The Trump Administration Couldn't Spell Irony If You Spotted It the I, R, O, and N.

Foley Hoag LLP - Environmental Law

Foley Hoag LLP - Environmental Law

Yesterday, EPA and the National Highway Traffic Safety Administration released the “Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program,” more succinctly known as the withdrawal of the California’s § 209 waiver under the Clean Air Act.  As part of that announcement, EPA Administrator Andrew Wheeler was quoted as saying that “California has the worst air quality in the United States.”

And why is this ironic?  Because one of the criteria used in determining whether to grant a waiver to California under § 209 of the Clean Air Act is whether “such State does not need such State standards to meet compelling and extraordinary conditions.”  In the unlikely hypothetical where I was advising this administration, I would have suggested that all of the progress in controlling emissions over the past 50 years means that there are no longer compelling and extraordinary conditions in California that warrant a waiver at this point.  I think EPA has now waived that anti-waiver argument!

I just don’t see a basis for withdrawal of the waiver (and this is not the only reason for that conclusion).  As to the Administration’s position that the standards are preempted by the Energy Policy and Conservation Act, the Supreme Court has already ruled that EPCA does not preclude EPA regulation of tailpipe emissions, and lower courts since have concluded that EPCA also does not preempt state regulation under a § 209 waiver.  I don’t see any court other than the Supreme Court ruling in the Administration’s favor on this one.

And, yes, I do realize that the Supreme Court gets the final word.

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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Foley Hoag LLP - Environmental Law

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