California’s EPA waiver

Fran Pavley was one week into her term in the California Assembly in 2001 when she took up the cause of two environmental organizations -- the Bluewater Network and the Sierra Club -- and pioneered a landmark law to reduce emissions of greenhouse gases from the tailpipes of cars and trucks. Within 18 months, the bill had cleared the Legislature; in 2002, it was signed into law by the governor. Environmental leaders applauded the state for making the first national foray into regulating pollutants that cause climate change; state regulators swiftly drew up the rules to meet the law’s requirements.

And then, for seven years, the Bush administration dragged its feet, ultimately denying California the right to enforce Pavley’s law.

With President Obama’s announcement Monday that the Environmental Protection Agency will reconsider that decision, Pavley’s long battle to implement the law she wrote may finally be over. And that’s a good thing, not just for California but for the country.

California, with its peculiar geography and heavy reliance on motor vehicles, has always led the nation in cleaning up the air. In 1967, California passed the Mulford-Carrell Act, establishing a state agency to monitor air quality and regulate motor vehicle emissions. Three years later, President Nixon -- a Californian -- created the EPA. And it was the California Air Resources Board’s “technology-forcing regulation” in 1970 that inspired a miraculous invention called the catalytic converter, which turns carbon monoxide and smog-forming nitrogen oxides into harmless gases. Once automakers began installing them to meet California’s emissions requirements, they became standard across the country.

California has not been the only innovating state on environmental law -- New Jersey was the first to force airlines to reduce emissions from jet engines; Minnesota in the early 1970s required its sole nuclear power plant to release far less radioactivity than federal law allowed. But no state rivals California when it comes to fighting smog. In a series of famous hearings on air pollution led by Sen. Edmund Muskie in 1970, nearly every speaker invoked California’s example, often with passion. “The Congress of the United States must untie our hands!” demanded Herbert Fineman, the speaker of the Pennsylvania House of Representatives, and “authorize [the federal government] to issue motor-vehicle emission standards that are as stringent as the state of California’s.”

Until George W. Bush was elected, California was consistently granted permission to enact more rigorous anti-pollution statutes than those of the federal government. Over the last 40 years, the agency denied the state the right to set its own rules only once -- in December 2007, when then-EPA Administrator Stephen Johnson refused to grant the state a waiver to enforce Pavley’s greenhouse gas law.

Johnson said he denied the waiver because new fuel-efficiency standards in the 2007 federal energy bill would accomplish the same end. Of course, that was ridiculous. California’s law requires a 30% reduction in greenhouse gases from tailpipes by 2016, and the energy bill’s rules don’t even kick in until 2020 (not to mention that they say nothing about methane, carbon dioxide or halogenated gases that cause global warming).

But by equating California’s new tailpipe emissions law with mileage standards, Johnson was signaling the administration’s allegiance to the auto industry, whose lobbyists had argued that California’s greenhouse gas law was in fact a thinly disguised fuel-efficiency standard, which the state had no authority to set. What’s more, said Dave McCurdy, president of the Alliance of Automobile Manufacturers, California’s law would put in place “a patchwork quilt” of regulations, causing confusion in the already beleaguered auto industry.

In his speech Monday, Obama, tellingly, referred to a “patchwork” too. But by using the metaphor to the opposite effect, he stood firmly on California’s side. The EPA’s denial of California’s waiver, he said, “risks the creation of a confusing and patchwork set of standards that hurts the environment and the auto industry.”

With that language, he affirmed what Pavley had known from the start: As California goes, so goes the country -- and even the world. According to the state Air Resources Board, 71% of the world’s population lives in countries with vehicle emissions standards modeled on California’s. If the new EPA administrator, Lisa Jackson, grants California’s latest waiver, 40% of the country will be driving cars that emit fewer greenhouse gases from their tailpipes, and other states are likely to follow the lead.

Nearly 80 years ago, in the depths of an earlier economic crisis, Justice Louis Brandeis remarked that “it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.”

Brandeis was opining about the right of a state to regulate who can make and sell ice. But he might as well have been talking about California’s right to rid itself of smog. As one brave and idealistic legislator recognized in 2001, when it comes to saving the planet from pollution, only a state can change the world.

Judith Lewis is an environmental journalist and contributing editor to High Country News.