Dems say Trump admin wrong about 2007 energy bill

Source: Maxine Joselow, E&E News reporter • Posted: Friday, October 26, 2018

Three Democratic senators are warning the Trump administration that its bid to pre-empt California from setting tougher car pollution rules rests on shaky legal ground.

In a letter sent yesterday to EPA and the Department of Transportation, Democratic Sens. Tom Carper of Delaware, Ed Markey of Massachusetts and Dianne Feinstein of California wrote that the proposal is “legally flawed” and should be abandoned.

At issue is California’s ability to set tougher greenhouse gas emissions rules for cars than the federal government. Under Section 209 of the Clean Air Act, California can apply for a waiver from EPA that grants it such authority.

In August, the Trump administration announced that it was taking public comment on the possibility of rescinding the waiver, along with the possibility of weakening Obama-era fuel economy standards.

To justify its decision, the administration argued that California is pre-empted from setting tougher car pollution rules by the 1975 Energy Policy and Conservation Act, as amended by the 2007 Energy Independence and Security Act (EISA).

But the three long-serving Democrats, who were all in Congress during EISA’s passage, contend that the administration fundamentally misinterpreted the 2007 law.

“As elected officials who were deeply involved in the negotiation of the fuel economy provisions of EISA, we can attest to Congress’ intent that California’s authority under the Clean Air Act be preserved,” the lawmakers wrote.

“This intent was clearly expressed by two of us during the provisions’ December 2007 consideration on the House and Senate Floors,” they said.

The Democrats warned the Trump administration that history repeats itself.

They noted that automakers and some Republicans tried to limit California’s authority in EISA, but those attempts were ultimately unsuccessful.

“This letter transmits contemporaneous emails and other documents that demonstrate unequivocally that in the month before EISA was enacted, there were repeated efforts on the part of the automobile industry, some Members of Congress and the Bush administration to preempt, limit or otherwise constrain both EPA’s and California’s authority under the Clean Air Act,” the Democrats wrote. “All of these efforts were rejected, and were not included in the enacted law.”

A 20-page attachment to the letter contains communications among congressional staffers and lobbyists in the month prior to EISA’s passage.

The attachment shows several draft proposals to curtail California’s Clean Air Act authority.

One such proposal came from representatives of Cerberus Capital Management LP, which had recently purchased Fiat Chrysler Automobiles NV and hired the Washington law firm Squire Patton Boggs to represent them.

Another proposal came from the George W. Bush White House, which had chaffed at the Supreme Court’s 2007 decision in Massachusetts v. EPA paving the way for EPA to regulate greenhouse gases under the Clean Air Act.