Greenhouse-gas law could still face hurdles

Times Staff Writers

California won a major victory in its campaign to regulate greenhouse gases on Monday. But the battle is not over.

The state still faces challenges on two fronts -- at the U.S. Environmental Protection Agency and in a lawsuit by automakers -- before it can implement its landmark law slashing greenhouse gas emissions from car exhaust. Even if California prevails, Congress could end up passing weaker national legislation that would supersede the state’s.

“I think it’s a very tough call right now,” Harvard University environmental law professor Jody Freeman said when asked whether the state’s mandate to have cleaner cars on the road by 2009 would be met. “I don’t think the chances are great, because I think there’s reason to believe Congress will act before EPA.” Freeman filed a brief supporting greenhouse-gas regulation in the case decided Monday by the Supreme Court.

But others said the defeat suffered by the auto industry and the Bush administration at the hands of the high court should greatly improve the chances of California and several other states that seek to follow its lead in curtailing gases that contribute to global warming.


At a San Francisco news conference, state Atty. Gen. Jerry Brown called the ruling a “resounding affirmation of California’s actions to address global warming.” Brown’s office is defending the state’s statute against the automakers’ lawsuit.

The automakers argue in several pending cases that state regulation of greenhouse gases is illegal because it amounts to regulating the fuel efficiency of cars and only federal transportation officials can do that.

The Supreme Court ruled that greenhouse gases can be regulated as air pollutants. For the EPA to regulate, it must first determine that science shows global warming is harmful to human health and welfare.

But even if the EPA decides greenhouse gases should be regulated to protect public health, the agency could still deny California’s long-delayed request to implement its own law by saying that the problem is global and not unique to the state, Freeman said.

Because of California’s extreme air pollution and existing laws, it was granted the right under the Clean Air Act to pass its own air pollution rules, provided the federal government signs off with a waiver. Other states can then follow California’s lead, and 10 have passed such laws and are waiting for the waiver.

To get a waiver, California must show compelling and extraordinary conditions, Freeman said.

“California is special. It’s the only state in the country that can set tailpipe standards separate from federal standards,” she said. “Everything depends on that waiver.”

Gov. Arnold Schwarzenegger, who broke with President Bush by endorsing California’s Democratic-sponsored emissions law, wrote the president and EPA a year ago asking them to grant the state’s request to implement its own law.

The governor noted that California’s emissions standards would begin with 2009 vehicles and cut global warming emissions nearly 30% by model year 2016.

An EPA spokeswoman, Jennifer Wood, said Monday that the agency had been reviewing the complex issues in the waiver request and would soon solicit public comments and hold hearings.

Schwarzenegger issued a statement Monday saying he was “encouraged” by the court decision.

“We expect the U.S. EPA to move quickly now in granting our request for a waiver, which will allow California and ... other states that have adopted our standards to set tougher vehicle emissions levels.”

But because global warming is not just a California problem, its argument for special status might not work this time, some experts said. Environmental attorneys and legislators said Monday, however, that certain states do have a special problem with global warming, particularly California.

David Bookbinder of the Sierra Club, one of the lead attorneys on the Supreme Court case, and former Assemblywoman Fran Pavley, author of California’s tailpipe legislation, said that because the Sierra Nevada snowpack, which provides crucial drinking water to Californians, is thinning and because warmer summer temperatures could increase the state’s still-high smog levels, California’s plight is unique.

The state also faces a challenge from a lawsuit by the auto industry in a federal district court in Fresno. The judge in that case had postponed a decision until the Supreme Court ruled. Deputy state Atty. Gen. Ellen Peter, who is supervising the case, said the state will now seek a conference with the judge to assess the effect of the decision.

Spokesmen for the auto industry did not comment on the lawsuits it has filed in California and other states Monday, saying only that they thought federal regulations would work better.

“The Alliance of Automobile Manufacturers believes that there needs to be a national, federal, economy-wide approach to addressing greenhouse gases,” Dave McCurdy, president and chief executive officer of the Alliance of Automobile Manufacturers, said in a statement.

But Vickie Patton, senior attorney with Environmental Defense, one of the petitioners in the Supreme Court case, said the ruling enhances California’s chances and reinforces its pioneer status in setting standards.

“Today the highest court in the land put the full faith and credit of federal law behind California’s extraordinary leadership,” she said.