The Trump administration is preparing to battle California's tough car pollution regulations using an approach that federal courts have already rejected.
Federal regulators are drafting a proposal that takes aim at California's cherished authority to set its own smog-busting rules. A leaked draft of the plan that is being finalized for submission to the White House shows that it wouldn't outright revoke the state's ability to set pollution standards, but it asserts that a 1975 law prohibits states from setting their own limits on greenhouse gas emissions.
"It strikes me as an extraordinarily weak legal argument," said Ann Carlson, a University of California Los Angeles law professor.
Similar arguments were made by carmakers during the George W. Bush administration, but were rejected by federal judges in California and Vermont in 2007. Those rulings, plus a landmark Supreme Court decision that year that concluded the EPA could regulate carbon dioxide emissions, pose legal obstacles for the Trump administration, Carlson said.
Other legal experts downplay the significance of those apparent obstacles, in part because appellate courts have never ruled on the matter.
"I think it really is very much an open question," said said Jeff Holmstead, a former assistant EPA administrator during the Bush administration.
The joint proposal by the EPA and NHTSA would weaken the standards negotiated by the Obama administration and the auto industry in 2009 amid taxpayer bailouts of carmakers. Also in 2009, California was granted a Clean Air Act waiver by the EPA to set standards in excess of the federal government's while agreeing to align its rules with Washington's.
In 2011, the standards were extended until 2025 to nearly double fleetwide fuel economy to roughly 50 mpg.
According to a summary of the plan released by Sen. Tom Carper of Delaware, the agencies' draft proposal recommends freezing the standards from model year 2020 through 2026, setting fuel economy requirements at a 37 mpg fleet average in those years instead of rising each year.
NHTSA said in a statement it's still working with EPA on the proposal but declined to comment on the contents of the draft released by Carper's office. The EPA didn't respond to a request for comment.
Because of California's waiver, the state could opt to keep its standards despite a federal rollback, creating a patchwork of regulations that automakers fear. A dozen states tie their emissions standards to California, so more than a third of the U.S. auto market could have a separate set of tougher rules.
The so-called preemption argument in the draft EPA-NHTSA proposal "looks like an effort to do an end-run around the waiver," said Jody Freeman, a Harvard environmental law professor.
She helped broker the 2009 fuel efficiency pact with California as the counselor for energy and climate change in the Obama White House. She said the deal helped close a chapter of heated litigation over fuel standards and gave the industry nationwide targets that were predictable, albeit challenging. Reviving the argument that California is preempted will lead to additional court cases to rehash issues that two district courts and the Supreme Court have already decided, she said.