Transcript Slide 1

Paul Logan
March 4, 2008
This presentation does not necessarily reflect the opinions of
Oregon’s Attorney General, the Oregon Department of Justice, the
Oregon Department of Environmental Quality or the State of Oregon
• State efforts to encourage federal GHG emission
standards for new on-road autos
– Mass. v. EPA
• State efforts to adopt state GHG emission
standards for new on-road autos
– OR LEV; Automaker challenges to California
(“Pavley”) standards; state challenge to EPA denial of
waiver for Pavley standards
• State efforts to encourage federal GHG emission
standards for new non-road vehicles
– Petitions for ships, aircraft and nonroad vehicles
Hot Off the Press Last Week
• Mass. v. EPA
– Feb. 27th letter to states: EPA has “no specific
timeline” to comply with Court’s decision
• Challenge to EPA waiver denial:
– Feb. 29th: EPA publishes additional decision
documents explaining its denial of California’s waiver
request for the Pavley standards
• Nonroad engines:
– Feb. 27th: Ninth Circuit preempts California’s Marine
Vessel Rules, with significance for state efforts to
regulate GHG emissions from nonroad engines
Why have states litigated the issue of
regulating vehicle GHG emissions?
• Cars and trucks about 25% of U.S. GHG emissions
• Federal government refuses to regulate, while
attempting to preempt states from regulating
• Clean Air Act preempts state new motor vehicle emission
standards, unless EPA grants a waiver to California
• If EPA waives for California, other states may opt-in
– 12 states have adopted Pavley: CT, ME, MY, MD, NY, NM, NY,
OR, PA, RI, VT, and WA
– 5 in process of adopting Pavley: AZ, CO, FL, IA, and UT
– 18 states: about 45% of U.S. population and new auto sales
Clean Air Act section 209(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.”
Clean Air Act section 209(b)
• The Administrator shall . . . waive application of this
section to any State which has adopted standards . . . for
the control of emissions from new motor vehicles . . .
prior to March 30, 1966 [California], 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. 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 202(a) of this part.
State regulation of GHG emissions
from nonroad vehicles
• Clean Air Act section 209(e) addresses
nonroad vehicles with the same standards
as section 209(a)-(b)
Summary of State Efforts to Date
• Clinton administration EPA appeared interested in
regulating vehicle GHG emissions
• Bush administration EPA reversed course and has
staunchly resisted regulation
• Absent federal regulation, states adopt regulations,
which EPA and automakers challenge
• Mass. v. EPA begins a rapid stream of state victories
• But still no federal GHG emission standards, and states
need an EPA waiver to enforce Pavley standards
• NEPA analysis must include climate change
• Recent initiative – states petition EPA to regulate
nonroad vehicle GHG emissions (Mass v. EPA in the
nonroad context?)
Mass. v. EPA (April 2007)
• 1998: Clinton administration EPA finds CO2 and
other GHGs from new on-road vehicles are air
pollutants under CAA section 202(a)
• 1999: NGOs petition EPA to regulate
• 2003: Bush administration EPA denies petition:
– EPA lacks authority under CAA section 202(a)
– Unwise to regulate due to residual uncertainty in
climate change science; and
– Regulation would conflict with administration’s
nonregulatory approach
Mass. v. EPA (continued)
• CAA section 202(a) requires EPA to set emission
standards for “any air pollutants” which, in EPA’s
judgment, cause or contribute to air pollution which may
reasonably be anticipated to endanger public health or
– “Air pollutant” includes “any air pollution agent or
combination of such agents including any physical,
chemical … substance or matter which is emitted into
or otherwise enters the ambient air …” Section 302
– “Welfare” is defined to include, among others, “effects
on … weather … and climate.”
Mass. v. EPA (continued)
• States (incl. Oregon), local govt’s and NGOs sue
• 5-4 ruling favoring states et al.
• Standing: “Special solicitude” accorded states in
protecting “quasi-sovereign interests”
• Merits: “Capacious” definition of air pollutant
– “that DOT sets mileage standards in no way licenses
EPA to shirk its environmental responsibilities.”
– EPA’s statutory obligation to protect public health and
welfare “wholly independent” of DOT’s obligations
• Merits: EPA judgment in endangerment decision
“not a roving license to ignore the statutory text.”
Mass. v. EPA (continued)
• Court remands to EPA for endangerment
• EPA indicated to Congress that it would move
forward with regulation by end of 2007, but has
not yet made an endangerment determination
• Energy Independence and Security Act of 2007
• Jan. 23, 2008: States, cities and NGOs request
EPA status on endangerment determination.
• Feb. 27, 2008: EPA has “no specific timeline”
• Next steps?
In the meanwhile…
• As Mass. v. EPA was working its way
through the courts, states focused on two
other issues:
• First, federal fuel economy standards for
light trucks
• Second, state GHG emission standards
for on-road vehicles
Timeline - state standards for
vehicle GHG emissions
• Sept. 2004: California adopts Pavley standards
beginning with MY 2009
• February 2005: Automakers sue California
(Central Valley Chrysler)
• Dec. 2005: California requests CAA section
209(b) waiver for Pavley standards
• Dec. 2005: Oregon adopts Pavley standards as
Oregon Low Emission Vehicle Standards
• EPA waits for Mass. v. EPA
Timeline - state standards for
vehicle GHG emissions (continued)
• Sept. 2006: Order in Central Valley Chrysler favoring
• Jan. 2007: Court stays Central Valley Chrysler pending
Mass. v. EPA
• April 2007: Mass. v. EPA
• Sept. 9, 2007: Green Mountain decision
• Nov. 8, 2007: California, Oregon and other states sue
EPA for unreasonably delaying waiver decision
• Nov. 15, 2007: Center for Biological Diversity v. NHTSA
• Dec. 11, 2007: Decision in Central Valley Chrysler
upholding Pavley standards against preemption
Timeline - state standards for
vehicle GHG emissions (continued)
• Dec. 19, 2007: President signs Energy
Independence and Security Act of 2007
• Dec. 19, 2007 (evening): EPA denies California
waiver request for Pavley standards
• Jan. 2, 2008: California challenges EPA denial in
the Ninth Circuit; Oregon and other states join
• Feb. 29, 2008: EPA issues additional decision
documents concerning its waiver denial
Green Mountain (Sept. 9, 2007)
• Automakers challenge Vermont’s adoption
of the Pavley standards
• Oregon did not participate
• 16 day bench trial, battle of experts
focused on EPCA preemption
• 244 page opinion favoring Vermont
• On appeal
Unreasonable Delay (filed Nov. 8, 2007)
• California sues EPA for unreasonable
delay re: its Dec. 2005 waiver request
• Suits in DC Circuit and DC District Court
due to jurisdictional questions
• Oregon and other states intervene
• EPA commits to decide by end of 2007
• EPA denies by letter dated Dec. 19, 2007,
but later claims letter was a preliminary
courtesy letter and not actual denial
Unreasonable Delay (continued)
• Briefing almost completed in both cases;
oral argument in DC Circuit on April 17th
• Feb. 29, 2008: EPA issues what it
considers to be final decision documents.
• Parties are circulating stipulations to
dismiss the cases
CBD v. NHTSA (Nov. 15, 2007)
• Challenge to National Highway Transportation
and Safety Admin. (NHTSA) fuel economy
standards rule for light trucks, MY 2008-2011
• Challenged because, among other reasons:
Fuel economy linked to GHG emissions
Rules enacted minor increase in fuel economy
Light trucks a significant portion of US auto sales
Rule exempted many SUVs, minivans, pickups
Failed to consider effects on climate change
CBD v. NHTSA (continued)
• NHTSA sets fuel economy standards pursuant to the
Energy Policy and Conservation Act (EPCA). Under
EPCA, NHTSA must set maximum feasible standards
considering technological feasibility, economic
practicability, effect of other government motor vehicle
standards, and US need to conserve energy
• EPCA explicitly preempts state regulations “related to”
fuel economy standards
• States also challenged NHTSA because the preamble to
the final rule included a brief arguing that EPCA
preempts state motor vehicle GHG emission standards
because they are “related to” fuel economy standards
CBD v. NHTSA (continued)
• Automakers argued in Central Valley
Chrysler that NHTSA’s brief was entitled to
judicial deference, and court initially
appeared to agree.
• Ninth Circuit ultimately didn’t address this
issue because the brief was not
reviewable, final agency action.
CBD v. NHTSA (fuel economy)
• Ninth Circuit upheld NHTSA’s use of cost/benefit
analysis generally, but not as applied
– Cost/benefit analysis didn’t monetize the value of CO2
– Didn’t set backstop (instead of fixed fleet average,
standard by vehicle size)
– Didn’t close SUV loophole
– Didn’t set any CAFE standards for 8,500 – 10,000 lb.
class (Ford F-250, Ford Excursion, Hummer H2, etc.)
• NHTSA found no significant impact of the rule on
the environment, and didn’t issue an EIS
• NHTSA: rule decreases CO2 emissions
compared to the status quo (decreased rate of
growth of CO2 emissions)
• Court: NEPA requires consideration of actual
effects of emissions, and cumulative effects of
emissions, and directs NHTSA to prepare full
EIS (including overall effects of total emissions)
CBD v. NHTSA (appeals)
• In mid-February, NHTSA petitioned for
rehearing en banc on NEPA issues
• Petitioners to respond by March 7th
• Will the decision, and its implications for
NEPA analysis for climate change, stand?
Central Valley Chrysler
• Automakers challenge California’s Pavley
GHG emission standards
• Main arguments:
– Clean Air Act preemption because CO2 and
other GHGs aren’t “air pollutants”
– EPCA preempts Pavley standards because
they are “related to” fuel economy standards
– Federal foreign affairs and foreign policy
Central Valley Chrysler (continued)
• Sept. 2006: Order in Central Valley Chrysler
favoring automakers
– Court refuses to dismiss the three main claims, and
appears to lean towards automakers
• Jan. 2007: Case stayed pending Mass. v. EPA
• Dec. 11, 2007: Decision in Central Valley
Chrysler favoring California
– Court relies heavily on Mass. v. EPA in significantly
revising its previous analysis
Energy Independence and Security
Act of 2007 (Dec. 19, 2007)
• Large bill covering many energy issues
• Fuel economy standards: 35 mpg by 2020
• Phased in beginning in 2011
EPA Waiver Denial (filed Jan. 2, 2008)
• California, Oregon and other states sue in the
Ninth Circuit re: merits of EPA’s waiver denial
• Early Feb. 2008: EPA moves to dismiss, arguing
that its Dec. 19th letter was not final agency
action reviewable by a court, and that in any
event the proper forum is the DC Circuit
• Feb. 29, 2008: EPA files additional decision
EPA Waiver Denial (filed Jan. 2, 2008)
• EPA’s Dec. 19, 2007 letter
– Claims climate change is global and not
unique to California, thus CA doesn’t need the
Pavley standards to meet “compelling and
extraordinary conditions”
– Claims global problem requires a national
solution, such as EISA. Claims that EISA fuel
economy standards more stringent than
Pavley, thus insinuating that Pavley is not as
protective as federal standards
EPA Waiver Denial (filed Jan. 2, 2008)
• California response concerning protectiveness:
– Applicability: Pavley standards apply to MY 2009;
EISA standards to MY 20011. GHGs persist for
decades, and thus earlier action is more protective.
– Phase in: Pavley by MY 2016, EISA by MY 2020. In
2016, Pavley standards will reduce GHG emissions
by more than double that achieved by EISA.
– Future stringency: By 2020 phase in for EISA, Pavley
will be more stringent, per California’s Climate Action
Plan, and will reduce GHG emissions by more than
65 percent of the reduction achieved by EISA
EPA Waiver Denial (filed Jan. 2, 2008)
• Controversy re EPA decision making process
• Congress investigating whether:
– Before deciding, did EPA Administrator Johnson cut
off discussions with EPA technical staff but confer with
the White House?
– Johnson ignored EPA’s legal advice that a court
would likely overturn a denial, and that a court would
likely uphold an approval?
– Decision made before EPA had written the legal
EPA Waiver Denial (filed Jan. 2, 2008)
• EPA’s Feb. 29, 2008 additional decision docs
– Based upon “compelling and extraordinary conditions”
– Doesn’t reach other potential denial criteria
– Claims causes and effects must be local and regional,
not global
– Claims conditions mean local geographic, climate
(thermal inversion), and auto concentration conditions
– Claims causes and effects must substantial and
– Finds climate change effects to California are not
caused by local conditions, and the effects are
serious, but not unique, compared to rest of U.S.
EPA Waiver Denial (filed Jan. 2, 2008)
• Will the waiver denial challenge continue
in the Ninth Circuit? Or be transferred to
the DC Circuit?
• EPA waiver is the final obstacle to Pavley,
OR LEV and state GHG emission
standards for on-road vehicles
• Will this case be resolved before the next
president is sworn in?
Petitions to regulate GHG
emissions from nonroad vehicles
• Non-road engines include aircraft, ships,
RV’s, farm, construction, mining, industrial
and logging equipment, etc.
• Petition regarding ships: Oct. 3, 2007.
Oregon didn’t join.
• Petition regarding aircraft: Dec. 4, 2007.
Oregon didn’t join.
• Petition regarding other nonroad engines:
Jan. 29, 2008. Oregon joined.
Petitions to regulate GHG
emissions from nonroad vehicles
• Similar situation as state efforts to encourage federal
regulation of on-road GHG emission standards in 1999
– EPA may or must regulate upon finding endangerment
• Must for aircraft
• May for ships and other nonroad engines
– Mass. v. EPA endangerment determination would likely extend to
nonroad vehicles as well
– States cannot regulate emissions of new trains and farm /
construction equipment less than 175 horsepower
– For other new (and all existing) nonroad engines, CAA preempts
state emission standards unless EPA waives for California
– Other states may adopt California standards
Petitions to regulate GHG
emissions from nonroad vehicles
• Mass. v. EPA all over again?
– Court has already decided on standing for
states, and that CO2 and other GHGs are air
pollutants under the Clean Air Act
– Can states persuade or force EPA to make an
endangerment decision, and additionally to
regulate? If not, will California adopt
standards and request an EPA waiver?
Petitions to regulate GHG
emissions from nonroad vehicles
• Pacific Merchant Shipping v. Goldstene (Feb. 27th,
– Ninth Circuit finds that Clean Air Act section 209(e), concerning
nonroad engines, preempts California’s Marine Vessel Rules
– Rules regulated existing auxiliary diesel engines using dirty fuel
– Rules weren’t GHG standards, but case is significant for GHG in
reiterating that the CAA preempts state emission standards,
even creative strategies addressing serious nonroad pollution
issues that the feds haven’t regulated
– California attempted to avoid preemption by regulating:
• Existing, not new, engines
• “In use requirements” instead of emission standards
• Allowing fuel switching for compliance
• Mass. v. EPA, 549 U.S. ___, 127 S.Ct. 1438
• Green Mt. Chrysler Plymouth Dodge Jeep v.
Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007)
• Center for Biological Diversity v. NHTSA, 508
F3d 508 (9th Cir. 2007)
• Central Valley Chrysler-Jeep v. Goldstone, 2007
U.S. Dist. LEXIS 91309 (E.D. Cal. Dec. 11,
• Pacific Merchant Shipping v. Goldstene, 2008
U.S. App. LEXIS 4171 (9th Cir. Feb. 27th, 2008)