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

Date01 September 2009
Regulating Greenhouse Gases
at the State Level: Californias
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®,, 1-800-433-5120.

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