President Donald Trump declared the federal government is done with five decades of letting California police its own air quality.
But it’s judges who will have the last word. Some law professors doubt Trump can defend canceling a program that allows the most-populous American state to set tougher automotive greenhouse emissions standards than those of the U.S. government.
“They have issued a rule that’s on a very dubious legal foundation,” said University of Oregon Professor Greg Dotson, who spent 18 years working on Capitol Hill as an environmental policy staffer and has written extensively about state power to regulate mobile-source greenhouse-gas emissions.
From its inception, the administration’s proposed rule was riddled with what Dotson called “logical inconsistencies.” In its final form, he said, the measure is vulnerable to an argument that it was enacted arbitrarily in a violation of the Administrative Procedure Act -- a federal law that has frequently tripped up Trump’s policies in court.
California, home of seven of the 10 U.S. cities with the worst air quality, has enjoyed special federal dispensation to regulate air pollution for about 50 years and that authority has been repeatedly reaffirmed by Congress, according to California Attorney General Xavier Becerra. More than a dozen U.S. states voluntarily agreed to match California’s heightened emissions control requirements.
“Two courts have already upheld California’s emissions standards, rejecting the argument the Trump administration resurrects to justify its misguided preemption rule,” Becerra said in a statement Friday announcing a lawsuit against the administration in Washington federal court.
But the administration contends California’s tougher tailpipe standards are preempted by the federal Energy Policy and Conservation Act of 1975. When Trump announced the new policy in a tweet, he said it will make cars cheaper and safer.
“They’re going to have a very hard time defending based on the jurisprudence of the past and the acts of Congress over a period of decades,” Dotson said.
Villanova University law professor Todd Aagaard, who served in the Justice Department’s Environment & Natural Resource Division while George W. Bush was president, also criticized the government’s interpretation of the 1975 law. He described the Trump administration’s read of the preemption provision as stunningly broad, in a way that could extinguish the California’s ability to regulate emissions entirely.
“The plaintiffs have a strong case for that reason, although of course it will be interesting see the government’s response when the case gets briefed,” Aagaard said. It helps the states’ argument that at least four automakers, Ford Motor Co., Honda Motor Co., Volkswagen Group and BMW Group, were willing to go along with California’s heightened emission requirements, he said.
While the Clean Air Act set up criteria for California to go its own way, nothing in the statute spells out how to revoke the state’s waiver from federal preemption, said University of Pittsburgh law professor Josh Galperin.
If there is such authority, “it’s not obvious that it’s there,” Galperin said. Citing the consequences of curbing California’s ability to steward its own air quality, the professor added, “even if it holds up in court, it’s not a good policy move.”
The Pittsburgh professor noted that just two years ago, the federal appeals court in Washington reaffirmed that the EPA “may only act as authorized by Congress.” The judge who wrote that opinion was Brett Kavanaugh, the newest member of the nation’s highest court.
Asked how the Supreme Court might one day view the dispute, Dotson he was hesitant to to make a prediction. Still, he added, “no matter whether you’re a justice that considers yourself a textualist or someone who cares more about legislative history, the facts here do not support what the administration is trying to do.”