Obama orders EPA to reconsider California emissions bid

30 January 2009

Obama's recent order to reconsider allowing California to adopt its own motor vehicle emission standards was one of two major executive actions he can take on climate change.The other could be much bigger. The Climate Group's Evan Juska explains.

Barack Obama wasted no time starting on America's new response to climate change. On Monday, he ordered the Environmental Protection Agency (EPA) to reconsider California's request to adopt its own greenhouse gas emission standard for motor vehicles. The California standard would require new motor vehicles to reduce their greenhouse gas emissions by 23% by 2012 and 30% by 2016, translating to fuel economy of about 36 miles per gallon (mpg) by 2016 compared to the national standard of 27.5 mpg.

While US states are prohibited from adopting their own motor vehicle emission standards under the Clean Air Act, California alone is permitted to apply for a waiver if they can prove "compelling and extraordinary conditions." In 2007, the EPA, under the Bush administration, denied California's waiver on the grounds that the global nature of greenhouse gas emissions did not necessitate a state-specific approach. Now, with new EPA Administrator Lisa Jackson promising an "aggressive" reconsideration of the waiver, it is very likely that it will be approved.


The California Waiver


If California gets its waiver, other states will then have the option of adopting the national standard or the California standard. So far, thirteen other states have adopted California's standard; and these states will finally be able to enforce it once the waiver is granted.

But this move from Obama has a significance that goes beyond the greenhouse gas reductions that will occur as a result of the tougher standard. The California standard has the goal of getting average fuel economy to about 40 mpg by 2020: five more than Bush's goal of 35 mpg. But in reconsidering California's waiver, Obama showed a willingness to take one of the two major executive actions at his disposal to address climate change; and the other - using the Clean Air Act to cap carbon dioxide emissions - could have an even greater impact.


The Clean Air Act: A next step?


In 2006, the US Supreme Court case Massachusetts v. EPA, classified carbon dioxide as an "air pollutant." Under the Clean Air Act, the EPA is required to regulate any air pollutant that may "endanger public health or welfare." The Bush EPA was unwilling to make this "endangerment finding," which would open the door to government regulation of carbon dioxide under the existing legislation. But Obama has suggested that he is willing to do just that, which would essentially enable him to singlehandedly cap carbon dioxide emissions, without the approval of Congress.

Most legal experts, business executives, politicians and economists are all in agreement that regulating carbon dioxide using the Clean Air Act is not the way to go.

But that doesn't mean that the Clean Air Act option can't be very useful.


A powerful message to Congress


And by using the first of these two executive powers on Monday, Obama just made that threat much more credible.

The legislation, originally written in 1970, was designed to deal with local pollutants by limiting their concentrations in the air (measured as parts per million). The EPA determines the concentration level required to protect the public health and welfare of each state. If the state is above the "safe" level, it is required to take actions to bring its concentrations down. If it is below the "safe" level, it is required to take actions to maintain it. This works when dealing with localized pollutants like particulate matter, which concentrate in the air at the place where they are emitted. But it is much more difficult to enforce with carbon dioxide, which distributes uniformly in the atmosphere. Even if a "safe" local level of carbon emissions could be determined, a state with concentrations above that level would have a hard time bringing them down, given that much of the carbon may originate from outside its borders.

This is why policies that cap the emissions of greenhouse gasses, like a national cap and trade program, are more effective than those that cap concentrations of greenhouse gases, like the Clean Air Act would.

Regardless of whether carbon dioxide is ever regulated under the Clean Air Act, the threat of that kind of regulation might be the single most effective way to encourage still undecided Members of Congress to vote for a national cap and trade program. With the threat of regulation on the horizon, these Members would no longer be choosing between a national cap and trade program and no regulation, but between national cap and trade program and the unpopular Clean Air Act approach. This changes the political calculus significantly.

Obama has indicated that this is exactly how he intends to play the Clean Air Act card. During his campaign, his energy advisor indicated that Obama would move to regulate carbon dioxide under the Clean Air Act if Congress did not move quickly enough on a national cap and trade program. For people concerned that the US timeline for capping emissions is not matching up with the international timeline that culminates in Copenhagen this December, this threat may be Obama's best tool for aligning the two.

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