State Authority to Regulate Mobile Source Greenhouse Gas Emissions, Part 1: History and Current Challenge

Date01 November 2019
11-2019 NEWS & ANALYSIS 49 ELR 11037
In September 2019, the National Highway Transpor-
tation Safety Administration (NHTSA) and the U.S.
Environmental Protection Agency (EPA) nalized new
regulations that upend how federal laws that set standards
for air pollution and fuel economy for the nation’s cars
and trucks are implemented. e agencies have adopted a
new reading of the Energy Policy and Conservation Act
of 1975, which governs federal fuel economy standards.
ese regulations, which were promptly challenged in
court by states, cities, and environmental groups, would
preempt emission standards put in place by California and
adopted by other states. It would also preempt California’s
zero emission vehicle program.
is Article exa mines the agencies’ application of pre-
emption in light of previous regulatory actions by NHTSA
and the jurisprudence that governs preemption. A review
of NHTSA actions since 1975 shows that from the begin-
ning of implementation, the agency was aware that Cali-
fornia emission standards could have signicant eects on
fuel economy. However, NHTSA’s historic approach has
been to simply factor the impacts of the state standards
into the determination of the appropriate stringency for
federal fuel economy standards.  is approach ca n be seen
from NHTSA’s ver y rst rulemaking through regulations
governing model year 2011 vehicles.
Informed by this analy sis, t he Article proceeds to exam-
ine the agencies’ preemption rationale and nds that the
expansive theory of preemption advanced by the agen-
cies poses signicant practical problems and logical aws.
NHTSA judges its previous consideration of California
emission standards to be appropriate, but then fails to pro-
vide a rational basis for disting uishing those actions from
the standards it now seeks to preempt. NHTSA also does
not provide a limiting principle that would pre vent the
agency’s expansive preemption interpretation from being
applied to a variety of state and local laws t hat seem well
beyond a federal scheme relating to fuel economy perfor-
mance requirements that apply to automobile manufactur-
ers. NHTSA attempts to address or contain some of these
problems. However, because the solutions are not rooted in
statute, case law, or legislative history, these solutions may
ultimately be viewed as arbitrary or capricious.
Finally, the Article examines the agencies’ preemption
interpretation in light of the U.S. Supreme Court’s preemp-
tion jurisprudence. e Article argues that the agencies’
State Authority
to Regulate
Mobile Source
Greenhouse Gas
Emissions, Part 1:
History and
by Greg Dotson
Greg Dotson is an Assistant Professor at the
University of Oregon School of Law.
e National Highway Transportation Safety Administration
(NHTSA) and the U.S. Environmental Protection Agency
(EPA) have proposed a new reading of the Energy Policy
and Conservation Act of 1975 (EPCA) that governs federal
fuel economy standards. e regulations would relax federal
greenhouse gas tailpipe standards and fuel economy standards,
and preempt emissions standards put in place by California
and adopted by other states. is Article examines the agen-
cies’ proposal in light of previous regulatory actions; it con-
siders the agencies’ rationale and nds that their expansive
theory of preemption poses signicant practical problems and
logical aws. Finally, it examines the agencies’ proposal in light
of the U.S. Supreme Court’s preemption jurisprudence, and
argues that the agencies’ analysis is lacking because it fails to
adequately discuss the objectives of the federal fuel economy
laws, nor the purpose and eect of the state requirements.
Author’s Note: I am grateful for Stuart Chinn’s overarching
guidance and comments, Joan Rocklin’s detailed review of an
early version of this Article, Charles Woodward’s assistance
with research, and Adell Amos’ encouragement to explore this
topic through multiple papers.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.
analysis is lack ing because it fails to adequately discuss the
objectives of the federal fuel economy laws, nor the pur-
pose and eect of the state requirements. An ex amination
of these issues suggests a narrower interpretation of federal
preemption is warranted that would preserve California’s
historic role in establishing tailpipe emission standards.
is Article examines more than 40 years of regula-
tory history to inform today’s important debate over the
future of the nation’s cars and trucks. e resolution of
this debate will determine the emissions prole of the
nation’s vehicle eet in the years to come, and whether
the United States continues to lead the world on vehicle
technolog y innovation.
e U.S. approach to controlling and reducing car
and truck pollution has been eective. Automobiles
are dramatica lly cleaner today than they were 50 years
ago.1 Air qual it y has improved signicantly, even though
there has been a recent increase in the number of days
each year that are considered unhealthy due to air pollu-
tion level s.2 e automobile manufacturing sector, along
with its pollution control industry, has been a bright
spot in the U.S. economy.3
A critical element to the U.S. approach has been to pro-
mote innovation at the state level, innovation that is then
often subsequently reected at the federal level. e state of
California is centra l to this approach. For nearly 50 years,
California has been setting tailpipe standards for cars and
trucks and has enjoyed for the most part consistent sup-
port, if not unanimous praise, from the U.S. Congress for
its work. When the Clean Air Act (CAA)4 was enacted
and subsequently amended a nd strengthened through the
years, Congress has a lways been careful to preserve Cali-
fornia’s authorit y to continue to regulate tailpipe emissions
from cars and truck s.
In 2018, however, federal agencies proposed regulatory
amendments that would upend this decades-long success-
ful structure. at year, the National Highway Trac
Safety Administration (NHTSA) and the U.S. Environ-
mental Protection Agency (EPA) proposed regulations
that would relax federal ta ilpipe standards for greenhouse
gases (GHGs).5 e proposed regulations also included
text providing that states are preempted from regulating
GHG emissions and from requiring zero emission vehicles
(ZEVs) to be oered for sale.6
1. U.S. Environmental Protection Agency (EPA), History of Reducing Air Pol-
lution From Transportation in the United States [hereinafter History Reduc-
ing Air Pollution],
(last updated Apr. 19, 2018).
2. U.S. EPA, O N’ A: S  T T 2018 (2019),
available at
3. See History Reducing Air Pollution, supra note 1.
4. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
5. U.S. EPA, NHTSA, Safer Aordable Fuel-Ecient Vehicles Rule, 83 Fed.
Reg. 42986 (proposed Aug. 24, 2018) [hereinafter SAFER proposal], avail-
able at
6. Id. at 43232.
at preemption proposal has raised debates within t he
Donald Trump Administration over the merits and defen-
sibility of the proposal, and these debates have bubbled
over into the public’s view. On July 27, 2018, the New York
Times reported t hat then-Acting Administrator of EPA
Andrew Wheeler feared that the rule’s “legal and technica l
arguments are weak a nd will set up the Trump administra-
tion for an embarrassing court room loss.7 Moreove r, w hen
the proposal was publicly released, states and environmen-
tal groups indicated that they would challenge the agen-
cies’ rule in court if it was na lized.8
is debate is highly consequential. Ca lifornia and the
states that have adopted its standards have succeeded in
requiring less-polluting vehicles being brought to market
each year.9 ese states are also requiring automakers to
sell a growing eet of ZEVs. ese advanced technology
requirements are laying the groundwork for a revolution-
ary transition in the technology that powers our cars and
trucks. However, the Administration’s preemption pro-
posal, if nalized, would slow, if not stop, these eorts.
By 2035, the annual increase in emissions associated with
this proposal could be larger t han the total national annual
emissions of more than 80% of all nations.10
e uncertainty created by the agencies’ proposal is
already being reected in auto manufacturers’ public state-
ments. e dominant reaction by the regulated industry
appears to be one of skepticism toward the Administrat ion’s
approach. Four major automakers have reached agreement
with California to ack nowledge the state’s authority and
reduce the GHG emissions of their vehicles.11 On the other
hand, one major automaker signaled its belief that the agen-
cies’ proposal would become national policy even though
it had not yet been nalized, nor had it faced or withstood
legal challenge. A Toyota spokesman recently explained
Toyota’s approach to vehicle electrication, saying, “is
is going to be a slow evolution in the U.S. market, unlike
in China and Europe where there are government regula-
tions” ha stening e lectrication.12
In September 2019, the agencies na lized the portions
of the proposal that revoked EPA’s 2009 waiver of federal
7. Coral Davenport, Top Trump Ocials Clash Over Plan to Let Cars Pollute
More, N.Y. T, July 27, 2018,
8. Joseph White, U.S. States Vow to Fight Trump Rollback on Auto Emissions,
R, Aug. 2, 2018,
9. See History Reducing Air Pollution, supra note 1.
10. Trevor Houser et al., e Biggest Climate Rollback Yet?, R G,
Aug. 2, 2018,
11. Dino Grandoni & Juliet Eilperin, e Energy 202: Four Carmakers Spurn
Trump Over Mileage Rules. Will Others Follow?, W. P, July 26,
mileage-rules-will-others-follow/5d39ddce88e0fa1454f766/. Reportedly,
Mercedes-Benz also planned to join the agreement with California. Coral
Davenport & Hiroko Tabuchi, Trump’s Rollback of Auto Pollution Rules
Shows Signs of Disarray, N.Y. T, Aug. 20, 2019, https://www.nytimes.
12. David Welch & Chester Dawson, A $255 Billion EV Debate Is Raging
Among the World’s Biggest Automakers, B, Apr. 16, 2019.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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