(CN) – With its size and power, California is ready for a battle royale with the Trump administration over control of car pollution rules. Transportation and legal experts at the state’s universities say the law and the market are on California’s side.
President Donald Trump used his preferred method of unveiling policy when he tweeted about the issue Wednesday morning.
“The Trump Administration is revoking California’s Federal Waiver on emissions in order to produce far less expensive cars for the consumer, while at the same time making the cars substantially SAFER,” the president wrote while visiting the Golden State on a campaign fundraising tour.
California’s position on the waiver revocation was made clear by California Attorney General Xavier Becerra during a press conference.
“We’ll see you in court,” he said.
The matter will likely be debated before a federal judge before long, and according to experts the Trump administration stands at a distinct disadvantage.
“I think the administration is preparing to argue federal pre-emption but there are weaknesses to that argument,” said Julia Stein, project director at the Emmett Institute on Climate Change and the Environment at UCLA School of Law.
Federal pre-emption is often argued when states attempt to flout federal regulations or establish their own standards in direct contradiction to federal rules. For instance, federal pre-emption was often cited in cases relating to Southern states’ refusal to desegregate their schools despite the passage of federal civil rights laws.
However, in the present instance there was a specific waiver given to California when the Clean Air Act was amended in 1970, in part because the Golden State has unique air quality issues compared to other states and because the state had already passed a series of air pollution regulations in the 1960s.
“It was the first state to regulate tailpipe emissions and it had those regulations in effect before the Clean Air Act, so it was given a special carve-out,” Stein said.
While the statute says the federal government can revoke the waiver, it says it must be done at the time the waiver is up for renewal and only for three specific reasons enumerated in the original legislation. For the Trump administration to revoke California’s waiver, it must show California’s standards are less stringent than federal standards; they’re no longer necessary to combat the compelling and extraordinary conditions of air pollution and climate change; or they’re inconsistent with the Clean Air Act.
The Obama administration renewed the waiver and the current administration has not cited any of the three provisions as it undertakes revocation – because it cannot.
U.S. Environmental Protection Agency Administrator Andrew Wheeler spoke at the National Automobile Dealers Association on Tuesday and noted the administration is generally in favor of states’ rights – a consistent position for conservatives and Republicans – but said it is against allowing one state to dictate fuel efficiency standards to the rest of the nation.
"We will be taking joint action with the Department of Transportation to bring clarity to the proper – and improper – scope and use of the Clean Air Act pre-emption waiver," he said.
Stein said the administration may also attempt a legal gambit whereby they claim the waiver only relates to tailpipe emissions, not fuel efficiency.
“Federal courts have already rejected that argument on multiple occasions, including at the Supreme Court,” Stein said.
California has outsize power not only because it issues the most car registrations annually of any state by far, but also because 13 other states follow California’s standards. The 14 states, which include populous states like New York and Massachusetts, account for 40% of the automobile market.
“California has huge clout,” said Dan Sperling, Institute of Transportation Studies at University of California, Davis. “It is a large market and has close ties to many of the companies.”
The war between the Trump administration and California dates back to the beginning of Trump’s presidency, when he first announced he would roll back standards established by President Barack Obama.
California vowed to fight the rollback, and then in July it struck a deal with four major automakers to establish its own fuel efficiency standards.
Trump is hoping to undo that deal by revoking California’s waiver, but to the extent he succeeds it might not matter that much as the industry continues to try and meet fuel efficiency standards on a global scale.
“The EU has far more aggressive greenhouse gas emission standards than the US or California, and even China has more aggressive policies,” Sperling said.
Auto manufacturers don’t want to make different versions of cars, Sperling said. Instead, they are likely to skew further to the fuel efficiency demanded by California, other states and other countries across the globe.
“The industry desperately wants regulatory certainty,” Sperling said.
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