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Grant the waiver

California is expected to file suit against the United States next week in a sad jurisprudential waste of time and taxpayer money brought to you by an environmentally delinquent Bush administration.

No one disputes that California has the authority under the Clean Air Act to enact environmental regulations that are stricter than federal standards. To do so, though, it must get permission from the Environmental Protection Agency, a process that has been something of a formality in the past; the EPA has never turned down a waiver request, granting about 50 of them since 1970. Yet the agency has been dragging its feet for two years on California’s effort to regulate greenhouse gas emissions from vehicles. Hence the lawsuit by Gov. Arnold Schwarzenegger intended to force the EPA’s hand.

The excuse offered by EPA Administrator Stephen L. Johnson for blowing off California’s waiver request used to be that he didn’t believe the agency had the authority to regulate greenhouse gases, because they weren’t traditionally considered pollutants. The Supreme Court put an end to that tactic in April, when it ruled that there is abundant evidence that greenhouse gases, and the climate change they are accelerating, pose a threat to human health and welfare and thus fall under the EPA’s purview. So the excuse du jour is that California submitted a lot of paperwork and it will take until the end of the year for the agency to vet all the data. This is bureaucratese for “we’re trying to drag this out as long as humanly possible.”

The Supreme Court decision wasn’t the only loss for those trying to stop California’s new regulations, which require automakers to reduce carbon dioxide and other greenhouse gas emissions by 30% between 2009 and 2016. Under the Clean Air Act, other states are empowered to adopt California’s tougher environmental standards if they so choose, and so far about a dozen, including Vermont, are ready to duplicate this state’s “clean cars” law if it gets an EPA waiver. The auto industry responded by filing federal lawsuits in Vermont and California, and although the latter hasn’t been heard, the former was a conclusive defeat. A judge in Vermont ruled last month that California’s rules weren’t “sufficiently draconian” to interfere with the federal government’s authority to set fuel-economy standards, as carmakers had argued.

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It is abundantly clear that neither the EPA nor the automakers have a legal leg to stand on, which is why allowing a California lawsuit to proceed would be in no one’s interest. Johnson should put an end to this farce and grant the waiver now.


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