Colorado if ground zero for the fight over car rules

Source: Maxine Joselow, E&E News reporter • Posted: Monday, March 18, 2019

A legal fight is brewing over states’ authority to set tougher car pollution rules than the federal government.

Colorado is ground zero.

The Centennial State is in the midst of adopting California’s more stringent greenhouse gas emissions standards for cars, known formally as low-emission vehicle (LEV) standards.

But the Colorado Automobile Dealers Association has filed a lawsuit challenging the decision, saying it would increase the upfront cost of new vehicles. The association and some conservatives say the standards aren’t cost-effective and would pinch consumers’ pocketbooks.

According to a study the dealers group commissioned from the firm Energy Ventures Analysis, adopting the LEV standards would increase the price of new vehicles by $2,100 over their lifetimes.

“We’re really doing it to keep cars more affordable for consumers,” said Tim Jackson, a spokesman for the Colorado Automobile Dealers Association. He added: “We’re the face of the industry with the public. We’re the ones who have to answer to ‘I like this car, but I really can’t afford it.'”

Since the lawsuit was filed Jan. 28, the Colorado Automobile Dealers Association has played a game of legal pingpong with the state in Denver District Court.

The two are currently battling over Colorado’s Feb. 19 motion to dismiss the case on the grounds that the dealers group lacks standing to bring the suit. In particular, Colorado argues the association had not adequately demonstrated that adopting the LEV standards would threaten its “present or imminent activities.”

Environmentalists have jumped to the state’s defense.

A few days after the dealers group urged the court to deny the state’s motion to dismiss, three national environmental groups — the Sierra Club, Environmental Defense Fund and Natural Resources Defense Council — filed a motion to intervene on behalf of the state.

Greens say adopting California’s standards would significantly reduce planet-warming emissions and improve air quality.

“Colorado has some of the most polluted air in the nation, but the automobile dealers want to take away key measures the state put in place to curb air pollution and address climate change,” Noah Long, senior attorney with NRDC, said in a statement. “This is outrageous. We’re intervening to protect the health of state residents.”

Danny Katz, director of the Colorado Public Interest Research Group, pointed to the rigorous cost-benefit analysis the Colorado Air Quality Control Commission conducted when considering whether to adopt California’s standards. The analysis found the standards would “cost effectively reduce [greenhouse gas] emissions.”

While the standards would raise the upfront cost of new cars, they would save consumers money over the long term, Katz argues. That’s because more fuel-efficient vehicles use less gasoline, leading to savings at the pump.

“It’s disappointing that they’re trying to stop Colorado from having the cleanest cars possible on the road,” Katz said. “We went through a long process and determined that these clean car standards can reduce pollution and they’re cost-effective.”

But Jackson argues the LEV standards are unnecessary because cars and trucks have gotten exponentially cleaner over the last several decades. He singled out reductions in emissions of particulate matter, which are linked to an array of heart and lung ailments.

“Everything we sell today is 99 percent cleaner than anything we had available for sale, say, 15, 20, 30 years ago,” he said. “So new cars today are virtually emission-free when it comes to [particulate] emissions. … On the carbon emissions, it’s a different story. We’re not 99 percent cleaner there. But we are getting better every year.

“So when the environmentalists talk about [LEV standards causing] better health and better air quality, I have to say, ‘Give me a break on that,'” Jackson added. “If you raise the price of new cars, the public won’t be able to afford to buy their new car. And if they can’t buy a new car, they’re going to have to stay in their old car that’s high-emitting. So I have to call them out on that.”

Another point of contention: trucks.

Jackson argued that Colorado has a strong identity as a “truck state.” He noted that roughly 76 percent of new vehicles sold at Colorado dealerships through 2018 were trucks rather than cars, according to data compiled by the association. That would make complying with the LEV standards much harder, he said.

But Katz said Colorado consumers’ preference for gas guzzlers makes the standards all the more important.

“A more fuel-efficient truck is a lot better than a less fuel-efficient truck,” he said.

Trump administration

Complicating matters, the Trump administration is proposing to revoke California’s Clean Air Act waiver for greenhouse gases as part of its rollback of Obama-era clean car rules.

The waiver grants California the legal authority to serve as the ringleader of the national LEV program. Twelve other states and the District of Columbia have followed California’s lead, and Colorado is poised to become the 14th.

If the Trump administration is successful at yanking the waiver, those 14 states and D.C. would no longer be on solid legal ground to implement tougher tailpipe pollution rules than the federal government.

The administration argues California is pre-empted from setting fuel efficiency standards by the 1975 Energy Policy and Conservation Act, which gives that power solely to the Department of Transportation.

But environmentalists have pointed out a number of perceived flaws with that rationale. And they contend that the administration’s proposal is unlikely to survive in court (Climatewire, Feb. 28).

“We think the Trump administration’s attack on state authority is unlawful and deeply flawed,” said Peter Zalzal, lead attorney with the Environmental Defense Fund.

Other states

A number of states are likely closely watching the Trump administration’s moves and the ongoing legal battle in Colorado.

Newly minted New Mexico Gov. Michelle Lujan Grisham (D) recently directed state regulators to consider adopting the LEV standards.

Some environmentalists also suspect Virginia is fertile ground for the standards, although the state is currently reckoning with the fallout of a scandal surrounding Gov. Ralph Northam (D).

Zalzal said he doesn’t think the suit facing Colorado regulators will discourage other states from moving forward with what he described as commonsense environmental and public health protections.

“I think there’s a broadening recognition of the benefits that these sorts of standards can deliver,” Zalzal said. “And especially in light of the misguided attack that the federal government has initiated on the national clean car standards, there’s a growing interest in states to protect their citizens.”

Katz noted that other states have adopted the standards through their legislatures.

“Every state has different processes for adopting LEV, so a lawsuit challenging Colorado’s use of the process shouldn’t have any legal bearing on other states’ processes,” he said. “As a side note, most states [go through] a process of legislative action, which means legal action is even more moot.”