Institute for Policy Integrity logo

Twitter @policyintegrity

Publications

No Turning Back

An Analysis of EPA’s Authority to Withdraw California’s Preemption Waiver Under Section 209 of the Clean Air Act

By Denise A. Grab, Jayni Hein, Jack Lienke, Richard L. Revesz
August 1, 2018

Download PDF

Filed under Climate Change and Energy Policy, Reports

For 50 years, California has enjoyed unique authority to regulate air pollution from newly manufactured motor vehicles. While the Clean Air Act preempts all other states from setting their own vehicle emission standards, California can request a waiver to do so if it determines that its standards are at least as protective of public health and welfare as federal standards issued by the U.S. Environmental Protection Agency (“EPA”). Once a waiver is granted, other states can adopt California’s more stringent vehicle emissions standards as their own.

Since the waiver provision was enacted in 1967, EPA has granted more than fifty waivers for California, fully denied only one (a decision it subsequently reversed), and revoked zero. EPA has now proposed to withdraw the waiver California received in 2013 to set its own greenhouse gas emission standards, in conjunction with a weakening of federal greenhouse gas emission standards for vehicles in model years 2021 through 2026.

Because a waiver withdrawal would be entirely unprecedented, neither courts nor legal scholars have previously had cause to discuss the circumstances, if any, under which a waiver might permissibly be withdrawn. This Interim Report analyzes whether EPA possesses revocation authority and, assuming it exists at all, when and how such authority may be exercised.

The Interim Report analyzes information that was publicly available as of August 1, 2018. The report will soon be updated and expanded to address the specific justifications in EPA’s proposed withdrawal.