[Senate Report 110-407]
[From the U.S. Government Publishing Office]
Calendar No. 861
110th Congress Report
SENATE
2d Session 110-407
======================================================================
A BILL TO PERMIT THE STATE OF CALIFORNIA AND OTHER STATES TO
EFFECTIVELY CONTROL GREENHOUSE GAS EMISSIONS FROM MOTOR VEHICLES, AND
FOR OTHER PURPOSES
_______
June 27, 2008.--Ordered to be printed
_______
Mrs. Boxer, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 2555]
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred the bill (S. 2555) to permit California and other
States to effectively control greenhouse gas emissions from
motor vehicles, and for other purposes, having considered the
same, reports favorably thereon without amendment and
recommends that the bill do pass.
Purpose of the Legislation
S. 2555 amends the Clean Air Act to permit the State of
California and other States to immediately proceed with the
regulation of greenhouse gas emissions from motor vehicles by
implementing the regulation for such purposes for which
California requested a waiver of preemption under the Clean Air
Act. This will allow the States to avoid the burden of
litigating for what could be several years, while climate
change continues to threaten public health and the environment.
The bill would also provide certainty to automakers, the
States, and the public about future regulatory requirements for
greenhouse gas emissions from motor vehicles.
General Statement and Background
Title II of the Clean Air Act (Title 42, Chapter 85,
Subchapter II, United States Code) establishes a program for
controlling emissions of air pollutants from new motor vehicles
and other mobile sources of air pollution. In accordance with
section 202 of the Act, the Administrator of EPA is required to
prescribe standards applicable to the emission of any air
pollutant from new motor vehicles which, in the judgment of the
Administrator, cause or contribute to air pollution which may
reasonably be anticipated to endanger public health or welfare.
Section 209(a) of the Clean Air Act generally preempts
States and local jurisdictions from setting their own emission
standards for new motor vehicles. However, section 209(b) of
the Act requires the Administrator to waive preemption with
respect to a State that meets specified criteria if the State
determines that its motor vehicle standards will be, in the
aggregate, at least as protective of public health and welfare
as applicable Federal standards.
Section 209(b) further provides that a waiver of preemption
will not be granted if the Administrator makes any of three
specified findings. The Administrator may act on a waiver
request only after providing notice and an opportunity for a
public hearing.
California is the only state in the nation that can meet
the criteria set forth in section 209(b) to waive federal
preemption. The Clean Air Act gives California the unique
opportunity to set its own vehicle emission standards in
recognition of California's early leadership in setting such
standards and the State's particularly severe air pollution
problems. However, section 177 of the Act authorizes any other
State that has an EPA-approved plan for areas in non-attainment
of a federal air quality standard to adopt and enforce emission
standards that have been granted a waiver under section 209(b).
California has used these provisions of the Clean Air Act
to develop or use a host of forward-looking pollution control
technologies, including catalytic converters, cleaner fuels,
advanced electronic engine management and on-board diagnostic
systems, and many other such advances. For example, California
currently has waivers for their Zero Emissions Vehicle Program
and Partial Zero Emissions Vehicle Program, which has promoted
the manufacture and sale of electric and hybrid vehicles.
EPA recognizes the benefits of these pollution control
technologies to protecting human health. The Agency
acknowledges that use of the first generation of catalytic
converters ``significantly reduced hydrocarbon and carbon
monoxide emissions'' and ``resulted in dramatic reductions in
ambient lead levels . . .'' EPA, ``Automobile Emissions: An
Overview,'' EPA 400-F-92-007 (1994).
EPA's long history of granting California requests for a
waiver of federal preemption under section 209(b) is based on
its assessment of the merits of these requests. A December 27,
2007 Congressional Research Service report found that since
1967, in 40 years, EPA has granted California 53 waiver
requests in whole or in part. CongressionalResearch Service,
``California's Waiver Request to Control Greenhouse Gases Under the
Clean Air Act,'' at 2 (Dec. 2007).
A 2006 report by the National Research Council of the
National Academies of Science concluded that ``California has
used its authority as Congress envisioned: to implement more
aggressive measures than the rest of the country and to serve
as a laboratory for technological innovation.'' National
Research Council, ``State and Federal Standards for Mobile-
Source Emissions,'' National Academies Press, at 4 (2006).
In 2002, California enacted AB 1493, the nation's first
legislation requiring a reduction of greenhouse gases from
motor vehicles. The law required the California Air Resources
Board to ``adopt regulations that achieve the maximum feasible
and cost-effective reduction of greenhouse gas emissions from
motor vehicles.'' Among other things, the law prohibited the
Board from creating regulations that would require: ``A
reduction in vehicle weight . . . A limitation on, or reduction
of, the speed limit on any street or highway in the state . . .
[or] A limitation on, or reduction of, vehicle miles
traveled.''
In 2005, California adopted the first standards in the
nation for reducing vehicle emissions of greenhouse gases from
two classes of automobiles. The State's standards provide
tremendous flexibility. Passenger cars, light duty trucks and
SUVs weighing 3,750 pounds or less had to gradually reduce
their emissions by an average of 36.5 percent between 2009 and
2016. Light trucks and passenger vehicles weighing more than
3,750 pounds had to gradually reduce their emissions by 24.4
percent over the same time period. By the 2016 model year, the
standards would cut greenhouse gas emissions from all of these
vehicles by almost 30 percent.
California submitted to EPA a request for a waiver of
preemption for its greenhouse gas standards on December 21,
2005. However, EPA did not begin acting on the request until 16
months later, after the U.S. Supreme Court ruled in
Massachusetts v. EPA that if EPA makes a finding of
endangerment for greenhouse gas, ``the Clean Air Act requires
the agency to regulate emissions of the deleterious pollutant
from new motor vehicles.'' 127 S. Ct., 1438, 1462 (2007). In
that decision, the Supreme Court clearly stated that the Agency
can regulate greenhouse gases:
The Clean Air Act's sweeping definition of ``air
pollutant'' includes ``any air pollution agency or
combination of such agency, including any physical,
chemical . . . substance or matter which is emitted
into or otherwise enters the ambient air . . .'' . . .
Carbon dioxide, methane, nitrous oxide, and
hydrofluorocarbons are without a doubt ``physical [and]
chemical . . . substances which [are] emitted into . .
. the ambient air.'' The statute is unambiguous.
Massachusetts v. EPA, 127 S. Ct. at 1460 (emphasis in
original)
After the Supreme Court decision, EPA said that it would
consider California's waiver request. According to legal papers
filed by the California Attorney General, of the approximately
98,000 comments in the EPA's docket for the waiver request,
more than 99.9 percent supported the request.
On December 19, 2007, the EPA Administrator denied
California's request for a waiver, but explained that he was
having EPA staff ``draft appropriate documents setting forth
the rationale for this denial in further detail.''
Press reports indicated that Administrator Johnson overrode
his expert staff's recommendation to grant California's waiver
request. See, e.g., J. Eilperin, ``EPA Chief Denies Calif.
Limit on Auto Emissions; Rules Would Target Greenhouse Gases,''
The Washington Post, page A1, December 20, 2007
(``Environmental Protection Agency Administrator Stephen L.
Johnson yesterday denied California's petition to limit
greenhouse gas emissions from cars and trucks, overruling the
unanimous recommendation of the agency's legal and technical
staffs.'') The Senate Committee on Environment and Public Works
conducted an investigation of the Administrator's denial of
California's request, which confirmed that the Administrator
has gone against the opinion of the Agency's experts in denying
the waiver request. A later investigation by the House
Committee on Government Oversight and Reform also confirmed
that the Administrator had gone against his experts'
recommendation, and that the Administrator made the decision to
ignore this recommendation after meeting with the White House.
As of June 2008, the following 14 States have adopted or
have committed to adopt California's greenhouse gas emission
standards, and are awaiting EPA's action on California's waiver
request: Arizona, Connecticut, Maine, Maryland, Massachusetts,
New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode
Island, Vermont and Washington. Together with California, these
states represent 44 percent of the U.S. population and more
than 30 percent of the national vehicle fleet. At least 4 other
states are moving towards adopting California's standards,
including Colorado, Delaware, Illinois, and Utah.
A bi-partisan group of Governors from 14 states, including
California, Arizona, Connecticut, Florida, Maine, Maryland,
Massachusetts, New Jersey, New Mexico, New York, Oregon,
Pennsylvania, Rhode Island, Vermont and Washington wrote a
letter to EPA objecting to the Agency's denial of California's
waiver request. The Governors stated:
[EPA's] decision to deny California its waiver
ignores federal law and the reality of climate change.
It also ignores the clear intent of Congress in the
Clean Air Act to enable California to adopt regulations
to control emissions from new motor vehicles that are
at least as stringent as those of the federal
government, and to allow other states to follow.
Under section 209(b), the EPA Administrator ``shall . . .
waive'' the preemption of state emissions standards if
California ``determines that the State standards will be, in
the aggregate, at least as protective of public health and
welfare as applicable Federal standards.'' California made this
determination in its waiver request application to EPA.
Once California makes this determination, the Clean Air Act
provides very limited discretion for the Administrator to
reject the request. Under section 209, the Administrator can
reject such a request if he or she finds that the determination
is ``arbitrary and capricious''; that California ``does not
need such State standards to meet compelling and extraordinary
conditions,'' or if California's ``standards and accompanying
enforcement procedures are not consistent with section 202(a) .
. .'', which establishes baseline requirements for federal
motor vehicle emissions standards.
The Committee notes that the lack of any federal standards
regulating greenhouse gas emissions from cars makes it all but
impossible for the Administrator to claim that California's
regulations are arbitrary and capricious. Granting California's
waiver request could only establish one set of current
standards: California's standards.
The Committee also notes that EPA and California have
traditionally and correctly interpreted the ``State standards''
to be California's program--as a whole--to address automobile
emissions. E.g. 49 Fed.Reg. 18889-18890 (May 3, 1984) and 40
Fed.Reg. 23103 (May 28, 1975). This interpretation is clearly
supported in the Act's legislative history. U.S. House of
Representatives, Committee on Interstate and Foreign Commerce,
Clean Air Act Amendments of 1977, H.Rept. 95-294, May 12, 1977,
pp. 301-302. EPA must determine if all of the requirements in
California's program to address such emissions are as
protective of public health and welfare as federal standards.
If so, then California has met the ``compelling and
extraordinary conditions'' threshold.
The Committee strongly disagrees with the Administrator's
assertion that the global nature of the greenhouse gas problem
weighs in favor of finding that no ``compelling and
extraordinary conditions'' exist. First, the Committee's
hearing and the record before the Agency when considering the
wavier request is replete with examples of the public health,
economic, and environmental harm projected as a result of
global warming.
California need not develop a plan to address all pollution
emissions everywhere that are contributing to a problem before
it can regulate such emissions within its borders. The
Committee agrees with the Supreme Court's statement in
Massachusetts v. EPA, in which it spoke about the importance of
beginning to address a serious problem, like global warming:
Agencies, like legislatures, do not generally resolve
massive problems in one fell regulatory swoop . . .
They instead whittle away at them over time, refining
their preferred approach as circumstances change and as
they develop a more-nuanced understanding of how best
to proceed. Massachusetts v. EPA, 127 S. Ct. 1438, 1455
(2007).
Nationally, EPA estimates that transportation accounts for
30 percent of the nation's greenhouse gas pollution. The nation
must begin to address this segment of emissions. Failing to do
so will limit the effectiveness of other efforts to reduce
dangerous greenhouse gas emissions in other sectors.
Section-by-Section Analysis
Section 1. Short title
Summary
Section 1 describes the title of the bill, ``Reducing
Global Warming Pollution from Vehicles Act of 2008.''
Section 2. Findings
Section 2 describes the findings that necessitate passage
of S. 2555.
Section 3. Waiver of preemption for California greenhouse gas emissions
regulation for vehicles
Section 3 would overturn the EPA's denial of California's
request for a waiver of preemption, dated December 21, 2005,
and approve the request.
Description
This section would approve California's request for a
waiver of preemption to control the emissions of greenhouse
gases from certain automobiles and allow other states to adopt
those standards.
Legislative History
On January 24, 2008, the Senator Boxer of California
introduced S. 2555, joined by original cosponsors Senators
Feinstein, Lieberman, Lautenberg, Cardin, Whitehouse, Sanders,
Clinton, Leahy, Kerry, Obama, Nelson, Dodd, Kennedy, Mikulski,
Collins, Snowe, and Menendez. They were later joined by
Senators Schumer, Reed, Klobuchar, Biden, Durbin, Wyden,
Murray, Cantwell, and Warner as cosponsors. The bill was read
twice and referred to the Senate Committee on Environment and
Public Works. The committee met on May 21, 2008, to consider
the bill. S. 2555 was ordered favorably reported without
amendment by a vote of 10-9.
Hearings
The Committee held three hearings on EPA's handling of
California's request for a waiver for its greenhouse gas
vehicles standards. At a May 22, 2007 hearing on ``The Case for
the California Waiver,'' the Committee heard testimony from
Edmund G. Brown, Attorney General of California; Alexander B.
Grannis, Commissioner of Department of Environmental
Conservation of the State of New York; and Jonathan H. Adler,
Director of the Center for Business Law and Regulation at Case
Western Reserve University School of Law. At a July 26, 2007,
the Committee heard from EPA Administrator Stephen Johnson as
the sole witness at a hearing entitled, ``Examining the Case
for the California Waiver: An Update from EPA.'' Then again on
January 24, 2008, the Committee heard from EPA Administrator
Stephen Johnson, as well as from Governor Martin O'Malley of
Maryland, Governor Jim Douglas of Vermont, Governor Edward
Rendell of Pennsylvania, Attorney General Mike Cox of Michigan,
Doug Haaland, a staff member of the Republican Caucus of the
California State Assembly, David Doniger of the Natural
Resources Defense Council, and Jeffrey Holmstead of Bracewell
and Giuliani, at a hearing titled, ``Oversight of EPA's
Decision to Deny the California Waiver.''
Rollcall Votes
The Committee on Environment and Public Works met to
consider S. 2555 on May 21, 2008. The bill was approved without
amendment by rollcall vote, 10-9. (Ayes--Baucus, Cardin,
Clinton, Klobuchar, Lautenberg, Lieberman, Sanders, Warner,
Whitehouse, Boxer. Nays--Alexander, Barrasso, Bond, Carper,
Craig, Inhofe, Isakson, Vitter, Voinovich).
Regulatory Impact Statement
In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the committee finds, consistent
with the findings of the Congressional Budget Office, that S.
2555 does not create any new private sector mandates as defined
in the Unfunded Mandates Reform Act, nor will it cause any
adverse impact on the personal privacy of individuals.
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the committee finds, in accordance with the
findings of the Congressional Budget Office noted below, that
S. 2555 would impose no Federal intergovernmental unfunded
mandates on State, local or tribal governments, and that the
bill contains no new private-sector mandates as defined in
UMRA.
Congressional Budget Office Cost Estimate
S. 2555--Reducing Global Warming Pollution from Vehicles Act of 2008
S. 2555 would allow California to establish standards that
are stricter than those of the federal government for emissions
from motor vehicles. The Clean Air Act allows California to
establish emissions standards that are stricter than the
federal government's if granted a waiver by the Environmental
Protection Agency (EPA). This bill would overturn a recent
decision by the agency to deny that waiver.
CBO estimates that EPA would incur additional costs to
monitor and enforce the alternative regulations. We expect,
however, that the costs would not be significant because states
that adopt the alternative standards would be solely
responsible for overseeing their motor vehicle emissions.
Enacting the legislation would not affect direct spending or
revenues.
S. 2555 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contacts for this estimate are Susanne S.
Mehlman and Jeffrey LaFave. This estimate was approved by
Theresa Gullo, Deputy Assistant Director for Budget Analysis.
MINORITY VIEWS OF SENATOR INHOFE, SENATOR VOINOVICH AND SENATOR CRAIG
S. 2555, a bill to permit the State of California and other
States to control greenhouse gas emissions from motor vehicles,
should be opposed and returned to the Environment and Public
Works Committee by the full Senate because the legislation is
unnecessary, duplicative, and disruptive to interstate
commerce.
This legislation would overturn the recent decision of the
EPA Administrator denying California's request for a waiver to
regulate carbon dioxide tailpipe emissions from automobiles. By
affirmatively granting this waiver to California, S. 2555 would
allow California and other states to proceed immediately to
implement their programs regulating carbon dioxide tailpipe
emissions.
Generally, the Clean Air Act (CAA) establishes a uniform,
federal standard for the regulation of emissions from motor
vehicles. Section 209 of the CAA does allow California to adopt
and enforce air quality emission standards for new motor
vehicles if the State finds that those standards will be at
least as protective of public health and welfare as applicable
federal standards. However, federal preemption will not be
waived if EPA determines: (1) the State's decision is arbitrary
and capricious; (2) the standards are not needed to meet
compelling or extraordinary conditions; or (3) the State's
regulations do not comport to Act's requirements. If EPA grants
California's waiver request, other states may adopt its
requirements.
In late 2005, California requested a waiver of federal
preemption for greenhouse gas (GHG) emissions from new motor
vehicles. But EPA's decision was held in abeyance pending the
U.S. Supreme Court's decision in Massachusetts v. EPA. In that
case, the court held that EPA has authority, under the existing
Clean Air Act framework, to regulate greenhouse gas emissions.
Subsequent to that decision, EPA issued a decision denying
California's waiver request.
In his decision denying the waiver request, the EPA
Administrator found that California does not need its
greenhouse gas standards for new motor vehicles to meet
compelling and extraordinary conditions. Indeed, when Congress
created the special exception for California, they did so
because the state had a unique smog problem. All of the waiver
requests EPA has received from California relate to smog or to
closely related pollution problems that had specific localized
effects within the state. However, the climate change issue is
different because it affects all states, and in fact all
nations in the same general way. In this light, a patchwork of
state-level greenhouse gas regulations as is now proposed by
California is both an unnecessary and inefficient policy
approach to the issue of climate change.
The Administrator stated:
In contrast to local or regional air pollution
problems, the atmospheric concentrations of these
greenhouse gases is basically uniform across the globe,
based on their long atmospheric life and the resulting
mixing in the atmosphere. The factors looked at in the
past--the geography and climate of California, and the
large motor vehicle population in California, which
were considered the fundamental causes of the air
pollution levels found in California--no longer perform
the same causal function.\1\
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\1\ Federal Register: March 6, 2008 (Volume 73, Number 45) Pg.
12160
The Administrator also correctly refuted the argument that
increased temperatures associated with climate change would
increase ozone levels in California. As discussed above, the
Administrator found that greenhouse gas emissions from
California cars are not a causal factor for local ozone levels
any more than emissions from any other source of greenhouse gas
emissions in the world, and it is not the impact on ozone
levels that is the key question, but the nature of the causal
factors.
Besides the factors outlined by the Administrator in his
denial of the waiver, there are numerous additional reasons
this legislation should be opposed.
First, we are in the midst of a national debate concerning
how climate change is to be addressed. While there are
differences of opinion concerning the type of policy the U.S.
ultimately adopts, most recognize that effectively addressing
climate change will require a coordinated, global effort. In
addition, most states and industries agree that a single,
uniform, national policy for addressing U.S. GHG emissions is
preferable to a patchwork of state requirements. The reasons
for this include regulatory certainty and harmony in
requirements as well as economic considerations associated with
those requirements. At the very least, prudence demands that
Congress first decide whether and how to regulate on the
federal level. EPA may then address how California's program
compares to the federal regulatory regime, and whether that
program is consistent with the federal approach selected.
Second, the only feasible way to reduce the amount of GHG
emissions from automobiles is to reduce the amount of fuel a
vehicle uses. But this is currently being done through the
Corporate Average Fuel Economy (CAFE) program, which is being
administered by the National Highway Transportation Safety
Administration (NHTSA) for the Department of Transportation.
However, the Supreme Court's decision has blurred the lines
over regulatory authority--effectively empowering two federal
agencies with the ability to set CAFE standards. At the same
time, the Energy Policy and Conservation Act (EPCA) explicitly
prohibits any state from regulating automobile fuel economy.
In Massachusetts v. EPA, the Supreme Court did not consider
the issue of whether state regulations regarding carbon dioxide
tailpipe emissions from automobiles are preempted by the EPCA,
which establishes the nation's CAFE program. EPCA expressly
preempts state standards that are ``related to'' the federal
CAFE standards. (29 U.S.C. 32919) Even proponents of the
California greenhouse gas tailpipe regulations do not dispute
that the only way to significantly reduce carbon dioxide
tailpipe emissions is to substantially increase fuel economy
through the adoption of engine, transmission and other vehicle
technologies that increase fuel economy. This issue remains
subject to ongoing judicial review. This legislation would
directly interfere with the ongoing litigation in the federal
courts over whether state carbon dioxide tailpipe emissions
regulations are preempted.
Third, as the United Auto Workers (UAW) correctly pointed
out in their letter to the Committee dated May 19th, 2008 in
opposition to S 2555, the California tailpipe emission
standards that would be authorized by this legislation directly
conflict with the newly reformed CAFE program enacted by
Congress in the Energy Independence and Security Act of 2007.
According to the UAW, the California tailpipe emissions
standard is not based on an attribute-based system like the
reformed CAFE program, it does not maintain separate standards
for passenger cars and light trucks, and it exempts auto
manufacturers whose production is below a certain threshold,
giving a major competitive advantage to newer entrants into the
auto market.
Fourth, granting a waiver to California will not simply
result in two standards for vehicles, contrary to the
``finding'' in paragraph fourteen of S 2555. According to the
UAW, auto manufacturers would have to make sure that the
vehicles they sell in each state satisfy this new stringent
standard and because of product mix differences in different
states, it would be virtually impossible for the auto
manufacturers to satisfy this compliance burden. The National
Automobile Dealers Association also point out that the
California greenhouse gas tailpipe regulation will discourage
new car sales and create a cross-border loophole because
vehicles in California and other states who adopt the
regulation will be more expensive. By the California Air
Resources Board's own admission, the price of a new vehicle
will increase over $1,000 due to this regulation.
In conclusion, this legislation would authorize an
untested, state-by-state regulatory program that could
undermine the national CAFE standard, thus creating a patchwork
of regulatory compliance obligations that would provide
marginal, if any, benefit from a greenhouse gas reduction
standpoint, but would tremendously increase costs and burdens
on interstate commerce. It is a political bill that attempts to
address a global problem with a statewide solution that
undermines a carefully crafted and newly revised national fuel
economy standard that raises fuel economy by at least 40%,
resulting in an estimated 30% reduction in greenhouse gases.
James M. Inhofe.
George V. Voinovich.
Larry E. Craig.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in [black brackets], new matter is printed
in italic, existing law in which no change is proposed is shown
in roman:
* * * * * * *
CLEAN AIR ACT
* * * * * * *
Sec. 101. (a) The Congress finds--
(1) * * *
* * * * * * *
STATE STANDARDS
Sec. 209. (a) No State or any political subdivision thereof
shall adopt or attempt to enforce any standard relating to the
control of emissions from new motor vehicles or new motor
vehicle engines subject to this part. No State shall require
certification, inspection, or any other approval relating to
the control of emissions from any new motor vehicle or new
motor vehicle engine as condition precedent to the initial
retail sale, titling (if any), or registration of such motor
vehicle, motor vehicle engine, or equipment.
(b)(1) * * *
* * * * * * *
(e) Nonroad Engines or Vehicles.--
(1) * * *
* * * * * * *
(f) Waiver.--Notwithstanding subsection (b) or any other
provision of law; the application for a waiver of preemption
dated December 21, 2005, submitted to the Administrator
pursuant to subsection (b) by the State of California for the
regulation of that State to control greenhouse gas emissions
from motor vehicles shall be considered to be approved.
* * * * * * *