§ 6. State Mobile Source Emission Controls § 6. State Mobile Source Emission Controls

• Jurisdiction: United States

§ 6. State Mobile Source Emission Controls

In 2002 California became the first state to impose CO₂ emission limits on motor vehicles when it enacted A.B. 1498.¹²⁹ On September 24, 2004, The California Air Resources Board (CARB) adopted GHG regulations for passenger and light-duty vehicles. The regulations must be approved by the California Office of Administrative Law, then they must be approved by the state legislature, and then EPA must grant a waiver. The plan was for the regulations to take effect on January 1, 2006, and compliance with the CO₂ tailpipe emissions standard is to occur in MY 2009. However, it is highly unlikely that the target date will be met.¹³⁰

CARB's regulations address carbon dioxide, methane, nitrous oxide and hydrofluorocarbons; the control level is based on each gas's global warming potential.¹³¹ Compliance requirements are based on the "fleet average" for (1) passenger vehicles and light-duty trucks (LDTs) under 3,750 pounds and (2) LDTs over 3,750 pounds and medium duty passenger vehicles. CARB's CO₂ regulations commence with MY 2009 and require a reduction in CO₂ emissions of about twenty-five percent for cars and LDTs and eighteen percent for larger trucks and sport utility vehicles. The second phase, targeted for 2013 to 2016, would require a thirty-four percent reduction for cars and LDTs and twenty-five percent for larger vehicles. Manufacturers that meet or exceed the requirements receive credits that may be used to offset a

[Page 13-29]

manufacturer's emissions for up to five years.¹³² The law was challenged by automobile dealers and by the Alliance of Automobile Manufacturers.¹³³ They claimed the Clean Air Act and the Energy Policy & Conservation Act (EPCA) preempt California's law.¹³⁴ In February 2005, the Association of International Automobile Manufacturers (AIAM) joined the lawsuit.¹³⁵

On December 21, 2005, CARB requested a waiver from EPA pursuant to CAA section 209(b) in order for the state to regulate GHGs. An issue that needed to be resolved was whether the Energy Policy Conservation Act (EPCA),¹³⁶ which established federal fuel economy standards for new vehicles, preempts the field under the Supremacy Clause.¹³⁷ In Central Valley Chrysler v. Witherspoon,¹³⁸ the court, in motions for judgment on the pleadings, addressed the preemption issues. The court held that neither the CAA's section 209, EPCA, nor any other statute before the court allows California to disrupt the CAFÉ program, but this is not any issue to be decided on the pleadings. The regulations, the court held, are preempted under section 209(a) unless EPA grants a section 209(b) waiver because they are emission standards. The court went on to deny that EPCA creates a Dormant Commerce Clause issue because Congress in enacting section 209 made a decision that more stringent California emission standards were a justified burden on commerce, although the court did not rule on whether EPCA preempts California's regulations. After this procedural skirmish, the court placed the case on hold until the Supreme Court could decide Massachusetts v. EPA.¹³⁹

Meanwhile EPA was not acting on California's waiver request to allow the state to set mobile source CO₂ emission standards. EPA was concerned that it might not have authority to issue a waiver because such standards are actually fuel-economy standards regulated by...