Regulating Greenhouse Gases at the State Level: California's Self-Inflicted Burden

• Date: 01 September 2009

39 ELR 10862 ENVIRONMENTAL LAW REPORTER 9-2009

Regulating Greenhouse Gases

at the State Level: California’s

Self-Inf‌licted Burden

by Rajiv A. Tata

Rajiv A. Tata currently serves as General Counsel for Utility Trailer Manufacturing Company.

As lawmakers debate the best way to confront the issue

of global warming, it is becoming clearer that the

issue may be one of this generation’s most important

policy decisions. Despite increasing public awareness of the

perceived problem, the federal government successfully cir-

cumvented the issue for most of this decade, thereby creating

a regulatory void t hat environmentalists and scientists have

sought to address.

To ll the vacuum, California developed a regulatory

response to the mounting data suggesting a man-made cause

for climate change. While the state should be admired for its

initiative, these regulations will have a signica nt impact on

California’s tra nsportation industry. e rst, an Airborne

Toxic Control Measure for In-Use Diesel-Fueled Transport

Refrigeration Units and Transport Refrigeration Unit Gen-

erator Sets (TRU ATCM)1 attempts to regulate emissions

from refrigeration units axed to highway semi-trailers that

transport perishable goods. e second regulatory program,

authorized by the California Global Warming Solutions Act

of 2006,2 seeks to reduce greenhouse gas (GHG) emissions

by improving heavy-duty vehicles’ fuel economy through the

use of aerodynamic devices.

is Article will examine California’s attempt to address

the global warming issue through t he use of the aforemen-

tioned programs by explaining the programs themselves and

their practical impact on the transportation industry, and

analyzing the likelihood of the regulations surviving legal

challenge. e result will demonstrate that due to the unique

and uid properties of the contaminants that are being

regulated, U.S. courts will need to reexa mine their current

analysis of such regulations and develop a new standard for

reviewing GHG emission regulations. Such an approach

is likely to result in a more equitable apportionment of the

burdens associated with realizing the global benet of GHG

emission reductions.

1. C. C R. tit. 13, §2477 (2004).

2. C. H  S C §§- ().

I. Regulating Emissions From Nonroad

Compression Ignition Engines

A. The Federal Program

e U.S. Environmental Protection Agency (EPA) began

regulating emissions from o-road diesel engines, such as

the ones used in transport refrigeration units and transport

refrigeration unit generator sets (T RUs), in 1999.3 To do so,

EPA set up a tiered classication system based on a TRU

engine’s model year (MY) and the levels of nitrogen oxide

(NOx), carbon monoxide (CO), and particulate matter (PM)

it could emit.4 Beginning in 1999, the tiered emissions levels

became progressively more stringent, culminating in a nal

emissions level that will apply to MY 2014 engines.5

Under the federal regulatory program, states were pre-

empted from promulgating similar legislation, resulting in a

stable regulatory environment for those in the transportation

industry. Uniform emissions laws for o-road mobile sources

facilitated commerce by allowing tra nsportation companies

to haul loads to multiple states using the same equipment.

In so doing, transportation companies beneted f rom lower

operating costs. Unfortunately, California’s regulatory pro-

gram may disrupt this stable operating environment.

B. California’s Program

In November 20 04, California’s Oce of Administrative

Law approved the TRU ATCM that was subsequently codi-

ed into the California Code of Reg ulations.6 Since the TRU

ATCM regulated the same emissions as the federal program,

the former was preempted by EPA’s four-tiered regulatory

program.7 To overcome the preemption issue, California

3. 40 C.F.R. §. ().

4. Id.; 40 C.F.R. §. ().

5. 40 C.F.R. §. (); 40 C.F.R. §. (); 40 C.F.R. §

().

6. C. C R. tit. 13, §2477 (2004).

7. U.S. C. art. I, §8.

Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.