'A Period of Consequences': Global Warming Legislation, Cooperative Federalism and the Fight between the EPA and the State of California

In 2005, California enacted Assembly Bill 1493, also known as the Pavley Bill which set out to regulate greenhouse gas emissions from vehicular sources. For the Pavley Bill to take effect, however, California needed a waiver of Clean Air Act preemption. Two years after California’s request, the EPA, in an unprecedented move, denied the waiver. California promptly filed suit in the Ninth Circuit Court of Appeals and the case remains pending. This paper argues the Clean Air Act, as Congress originally envisioned, represents the best model for environmental legislation - a form of "modified" or cooperative federalism. In denying California’s waiver request, the EPA renders this cooperative federalism model ineffective; the EPA’s decision intrudes on states’ rights and disregards environmental concerns. As such, the Ninth Circuit should give full weight to the system of cooperative federalism and environmental protection espoused in the plain language and congressional intent of the Clean Air.


I. Is It Proper to Think Globally but Act Locally?
One of the debates in environmental law concerns whether issues should be addressed at a national or local level. While strong arguments exist on both sides, a cooperative model of federalism which incorporates efforts at the national and local levels will best solve environmental problems.

A. Arguments for Federal Control
Since environmental problems have far reaching effects on national-in fact, globalconcerns, some argue only national legislation can adequately address these issues. Critics of state global warming legislation assert that since some states may be unwilling to enact statutes, particularly costly legislation, only national legislation sufficiently addresses these issues.
Furthermore, proponents of a purely federal approach reason that environmental concerns involve issues, such as air and water, not confined to any one state. Finally, proponents argue that efficiency demands federal legislation. 6 Critics of state-level global warming legislation argue that elements of the environment, such as air and water, do not exist in the exclusive domain of any one state and therefore require national attention. One critic stated that "spillover effects among the states create the strongest 6  justification for federal legislation." 7 Since "pollution knows no boundaries," state legislation would fail to adequately regulate greenhouse gas emissions. 8 Federal legislation, on the other hand, is "better able to regulate interstate pollution" because it "has a national focus and is a national forum to establish regulations and procedures to resolve interstate conflicts." 9 Essentially, these proponents argue that global problems require large-scale attention on a national and global stage rather than at state or local levels.
As a corollary to the idea that environmental elements affect the whole nation rather than individual states, some critics of state action believe their position is grounded in science.
Ultimately, proponents for exclusively federal control argue "only comprehensive, national legislation can deal with environmental systems, which are by their nature systemic." 10 In essence, "[w]hen the United States Supreme Court pretends that comprehensive systems can be divided into fragmented and unrelated parts, in the name of federalism, the Court is ignoring simple science." 11 Moreover, proponents of federal environmental legislation assert that some states are unwilling to enact laws to combat global warming, particularly when they fear costly legislation will provoke the loss of industry. ). See also id. at 83 ("If a multiplicity of standards in commerce is a significant concern, some sort of 'modified federalism' may be possible, whereby one or two innovative states, like California, are permitted to set an alternative standard, and other states are given the choice of following the national standards or the California standard."). 27 See, e.g., Glicksman, supra note 7, at 729. 28 See, e.g., Kaswan, supra note 6, at 80. 29 The CAA allows California to request a waiver of preemption provided that California meets certain requirements. This waiver will be discussed in more detail, infra, Part II.A.2. 30 Glicksman, supra note 7, at 728. During this period, Congress also enacted the Clean Water Act which may also serve as a model for cooperative federalism. commitment to cooperative federalism: although the federal government sets national minimum environmental standards it also allows states "to determine in many contexts the appropriate ways to achieve those goals . . ., to share the responsibility to enforce state requirements adopted to implement federal regulatory programs, and . . . to adopt regulatory standards more stringent than the federal government." 31

II. Federal Environmental Legislation
As previously noted, Congress responded to environmental problems by enacting legislation largely relying on a system of modified or cooperative federalism.  35 Giovinazzo, supra note 18, at 899 ("Through both the AQA and its successor the Clean Air Act, the federal approach to air pollution control has maintained this high degree of dependence on state cooperation, principally through reliance on state adoption and enforcement of State Implementation Plans." (emphasis added)).

Background
Congress first codified the modern CAA in 1970 and amended it in 1977 and 1990. 36 The CAA regulates a number of factors and toxins associated with air pollution, including: "criteria pollutants," 37 mobile sources, such as motor vehicles, 38  In addition, Congress intended for California to have the ability to adopt more stringent regulations, thereby allowing the state "to act more quickly than [the EPA] in adopting air pollution control measures." 54 In essence, California does not need to wait for the federal government to acknowledge a problem exists before taking legislative action to try to repair or reduce harms to the coast line or mountain ranges; the state need not sit idly by as environmental problems worsen. 49 Glicksman, supra note 7, at 784 (citations omitted). 50 Id. See also Giovinazzo, supra note 18, at 900 ("Within this cooperative approach to air pollution, no state was more instrumental to the formulation of national air pollution policy than California. Indeed, it was California and the California Air Resources Board whose studies first raised the modern awareness of the sources and impacts of air pollution."). 51  Congress also declared that California should have the "broadest possible discretion in selecting the best means to protect the health of its citizens." 55 By using the phrase "broadest possible discretion," Congress clearly indicated its desire for California to act with innovation and to create new standards with minimal federal interference. As a result of this special waiver, California has traditionally led the way in creating the nation's automobile emission standards. 56 In sum, "Congress clearly intended that California, having established itself as having both particular needs with regard to air quality regulation and particular expertise in developing regulations to address its needs, should be empowered to develop alternative and more protective regulations for the control of air pollutants." 57 By amending the CAA, Congress underscored its desire for California to create regulations more stringent than federal standards. The 1977 amendment, for example, required California's standards to be at least as protective as federal standards, but only "in the aggregate." 58 Thus, in evaluating California's standards, the EPA must analyze the proposed regulatory scheme in its entirety, rather than standard-by-standard. 59  . . one might say that there have been at least 95 waiver requests, but nearly half of these were relatively minor actions that may not deserve to be counted as formal requests. Of these, all were granted in whole or in part. 'I don't think we've ever outright denied a request,' according to an OTAQ official; 'but there were some grants in which we denied part or delayed the effective date of part on feasibility grounds,' he added."). See also California Attorney General, News and Alerts: "Brown Blasts EPA for Betraying Public Trust," http://ag.ca.gov/newsalerts/release.php?id=1516, Jan. 10, 2008 (last visited Feb. 22, 2008); Giovinazzo, supra note 18, at 903 ("In practice, California's waiver applications are almost always approved."); Kaswan, supra note 6, at 50 ("EPA has virtually always granted California's waiver requests . . ."). 73 See supra note 72. 74 See, e.g., Glicksman, supra note 7, at 784 ("In 1977, Congress amended the CAA to allow other states to adopt and enforce motor vehicle emissions controls that are identical to any California standards for which EPA has already granted a waiver. Several states, particularly in the northeast, have taken advantage of this provision by adopting standards equivalent to the more stringent California standards approved by EPA."). 75 Giovinazzo, supra note 18, at 951 ("When California required catalytic converters, a few years later their effectiveness was clear and the federal government required them as well. When California banned lead in gasoline, the federal government followed suit. When California adopted a groundbreaking clean vehicles program, the federal government followed, explicitly adopting CARB's standards and initiating a clean-vehicles program-in California."). Congress' stated purpose for the EPCA includes, for example, regulating certain energy uses and creating energy conservation programs, 78 conserving water 79 and improving the energy efficiency of certain consumer products such as motor vehicles. 80 In order to improve the energy efficiency of automobiles, Congress imposed strict new fuel efficiency requirements known as the Corporate Average Fuel Economy (CAFE) standards. 81 The EPCA also contained a broad preemption clause which, unlike the CAA, did not provide California with a waiver exception. 76 Id. and accompanying text. While EPCA does contain a broad preemption provision, applying it literally would preempt a variety of state laws and lead to absurd results surely not intended by Congress.
Putting aside the California waiver under the CAA, a literal application of the EPCA preemption provision would preempt states from setting speed limits 85 or imposing gasoline taxes, 86 since these acts "relate" to fuel economy. However, it seems illogical that Congress would use EPCA to prevent states from creating their own speed limits or taxing fuel. 87 Reading EPCA to preempt California from enacting legislation related to fuel economy would also conflict with 82 Energy Policy and Conservation Act, 49 U.S.C. §32919(a) (2000). 83 Giovinazzo, supra note 18, at 893. 84 See, e.g., id. at 897 ("Congress never meant EPCA to limit California's autonomy."). 85 Id. at 897 & n.240 ("For a variety of technical reasons, a vehicle driven faster than about forty-five miles per hour over a given distance is progressively less efficient-i.e. burns more gasoline-than a car driven slower over the same distances. Thus, lowering highway speed limits increases vehicular fuel economy." (citing U.S. Dep't of Transp., Think Fast, available at http://www.nhtsa.dot.gov/people/outreach/safesobr/pub/think.pdf)). 86 By imposing a tax on gasoline, consumers may be more conservative with automobile use, leading them to give more consideration to fuel economy when purchasing a car. 87  Additionally, the EPCA originally recognized California's CAA waiver by defining "federal standards" to include "emission standards applicable by reason of section 209(b)" of the CAA. 90 Thus, when Congress enacted EPCA, it accounted for regulations enacted pursuant to the California waiver by giving these standards the same status as federally enacted regulations.
Furthermore, in evaluating both the EPCA and the CAA, courts have held the two statutes are not at odds with each other; instead, courts equate California regulations enacted under the CAA waiver provision with federal standards. One court concluded the California standards enacted under a preemption waiver become "federalized," thereby eliminating the concern for state versus federal regulations under the EPCA. 91 The court noted that "when EPCA was passed, Congress unequivocally stated that federal standards included EPA-approved California emissions standards." 92 Alternatively, courts have also held that, even if California standards are not "federalized," still no preemption problem exists: This court again declines to cast the issue as being one of 'federalization' of the proposed California standards. Rather, the court refers to its discussion on EPCA preemption in which it determined that there is no indication of 88 See, e.g., Giovinazzo, supra note 18, at 893 ("Constricting California's autonomy would directly conflict with Congress' intent and would impede the kind of state innovation that should be favored by an administration and a Supreme Court friendly to federalism."). 89  congressional intent that a proposed California state regulation granted waiver of preemption under section 209 of the Clean Air Act is different for any purpose from a regulation that is promulgated directly by EPA. 93 Thus, whether or not California standards are "federalized," remains largely irrelevant; it is enough to say these regulations should be treated the same as those promulgated by the EPA.
Due to the fact that California regulations are treated like federal standards, legislation enacted pursuant to the California waiver does not conflict with the EPCA.
In addition, because the CAA waiver provision accounts for California's pre-CAA/EPCA automobile pollution regulations, "the court must presume that Congress did not intend that EPCA would supersede California's exercise of its historically established police powers." 94 The Supreme Court has made clear that EPA regulations, as well as those enacted by California pursuant to CAA waiver, "that control carbon dioxide emissions serve a purpose that is distinct from, and not in conflict with, the purpose of the EPCA." 95 Although both CAA and EPCA promote a cleaner environment by, at least in part, governing automobile emissions, they ultimately serve distinct and separate purposes. These purposes, while complimentary, do not overlap to an extent that would create conflict between the two. Thus, California legislation enacted pursuant to CAA waiver does not conflict with EPCA and is therefore not preempted.

III. Pavley Bill
California has taken advantage of Section 209 of CAA on numerous occasions, with the EPA always granting California's petition for waiver. These waiver requests often face strong  The Supreme Court has also agreed that regulation of greenhouse gases by a state does not impair negotiations with foreign nations to generally reduce greenhouse emissions. 119 The Court acknowledged the broad authority possessed by the President in the field of foreign policy, but noted that such "authority does not extend to the refusal to extend domestic laws." 120 While

IV. EPA's First Denial to California in Forty Years
After California's finding that its standards, providing a 175% greater reduction of carbon dioxide emissions over the federal regulations, are at least as protective as federal law was therefore neither arbitrary nor capricious.
In addition, the EPA improperly asserted that California did not need separate standards to meet "compelling and extraordinary conditions." Throughout the history of CAA and California's requests for preemption waivers, both the EPA and courts have construed this term broadly. 151 California has the highest human and vehicular population in the nation, unique topography highly susceptible to global warming, and some of the worst ozone concentrations in the United States. These conditions disproportionately affect the state as it must concern itself with protecting a greater number of people and with preserving a large coastline and forest areas.
Furthermore, the high number of automobiles in the state results in more tailpipe emissions, and thus a higher concentration of greenhouse gases. The state, therefore, meets the required "compelling and extraordinary conditions" as the term, in the context of Section 209(b) of the CAA, has been understood for the past forty years. fourteen other states also adopting identical regulations. 166 Although the federal government now has legislation that restricts greenhouse gas emissions from automobiles, the Pavley Bill contains more stringent regulations and will therefore have a greater impact in curbing global warming.
As noted above, although the federal government should certainly be applauded for its efforts to reduce greenhouse gas emissions from vehicular sources, federal legislation does not prohibit California from enacting its own, more stringent, regulations under the CAA. Allowing both federal and state legislation to coexist reflects the commitment to cooperative federalism Congress envisioned for the CAA and other environmental statutes. This modified and cooperative federalism model created by CAA has worked well for the past forty years; it has allowed other states that are most threatened by environmental problems the opportunity to enact more stringent requirements that have often then been adopted by Congress. The EPA therefore should not limit California's innovations. Given Congress' express approval of California's innovation and the fact that all efforts to reduce greenhouse gases may curb global warming's detrimental effects, the Ninth Circuit should overturn the EPA's denial of California's waiver request.
environmental legislation. While it may be true that global warming threats are best addressed through international resolutions, nations can still try to solve these problems through legislation at a domestic level prior to engaging in any cooperative efforts with other countries. Each nation can independently contribute to achieving solutions to the problem of global warming regardless of the actions of other countries. 166 See supra note 103 and accompanying text.