Order Code RL34099
California’s Waiver Request to Control
Greenhouse Gases Under the Clean Air Act
Updated October 1, 2007
James E. McCarthy
Specialist in Environmental Policy
Resources, Science, and Industry Division
Robert Meltz
Legislative Attorney
American Law Division

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California’s Waiver Request to Control Greenhouse
Gases Under the Clean Air Act
Summary
California has adopted regulations requiring new motor vehicles to reduce
emissions of greenhouse gases (GHGs), beginning in model year 2009. The Clean
Air Act, however, generally preempts states from adopting their own emission
standards for mobile sources of air pollution. In order for the regulations to go into
effect, therefore, the state must obtain a waiver of the Clean Air Act’s preemption
from the U.S. Environmental Protection Agency.
California requested this waiver on December 21, 2005, but EPA has yet to rule
on the state’s request, in part because it was waiting for the Supreme Court to decide
whether GHGs could be considered air pollutants under the Clean Air Act, and thus
subject to EPA’s regulatory authority. With that case (Massachusetts v. EPA)
decided April 2, 2007, EPA held two public hearings on the California waiver
request in late May, and has promised a decision on the waiver by the end of 2007.
The agency is under pressure to act more quickly. The state has threatened to
sue EPA if a decision is not announced by October, and Florida’s Senator Nelson
submitted legislation (S. 1785) to require a decision no later than September 30.
Fourteen other states have adopted California’s GHG regulations. Their regulations
cannot go into effect unless California is first granted a waiver, so there is broader
interest and more at stake than might otherwise be the case.
This report reviews the nature of California’s, EPA’s, and other states’ authority
to regulate emissions from mobile sources, discusses the applicability of that
authority to GHGs, and provides analysis of issues related to the California waiver
request. The conditions for granting or denying a waiver request under the Clean Air
Act establish four tests: whether the standards will be at least as protective of public
health and welfare as applicable federal standards; whether the state’s determination
in this regard is arbitrary and capricious; whether the state needs such standards to
meet compelling and extraordinary conditions; and whether the standards and
accompanying enforcement procedures are consistent with section 202(a) of the
Clean Air Act. California appears to have a sound argument that it has met these
tests.
This report does not analyze whether California is preempted from regulating
GHGs by the Corporate Average Fuel Economy (CAFE) requirements of the Energy
Policy and Conservation Act of 1975 (EPCA). Under EPCA, the authority to set fuel
economy standards is reserved for the federal government, and, specifically, the
National Highway Traffic Safety Administration. In several court cases, and in other
venues, the auto industry is maintaining that the regulation of GHG emissions is
simply another method of regulating fuel economy, and, therefore, that California’s
GHG standards (and identical standards adopted by other states) are preempted by
EPCA. However, the one court to rule, in Vermont, found no such preemption.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
California’s Greenhouse Gas Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
EPA’s Response to the Waiver Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Actions by Other States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Waiver Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Evaluating the GHG Standards in Isolation . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Compelling and Extraordinary Conditions . . . . . . . . . . . . . . . . . . . . . . 7
Consistency with Section 202(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Evaluating the State’s Program in the Aggregate . . . . . . . . . . . . . . . . . . . . 10
The Value of Precedent: Has EPA Ever Turned Down a Waiver Request? . . . . 11
Related Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
List of Figures
Figure 1. California GHG Emission Requirements . . . . . . . . . . . . . . . . . . . . . . . 3
List of Tables
Table 1. States Adopting California’s Mobile Source GHG Standards . . . . . . . . . 6

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California’s Waiver Request to Control
Greenhouse Gases Under the Clean Air Act
Introduction
Every federal law imposing environmental standards raises the question of
whether the states are allowed to set stricter standards. In deference to states’ rights,
the usual approach used by Congress is to allow stricter state standards; for example,
the Clean Air Act (CAA) allows stricter state standards for stationary sources of air
pollution (power plants, refineries, etc.). For mobile sources of air pollution,
however — cars, trucks, planes, etc. — a lack of national uniformity creates a
problem, since manufacturers would potentially face the task of complying with
different standards in each state. Such standards would fragment the national market,
increasing costs and complicating the manufacture, sale, and servicing of the affected
products. For this reason, the mobile source portion of the CAA (Title II) generally
does not allow states to “adopt or attempt to enforce” their own emission standards
for new motor vehicles or engines.1 In general, it allows only federal standards for
motor vehicle emissions.
There is an exception to this rule, however, in CAA Section 209(b),2 which
provides that:
The [EPA] Administrator shall, after notice and opportunity for public hearing,
waive application of this section [the prohibition of State emission standards] to
any State which has adopted standards (other than crankcase emission standards)
for the control of emissions from new motor vehicles or new motor vehicle
engines prior to March 30, 1966, if the State determines that the State standards
will be, in the aggregate, at least as protective of public health and welfare as
applicable Federal standards.3
Only California adopted such standards before March 30, 1966, so only California
can qualify for such a waiver.
Faced with severe air pollution problems, especially in Los Angeles and the San
Joaquin Valley, California has regularly developed more stringent standards for
1 CAA Section 209(a), 42 U.S.C. § 7543(a). See also S.Rept. 91-1196 (1970), p. 32.
2 42 U.S.C. § 7543.
3 As will be discussed in greater detail below, there are three conditions placed on the grant
of such waivers: The Administrator is to deny a waiver if he finds: 1) that the state’s
determination is arbitrary and capricious; 2) that the state does not need separate standards
to meet compelling and extraordinary conditions; or 3) that the state’s standards and
accompanying enforcement procedures are not consistent with Section 202(a) of the Act.

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motor vehicle emissions than those required by federal law. In order to impose these
standards, the state has requested and been granted Section 209(b) waivers at least
53 times since 1967.4 (Although only California may be granted a waiver under this
section, elsewhere in the Act, as discussed later in this report, there is authority for
other states to adopt California’s standards if EPA grants California a waiver.)
Using Section 209(b) waivers, California has served as a laboratory for the
demonstration of cutting edge emission control technologies, which, after being
successfully demonstrated there, were adopted in similar form at the national level.
Catalytic converters, cleaner fuels, and numerous other advances were introduced in
this way. Currently, waivers allow California to require that a portion of each
manufacturer’s sales meet Zero Emission Vehicle (ZEV) and Partial ZEV
requirements, which has stimulated the sale of electric and hybrid vehicles.
California’s Greenhouse Gas Requirements
On July 22, 2002, California became the first state to enact legislation requiring
reductions of greenhouse gas (GHG) emissions from motor vehicles. The legislation,
AB 1493, required the California Air Resources Board (CARB) to adopt regulations
requiring the “maximum feasible and cost-effective reduction” of GHG emissions
from any vehicle whose primary use is noncommercial personal transportation.
GHGs are defined by the state as carbon dioxide, methane, nitrous oxide,
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, but for the purpose
of this regulatory program, only the first four of these are subject to control. The
reductions are to apply to motor vehicles manufactured in the 2009 model year and
thereafter.
Under this authority, CARB adopted regulations September 24, 2004, requiring
gradual reductions in fleet average GHG emissions until they are about 30% below
the emissions of the 2002 fleet in 2016.5 As illustrated in Figure 1, the regulations
set separate standards for two classes of vehicles. The first class consists of all
passenger cars, plus light duty trucks and SUVs weighing 3,750 lbs. or less; these
vehicles must reduce emissions by an average of 36.5% between 2009 and 2016. The
second group consists of light trucks and passenger vehicles over 3,750 lbs., which
must reduce emissions 24.4% over the same time period.
The regulations require reductions in fleet averages, rather than compliance by
individual vehicles. They provide substantial flexibility, including credit generation
from alternative fuel vehicles and averaging, banking, and trading of credits within
and among manufacturers. Credits — and debits for any year in which a
manufacturer exceeds the standards — must be equalized within five years of their
4 Personal communication, U.S. EPA Office of Transportation and Air Quality, July 20,
2007.
5 A table showing the mandated reductions year-by-year can be found in CARB’s
Regulations to Control Greenhouse Gas Emissions from Motor Vehicles, Final Statement
of Reasons, August 4, 2005, p. 8 at [http://www.arb.ca.gov/regact/grnhsgas/fsor.pdf].

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generation, with the first equalization required in 2014. Thus, manufacturers would
not be subject to penalties for failure to meet the standards until 2014 at the earliest.6
Figure 1. California GHG Emission
Requirements
(grams/mile, CO2 equivalent)
500
400
300
200
100
0
2009
10
11
12
13
14
15
2016
Cars, Trucks # 3750 lbs.
Trucks > 3750 lbs
Source: California Air Resources Board
Following adoption of these regulations by CARB, they were subjected to public
comment and legislative review, following which CARB submitted a request to U.S.
EPA, December 21, 2005, for a waiver under Section 209(b).
EPA’s Response to the Waiver Request
EPA has not yet responded to California’s waiver request, in part because it was
waiting for the U.S. Supreme Court to decide whether GHGs could be considered air
pollutants under the CAA, and thus subject to EPA’s regulatory authority. The court
case challenged EPA’s denial, in 2003, of a petition from 19 private organizations
that asked the agency to regulate GHG emissions from new motor vehicles. The
agency concluded that it lacked authority under the CAA to regulate motor vehicle
emissions based on their climate effects. The petition denial was challenged by
Massachusetts and twelve other states (CA, CT, IL, MA, ME, NJ, NM, NY, OR, RI,
VT, WA); three cities (New York, Baltimore, and Washington, DC); two U.S.
territories (American Samoa and Northern Mariana Islands); and several
6 California Air Resources Board, Regulations to Control Greenhouse Gas Emissions from
Motor Vehicles; Request for Waiver of Preemption Under Clean Air Act Section 209(b),
December 21, 2005, Attachment 2, Support Document, p. 2. Hereafter referred to as
“Support Document.”

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environmental groups. In an April 2, 2007 decision,7 the Supreme Court resolved
this issue, finding:
The Clean Air Act’s sweeping definition of “air pollutant” includes “any air
pollution agent or combination of such agents, including any physical, chemical
... substance or matter which is emitted into or otherwise enters the ambient
air....” ... Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are
without a doubt “physical [and] chemical ... substance[s] which [are] emitted into
... the ambient air.” The statute is unambiguous.8
Thus, the Court had no doubt that the CAA gives EPA the authority to regulate
GHGs from new motor vehicles, although the specifics of such regulation might be
subject to agency discretion. (For further discussion of the Court’s decision, see CRS
Report RS22665, The Supreme Court’s Climate Change Decision: Massachusetts v.
EPA, by Robert Meltz.)
Following this decision, EPA announced that it would consider the California
waiver request. The agency held public hearings on May 22, 2007, in Arlington, VA,
and on May 30 in Sacramento, CA. Under pressure from California’s Senator Boxer,
who chairs the Environment and Public Works Committee, and other California
leaders, including Governor Schwarzenegger and Attorney General Brown, EPA
Administrator Johnson announced that he would decide whether to grant the waiver
request by the end of 2007.
EPA is under pressure regarding both the content and timing of its decision.
With regard to content, the agency has received more than 60,000 comments, the vast
majority of them urging it to grant the waiver. Support comes from environmental
groups, the Manufacturers of Emission Controls Association, the National
Association of Clean Air Agencies (which represents state and local air pollution
control departments), and a number of governors. As will be discussed further
below, 14 other states have adopted regulations identical to California’s, but their
ability to implement the regulations depends on California first being granted a
waiver.9 Thus, they have weighed in in support of the waiver request.
The auto industry and the U.S. Department of Transportation (DOT), among
others, are opposed to the granting of a waiver. The auto industry maintains that
there is effectively no difference between California and federal emission standards
in their impact on criteria air pollutants (ozone, in particular), that the benefits of the
7 Massachusetts v. EPA, 127 S. Ct. 1438 (2007).
8 Id. at 1460.
9 The 14 states are Arizona, Connecticut, Florida, Maine, Maryland, Massachusetts, New
Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and
Washington. Under Section 177 of the Act, states that have nonattainment or “maintenance”
areas can adopt California’s emission standards for mobile sources in lieu of federal
standards. Every state except Hawaii, North Dakota, and South Dakota would be eligible
to adopt California’s standards under this so-called “piggyback’ provision. Thus, there is
broad interest in the California waiver decision and more at stake than would be the case if
only California had adopted the regulations.

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GHG regulations are “zero”, and that emissions from California’s auto fleet will
actually increase as a result of the regulations as consumers keep older, higher-
emitting cars longer.10
With regard to timing, the House Appropriations Committee, in its report to
accompany H.R. 2643, the Department of the Interior, Environment, and Related
Agencies Appropriation bill for 2008, “strongly encourage[d]” EPA to promptly
issue a decision.11 California’s governor and attorney general have threatened to sue
EPA if a decision is not announced by October, and Florida’s Senator Nelson and
Washington’s Representative Inslee introduced legislation (S. 1785/H.R. 3083) to
require a decision no later than September 30. By a vote of 10-9, Senator Nelson’s
bill was ordered reported, amended, by the Environment and Public Works
Committee, July 31, 2007. The bill was reported, without a written report, August
2.12
In early June, on the other hand, officials in the Department of Transportation’s
Office of Governmental Affairs called Members of Congress, urging them to contact
EPA to urge the Administrator to extend its public comment period, thus delaying a
decision — a step that EPA did not take. DOT’s talking points (subsequently
obtained by Representative Waxman) stated: “If asked our position, we say we are
in opposition of the waiver.”13
Actions by Other States
As noted above, California is the only state permitted to adopt more stringent
emission standards under the waiver provision of Section 209(b); but elsewhere (in
Section 177, 42 U.S.C. 7507), the CAA provides that any state with an EPA-
approved State Implementation Plan — every state except Hawaii, North Dakota, and
South Dakota — “may adopt and enforce for any model year standards relating to
control of emissions from new motor vehicles or new motor vehicle engines”
provided: 1) that the standards are identical to standards for which California has
been granted a waiver; and 2) that California and such state have adopted the
standards at least two years before the commencement of the model year to which the
standards apply. Relying on this authority, and presuming that California will be
granted a waiver, 14 other states (Arizona, Connecticut, Florida, Maine, Maryland,
Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode
10 Alliance of Automobile Manufacturers, “California Waiver Request,” presentation
materials from U.S. EPA public hearing, Sacramento, CA, May 30, 2007.
11 H.Rept. 110-187, June 11, 2007, p. 100.
12 The House companion bill, Rep. Inslee’s H.R. 3083, had not seen action as of October 1.
13 See p. 11 of internal e-mail from the U.S. DOT, Office of Governmental Affairs, available
on the website of the House Oversight and Government Reform Committee, at
[http://oversight.house.gov/documents/20070702164117.pdf].

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Island, Vermont, and Washington) have adopted or announced their intention14 to
adopt California’s greenhouse gas emission controls. Including California, these
states account for 44% of the total U.S. population (Table 1). Thus, the stakes
involved (both the environmental consequences and the potential impact on the auto
industry) go well beyond California.
Table 1. States Adopting California’s Mobile Source GHG
Standards
State
2006 Population
Legislation/Regulation
Arizona
6,166,318
Executive Order 2006-13, September
8, 2006
California
36,457,549
AB 1493, July 22, 2002
Connecticut
3,504,809
Public Act 04-84, May 4, 2004
Florida
18,089,888
Executive Order 07-127, July 13,
2007
Maine
1,321,574
Amendments to Chapter 127,
December 19, 2005
Maryland
5,615,727
Senate Bill 103, April 24, 2007
Massachusetts
6,437,193
Amendments to the state’s LEV
regulations, December 30, 2005
New Jersey
8,724,560
P.L. 2003, Chapter 266, January 14,
2004
New Mexico
1,954,599
Executive Order 2006-69, December
28, 2006
New York
19,306,183
Chapter III, Subpart 218-8,
November 9, 2005
Oregon
3,700,758
Regulations (Division 257; OAR
340-256-0220; and
Division 12), June 22, 2006
Pennsylvania
12,440,621
Amendments to Title 25, Chapters
121 and 126, December 9, 2006
Rhode Island
1,067,610
Air Pollution Control Regulation No.
37, December 22, 2005
Vermont
623,908
Amendments to Subchapter XI,
November 7, 2005
Washington
6,395,798
House Bill 1397, May 6, 2005
Total
131,807,095
Source: Pew Center on Global Climate Change for information and links to state regulations, at
[http://www.pewclimate.org/what_s_being_done/in_the_states/vehicle_ghg_standard.cfm], U.S.
Census Bureau for population data.
14 In some cases, only one branch of government (e.g., the Governor, through Executive
Order) has ordered the adoption of the California GHG standards. Without reviewing each
state’s regulatory process, it is unclear to CRS whether, in such cases, the state can be
considered to have adopted the standards.

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Waiver Criteria
As noted earlier, Section 209(b) says that the EPA Administrator “shall ...
waive” the prohibition on state emission standards “if the State determines that the
State standards will be, in the aggregate, at least as protective of public health and
welfare as applicable Federal standards.” Since California did so determine, this
language would seem to give EPA little room to turn down the waiver request. But
the section adds:
No such waiver shall be granted if the Administrator finds that-
(A) the determination of the State is arbitrary and capricious,
(B) such State does not need such State standards to meet compelling and
extraordinary conditions, or
(C) such State standards and accompanying enforcement procedures are not
consistent with section 202(a) of this part.
There are two ways in which this language can be interpreted. One is that it
refers to the specifics of the new standards under consideration — in this case, the
GHG standards. The other is that it refers to the state’s program as a whole — i.e.,
whether, in the aggregate, all the state’s requirements for auto emission controls are
as protective of public health and welfare as federal standards, are needed to meet
compelling and extraordinary conditions, etc. We look at each of these
interpretations in turn in the following sections.
Evaluating the GHG Standards in Isolation
If the Administrator’s determination is to be made on whether California’s GHG
standards by themselves meet the waiver criteria, he must first find whether the
state’s determination that its standards are at least as protective as applicable federal
standards is arbitrary and capricious. There are no federal standards for GHG
emissions. Thus, it is difficult to see how the Administrator could find California’s
determination that its standards are at least as protective to be arbitrary and
capricious.
The other two criteria, (B) and (C), pose higher hurdles.
Compelling and Extraordinary Conditions. In the record accompanying
the adopted regulations, California identifies numerous conditions that climate
change presents to the state that are arguably compelling and extraordinary, including
the potential of rising sea levels that would bring increased salt water intrusion to its
limited supplies of water, diminishing snow pack that would also threaten its limited
water supply, and higher temperatures that would exacerbate the state’s ozone
nonattainment problem, which is already the worst in the nation.15
Whether the state’s mobile source GHG emission standards are “need[ed]” to
meet these conditions poses a more difficult question, however. Climate change is
a global issue, and will pose nearly identical challenges to California whether or not
15 CARB, Support Document, p. 18.

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the state is permitted to implement the adopted regulations. The reductions in GHG
emissions that the regulations will bring about are estimated at 155,200 tons of CO2
equivalent per day in 203016 (i.e., when the fleet consists of vehicles that meet the
2016 standard) — 56.6 million tons a year compared to a business-as-usual scenario.
If all 15 states that have adopted or announced plans to implement the regulations do
so, the reductions might be as much as 175 million or 200 million tons annually.
Compared to total current U.S. emissions from all sources of about 7 billion tons,
California’s action alone would reduce emissions less than 1%, and all 15 states
would eliminate 2.5% to 3%. Compared to world emissions from all sources (34
billion tons), all 15 states would reduce the total only about 0.6%. Thus, it might be
argued that the standards do not go far enough to be said to “meet” the compelling
and extraordinary conditions that the state has described.
On the other hand, a more persuasive case can perhaps be made that the GHG
regulations are no different in this regard than the 53 previous sets of regulations for
which EPA has granted California waivers. Like the GHG standards, each of the
previous sets of regulations were incremental steps that reduced emissions, but in
themselves were insufficient to solve the pollution problem they addressed: large
portions of the state are still in nonattainment of the ozone air quality standard nearly
40 years after the first of these waivers, despite these incremental steps to reduce
emissions.
Furthermore, auto and light truck emissions are major contributors to the total
pool of greenhouse gas emissions (about 20% of the total of U.S. emissions), and are
growing more quickly than emissions from other sources.17 In California, according
to CARB, the affected vehicles produce about 30% of the state’s total GHG
emissions.18 Stabilizing and reducing total GHG emissions would be difficult or
impossible without addressing this sector. Thus, a strong case can be made that
reducing GHG emissions from mobile sources is necessary if the state is to meet the
compelling and extraordinary conditions posed by the increasing concentration of
GHGs in the atmosphere.
In Massachusetts v. EPA,19 the Supreme Court was concerned about a similar
issue. There, in determining whether petitioners had standing, the Court discussed
the question of “redressability” — whether a favorable decision in the case would
16 CARB, Regulations to Control Greenhouse Gas Emissions from Motor Vehicles, Final
Statement of Reasons, August 4, 2005, at [http://www.arb.ca.gov/regact/grnhsgas/fsor.pdf],
p. 13.
17 From 1990 to 2005, U.S. passenger car and light duty truck CO emissions increased
2
25.4%, while total U.S. CO emissions increased 21.7%. Source: U.S. EPA, Office of
2
Atmospheric Programs. 2007. The U.S. Inventory of Greenhouse Gas Emissions and Sinks.
Table 3-7.
18 California Environmental Protection Agency, Air Resources Board, Staff Report: Initial
Statement of Reasons for Proposed Rulemaking, Public Hearing to Consider Adoption of
Regulations to Control Greenhouse Gas Emissions from Motor Vehicles, August 6, 2004,
p. viii, available at [http://www.arb.ca.gov/regact/grnhsgas/isor.pdf].
19 127 S. Ct. 1438 (2007).

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redress the injury caused by global warming.20 The Court concluded both that “the
harms associated with climate change are serious and well recognized,”21 and that a
state need not show that the government actions it is seeking would completely
remedy the injury:
... accepting that premise would doom most challenges to regulatory action.
Agencies, like legislatures, do not generally resolve massive problems in one fell
regulatory swoop.... They instead whittle away at them over time, refining their
preferred approach as circumstances change and as they develop a more-nuanced
understanding of how best to proceed.22
This Supreme Court language may prove useful to California in its quest for an EPA
preemption waiver, notwithstanding that it arose in a standing, rather than Section
209(b), context.
Consistency with Section 202(a). The Administrator could also reject the
request if he finds that the state’s standards and accompanying enforcement
procedures are not consistent with section 202(a) of the CAA. Much of Section
202(a) is not applicable to this waiver request: it addresses standards specific to
heavy duty trucks, rebuilt heavy-duty engines, motorcycles, and gasoline vapor
recovery. But the section also provides general authority for motor vehicle and motor
vehicle engine emission standards. It allows the Administrator to determine whether
there are any unreasonable risks to public health, welfare, or safety associated with
specific emission control devices or systems, and to determine the amount of lead
time necessary to permit the development and application of technology requisite to
meet emission standards. The Administrator has used the latter authority in the past,
and could do so again, to delay the effective date of California standards.
In its Initial Statement of Reasons and in other documents supporting the GHG
standards, the state emphasized that it had based the standards on the use of already
demonstrated technologies: “The technologies explored are currently available on
vehicles in various forms, or have been demonstrated by auto companies and/or
vehicle component suppliers in at least prototype form,” CARB stated in its Initial
Statement of Reasons.23 The Support Document accompanying its December 2005
formal request for a waiver contains 21 pages describing the technologies available
to meet the standards, and states: “... unlike most previous CARB requests setting
standards years into the future, each of the technology packages projected for
20 To establish standing to sue in most federal courts, a plaintiff must demonstrate (1) that
he/she has suffered actual or imminent “injury in fact,” (2) that the injury is caused by
actions of the defendant, and (3) that the relief requested from the court will redress the
injury.
21 127 S. Ct. at 1455.
22 Id. at 1457.
23 CARB, Initial Statement of Reasons, previously cited, p. iii. A more detailed discussion
is found on pp. 42-102 of the document.

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compliance contains many technologies that are currently available and in vehicles
today.”24
The state concluded that inconsistency with Section 202(a) can only be shown
if there is inadequate lead time to permit the development of technology to meet the
requirements, giving appropriate consideration to the cost of doing so, or if the
federal and California test procedures impose inconsistent certification requirements.
Because there are no federal test procedures that measure GHGs for climate change
purposes, test procedures cannot be an issue. CARB concludes:
The only relevant question, then, is whether manufacturers can apply these
technologies in sufficient quantities to meet the standards in time for the
regulatory compliance deadlines following model years 2012 and 2016, a lead
time of eight to 11 years respectively. The Greenhouse Gas Rulemaking record
shows that they can.25
In making past determinations on waiver requests, EPA has granted waivers
despite industry statements and its own findings that doing so would greatly increase
cost, result in substantial fuel economy penalties, cause the marketing of a more
restricted model line in California, result in poorer driveability, and cause California
auto dealers’ business to suffer substantially. Despite making all of these findings
in a 1975 waiver determination, then-EPA Administrator Russell Train granted a
waiver because he concluded that the statutory language required that he give
deference to California’s judgment.26
Evaluating the State’s Program in the Aggregate
The other interpretation of Section 209(b) is that the Administrator is to
determine whether California’s auto and light truck emission requirements in the
aggregate — not just the GHG controls — meet the criteria for a waiver. According
to numerous informed sources — including both California and EPA — this has
always been how the statute has been interpreted. California’s waiver submission,
for example, states: “The relevant inquiry under section 209(b)(1)(B) is whether
California needs its own emission control program to meet compelling and
extraordinary conditions, not whether any given standard is necessary to meet such
conditions.”27
EPA has agreed with this position in past determinations. For example, in a
1984 waiver determination, Administrator William Ruckelshaus stated:
CARB argues that ... EPA’s inquiry is restricted to whether California needs its
own motor vehicle pollution control program to meet compelling and
extraordinary conditions, and not whether any given standard, (e.g., the instant
24 Support Document, p. 21.
25 Ibid.
26 40 Federal Register 23103-23105, May 28, 1975.
27 Support Document, p. 15.

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particulate standards) is necessary to meet such conditions.... For the reasons
elaborated below, I agree with California....”28
The “reasons elaborated below” included Congress’s use of the term “State standards
... in the aggregate.”
Relying on this interpretation of the statute, EPA has repeatedly found, as
recently as December 2006, that California faces compelling and extraordinary
conditions and needs its own standards to meet them.29 EPA has also generally
deferred to the state’s judgment regarding consistency with Section 202(a).30 In
general, as EPA stated in a 1975 waiver determination:
These provisions must be read in the light of their unusually detailed and explicit
legislative history.... Congress meant to ensure by the language it adopted that
the Federal government would not second-guess the wisdom of state policy
here.... Sponsors of the language eventually adopted referred repeatedly to their
intent to make sure that no “Federal bureaucrat” would be able to tell the people
of California what auto emission standards were good for them, as long as they
were stricter than Federal standards.... (Senate language says “You may go
beyond the Federal statutes unless we find that there is no justification for your
progress”).31
The Value of Precedent: Has EPA Ever Turned
Down a Waiver Request?
As noted earlier, California has previously requested waivers under Section
209(b) on many occasions. A precise count of the number of such requests is
difficult to determine, according to EPA’s Office of Transportation and Air Quality
(OTAQ), in large part because the nature of such requests varies. The state has
requested waivers for new or amended standards on at least 53 occasions; on another
42 occasions, the state has requested “within the scope” determinations (i.e., a
request that EPA rule on whether a new regulation is within the scope of a waiver
that the agency has already issued). Adding all of these together, one might say that
28 49 Federal Register 18889-18890, May 3, 1984.
29 71 Federal Register 78192, December 28, 2006.
30 As noted by Administrator Ruckelshaus in the same 1984 waiver determination, “EPA
has long held that consistency with section 202(a) does not require that all manufacturers
be permitted to sell all motor vehicle models in California.” As of 1984, he concluded,
“Only once has the Agency found a ... standard inconsistent with section 202(a) in a
California waiver proceeding. In that case, imposition of the standard would have forced
manufacturers out of the California market for an entire class of vehicles , i.e., light duty
trucks.” [49 Federal Register 18892, May 3, 1984.]
31 40 Federal Register 23103, May 28, 1975.

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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.32
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.33 On at least six occasions prior to the 1977 CAA amendments, the agency
granted a waiver in part, while denying other parts of the request.34 In 1975, it denied
a waiver for the 1977 model year, but granted it for 1978.35 Since the 1977
amendments, there was at least one instance in which EPA made a determination that
California’s requirements were feasible in part, granting a waiver for the 2007
through 2011 model years, but making no decision for model years after that.36
Related Litigation
Besides the expected EPA decision on California’s waiver request, there is also
active litigation raising non-CAA preemption theories. This litigation seeks to
prevent California and other states from implementing the California mobile source
GHG standards even if the EPA waiver is granted. Suits are pending in three federal
judicial circuits — not coincidentally, circuits containing most of the states that have
adopted GHG controls on vehicles. Courts addressing this litigation have not
doubted that without a California waiver, state regulation of GHG emissions from
motor vehicles is preempted by the CAA, and the litigation is moot.
The first suit, Central Valley Chrysler Jeep, Inc. v. Witherspoon, now before a
district court in the Ninth Circuit, challenges the regulations under California’s
Assembly Bill 1493. The plaintiffs are 13 California car dealers plus the Alliance of
Automobile Manufacturers. In 2006, the district court refused to dismiss the
plaintiffs’ preemption arguments37 — holding most importantly that plaintiffs had
stated a claim that the regulations are preempted by the federal Corporate Average
Fuel Economy (CAFE) standards set under the Energy Policy and Conservation Act
(EPCA). Plaintiffs’ argument is that regulation of GHG emissions is tantamount to
regulating fuel economy, since reduction of the former can only be achieved by
increasing the latter. Since EPCA instructs that states not enforce any rule related to
32 Personal communication, U.S. EPA, Office of Transportation and Air Quality, July 20,
2007. California has also submitted about 10 waiver requests for non-road vehicles and
engines under Section 209(e). These form a third category.
33 Ibid.
34 According to EPA, the dates were May 6, 1969 (34 FR 7348), April 30, 1971 (36 FR
8172), April 25, 1972 (37 FR 8128), April 26, 1973 (38 FR 10317), November 1, 1973 (38
FR 30136), and July 18, 1975 (40 FR 30311).
35 40 FR 30311, July 18, 1975.
36 71 FR 78190, December 28, 2006.
37 456 F. Supp. 2d 1160 (E.D. Cal. 2006).

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fuel economy standards,38 the California regulations, plaintiffs argue, are preempted
by EPCA. The court also ruled that the regulations are preempted by the CAA,39
absent a waiver approved by EPA,40 and that plaintiffs had stated a claim that the
regulations were preempted as conflicting with federal policy to address climate
change through multilateral international agreements. Other arguments made by
plaintiffs — that the CARB regulations violate the dormant commerce clause of the
Constitution by imposing economic burdens far outweighing any benefits, and offend
an antitrust statute by requiring cooperation among otherwise competitive automobile
manufacturers in the California new-vehicle market — were rejected on the merits.
In early 2007, the district court stayed further proceedings pending the Supreme
Court’s decision in Massachusetts v. EPA.41 In the meantime, California is enjoined
from enforcing the CARB regulations due to the district court’s holding that they are
preempted by the CAA, unless EPA grants a waiver. Oral argument on the effect of
Massachusetts v. EPA, decided April 2007, on the case is scheduled for October 22,
2007.
Similar claims to those in California, also made by car dealers and trade
associations (plus auto manufacturers), are pending in suits challenging the adoption
of the California standards by Vermont (in the Second Circuit) and Rhode Island (in
the First Circuit).
In the Vermont cases, Green Mountain Chrysler Plymouth Dodge Jeep v.
Crombie,42 and Association of International Automobile Manufacturers v. Crombie,43
now consolidated, the district court allowed intervention as defendants by five
environmental groups and the State of New York (also in the Second Circuit). On
September 12, 2007, the court ruled that the relationship between Vermont’s GHG
standards and EPCA was better analyzed as an interplay between two federal statutes,
rather than as a federal-state preemption question. So viewing the matter, the court
pointed out that the National Highway Traffic Safety Administration (NHTSA) has
consistently treated EPA-approved California emissions standards as constituting
“other motor vehicle standards of the Government,” which EPCA says NHTSA must
38 EPCA states: “When an average fuel economy standard prescribed under this act is in
effect, a State ... may not adopt ... a law or regulation related to fuel economy standards or
average fuel economy standards for automobiles covered by an average fuel economy
standard under this act.” 49 U.S.C. § 32919(a).
39 CAA § 209(a), 42 U.S.C. § 7543(a). This prohibition on state regulation appears to apply
even in the absence of a federal emission standard. Thus, despite EPA’s having no vehicle
emission standards for CO , methane, and hydrofluorocarbons, a state would still be
2
preempted from setting its own emission standard, absent a waiver.
40 CAA § 209(b), 42 U.S.C. § 7543(b).
41 127 S. Ct. 1438 (2007). As of this writing, the stay is still in effect, despite the Supreme
Court’s having ruled.
42 No.2:05-CV-302 (D. Vt. filed November 18, 2005).
43 No. 2:05-CV-304 (D. Vt. filed November 18, 2005).

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consider when setting CAFE standards.44 Moreover, in a related context the
Massachusetts v. EPA decision saw the CAA and EPCA CAFE provisions as
harmonious.45 Thus, the court found the CAA section 209/EPCA relationship to be
one of overlap, not conflict. Despite its conclusion that preemption doctrine did not
apply, the court also did a preemption analysis, finding that Vermont’s GHG
standards were preempted neither by EPCA nor as an intrusion upon the foreign
policy of the United States.
The legal theories presented and the types of emissions covered in the two
consolidated Crombie cases are the same, respectively, in the two Rhode Island suits
— Lincoln Dodge, Inc. v. Sullivan46 and Association of International Automobile
Manufacturers v. Sullivan.47
Conclusion
California’s request for a greenhouse gas waiver under CAA Section 209(b)
marks the second time that EPA has been asked to regulate or to allow regulation of
GHG emissions from mobile sources. The first time, a petition from 19 private
organizations asking EPA to set federal GHG emission standards, was denied by the
agency in 2003; but it led to the Supreme Court’s decision (Massachusetts v. EPA),
April 2, 2007, in which the Court overturned EPA’s decision, finding that GHGs are
air pollutants within the meaning of the CAA, and rejecting EPA’s arguments against
their regulation as being insufficient.48
In light of the Court’s decision, the California waiver request would seem to be
on firmer ground. The Court found that the harms associated with climate change
are serious and well-recognized, and that a state need not show that the standards it
seeks to impose would completely remedy the problem. For such state standards to
be granted a waiver from CAA preemption, the state needs only to meet Section
209(b)’s tests, which are basically four in number.49 First, the state must determine
that the standards, in the aggregate, are at least as protective of public health and
welfare as applicable federal standards. The state has made this determination, and
since there are no comparable federal standards, the state has clearly met this
requirement.
Second, EPA may deny the waiver if the Administrator finds that the
determination of the state (that its standards are at least as protective as comparable
44 49 U.S.C. § 32902(f).
45 127 S. Ct. at 1462.
46 No. 1:06-CV-00070 (D.R.I. filed February 13, 2006).
47 No. 1:06-CV-00069 (D.R.I. filed February 13, 2006).
48 The decision does not command EPA to regulate GHGs from motor vehicles, but it finds
that if it does not do so, it must ground its reasons for inaction in the statute.
49 The state’s action might be pre-empted under the Energy Policy and Conservation Act,
as the auto industry maintains, but that is a separate issue that the courts will decide.

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federal standards) is arbitrary and capricious. Again, it is difficult to see how the
Administrator could reject a waiver on these grounds, since there are no federal
standards.
Third, the Administrator could reject the petition by finding that California does
not need the standards to meet compelling and extraordinary conditions. The state
has described the compelling and extraordinary conditions that the standards are
meant to address, including threats to its coast line and its water supply from rising
sea levels, threats to its water supply from a diminished snow pack, and threats to
human health and environment from higher temperatures and higher ozone
concentrations, among other factors. Without concerted action by California, the rest
of the United States, and other countries, these conditions are more likely to occur,
and to occur sooner, according to the state. Thus, there is a plausible argument that
the state’s action (together with many other actions) are necessary to meet compelling
and extraordinary conditions. Furthermore, EPA has repeatedly held that it is the
state’s entire program, not the specific standards, that must satisfy this criterion. As
recently as December 2006, the agency reaffirmed its conclusion that the state’s
program has met this test.
Fourth, EPA must deny a waiver if the Administrator finds the standards
inconsistent with Section 202(a) of the Act. Here, the issue appears to be whether
the state has allowed manufacturers sufficient lead time. California argues that, since
many of the requisite technologies were available and in vehicles in 2005,
manufacturers clearly have sufficient time to comply. Furthermore, the standards do
not require that each vehicle or each model reduce emissions below the standards.
By relying on fleet averages, the regulations allow manufacturers to exceed the limits
on some models, provided that others reduce emissions enough to make up for the
excess. EPA has delayed the effective date of a waiver on some other occasions, but
more often it has found that a waiver should be granted even if it meant that some
models offered for sale elsewhere in the United States would be unavailable in
California.50
Whether EPA will reach similar conclusions regarding the law and California’s
arguments supporting its GHG waiver request is, of course, not certain. The
Supreme Court’s decision in Massachusetts v. EPA, however, does make it harder
for the agency to reject the waiver request. Though not interpreting section 209, the
Court plainly took the prospect of climate change quite seriously — noting, for
example, that “respected scientists” endorse the GHG-climate change relationship,
50 See, for example, the discussion in 49 Federal Register 18892, May 3, 1984, which found
that for the 1983 model year, 73 models of small gasoline-powered pick-up trucks were
available federally, while only 55 models were available in California. The Administrator
there quoted the D.C. Circuit Court of Appeals (International Harvester v. Ruckelshaus, 478
F.2d at 640): “We are inclined to agree with the Administrator that as long as feasible
technology permits the demand for new passenger automobiles to be generally met, the basic
requirements of the [Clean Air] Act would be satisfied, even though this might occasion
fewer models and a more limited choice of engine types. The driving preferences of hot
rodders are not to outweigh the goal of a clean environment.”

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and that “[t]he risk of catastrophic harm, though remote, is nevertheless real.”51
Moreover, implied the Court, the fact that reduction in GHGs from California
vehicles can be but a small part of the solution is not a reason to discount it:
“[a]gencies ... do not generally resolve massive problems in one fell regulatory
swoop.”52 Thus, Massachusetts v. EPA arguably adds support to a Section
209(b)(1)(B) finding that California needs a GHG emission reduction to meet
compelling and extraordinary conditions.
This report concludes that California appears to have a sound argument that it
has met the CAA criteria for EPA’s grant of a Section 209(b) waiver from
preemption by that act. Other preemption issues are not addressed in this report,
other than in description of pending litigation. One such issue is whether California
is preempted from regulating motor vehicle GHGs by EPCA, on the theory that
reduction in GHG emissions can only be achieved by improving fuel economy and
EPCA preempts state regulation of fuel economy. Another preemption issue is
whether state regulation of motor vehicle GHGs is an impermissible intrusion into
U.S. foreign policy. These arguments remain to be addressed even if EPA grants
California a CAA waiver.
51 Massachusetts v. EPA, 127 S. Ct. 1438, 1458 (2007).
52 Id. at 1457.

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