Agency promotes states’ rights — sometimes

Source: Maxine Joselow, E&E News reporter • Posted: Wednesday, August 22, 2018

The Trump EPA is doing a delicate dance when it comes to states’ rights and climate change rules.

On one hand, the agency is proposing to weaken federal clean car standards and pre-empt states from setting their own, tougher tailpipe pollution rules.

On the other, the agency is proposing to replace President Obama’s signature climate rule and let states set their own guidelines for cutting carbon emissions from power plants.

The first move is a snub to California and other blue states that want to act more aggressively on climate than the federal government. The second is a gift to Texas and other red states with high dependencies on coal-fired power plants.

Trump’s critics find those two moves tough to reconcile.

“There is a deep hypocrisy in providing states with significant power to decide whether to regulate greenhouse cases in the context of power plants while eliminating the right of states to do so for automobiles,” said Ann Carlson, co-director of UCLA’s Emmett Institute on Climate Change and the Environment.

“The bottom line is that the motivation is consistent — to limit the regulation of carbon pollution,” she added. “The rhetoric about states’ rights is just a smokescreen for a deregulatory agenda.”

Jody Freeman, director of the environmental and energy law program at Harvard Law School, said it appears that EPA only cares about states’ rights when the states in question are on board with President Trump’s deregulatory agenda.

“It’s hard to reconcile those positions unless you look at the fact that in the vehicle context, states are trying to regulate,” said Freeman, who was an energy and climate adviser in the Obama White House. “And in the power plant context, they’re trying to avoid regulation.”

But supporters of the agency’s direction under the Trump administration say comparing the clean cars rollback and the Clean Power Plan replacement is like comparing apples and oranges.

“You’re really talking about two very, very different areas of authority,” said H. Sterling Burnett, senior fellow on environmental policy at the conservative Heartland Institute.

“I don’t think you can call it consistent or inconsistent,” Burnett said of EPA’s approach to states’ rights. “In fact, I think it’s consistent because it’s going by what the law says. With the [corporate average fuel economy] standards, it’s very clear that states don’t have the authority to regulate fuel economy.”

Cooperative federalism

Scott Pruitt, who resigned as EPA administrator July 5 amid a hailstorm of ethics allegations, made cooperative federalism a focus of his tenure. He talked up the idea of state and federal regulators working collaboratively without “one-size-fits-all” mandates from Washington, D.C.

“In just one year, we have made tremendous progress implementing President Trump’s agenda by refocusing the Agency to its core mission, restoring power to the states through cooperative federalism and adhering to the rule of law,” Pruitt said in a statement about his first year at EPA.

But his professed regard for cooperative federalism didn’t stop Pruitt from posturing in a regulatory war with California (Climatewire, March 23).

In announcing his decision to rewrite the Obama-era clean car rules, Pruitt signaled his revised program would force California to buckle to federal standards. “Cooperative federalism doesn’t mean that one state can dictate standards for the rest of the country,” he said in a statement.

When Andrew Wheeler became acting EPA administrator last month, he also promised a federal-state partnership. “No. 1, we need to provide certainty to the states,” he said in his first speech at the agency’s helm (E&E News PM, July 11).

But earlier this month, EPA and the National Highway Traffic Safety Administration proposed rescinding California’s Clean Air Act waiver, which gives the state special authority to set tougher greenhouse gas emissions standards for vehicles. The proposal set the stage for a protracted legal battle with California and the 12 other states that have adopted its more stringent standards (Greenwire, Aug. 2).

To justify the proposal, EPA pointed to Section 209 of the Clean Air Act. The provision stipulates that EPA can deny California’s request for a waiver if the state cannot demonstrate “compelling and extraordinary conditions.”

EPA also argued that states are pre-empted from regulating fuel economy by the 1975 Energy Policy and Conservation Act, which gave that power solely to the Transportation Department.

“It’s not about states’ rights — it’s about how they’re pre-empted by the EPCA,” Burnett said.

Trump is expected to unveil his administration’s replacement for the Clean Power Plan today in West Virginia, a major coal-producing state.

While elements of the proposal have been leaked to E&E News and other news outlets, it remains to be seen how EPA will seek to justify the replacement with regard to the Clean Air Act, Freeman said.

“They’ll have a legal analysis of EPA’s authority under the Clean Air Act,” Freeman said. “They will probably say something about why it makes sense to let states take the lead on power plant rules. So we’ll have to wait and see what their legal argument is.”

EPA didn’t respond to a request for comment for this story.