EPA: California’s Clean Air Waiver Not Meant to ‘Solve Climate Change’

Traffic moves along the 110 freeway in Los Angeles on March 14, 2008. Photo by David McNew/Getty Images

After the EPA released a new proposal including a plan to revoke California’s ability to set its own emissions standards through a Clean Air Act waiver, questions arose about how California was using the waiver to fight climate change.

“California’s greenhouse gas emission programs for light-duty vehicles (passenger vehicles) are a fundamental component of the State’s strategy to protect the health of its citizens and its natural resources, including from the threats of climate change,” wrote the California Air Resources Board (CARB) in a proposal (pdf) released Aug. 7 in response to the EPA.

However, the EPA argued in its Aug. 2 proposal that California’s waiver was not meant to address climate change.

“Attempting to solve climate change, even in part, through the Section 209 waiver provision is fundamentally different from that section’s original purpose of addressing smog-related air quality problems,” stated the EPA proposal (pdf).

The EPA also said that in the past, California addressed its air quality issues through a “relatively-straightforward technology solution.” However, in the last decade, California became “disproportionately focused on GHG (greenhouse gas) emissions,” even as the state failed to meet federal air quality standards.

In 2008, California’s request for a waiver to regulate greenhouse gases was denied (pdf), as California was not found to have elevated concentrations of greenhouse gases compared to elsewhere in the world. The effects in California of global climate change were also not found to be significantly different than the rest of the country.

However, in 2009, President Obama signed a memorandum directing EPA to take another look at the waiver, and it was subsequently approved later that year.

California Governor Edmund G. Brown Jr., California Attorney General Xavier Becerra, and CARB Chair Mary D. Nichols, announced on Aug. 2 that they would lead a coalition of 19 other state attorney generals in a lawsuit to prevent the changes in the EPA’s proposal from being enacted.

California Air Resources Board Chair Mary Nichols (C) speaks with Fran Pavley (L), original author of the Clean Car Act and California Attorney General Jerry Brown (R) listen at a US Senate Committee on Environment and Public Works public field briefing in Los Angeles on Jan. 10, 2008. Photo by David McNew/Getty Images

“Rather than addressing the pressing threat of climate change as the Clean Air Act mandates, the Administration is moving to freeze greenhouse gas emissions standards,” stated the press release.

Yet according to Steve Milloy, an environmental and public health consultant, the Supreme Court ruled in a 5-4 decision in 2007 that the EPA has the authority to regulate greenhouse gases, but is not required by the Clean Air Act to act on climate change itself.

“The Clean Air Act does not mandate action on climate. The 2007 SCOTUS decision in Massachusetts v. EPA only permitted EPA to regulate greenhouse gases,” Milloy wrote on his website.

A closer look at the 2007 SCOTUS case shows that Massachusetts originally claimed the EPA was required to regulate greenhouse gases by the Clean Air Act, which calls for regulating “any air pollutant” that can “reasonably be anticipated to endanger public health or welfare.”

The majority opinion ruling by Justice John Paul Stevens said the court found the EPA had the authority to regulate the emission of greenhouse gases, and it was reasonable to expect the EPA to make a judgement on whether emissions are dangerous.

“If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant from new motor vehicles,” wrote Justice Stevens.

The sun rises over the United States Supreme Court in Washington on the morning of July 10, 2018. Photo by Alex Edelman/Getty Images

Following this ruling, the EPA website now states that the agency determined in 2009 that long-lived greenhouse gases which build up in the atmosphere endanger the health and welfare of people by causing climate change and ocean acidification.

However, the Supreme Court was not unanimous in its 2007 decision. The dissenting opinion written by Chief Justice Roberts argued that Massachusetts did not have the standing to sue in the first place, because the potential injuries from global warming were not concrete or particularized on an individual and personal level. Meanwhile, Justice Scalia’s dissent argued that the Clean Air Act was not even intended to combat global climate change, but only conventional lower-atmosphere pollutants.

With the upcoming July 31 retirement of Justice Anthony Kennedy, who was part of the majority decision in 2007’s Massachusetts v. EPA, the future of California’s lawsuit against the EPA is uncertain.