Federalism and California’s Role in Light-Duty & Heavy-Duty Vehicle Emissions Standards by CLOSUP U-M

Issues in

Energy and Environmental Policy Number 36 | July 2018

Federalism and California’s Role in Light-Duty & Heavy-Duty Vehicle Emissions Standards Abstract This paper and its analyses were commissioned in order to support a paper written by Barry G. Rabe for the Academy of Arts and Sciences Project on Durability and Adaptability in Energy Policy entitled “Leveraged Federalism and the Clean Air Act: The Case of Vehicle Emissions Control” (A revised version of this paper will appear as a chapter in a forthcoming Cambridge University Press book about the durability of the Clean Air Act that is being edited by Ann Carlson and Dallas Burtraw). First, we completed a literature review in order to understand why, historically, California has tended to lead in light-duty vehicle (LDV) regulations, while the federal government has tended to lead in heavy-duty vehicle (HDV) regulations. Then, we undertook an analysis to find any significant patterns, trends, or similarities among the waiver requests so as to better understand the process. The analysis was split into two parts – one on light-duty vehicle (LDV) regulation requests, and one on heavy-duty vehicle (HDV) regulation requests – because of the contradictions in leadership mentioned above. For both analyses, we reviewed the text of the waiver request and identified the waiver by the category of regulations it sought to pursue (LDV or HDV), the type of request it was, and the type of public commentary it noted. We found that since 1968, 94 waiver requests were submitted regarding LDV provisions and 39 were submitted regarding HDV provisions. Only nine have ever been rejected and all of the rejected requests regarded LDV regulation. Furthermore, 68 of the 94 LDV requests were concerned with substantive matters, while in the HDV analysis, 26 of the 39 were. In addition, 33 of the 94 LDV requests acknowledged some sort of public commentary, while 16 of the 39 HDV requests did. Lessons from this federal-state relationship could be adopted and applied to other environmental policy issues such as water pollution or greenhouse gas emissions standards from industrial complexes.

Authors

Emily Upton

Policy Analyst Center for Local State, and Urban Policy Gerald R. Ford School of Public Policy University of Michigan

Thomas Van Heeke

Policy Analyst Center for Local State, and Urban Policy Gerald R. Ford School of Public Policy University of Michigan

The Center for Local, State, and Urban Policy

Background Cars and trucks play a central role in modern American life. As the dominant mode of personal travel, Americans use passenger cars and trucks to travel trillions of miles each year.1 At the same time, the HDV fleet forms the backbone of the country’s freight-hauling network while also supporting agriculture and other crucial economic activities. As of 2017, most of these vehicles rely on gasoline and diesel fuels, polluting the air and leaving the country vulnerable to oil supply shocks. Beginning in the 1960s, first California, and then the federal government, responded to these challenges with technologyforcing regulations intended to reduce fuel consumption and harmful vehicle emissions. Broadly speaking, these regulations govern two things – fuel economy and emissions of pollutants (for example, carbon dioxide and particulate matter). The federal government regulates fuel economy via Corporate Average Fuel Economy (CAFE) standards, a footprint-based standard with varying requirements based on the physical footprint of the vehicle. Under the CAFE standards, automakers must achieve specified miles-per-gallon standards on average across their fleets. The National Highway Traffic Safety Administration (NHTSA) sets these standards at the “maximum feasible” level it deems achievable in a given model year. If automakers do not meet their requirements they may apply credits to their shortfall. Automakers can earn credits through overcompliance and carry them forward for five years, transferring them as necessary among their car and truck fleets, or trade for credits earned by other manufacturers. If a manufacturer cannot apply credits to satisfy their requirement, they face monetary penalties for non-compliance. The program’s non-compliance penalties currently amount to $5.50 per one-tenth of a mile-per-gallon that an automaker falls below its requirement, multiplied by the number of vehicles produced in the non-compliant fleet.2 Such a modest penalty creates perverse incentives. As a matter of business practice, some automakers—small-volume and luxury vehicle manufacturers, in particular—elect to pay the fines rather than comply with their requirements. Between 2010 and 2014, for instance, manufacturers including Jaguar Land Rover and Daimler paid tens of millions of dollars in fines.3 Whether this strategy will continue is now uncertain, however. In the summer of 2016, the federal government announced that it would adjust the non-compliance penalty for the first time in decades, almost tripling the penalty to $14 per one-tenth of a mile-per-gallon. The new rate will take effect in Model Year 2019.4 The U.S. Environmental Protection Agency (EPA) and the state of California regulate motor vehicle pollutants under the Clean Air Act and California state legislation. In a manner similar to the CAFE standards, the agencies require automakers to achieve specified average emissions levels across their fleets. In the case of greenhouse gas emissions, the standards track with the size and class of the vehicle, much like the fuel economy requirements. Manufacturers enjoy flexibility in achieving their requirements through averaging, banking, and transfer (ABT) provisions. For compliance purposes, regulators measure sales-weighted fleet average emissions, allowing automakers to decide their own fleet mix that meets market demands as well as government requirements. As in the CAFE program, a manufacturer can rely on carry-forward credits generated by over-compliance in a prior model year, or credits purchased from another automaker, to reach their average requirement. Nonetheless, manufacturers must clear their deficits within three years of generating them to avoid enforcement action. As of the publication of the latest EPA compliance report, no automaker has yet failed to comply with the greenhouse gas standards.5 Unlike the CAFE program, penalties for non-compliance under the Clean Air Act are prohibitively costly. In its LDV final rulings, the EPA has cited its statutory authority to assess fines of $37,500 per vehicle for noncompliance.6 The federal government’s inflation adjustment actions in the summer of 2016 increased that maximum penalty to $93,750 per vehicle.7 1 U.S. Department of Transportation, Federal Highway Administration, Office of Highway Policy Information, “Travel Monitoring: Historical Monthly VMT Report,” U.S. Department of Transportation, Federal Highway Administration, accessed May 9, 2017, www.fhwa.dot.gov/policyinformation/travel_monitoring/historicvmt.cfm. 2 U.S. Department of Transportation, National Highway Traffic Safety Administration, “CAFE Public Information Center,” U.S. Department of Transportation, National Highway Traffic Safety Administration, accessed May 9, 2017, www.one.nhtsa.gov/cafe_pic/CAFE_PIC_Home.htm. 3 Ryan Beene, “Industry Blindsided as CAFE Fines Jump,” Automotive News, July 16, 2016, www.autonews.com/article/20160716/OEM11/307189981/industry-blindsided-as-cafe-fines-jump. 4 Krishnan M. Anantharaman, “Automakers Get a Break on CAFE Penalties,” Automotive News, December 21, 2016, www.autonews.com/article/20161221/OEM11/161229960/automakers-get-a-breakon-cafe-penalties; U.S. Department of Transportation, National Highway Traffic Safety Administration, 40 CFR Part 578, “Civil Penalties: Final Rule; Response to Petition for Reconsideration; Response to Petition for Rulemaking,” Federal Register 81, no. 249 (2016): 95489-95492. 5 U.S. Environmental Protection Agency, Greenhouse Gas Emission Standards for Light-Duty Vehicles: Manufacturer Performance Report for the 2015 Model Year (November 2016), www.epa.gov/sites/ production/files/2016-11/documents/420r16014.pdf. 6 U.S. Environmental Protection Agency, 40 CFR Parts 85, 86, and 600, U.S. Department of Transportation, National Highway Traffic Safety Administration, 49 CFR Parts 531, 533, 536, 537, and 538, “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule,” Federal Register 75, no. 88 (2010): 25324-25728. 7 U.S. Environmental Protection Agency, 40 CFR Part 19, “Civil Monetary Penalty Inflation Adjustment Rule,” Federal Register 81, no. 127 (2016): 43091-43096.

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Federalism and California’s Role in Light-Duty & Heavy-Duty Vehicle Emissions Standards

Because of California’s unique history and challenges with air pollution, the United States’ first emissions standards emerged there in the middle of the 20th Century, beginning with rules governing LDVs. These standards require the permission of the federal government in the form of a waiver of the Clean Air Act’s preemption provision. The provision contains only three explicit requirements that must be met in order to be awarded EPA administrator approval. First, the waiver request cannot be “arbitrary and capricious.” Second, the state must need the specified standards in order to respond to “compelling and extraordinary conditions.” Finally, the requested standards and accompanying enforcement procedures must be in line with section 202(a).8,9 The continued, general pattern of acceptance of California’s submitted requests has established a now-entrenched pattern of leadership on the part of California in the area of LDV environmental regulation, with the federal government generally following the state’s lead. This contrasts sharply with regulation of HDV emissions. Though the state of California has a few HDV requests per every two to three years, Professor Barry Rabe’s chapter “Leveraged Federalism and the Clean Air Act: The Case of Vehicle Emissions Control” notes that HDV standards “represents one area where the federal government has historically tended to lead rather than California.”10 Despite an extensive search through the literature and rulemaking documentation, we found very little discussion of the history of federalism in the context of HDV emissions standards. Moreover, no source explicitly accounts for the nature of the relationship between California and the federal government in the context of HDV emissions standards in a way that directly answers why there is a role reversal in leadership between LDV and HDV regulation. The most extensive and relevant discussion that exists appears in a 2006 publication of the National Research Council (NRC), though the treatment is not particularly thorough.11 Additionally, we found corroborating information and drew inferences from a handful of other sources. Together, these sources suggest several reasons for federal leadership in HDV standard-setting: •

Trucks travel nationally – HDV travel patterns differ from those of passenger cars. The majority of HDV engines subject to emissions controls belong to trucks engaged in the interstate shipment of goods. Even if California established a more stringent state standard than prevails federally, HDVs purchased or registered outside of the state might not be subject to the state-based rule. As such, “California has an interest in a stringent national standard.”12 Indeed, even as California prepared its own diesel standards in the fall of 2000, the state encouraged the adoption of the EPA’s national program precisely because “truck travel from other states has a large effect on California’s air quality.”13 In 2016, the state’s Mobile Source Strategy explained similar motivations for California’s recent petitioning of the EPA: “Because out-of-state heavy-duty vehicles operating in South Coast are not covered by California new engine emission standards, timely federal action to implement a national low-NOx performance standard is necessary…” Without federal leadership, the California Air Resources Board (CARB) argued, the actions of the state alone would fail to achieve the average emissions reductions desired from the in-use fleet.14 Uniformity of standards driven by national leadership has thus been seen as logical and necessary given the national footprint and travel pattern of the HDV fleet.

•

Specialization of labor – The National Academy of Sciences claims that federal leadership in this area is more efficient. While CARB leads the nation in LDV emissions regulation, the U.S. EPA “specializes in developing standards for heavy-duty vehicles,” allowing the subordinate agency to “avoid duplicating the effort.”15 Unfortunately, the authors of the NRC report do

8 Barry G. Rabe, “Leveraged Federalism and the Clean Air Act: The Case of Vehicle Emissions Control,” in The Durability of the Clean Air Act, eds. Ann Carlson and Dallas Burtraw (New York: Cambridge University Press, forthcoming). 9 The text for section 202(a) of the Clean Air Act can be read at this website: https://www.gpo.gov/fdsys/pkg/USCODE-2013-title42/html/USCODE-2013-title42-chap85-subchapII-partA-sec7521.htm. 10 See note 9. 11 Committee on State Practices in Setting Mobile Source Emissions Standards, National Research Council, State and Federal Standards for Mobile-Source Emissions (Washington, DC: The National Academies Press, 2006). 12 Committee on State Practices in Setting Mobile Source Emissions Standards, National Research Council, State and Federal Standards for Mobile-Source Emissions (Washington, DC: The National Academies Press, 2006), 234 13 U.S. Environmental Protection Agency, 40 CFR Parts 69, 80, and 86, “Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements; Final Rule,” Federal Register 66, no. 12 (2001): 5001-5193. 14 California Air Resources Board (CARB), Mobile Source Strategy (Sacramento, CA: CARB, 2016), www.arb.ca.gov/planning/sip/2016sip/2016mobsrc.pdf. 15 Committee on State Practices in Setting Mobile Source Emissions Standards, National Research Council, State and Federal Standards for Mobile-Source Emissions (Washington, DC: The National Academies Press, 2006), 143.

The Center for Local, State, and Urban Policy not clarify whether such thinking explicitly informed the evolution of the California-EPA relationship, or whether this was merely a happy but unintended consequence of how the relationship developed. •

Reducing enforcement costs – In the early 2000s, California worked to establish separate HDV standards that followed the lead of an EPA rulemaking finalized in early 2001. Mirroring federal rules allows for centralized inspection and maintenance procedures that reduce enforcement costs for states maintaining separate standards.16, 17 A similar logic supported the 1988 harmonization of the pre-existing California and federal diesel standards. Tying the two sets of rules together aimed to reduce the testing and certification burden on manufacturers.18

Purpose The research and analysis of this paper is based on Professor Barry Rabe’s chapter on leveraged federalism in vehicle emissions control. In this text, he notes that California’s “need to address profound and enduring air quality problems” in an “economy with only limited engagement in vehicle manufacturing and assembly”—when combined with the bi-partisan political climate during the 1970s—created the perfect scenario for instituting this leveraged federalism mechanism.19 By creating this mechanism through the preemption provision of the Clean Air Act, it has not only survived, but thrived throughout the last five decades. However, there is still limited knowledge about the nature of these methods. This paper aims to find any significant patterns, trends, or similarities among these waiver requests so as to better understand them. Hopefully then, this information could be applied within other environmental policy fields, or to assist other states in creating comparable federal-state relationships for other environmental concerns.20 To accomplish this as accurately as possible, the analysis is split into two parts: one that focuses on any/all waiver requests that address LDV regulation, and the other that focuses on any/all waiver requests that address HDV regulation21. This allows for conclusions that are better tailored to the specific questions that arose for each category as discussed above.

16 Committee on State Practices in Setting Mobile Source Emissions Standards, National Research Council, State and Federal Standards for Mobile-Source Emissions (Washington, DC: The National Academies Press, 2006), 141. 17 Despite federal leadership on the issue, California and other interested states wanted to maintain separate standards in this period due to concerns that an agitated trucking industry would succeed in delaying implementation of the 2001 EPA rulemaking. If California established its own rules, other states could adopt them if the federal rules failed to materialize, per State and Territorial Air Pollution Program Administrators (STAPPA) and Association of Local Air Pollution Control Officials (ALAPCO), Cleaning Up Diesel Trucks: A Model Rule for States (Washington, DC: STAPPA and ALAPCO, 2004), www.4cleanair.org/CleaningUpTrucks.pdf and Committee on State Practices in Setting Mobile Source Emissions Standards, National Research Council, State and Federal Standards for Mobile-Source Emissions (Washington, DC: The National Academies Press, 2006). 18 Alan C. Lloyd and Thomas A. Cackette, “Diesel Engines: Environmental Impact and Control,” Journal of the Air and Waste Management Association 51, no. 6 (2001): 825. 19 Barry G. Rabe, “Leveraged Federalism and the Clean Air Act: The Case of Vehicle Emissions Control,” draft prepared for the American Academy of Arts and Sciences Project on Durability and Adaptability in Energy Policy, January 2017, 2. 20 Barry G. Rabe, Gerald R. Ford School of Public Policy, University of Michigan, personal communication, May 1, 2017. 21 It is important to note that any submitted waiver requests that include both LDV and HDV regulations were analyzed within both analyses. In other words, the LDV regulation portions were analyzed within the LDV analysis of this paper, and the HDV regulation portions of that same waiver request were analyzed within the HDV analysis of this paper.

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Federalism and California’s Role in Light-Duty & Heavy-Duty Vehicle Emissions Standards

Methods The same strategy was used for both the LDV and HDV analyses: Find the waiver that needs to be examined in the EPA database of the Federal Register.22 1. Read through the summary section. a. If classifications for steps 3 – 5 below cannot be completed after reading only the summary section, then also read the introduction and the conclusion sections. b. Again, if classifications for steps 3 – 5 below cannot be completed after reading only the summary, introduction, and conclusion sections, then read the entire waiver request. 3. Record whether the waiver was accepted, rejected, or partially accepted by the EPA. a. If rejected, record text from the report that explains why it was rejected. 4. Record whether the waiver request was specific to LDV, HDV, or both LDV and HDV regulations. a. HDV is classified here as any waiver request regarding “heavy-duty” or “diesel.” Use the Ctrl+f function or skim the entire report to determine if any part of the request pertains to HDV regulations. 5. Record whether the waiver requested procedural or substantive regulation.23 a. A good way to double-check if the correct determination of the request type has been made is to search for the phrase “within the scope” as it is often associated with procedural requests. Again, this can be accomplished using the Ctrl+f function, or skimming the entire report. 6. Record whether the waiver request received minor, substantial, or no public commentary.24 a. This requires searching through the entire request for the phrase “comment.” Again, this can be accomplished using the Ctrl+f function, or just skimming the entire report. 7. Record any additional notes on the case.

22 U.S. Environmental Protection Agency (EPA), Federal Register Notices, “Vehicle Emissions California Waivers and Authorizations,” https://www.epa.gov/state-and-local-transportation/vehicleemissions-california-waivers-and-authorizations. 23 Detailed definitions for both types of requests can be found in the LDV analysis on page 14 and again in the HDV analysis on page 21. 24 A detailed definition of both types of commentary classifications can be found in the LDV analysis on page 15 and again in the HDV analysis on page 23.

The Center for Local, State, and Urban Policy

Part 1: LDV Analysis Summary California has led the federal government in setting more stringent emissions standards for LDVs. This analysis seeks to discover any trends, patterns, or similarities among the waiver requests that would help to better understand the nature of this leveraged federalism, and perhaps provide the basis for a strategy in applying it to other states or sectors of environmental policy. Throughout the analysis, we found that: •

Since 1968, the EPA issued 94 “Notices of Decision”25 detailing their response to a waiver request from the state in regard to lightduty vehicles.

•

Unlike the separate analysis on HDV which includes zero denials, nine of the 94 submitted waiver requests for LDVs were denied. The other 85 requests were approved.

•

The majority of California’s waiver requests—68 of 94—concern what this analysis identifies as “substantive” matters, such as new requirements or increasing stringency of standards. This contrasts with the remaining26 classified as “procedural,” which govern things such as clarifications or relaxations of existing requirements.

•

About 35% of the notices (33) acknowledge public commentary.

Clean Air Act Waivers As mentioned above, California has pursued separate state standards for LDVs, which have not only created more stringent standards for the state, but for the federal government as well. The EPA maintains a database of the Federal Register notices pertaining to the state’s waiver requests, allowing one to identify the number of such requests as well as their content and outcome.26 The Federal Register archive contains 94 notices of EPA determinations with respect to California rulemakings concerning LDVs.27 In Table 1, these notices are quantified by year and separated by those approved and those denied.

25 Seven of these 94 “Notices of Decision” are also included in the HDV analysis as these waivers included provisions for both light-duty and heavy-duty vehicles. 26 U.S. Environmental Protection Agency (EPA), Federal Register Notices, “Vehicle Emissions California Waivers and Authorizations,” https://www.epa.gov/state-and-local-transportation/vehicleemissions-california-waivers-and-authorizations. 27 The EPA database describes notice types using a variety of action classifications. Typically, the EPA describes an announcement of a waiver request determination as a “Notice of Decision.” However, throughout the decades of this arrangement, the Agency has used different language for the same purpose. Based on their stated purpose and content, this analysis treats the following categories of notice as Notices of Decision and includes them in the count and analysis: “Notice of Determination;” “Summary of Determination;” “Within the Scope Determination;” “Notice of Within the Scope Determination;” “Decision of Administrator;” “Amendments Within the Scope;” “Amendments Within Previous Waivers of Federal Preemption;” “Waiver of Preemption Decision;” “Waiver of Federal Preemption;” “Request for Waiver of Federal Preemption;” “Waiver of Preemption Decision;” “Modification of Waiver of Federal Preemption;” “Waiver of Application,” and “Waiver of Application of Section 208.”

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Federalism and Californiaâ&#x20AC;&#x2122;s Role in Light-Duty & Heavy-Duty Vehicle Emissions Standards

Table 1. EPA Determinations on California Waiver Requests for Light-Duty Vehicles, 1968-2017

Year

Number of Approvals

Number of Denials

Total Number of Requests

Year

Number of Approvals

Number of Denials

Total Number of Requests

1968

1993

1969

1994

1970

1995

1971

1996

1972

1997

1973

1998

1974

1999

1975

2000

1976

2001

1977

2002

1978

2003

1979

2004

1980

2005

1981

2006

1982

2007

1983

2008

1984

2009

1985

2010

1986

2011

1987

2012

1988

2013

1989

2014

1990

2015

1991

2016

1992

2017

Totals:

The Center for Local, State, and Urban Policy Figure 1 visually represents the data recorded in Table 1. Typically, California has made between one and three requests per year. Furthermore, there were only five years in which California made no LDV waiver request(s): 1970, 1987, 1991, 1997, and 2016. Also, there were three periods in which the number of requests spiked at or above approximately four requests per year. This occurred first in the late 1970s through the early 1980s, second in the mid-to-late 1980s, and third in the mid-2000s to early 2010s. Overall, it is observed that the number of requests submitted per year was on a steady decline from the late 1970s until the mid-2000s. Figure 1. California Waiver Requests for Light-Duty Vehicles, 1968-2017

Of these 94 notices submitted, the EPA approved 85 and denied nine. These nine denials can be separated into five different categories as seen in Table 2. First, four of the waiver requests were denied as the administrator determined that requests were not needed in order for California to enforce their desired rules, or that the requests fell outside of the scope of the Clean Air Actâ&#x20AC;&#x2122;s preemption provision. Second, one response denied the request for the originally requested model year, but approved the request for the following model year. Third, two responses had accepted some portions of the request but denied others based on the failure of CARB to meet at least one of the requirements under the Clean Air Act. Fourth, one waiver had previously been approved by the EPA administrator, but the decision was brought before the court and ruled illegal. Therefore, the administrator needed to revoke their original ruling. Finally, only one of the waiver requests was fully denied based on the failure of CARB to meet the requirements under the Clean Air Act preemption provision. It is important to note that all nine of the denied waiver requests were substantive requests, only one of which also contained procedural requests.28

28 Detailed definitions for both types of requests can be found in the LDV analysis on page 14 and again in the HDV analysis on page 21.

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Federalism and California’s Role in Light-Duty & Heavy-Duty Vehicle Emissions Standards

Table 2. Classifications of Denied Waiver Requests for Light-Duty Vehicles, 1968-2017

Date

Title and Action of Waiver Request1

Reason Classification

11/1/1973

Motor Vehicle Pollution Control; California State Standards

Accepted some portions of the waiver request, but not others due to “insufficient lead time.”

7/18/1975

California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption

Denied the request due to “insufficient lead time” based on the originally requested model year (1977), but was accepted based on the 1978 model year.

1/5/1978

California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption

Most parts were accepted except for one in which the proposal was not deemed to be “at least as protective of public health and welfare” as current federal standards.

8/18/1978

California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption

A waiver request was not needed.

10/23/1979

California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption

A waiver request was not needed.

7/3/1980

California State Motor Vehicle Pollution Control Standards; Modification of Waiver of Federal Preemption; Notice of Public Hearing

A court ruled the original waiver of federal preemption granted by the EPA was against the law and therefore, the EPA needed to revoke their original ruling.

4/3/1989

California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption Notice of Determination

A waiver request was not needed.

7/13/1990

California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption; Notice of Determination

A waiver request was not needed.

3/6/2008

California State Motor Vehicle Pollution Control Standards; Notice of Decision Denying a Waiver of Clean Air Act Preemption for California’s 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles

Failed to meet the requirements of the Clean Air Act preemption provision.2

The Center for Local, State, and Urban Policy Figure 2 shows these denied requests graphed by year, alongside the approved requests. The graph shows that most of the denied waivers were requested in the 1970s and 1980s. This could be because this mechanism was just beginning in the 1970s and 1980s. After the first decade or two, requests may have been more likely to receive approval because practice under this provision had been established between CARB and the EPA. Figure 2. California Waiver Requests for Light-Duty Vehicles, Approved vs. Denied, 1968-2017

The EPA’s apparent inclination to approve waiver requests stands to reason given the Agency’s assessment of the history of the waiver provision. The EPA argues that Congress intended for the federal government to afford great latitude to California, essentially defaulting to a presumption of approval for the state’s waiver requests. In fact, in a 1975 waiver determination from the HDV analysis, the Agency explained that “Congress meant to ensure by the language it adopted that the federal government would not second-guess the wisdom of state policy,” and that “[t]he structure and history of the California waiver provision clearly indicate both a Congressional intent and an EPA practice of leaving the decision on ambiguous and controversial matters of public policy to California’s judgment.”29 Thus, the burden rests squarely on the shoulders of the federal government to convincingly and proactively demonstrate that a request should not be granted. The waiver requests can be separated into two categories: procedural and substantive. Procedural requests concern rulemakings that clarify or relax existing standards, or establish new bureaucratic systems to support an existing standard (for example, new testing requirements or protocols). Substantive requests concern what the EPA sometimes describes as “new issues,” such as the establishment of entirely new requirements or newly stringent standards under an existing rule. “Within-the-scope” determinations – that is to say, an EPA determination that a previously issued waiver permits a proposed rule change – correspond to procedural requests. In total, 68 of the 94 LDV waiver requests are categorized as substantive or containing a substantive component. Note that some notices address multiple regulatory developments, which may include procedural issues. For example, a 2013 notice issued a determination for a procedural issue (amendments to the ZEV program which would affect vehicles of 2017 and prior model years) and a determination for a substantive matter (instituting the Clean Car Program).30 For simplification, any waiver requests that contain both procedural and substantive provisions are classified as substantive. The remaining 26 requests govern purely procedural matters for which the EPA issued within-the-scope determinations. Figure 3 plots the pattern of procedural versus substantive requests made throughout the years. The substantive requests plot strongly resembles that of the approved vs. denied requests plot seen in Figure 2 and the plot of all requests seen in Figure 1, since most requests have been approved and the majority of the requests have been substantive. For this reason, the same spikes as in the previous two figures are observed in the substantive requests plot in Figure 3. The spikes in substantive requests in the late 1970s most likely reflect the need for California to establish pollution control standards directly after the Clean Air Act preemption provision was enacted.

29 U.S. Environmental Protection Agency, “California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,” Federal Register 40, no. 103 (1975): 23102-23105. 30 U.S. Environmental Protection Agency, “California State Motor Vehicle Pollution Control Standards; Advanced Clean Car Program; Notice of Decision,” Federal Register 78, no. 6 (2013): 2112-2145.

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Federalism and California’s Role in Light-Duty & Heavy-Duty Vehicle Emissions Standards

Then, the spike in substantive requests beginning around the mid-2000s did coincide with a period of heightened focus and regulatory action on global warming at the federal level. This spike could be suggesting that California saw this moment as an opportunity to advance their state priorities in a more hospitable regulatory system.31 As for procedural requests, a general trend does not appear to exist. However, there was a large spike in procedural requests during the 1980s, which most likely reflects amendments to the spike in substantive requests submitted in the 1970s. Figure 3. California Waiver Requests for Light-Duty Vehicles, Procedural vs. Substantive, 1968-2017

The Register notices also acknowledge public comments offered by stakeholders, or the lack thereof. In 33 of the 94 cases reviewed, the EPA acknowledged commentary on the subject of the waiver request. This commentary can further be broken down into two categories: minor commentary and substantial commentary. Minor commentary refers to any quick mention of public comment that is dismissed by the administrator as irrelevant, easily refuted, or failing to meet the burden of proof. Substantial commentary refers to any public comment that is directly quoted and discussed at length, often including responses from CARB and plans of how the commentary will be incorporated into the ruling. For simplification, any waiver requests that contain both minor and substantial commentary are classified as substantial. Of the 33 cases that contain commentary, 24 mention minor commentary and nine discuss substantial commentary. Figure 4 plots both types of commentary throughout the years. Once again, either or both types of commentary spiked during the same periods observed in Figures 1-3. This is logical since these comments correspond to the spikes in substantive rulings. Most of these waivers include mention of commentary from one to five parties either through written comment or public hearing. However, the approved waiver request from July 8, 2009, which concern greenhouse gas emissions standards, was noted as requiring three public hearings and receiving over 500,000 written comments.32 It is important to note that this waiver request states it was meant to serve as the replacement for the similar request which was denied on March 6, 2008.33 Given that greenhouse gas emissions regulation is a highly contentious issue in the U.S., and that this request was intended to replace one of only nine waiver requests ever to be denied by the EPA, one can infer that this swell in commentary was most likely a result of the controversy surrounding California’s attempt at controlling greenhouse gas emissions expelled by motor vehicles.

31 This is alluded to in Table 2 as the possible reason for the latest denied waiver request in 2008. 32 U.S. Environmental Protection Agency, “California State Motor Vehicle Pollution Control Standards; Notice of Decision Granting a Waiver of Clean Air Act Preemption for California’s 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles,” Federal Register 74, no. 129 (2013): 32744-32784. 33 “California State Motor Vehicle Pollution Control Standards; Notice of Decision Denying a Waiver of Clean Air Act Preemption for California’s 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles,” Federal Register 73, no. 45 (2008): 12156-12169.

The Center for Local, State, and Urban Policy Figure 4. California Waiver Requests for Light-Duty Vehicles, Minor vs. Substantial Commentary, 1968-2017

Conclusion Since 1968, California has requested Clean Air Act waivers for its LDV requirements on 94 occasions. The EPA authorized California’s actions in 85 of these cases, but rejected the other nine proposals. Most of the requests – 68 of 94 – govern “substantive” issues, such as newly stringent standards for some vehicles or entirely new requirements, with the other 26 requests being “procedural” in nature. About 33 of the Federal Register notices regarding these requests acknowledge public comments on the actions. As for trends, patterns, or similarities among the 94 waiver requests, there are three that are important to note. First, the number of all requests submitted per year was on a steady decline from the late 1970s until the mid-2000s. Second, most of the denied waiver requests occurred in the 1970s and 1980s. After the first decade or two, requests were probably more likely to earn approval perhaps because norms and common practice under this provision had been established between CARB and the EPA. Third, there are three periods in which the number of requests spiked at or above about four requests per year: the late 1970s through the early 1980s, the mid-to-late 1980s, and the mid-2000s to early 2010s. The spike in requests in the late 1970s through the early 1980s most likely reflected the need for California to establish the pollution control standards directly after the Clean Air Act preemption provision was enacted. The spike in the 1980s presumably accounts for the increase in procedural requests that served as amendments to the substantive requests submitted in the late 1970s to early 1980s. Lastly, the spike in substantive requests around the mid-2000s to early 2010s could reflect California’s attempts to react to climate change in line with its aggressive state legislation limiting greenhouse gas emissions from motor vehicles.

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Federalism and California’s Role in Light-Duty & Heavy-Duty Vehicle Emissions Standards

Part 2: HDV Analysis Summary American cars and trucks are subject to regulation of both their fuel economy as well as their emissions. With its unique air quality challenges, California has generally served as the national leader in setting stringent emissions standards for LDVs with the federal government following its example. However, California has historically ceded leadership in establishing similar standards for the HDV fleet and this analysis attempts to explain this tendency. This HDV analysis seeks to understand the nature of these requests since it is known that the leadership is reversed. We found that: •

Since 1971, the EPA issued 39 “Notices of Decision”34 detailing their response to a waiver request from the state in regard to heavy-duty vehicles.

•

In all cases the federal government approved the request or otherwise permitted the state’s actions under an existing waiver.

•

The majority of California’s waiver requests – 26 of 39 – concern “substantive” matters, such as new requirements or increasing stringency of standards. This contrasts with the remaining 13 classified as “procedural,” which govern things such as clarifications or relaxations of existing requirements.

•

Fewer than half of the notices (16) acknowledge any public comments.

Clean Air Act Waivers Despite federal leadership in this area, California has pursued separate state standards for HDVs and diesel engines. The EPA maintains a database of the Federal Register notices pertaining to the state’s waiver requests, allowing identification of the number of such requests as well as their content and outcome.35 The Federal Register archive contains 39 notices of EPA determinations with respect to California rulemakings concerning HDVs or diesel-fueled vehicles and equipment.36 These are quantified annually in Table 3 below. All 39 notices indicate that the EPA approved the state’s waiver request, found that the state’s rulemaking was permissible under a previously granted waiver, or otherwise did not require one.37 The EPA’s long-standing pattern of approving waiver requests stands to reason given the Agency’s assessment of the history of the waiver provision. The EPA argues that Congress intended for the federal government to afford great latitude to California, essentially defaulting to a presumption of approval for the state’s waiver requests. In fact, in a 1975 waiver determination the Agency explained that “Congress meant to ensure by the language it adopted that the federal government would not second-guess the wisdom of state policy,” and that “[t]he structure and history of the California waiver provision clearly indicate both a Congressional intent and an EPA practice of leaving the decision on ambiguous and controversial matters of public policy to California’s judgment.”38 Thus, the burden rests squarely on the shoulders of the federal government to convincingly and proactively demonstrate that a request should not be granted.

34 Seven of these 39 “Notices of Decision” are also included in the LDV analysis, as these waivers include provisions for both light-duty and heavy-duty vehicles. 35 U.S. Environmental Protection Agency (EPA), Federal Register Notices, “Vehicle Emissions California Waivers and Authorizations,” https://www.epa.gov/state-and-local-transportation/vehicleemissions-california-waivers-and-authorizations. 36 The EPA database describes notice types using a variety of action classifications. Typically, the EPA describes an announcement of a waiver request determination as a “Notice of Decision.” However, throughout the decades of this arrangement, the Agency has used different language for the same purpose. Based on their stated purpose and content, this analysis treats the following categories of notice as Notices of Decision and includes them in the count and analysis: “Notice of Scope of Waiver of Federal Preemption;” “Notice Regarding Within-the-Scope Determinations;” “Notice Regarding Waiver of Federal Preemption;” “Notice of Intention to Waive Federal Preemption;” “Waiver of Federal Preemption,” and “Waiver of Application of Section 209.” 37 Clean Air Act preemption applies to new motor vehicles and engines, so operational control requirements for in-use vehicles may not require a waiver. For example, in 2012 CARB argued that its new requirement that operators of sleeper trucks manually shut off their engines after five minutes of idling fell outside the remit of the Clean Air Act and did not require a waiver. The EPA agreed with this analysis, per U.S. Environmental Protection Agency, “California State Motor Vehicle and Nonroad Engine; Truck Idling Requirements; Notice of Decision,” Federal Register 77, no. 32 (2012): 9239-9250. 38 U.S. Environmental Protection Agency, “California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,” Federal Register 40, no. 103 (1975): 23102-23105.

The Center for Local, State, and Urban Policy Table 3. EPA Determinations on California Waiver Requests for Heavy-Duty Vehicles, 1968-2017

Year

Number of Waiver Requests

Year

Number of Waiver Requests

1968

1993

1969

1994

1970

1995

1971

1996

1972

1997

1973

1998

1974

1999

1975

2000

1976

2001

1977

2002

1978

2003

1979

2004

1980

2005

1981

2006

1982

2007

1983

2008

1984

2009

1985

2010

1986

2011

1987

2012

1988

2013

1989

2014

1990

2015

1991

2016

1992

2017

Total:

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Federalism and California’s Role in Light-Duty & Heavy-Duty Vehicle Emissions Standards

California has not requested HDV waivers consistently over time, as seen in Figure 5. Since 1968, there have been three clear spikes in HDV waiver request activity in 1984, 1988, and again in 2012-2013. Explaining these bursts of waiver request activity, to the extent that they are more than just happenstance, would require additional research. Nonetheless, the burst of activity in the early 2010s did coincide with a period of heightened focus and regulatory action on global warming at the federal level as mentioned previously. Perhaps suggesting a motivation of California action through the waiver request process. Figure 5. EPA Determinations on California Waiver Requests for Heavy-Duty Vehicles, 1968-2017

In reviewing the notices, it is possible to distinguish between procedural and substantive waiver requests. Procedural requests concern rulemakings that clarify or relax existing standards, or establish new bureaucratic systems to support an existing standard (for example, new testing requirements or protocols). Substantive requests concern what the EPA sometimes describes as “new issues,” such as the establishment of entirely new requirements or newly stringent standards under an existing rule. “Within-the-scope” determinations – that is to say, an EPA determination that a previously issued waiver permits a proposed rule change – correspond to procedural requests. \In total, 26 of the 39 waiver requests are categorized as substantive or containing a substantive component. Note that some notices address multiple regulatory developments, which may include procedural issues. For example, a 2012 notice concerning on-board diagnostic requirements for HDVs issued a determination for a procedural issue (the relaxation of existing standards for some vehicles) and a determination for a substantive matter (granting a new waiver for newly stringent rules for another class of vehicle).39 The remaining 13 requests govern procedural matters for which the EPA issued within-the-scope determinations. Figure 6 plots the pattern of procedural versus substantive requests made between 1968-2017. The substantive requests appear to occur steadily at about two requests every five years. There are a few notable features including the decade between 1993-2004 in which no substantive requests were made and the surge in the early 2010s in which three substantive requests were submitted for two consecutive years. As for procedural requests, there is no general trend. The only prominent features include a decade from the mid1980s to the mid-1990s that experienced a surge of procedural requests, and the time span beginning in 2000 and extending until now that has observed a procedural request about once every five years.

39 U.S. Environmental Protection Agency, “California State Motor Vehicle Pollution Control Standards; Notice of Waiver of Clean Air Act Preemption; California’s 2010 Model Year Heavy-Duty Vehicle and Engine On-Board Diagnostic Standards,” Federal Register 77, no. 237 (2012): 73459-73461.

The Center for Local, State, and Urban Policy Figure 6. California Waiver Requests for Heavy-Duty Vehicles, Procedural vs. Substantive, 1968-2017

It is important to note that the EPA and CARB do not always agree on what should require a new, full waiver. In one instance CARB argued that Clean Air Act preemption did not apply to their actions at all. Failing that, they requested that their actions receive a “within the scope” determination. The EPA rejected both arguments and deemed that the new truck idling requirements California created amounted to emissions control standards requiring a full waiver.40 The Register notices also acknowledge or summarize public comments offered by stakeholders, or the lack thereof. In 16 of the 39 cases reviewed, the EPA acknowledged commentary on the subject of the waiver request. This commentary can further be broken down into two categories: minor commentary and substantial commentary. Minor commentary refers to any quick mention of public comment that is dismissed by the administrator as irrelevant, easily refuted, or failing to meet the burden of proof. Substantial commentary refers to any public comment that is directly quoted and discussed at length, often including responses from CARB and plans of how the commentary will be incorporated into the ruling. For simplification, any waiver requests that contain both minor and substantial commentary are classified as substantial. Of the 16 cases that contain commentary, three mention minor commentary, and 13 discuss substantial commentary. Figure 7 plots both types of commentary throughout the years. This plot shows swells in commentary occurring at similar times of the high volumes of waiver requests observed in Figure 5. Note: the striped portion of Figure 5, which ranges from 1980-1982, occurs because the counts for minor and substantial commentary are equivalent. In other words, there was one instance of minor public commentary and one instance of substantial public commentary in 1981. (This does not insinuate that one instance of public commentary was deemed both substantial and minor commentary.) Figure 7. California Waiver Requests for Heavy-Duty Vehicles, Minor vs. Substantial Commentary, 1968-2017

40 U.S. Environmental Protection Agency, “California State Motor Vehicle and Nonroad Engine; Truck Idling Requirements; Notice of Decision,” Federal Register 77, no. 32 (2012): 9239-9250.

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Federalism and California’s Role in Light-Duty & Heavy-Duty Vehicle Emissions Standards

Conclusion Despite a common acknowledgment of federal leadership in setting HDV emissions standards, there is remarkably little information available to explain how and why this California-EPA relationship evolved as it did. A single NRC report provides by far the most direct and relevant consideration of the question, albeit comprised primarily of brief asides. This differs strikingly from discussions of federalism and LDV emissions controls, in which the reasons for California’s leadership are well-documented and well-understood. Since 1971, California requested Clean Air Act waivers for its HDV and diesel-engine requirements on 39 occasions. The EPA authorized California’s actions in all 39 cases. Most of the requests – 26 of 39 – govern “substantive” issues, such as newly stringent standards for some vehicles or entirely new requirements. Fewer than half (16) of the Federal Register notices regarding these requests report that stakeholders submitted public comments.

The Center for Local, State, and Urban Policy

Appendix 1. Notice of Decision Text from Denied Cases 1. Text from the waiver application dated 11/1/1973: a. “Having given due consideration to the record of the public hearing, all material submitted for that record, and other relevant information, I find that: ... (4) Technology exists with which to achieve California’s proposed standards for HC and CO; however, the standards are inconsistent with Section 202(a) of the Clean Air Act because the cost of compliance within the lead time remaining is excessive. This finding is based on testimony by some manufacturers that lack of adequate lead time would force their abandoning the California market for light duty trucks in model year 1975. Adequate lead time does exist to achieve those standards without excessive cost in 1976; hence those standards are consistent with section 202(a) for application to light duty trucks in model year 1976. (5) Technology is not available to achieve California’s proposed standard for NOx.” 41 b. “Therefore the following actions are hereby taken: (1) The request of California for waiver of application of Section 209(a) with respect to its proposed standards of 0.9 grams/mile HC, 17 grams/mile CO, and 1.5 grams/mile NOx is denied; (2) Application of Section 209(a) to California with respect to 2 grams/mile HC, 20 grams/mile CO, and 2 grams/mile NOx for model year 1975 light duty trucks is waived if California adopts such standards; and (3) Application of Section 209(a) to California with respect to 0.9 grams/mile HC, 17 grams/mile CO. and 2 grams/mile NOx for model year 1976 light duty trucks is waived if California adopts such standards.”42 2. Text from the waiver application dated 7/18/1975: a. “I have determined that the statutory criteria of section 209(b) of the Act have not been met, and therefore that I must deny the requested waiver of Federal preemption. The record of the hearing and the other evidence available to me clearly establish that although compelling and extraordinary conditions exist in the State of California, adequate technology exists with which to meet the standard and the accompanying enforcement procedures are consistent with Federal procedures, there is insufficient lead time available in which to apply that technology to the 1977 model year California vehicles. However, I have also determined that sufficient lead time does exist in which to apply that technology to the 1978 model year, and therefore I am today granting a waiver of Federal preemption to California for its evaporative emission standard and SHED test procedure for the 1978 and subsequent model years, to the extent that a Federal standard of equal or greater stringency is not subsequently established for any such model year.”43 b. “A decision to take future steps toward establishing a Federal 1078 SHED standard, however, does not dispose of the California waiver application currently pending before me. For the reasons given above, I feel I must deny this application for the 1977 model year. However, California made clear to us that they are interested in obtaining a waiver for 1978 if they cannot have it for 1977. Therefore, I hereby waive the application of section 209(a) to the State of California with respect to section 1976, Title 13, California Administrative Code, as adopted on April 10, 1975, and amended on May 14, 1975, entitled “Standards and Test Procedures for Fuel Evaporative Emissions,” insofar as it applies to the 1978 and subsequent model years. Upon the promulgation of the Federal standard and accompanying test procedure, the waiver will be reviewed with regard to the issues of the relative stringency and the consistency of the Federal and the California requirements, and any appropriate action will be taken at that time.”44

41 42 43 44

“Motor Vehicle Pollution Control; California State Standards,” Federal Register 38, no. 210 (1973): 30136. “Motor Vehicle Pollution Control; California State Standards,” Federal Register 38, no. 210 (1973): 30136. “California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,” Federal Register 40, no. 139 (1975): 30311-30314. “California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,” Federal Register 40, no. 139 (1975): 30311-30314.

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Federalism and California’s Role in Light-Duty & Heavy-Duty Vehicle Emissions Standards

3. Text from the waiver application dated 1/5/1978: a. “This decision, issued under section 209(b) of the Clean Air Act...will address three requests for waiver of Federal preemption by California pertaining to amendments, specified infra, to its motorcycle emissions control program. Pursuant to several bona fide requests, this decision will also reconsider the waiver of Federal preemption granted on October 1, 1976, but only with regard to those portions of California’s motorcycle program affected by California’s subsequent actions, discussed below.”45 b. “As a result of these actions, I have made determinations regarding the following four issues: (1) Whether the 1982 and subsequent model year 1.0 gram per kilometer hydrocarbon standard remains technologically feasible...(2) Whether California is entitled to a waiver of Federal preemption for its amended 1978 through 1981 model year motorcycle exhaust emission standards and test procedures, (3) Whether California is entitled to a waiver of Federal preemption for its motorcycle compliance testing and inspection procedures, and (4) Whether California’s public health and welfare determination regarding its motorcycle exhaust emission regulation program is arbitrary and capricious.”46 c. “The last lead time issue pertains to section 1958(f) of Title 13 of the California Administrative Code, adopted on March 24, 1977 (hereinafter “section 1958(f)”). In response to litigation challenging the Federal regulations, California provided in section 1958(f) for reinstating the “California Exhaust Emission Standards and Test Procedures for 1978 and Subsequent Production Motorcycles,” as amended February 20, 1976, should the Federal test procedures be found to be invalid or unenforceable. Suzuki and Kawasaki contended that a change to the California procedures in the middle of certification would force them to start again, creating procedural inconsistencies and, thus, a lead time problem. I agree with this contention. I, therefore, find that section 1958(f), as now drafted, is inconsistent with section 202(a) of the Act and hereby deny California’s request for a waiver of preemption for that section. With regard to all remaining portions of California’s motorcycle regulatory program, including compliance testing and inspection, I find that sufficient lead time exists to permit the development and application of the requisite technology.”47 d. “I hereby make the following findings: (1) The State of California had, prior to March 30, 1966, adopted standards (other than crankcase emission standards), for the control of emissions from new motor vehicles. (2) That I cannot find that California’s determination that its 1978 and subsequent model year motorcycle exhaust emission standards are at least as protective of public health and welfare as applicable Federal standards is arbitrary and capricious. (3) California needs motorcycle exhaust emission standards to meet compelling and extraordinary conditions. (4) California’s current 1978 and subsequent model year motorcycle exhaust emission standards and compliance testing and inspection programs with the exception of section 1958(f) are consistent with section 202(a) of the Act, taking into account the cost of compliance and the availability of sufficient lead time to develop and apply the requisite technology.”48 e. “Based upon the above discussion and findings, I hereby waive application of section 209(a) of the Act to the State of California with respect to section 1958 (a)-(e).”49 4. Text from the waiver application dated 8/18/1978: “California believed that these specifications needed a waiver of Federal preemption to make them enforceable since they were incorporated by reference in various California test procedures for 1979 and subsequent model year motor vehicles. By virtue of previous waivers of Federal preemption for the underlying standards, these specifications need not independently meet the requirements of section 209(b)(1) of the Clean Air Act (hereinafter “the Act”), in order for California to enforce them.”50 5. Text from the waiver application dated 10/23/1979: “I find that the regulations adopted by CARB with regard to new motor vehicle warranties fall within the scope of waivers currently in effect, and therefore, do not require a separate waiver. In addition, I find that I am unable to make the determinations required for a denial of a waiver under section 209(b) of the Act, and therefore deem

45 46 47 48 49 50

“California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,” Federal Register 43, no. 3 (1978): 998-1002. “California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,” Federal Register 43, no. 3 (1978): 998-1002. “California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,” Federal Register 43, no. 3 (1978): 998-1002. “California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,” Federal Register 43, no. 3 (1978): 998-1002. “California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,” Federal Register 43, no. 3 (1978): 998-1002. “California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,” Federal Register 43, no. 161 (1978): 36679-36680.

The Center for Local, State, and Urban Policy Federal preemption under section 209(a) of the Act to be waived with respect to the following sections of Title 13 of the California Administrative Code: Sections 2035-2042.”51 6. Text from the waiver application dated 7/3/1980: “I am amending my decision...which granted the State of California a waiver of Federal preemption to enforce California exhaust emission standards applicable to 1979 and subsequent model year passenger cars. The Court vacated this decision to the extent it denied American Motors Corporation (AMC) the lead time prescribed by section 202(b)(1)(B) of the Act. In response to the Court’s decision, I am vacating the earlier waiver decision to the extent it authorizes California to enforce an oxides of nitrogen (NOx) emission standard that is more stringent than the 1.5 grams per vehicle mile (gpm) 1979 model year California NOx standard against AMC passenger cars for model years 1980 and 1981.”52 7. Text from the waiver application dated 4/3/1989: “EPA has determined that no waiver of Federal preemption under section 209(b) of the Clean Air Act, as amended, 42 U.S.C. 7543(b) (Act) is required before California can enforce various amendments to its Tune-up Label Specifications. They are enforceable without further action by the administrator.”53 8. Text from the waiver application dated 7/13/1990: “EPA has determined that no waiver of Federal preemption under section 209(b) of the Clean Air Act, as amended, 42 U.S.C. 7543(b) (Act) is required before California can enforce regulations which establish certification fees. They are enforceable without further action by the Administrator.”54 9. Text from the waiver application dated 3/6/2008: “The Environmental Protection Agency denies the California Air Resources Board’s request for a waiver of the Clean Air Act’s prohibition on adopting and enforcing its greenhouse gas emission standards as they affect 2009 and later model year new motor vehicles. This decision is based on the Administrator’s finding that California does not need its greenhouse gas standards for new motor vehicles to meet compelling and extraordinary conditions.”55

51 52 53 54

“California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,” Federal Register 44, no. 206 (1979): 61096-61104. “California State Motor Vehicle Pollution Control Standards; Modification of Waiver of Federal Preemption; Notice of Public Hearing,” Federal Register 45, no. 130 (1980): 45359-45361. “California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption Notice of Determination,” Federal Register 54, no. 62 (1989): 13427-13428. “California State Motor Vehicle Pollution Control Standards; Amendments Within the Scope of Previous Waivers of Federal Preemption; Summary of Determination,” Federal Register 55, no. 135 (1990): 28823-28824. 55 “California State Motor Vehicle Pollution Control Standards; Notice of Decision Denying a Waiver of Clean Air Act Preemption for California’s 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles,” Federal Register 73, no. 45 (2008): 12156-12169.

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Federalism and Californiaâ&#x20AC;&#x2122;s Role in Light-Duty & Heavy-Duty Vehicle Emissions Standards

Reports from Issues in Energy and Environmental Policy American Opinions on Carbon Taxes and Cap-and-Trade: 10 Years of Carbon Pricing in the NSEE (June 2018) Should State and Local Governments Address Climate Change? 10 Years of Climate Federalism in the NSEE (March 2018) Coal, Natural Gas, and Pipelines: 10 Years of Fossil Fuels in the NSEE (February 2018) A Majority of Americans Support Net Energy Metering (September 2017) Strong Public Support for State-level Policies to Address Climate Change (June 2017) Moving the Needle on American Support for a Carbon Tax (March 2017) Fewer Americans Doubt Global Warming is Occurring (August 2016) American Views on Fracking (May 2016) American Attitudes about the Clean Power Plan and Policies for Compliance (December 2015) Acceptance of Global Warming on the Rise for Americans of all Religious Beliefs (November 2015) Acceptance of Global Warming Among Americans Reaches Highest Level Since 2008 (October 2015) Belief in Global Warming Among Americans Gradually Increases Following the Winter of 2015 (July 2015) Cap-and-Trade Support Linked to Revenue Use (June 2015) Widespread Public Support for Renewable Energy Mandates Despite Proposed Rollbacks (June 2015) Neighbors Diverge: An Explanation for the Differences in Silica Sand Mining Activity in Wisconsin and Minnesota (May 2015) Public Perceptions of Hydraulic Fracturing in Three Marcellus Shale States (May 2015) Acceptance of Global Warming Among Americans Moderately Increases in Late 2014 (February 2015) Public support for regulation of power plant emissions under the Clean Power Plan (January 2015) Public Opinion on Hydraulic Fracturing in the province of Quebec: A Comparison with Michigan and Pennsylvania (October 2014) Opportunity, Risk, and Public Acceptability: The Question of Shale Gas Exploitation in Quebec (October 2014) Shale Governance in the European Union: Principles and Practice (October 2014) Public Perceptions of Shale Gas Extraction and Hydraulic Fracturing in New York and Pennsylvania (September 2014) Public Views on a Carbon Tax Depend on the Proposed Use of Revenue (July 2014) American Acceptance of Global Warming Retreats in Wake of Winter 2014 (June 2014) Public opinion on climate change and support for various policy instruments in Canada and the US: Findings from a comparative 2013 poll (June 2014) Environmental Policy in the Great Lakes Region: Current Issues and Public Opinion (April 2014) Shale Gas and Hydraulic Fracturing in the Great Lakes Region: Current Issues and Public Opinion (April 2014) Wind Energy Development in the Great Lakes Region: Current Issues and Public Opinion (April 2014) The Decline of Public Support for State Climate Change Policies: 2008-2013 (March 2014) Using Information Disclosure to Achieve Policy Goals: How Experience with the Toxics Release Inventory Can Inform Action on Natural Gas Fracturing (March 2014) State of the Debate: Natural Gas Fracking in New Yorkâ&#x20AC;&#x2122;s Marcellus Shale (January 2014) The Chilling Effect of Winter 2013 on American Acceptance of Global Warming (June 2013) Public Opinion on Fracking: Perspectives from Michigan and Pennsylvania (May 2013) NSEE Findings Report for Belief-Related Questions (March 2013) NSEE Public Opinion on Climate Policy Options (December 2012) All IEEP reports are available online at: http://closup.umich.edu/ieep.php

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Regents of the University of Michigan The Center for Local, State, and Urban Policy (CLOSUP), housed at the University of Michiganâ&#x20AC;&#x2122;s Gerald R. Ford School of Public Policy, conducts and supports applied policy research designed to inform state, local, and urban policy issues. Through integrated research, teaching, and outreach involving academic researchers, students, policymakers and practitioners, CLOSUP seeks to foster understanding of todayâ&#x20AC;&#x2122;s state and local policy problems, and to find effective solutions to those problems. web: www.closup.umich.edu email: closup@umich.edu twitter: @closup phone: 734-647-4091

Michael J. Behm Grand Blanc

Mark J. Bernstein Ann Arbor

Laurence B. Deitch Bloomfield Hills

Shauna Ryder Diggs Grosse Pointe

Denise Illitch Bingham Farms

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Andrew C. Richner Grosse Pointe Park

Katherine E. White Ann Arbor

Mark S. Schlissel (ex officio)