EPA approves CA’s clean air rules that trump says he’ll revoke (but can’t)

In the waning days of a Biden Administration which has been marked by huge progress on clean air and EV policy, the US government has approved California’s emissions rules which would end gas-only car sales within the state by 2035.

California’s “Advanced Clean Cars 2” light-duty emissions rules, which were finalized in 2022, have now received their final step of approval from the federal government, in the form of an EPA “waiver” that allows California to set its own emissions rules over and above those of the federal government.

The EPA also approved a requested waiver for low-NOx regulations for heavy duty and off-road engines at the same time.

California has requested waivers for several other sets of emissions rules, but some are still pending and may or may not be granted by the EPA within the next month.

The history of California’s emissions rules

For decades now, California has had a special “waiver” given by the federal government, allowing it to set its own emissions rules as long as they are stricter than the rules for the US overall.

This is due to heavy smog problems in California – especially in the areas around Los Angeles, its largest city and home to the nation’s largest container port; and in the central valley, which is the most agriculturally productive land in the country. Both of these places have geography that traps smog from the millions of cars driving on their roads every day and results in particularly bad air quality.

And so, since the 1960s when the California Air Resources Board was created (by then-Governor Ronald Reagan), California has generally exercised its state’s right to set its own emissions rules. Other states are allowed to follow these rules, but only if they copy them exactly.

The new set of rules has been in the works since 2020, and will have the effect of ensuring that there are no new gas-only vehicles sold in the state by 2035 (though there can be 20% plug-in hybrids, but those hybrids have to fit certain requirements to ensure they actually get used properly).

California intentionally chose this less-ambitious 2035 timeline because it thought it would make it easier for other states to follow along. And as a result, 11 other states have signaled that they will adopt the standards.

The new emissions rules are expected to save Californians $13 billion in health costs, avoid thousands of deaths, cut auto emissions by half, and result in almost a billion fewer barrels of petroleum being burned. Other states will see similar improvements in health and money savings.

EPA grants new California waiver – with another clean air fight looming

All of this was contingent on the EPA signing off on the regulation, which it did so today.

The approval isn’t unexpected, but comes quite late during President Biden’s term, which has been marked by significant improvements in emissions rules and EV policy, leading to a boom in domestic manufacturing jobs and investment.

While a procedural step like this normally would not be particularly notable, there are some complicating factors here.

First, since it is late in the current Congressional term, the incoming Congress could attempt to reverse it through use of the Congressional Review Act, which republicans have made use of often in recent years to try to stop regulations that might improve Americans’ health. However, since the waiver is not actually a federal regulation and rather a state one, the Congressional Review Act doesn’t apply.

The larger threat is that, unfortunately for America, the next occupant of the White House is convicted felon Donald Trump, who finally received more votes than his opponent on his third attempt (despite committing treason in 2021, for which there is a clear legal remedy). Mr. Trump has stated quite forcefully that he wants to reverse President Biden’s clean air policies, thus saddling Americans with dirtier air, higher costs and poorer health, and sending EV jobs to China to ensure that this new boom in American manufacturing is unable to flourish.

Mr. Trump previously squatted in the White House between 2017-2021, after having obtained the 2nd most votes in the 2016 election. During that period, he attempted to poison Americans by worsening California’s emissions rules – but in keeping with his pattern of incompetence, he failed to do so.

The primary actual outcome of the last fight with California was to de-harmonize federal and California standards. While California has mostly gone it alone since the 60s, there was a brief period in the 2010s where California and federal rules were harmonized – but industry lobbying resulted in a shattering of that harmony, giving companies a more difficult regulatory environment.

Industry learned their lesson, but republicans still aiming for dirty air

As a result, this time around, industry has decided to lobby against shattering emissions standards, recognizing the chaos that was caused the last time an ignoramus got involved in setting auto regulations.

Despite the desires of the industry in question, Mr. Trump has signaled that he wants to “rip up” California’s waiver again – even though the law does not specify a method to revoke a waiver once it is granted, as EPA did today.

There is in fact no legal pathway described in the Clean Air Act which allows for the revocation of a waiver once granted. So according to the law, even if the upcoming EPA run by a dirty air advocate wanted to revoke the waiver, it would have no legal way to do so – it could only refuse to grant a waiver for future requests by California. But since California’s current ACC2 regulation covers model years up until 2035, a refusal to grant a waiver in the next 4 years would likely have little effect.

So it is yet to be seen if the incoming EPA will take the more reasonable approach desired by big auto, doctors, nurses, scientists, environmental groups, other businesses, people who have lungs, and so on; or if it will instead do what big oil, the industry Mr. Trump asked for a $1 billion bribe from and which kills millions of people around the world every year wants him to do. Make your bets now.

Further complicating the issue is that this time, Mr. Trump has a corrupt kangaroo court at his backing, which has routinely ignored the law to legislate from the bench. However, that same court did decide twice in recent days to let California’s clean air rules stand, so let us hope that they continue to see reason in this realm – we’ll have to wait and see.

(Note: this article has been updated from an article last Friday which commented on earlier rumors that the approval was upcoming)

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