’s not much smog in Cali cities now though right? Where the greenhouse gases are now coming from is power production, coal fire power plants particularly.
Everystate that has a snow capped mountain, could have a power facility as the hoover dam. Wind Energy over America is worth 2X what America consumes from all sources today. Wind energy is simple, a circle of magnets sweep past wire coil. Hemp grows as a weed and is oil rich.
Bio, wind, hydro are efficient. Coal is awful, mercury polluting, carbon polluting… What’s more important though is agricultural production. Vegan agriculture is 6X more efficient than herding. Herding packs the growable soil which washes off causing desert to form. Estimates I’ve seen say we have less than 40 years of growable soil if herding agriculture is maintained.
All comments are invited to peace@iraqiagony.org
Thanks,
Dan
One more item, Cannabis Hemp is amongst the few plants that grow anywhere on the planet, from the north pole to the south pole. Thus making solving hunger and energy by hemp a strong possibility.
Anything that comes out of a tailpipe can be considered pollution. Since states can not mandate fuel efficiency they can at least limit emissions. This will lead to smaller more powerful and more efficient engines and the downsizing of large SUVs…a good thing that is long overdue.