California likely to get EPA waiver to set more stringent emissions rules

WASHINGTON — California is likely to reclaim its role as the nation's major influencer for curbing greenhouse gas emissions from cars and trucks and driving sales of zero-emission vehicles, pending a widely anticipated action from the Biden administration.

The EPA is expected soon to reissue a waiver under the Clean Air Act to allow California to set its own auto tailpipe standards and ZEV mandates that are more stringent than those set by the federal government, reversing a Trump-era rule that sought to block states from doing so.

As of press time Friday, Feb. 18, the agency had not reinstated the state's waiver.

EPA spokeswoman Enesta Jones said the agency expects to issue a decision "in the near future."

NHTSA in December withdrew its portions of the former Trump administration's rule — known as the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One — removing a roadblock that prevented states, including California, from issuing their own emissions standards and ZEV mandates.

NHTSA's action and the EPA's pending decision are driven by President Joe Biden's executive order from January 2021, which directed the U.S. Department of Transportation and the EPA to reconsider the Trump administration's 2019 decision to revoke California's waiver.

Republicans have opposed the Biden administration's auto emissions policies.

Rep. Cathy McMorris Rodgers, R-Wash., in April criticized the administration's plan to allow California to set its own auto pollution rules, arguing that it would create a patchwork of standards and raise the cost of new vehicles.

"By allowing California to set stricter- than-federal emissions standards, President Biden is once again prioritizing a rush-to-green environmental agenda over the needs and well-being of hardworking American families," said Rodgers, who is the GOP leader for the House Energy and Commerce Committee.

In July, a group of 16 Republican attorneys general also urged the EPA to not reinstate California's waiver, arguing that any attempt to restore the authority would be "unconstitutional" because "a federal law giving one state special power to regulate a major national industry contradicts the notion of a union of sovereign states."

Seventeen states and the District of Columbia have adopted California's stricter vehicle emissions standards, representing more than one-third of all light-vehicle sales in the U.S.

California is the nation's largest auto market and the world's fifth-largest economy.

The state's Air Resources Board is developing regulations that would accelerate the transition to ZEVs and strengthen emissions standards for new light-duty cars and trucks sold there. The requirements would start with the 2026 model year and move to 100 percent sales of ZEVs starting in 2035, a CARB spokesman told Automotive News last month.

A December draft of California's clean cars rule shows the state aims to reach 61 percent ZEV sales by 2030, which is higher than Biden's goal of 50 percent by the end of the decade.

California must have the waiver reinstated before it can enforce its standards, according to Thomas Lorenzen, a partner in Crowell & Moring's D.C. office.

"The Clean Air Act is very specific that state standards for emissions from motor vehicles are preempted absent a waiver," he said. "So there is always a bit of a dance between California and the EPA."

The EPA's granting of a waiver to California also is subject to judicial review, said Lorenzen, who was a senior official in the Justice Department in charge of defending the George W. Bush administration's denial of California's waiver request and the reinstatement of the waiver during the Obama administration.

"If the motor vehicle manufacturers can show that California, for instance, has not acted consistent with the timing and cost consideration requirements of the Clean Air Act Section 7521, they can get that waiver set aside," he explained. "If California pushes too hard, that is something that EPA is supposed to take into account in deciding whether to grant a waiver."

The Trump administration denied California's waiver request "based on this idea that more fuel-efficient vehicles were less safe," Lorenzen added.

Automakers have not repeated that claim, he said. "They believe they can develop fuel-efficient vehicles that are safe and that is what they are pushing towards."