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Author Topic: Question for Dagonee and other resident lawyers
Glenn Arnold
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This was originally posted in the Green Energy thread.

quote:
Originally posted by aspectre:
http://www.latimes.com/news/science/environment/la-fi-fuel23apr23,1,1124725.story

I wondered what your opinion is on whether California has a right to set emissions standards, and whether the federal government has a right to limit California's ability to do so. That may be an overly simplistic question, so elaboration is welcome.
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Sergeant
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This may be off the mark a little bit as I haven't really considered Con Law for a couple of years but I'll give it a shot.

I'm not exactly sure on what constitutional foundation the EPA rests but I assume that it is the Commerce Clause. The regulation of emmissions of cars sold in interstate commerce seems to be a fairly direct connection. As I remember, the states are free to regulate commerce were it does not significantly impact interstate commerce and were the Federal government has not preempted regulation. In arguing for the regulation I would say that previously the regulations simply set minimum standards which the states were free to exceed while the new regulations completely preempt the states.

For full disclosure, Con Law was not my favorite class and I was estatic just to receive a median grade [Smile]

(though I did just find out that I passed the Wyoming Bar [Party]

Sergeant

Edited to remove my name from the post and replace it with "Bar" [Wall Bash]

[ April 26, 2008, 01:00 AM: Message edited by: Sergeant ]

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Lyrhawn
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Would it matter that the Clean Air Act originally set forth a specific provision that exempted California's higher standards and allowed any state to use those standards if they so chose to?

What's the argument that anything has changed since then that would make NOW special in denying their requests when they've all be honored before?

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Sergeant
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Lyrhawn,

That would depend on the legislation that the regulations are implementing. If the new legislation calling for new efficiency standards could be interpreted to allow the administrative agency to issue regulations applicable to all the states then the new regs will be ok. More likely it is unclear and they will proceed to fight over it for the next decade [Smile] I can't think of any legislation that cannot be subsequently overturned by new legislation.

Sergeant

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Lyrhawn
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So far as I know, the new CAFE standards wouldn't change the two tiered system in the CAA. They raise the national standards, but they don't remove the provision that allows CA to set higher standards, the issue at hand is getting the waiver from the EPA, but the EPA dragged its heels and then flat out said no, for various reasons, though it may be that the DOT sets even more stringent standards than Congress set forth, which is really baffling to me.

I'm surprised that with the number of states on board with the these changes, that they couldn't muster the support they'd need in Congress to amend the CAA to allow them to set their own standard without an EPA waiver.

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Dagonee
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Constitutionally, the federal government as a whole can absolutely deny California the right to implement its own clear air standards. This is textbook commerce clause. You can take a look at the last SCOTUS medical marijuana decision for an example - it prevented states from legalizing private growing of marijuana that will never enter the stream of commerce because such private growth can affect interstate commerce.

Lest you think that's a new expansion of federal power, it's pretty much dictated by a New Deal era decision about wheat.

The more immediate question is whether the federal government - that is Congress and the regulatory branches exercising delegated power - have limited California's right to do so.

quote:
They raise the national standards, but they don't remove the provision that allows CA to set higher standards
CA has no power to raise the CAFE standards. Their contention seems to be that they have the power to raise fuel economy standards as part of the clean air act, which seems plausible. However, it also seems plausible that Congress's retention of CAFE standards for the federal government means that California is preempted from exercising it's discretion under the CAA in this manner (because it would be a de facto fuel economy standard). A full evaluation of that claim would be an extensive research project.

quote:
I'm surprised that with the number of states on board with the these changes, that they couldn't muster the support they'd need in Congress to amend the CAA to allow them to set their own standard without an EPA waiver.
That would be one sure way to settle this.

Glenn, the short answer is: Congress has the power to deny or allow CA to make it's own standards, but it's not clear if that has happened.

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Glenn Arnold
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Ok.
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Morbo
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There are separate emissions standards and CAFE standards, and there seems to be confusion in this thread conflating them.

My opinion, and the opinion of EPA staff, is that the Clean Air Act as written and other current laws allow for California's waiver of emissions standards. And that there was little or no legal or scientific justification for denying the waiver. It was strictly a political decision to stall California and other states' global warming laws, and EPA staff think it's very likely California's lawsuit will result in the granting of the waiver. From an EPA staff memo:
quote:
. . . there is no legal or technical justification for denying this. The law is very specific about what you are allowed to consider, and even if you adopt the alternative interpretations that have been suggested by the automakers, you still wind up in the same place.
http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=7da5ce50-92bd-4443-bcd4-0f006309f172

All of that is not to say that Congress couldn't amend the Clean Air Act or write new legislation changing the laws and denying or severely restricting state waivers.

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Lyrhawn
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quote:
CA has no power to raise the CAFE standards.
Well I didn't think they had that power outright. Their argument I think was that they'd be controlling emissions, which they are allowed to do (with a waiver) via fuel economy standards. I'm not convinced that it'd become a national standard, but given the size of the car market in CA and the states that joined CA, I can how it'd be very likely to be that way.

But near as I can tell, Congress hasn't at all been involved with this process. It was the EPA, independent of Congress, that denied the waiver, and from what has come out, it may have been more than a little because of some heavy handed influence from the White House. Near as I can tell, this has all comes as a result of Executive Branch decisions, rather than Legislative, and I imagine they'll eventually stick their heads into the discussion.

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aspectre
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The LA basin is a natural smog*trap. By the time the Franciscan missionaries/explorers first built their missions in California, the LA basin was reknowned as "the valley of smoke".
quote:
Coinage of the term "smog" is generally attributed to Dr. Henry Antoine Des Voeux in his 1905 paper, "Fog and Smoke"...[However]..."Smog" also appears in a Jan. 19, 1893, Los Angeles Times article and is attributed to "a witty English writer."
The "smoke" coming from (photo-decomposition of) PolyAromaticHydrocarbons emitted by pines and other plants to act as a sunscreen during the hottest weather. Similar sunscreening is responsible for the SmokeyMountains, the Blue Moon of Kentucky, etc.

Add the WWII&postWWII industrialization plus a high number of absurdly inefficient (ie dirty) cars to make living&working in a "horizontal metropolis" possible to the natural smog levels and the natural smog trap, and things were pretty awful by the time the CleanAirAct was passed.
eg "I would have never lived in LA back then. You could be on the beach feeling the ocean breeze. And still taste the smog through a burning cigar." (Annecdote from a long time traveller through LA.)

So when Congress passed the CleanAirAct, California was given extremely broad authority to pass laws which would bring LA smog down to the minimum clean air standards set for the rest of the nation. Congress also allowed other states to adopt California emission standards.

So basicly the EnvironmentalProtectionAgency has been (and still is) hammering on California's AirQualityManagementDistrict to bring down LA's smog levels to the minimum federal CleanAir standard.
And California has been continuously doing the absolute minimum "to show good faith that they are trying" to meet EPA directives.
Hence California laws mandating (more expensive) special blend gasoline and diesel, cleaner-burning (more efficient) engines, cleaner-burning powerplants (importing electricity from other states which allow dirtier production; as well as from Canada and Mexico), anti-pollution measures at manufacturing plants, etc

And the situation for the last 8years has been, EPA professionals trying to enforce the law while Dubya's political appointees have been trying to circumvent it.

* Has to do with prevailing wind patterns running into mountainous terrain which forms a "bag" around the basin and an atmospheric inversion layer over it.
The southern portion of California's CentralValley has similar problems.

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