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History's on California's side in emissions imbroglio with Trump

Bloomberg, AP, Reuters

U.S. President Donald Trump has declared the federal government is done with five decades of letting California police its own air quality. But the state is now taking the federal government to court, and judges will have the last word.

Some law professors doubt Trump can defend canceling a program that allows the most populous state to set tougher automotive greenhouse emissions standards than those of the U.S. government.

The Trump administration said on Thursday it was revoking California’s authority to set its own tailpipe emissions standards and require some zero-emission vehicles. Environmental Protection Agency Administrator Andrew Wheeler said the decision would ensure that nationwide rules provide “much-needed regulatory certainty for the automotive industry.”

Currently, California’s more stringent vehicle emissions rules are followed by a dozen other states that account for more than 40 percent of U.S. vehicle sales.

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, said that the emissions rule proposed by the administration was riddled from the start with “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.

“Two courts have already upheld California’s emissions standards, rejecting the argument the Trump administration resurrects to justify its misguided pre-emption rule,” Becerra said in a statement Friday announcing the lawsuit against the administration in Washington federal court.

But the administration contends California’s tougher tailpipe standards are pre-empted 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.

Dotson said, “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.”

Villanova University law professor Todd Aagaard, who served in the Justice Department’s Environment and 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 pre-emption provision as stunningly broad, in a way that could extinguish 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, Honda, Volkswagen and BMW — 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 pre-emption, 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 Environmental Protection Agency “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 was hesitant 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.”

California reached an agreement with the four major automakers in July to adopt emissions standards stricter than the ones Trump has proposed, but looser than Obama-era rules.

The administration subsequently launched an antitrust probe of the companies, an action that U.S. Sen. Kamala Harris of California — a Democratic presidential candidate — asked a government watchdog to investigate.

The administration’s move marked the latest action by the Republican president targeting California, a Democratic bastion that has tangled with Trump on multiple fronts also including immigration.

The industry had aggressively lobbied Trump to ease the Obama-era rules, yet a plan proposed in August 2018 went beyond what most carmakers actually sought.

No manufacturer has endorsed it so far. In June, 17 urged the president to secure a single nationwide standard that all could support — including California’s regulators — warning that failure to do so would trigger “an extended period of litigation and instability, which could prove as untenable” as the rules they sought to change in the first place.

The next month, four of them defied the administration by negotiating the compromise standard with California.

Senate Democrats are challenging the Justice Department probe, accusing the Trump administration of using antitrust powers to target political opponents.

“My suggestion is you’re doing this for political reasons,” Sen. Sheldon Whitehouse of Rhode Island told the Justice Department’s antitrust chief at a Senate hearing Tuesday. “You’re doing this because the administration is cross.”

The official, Makan Delrahim, defended the investigation and denied any political motivation or influence from the White House. Delrahim said the investigation seeks to determine whether antitrust laws were violated by the four firms that made the deal with California.

Democrats also questioned whether political influence played a role in the antitrust regulators’ effort to block the $85 billion merger of AT&T and Time Warner or their approval of T-Mobile’s $26 billion takeover of rival cellphone company Sprint.

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