The Other Shoe Drops - EPA Formally Announces Its Reconsideration of the Withdrawal of the California Preemption Waiver

Foley Hoag LLP - Environmental Law

Foley Hoag LLP - Environmental Law

I noted in yesterday’s post about the NHTSA proposal to withdraw the SAFE I Rule that EPA was expected to follow the NHTSA action by restoring the Clean Air Act Section 209 waiver for California’s Advanced Clean Car program. The ink was barely dry on the post when EPA released a Notice that was considering doing just that.

I have always thought that EPA’s waiver withdrawal stood on very shaky ground – shakier even than the NHTSA preemption argument made in the SAFE I rule.  I don’t think it’s going to be difficult for EPA formally to restore the California waiver.

I do still think that it would be an example of my typical dry understatement to say that this isn’t the most elegant way to regulate motor vehicle emissions.  Conservatives are right that it’s not ideal for one state to be driving – pardon the pun – the entire national regulatory system.

Here’s hoping that the leverage provided by the waiver restoration provides the basis for the Biden administration and the auto industry to reach an agreement on an aggressive set of limits that will move us towards the EV future we need – thus making the California waiver moot.

As sung in South Pacific, if you don’t have a dream, how are you going to have a dream come true?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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