Auto Emissions, California, and the Constitution

The E.P.A. is reportedly preparing to cut Obama-era fuel efficiency standards. California, however, may stand in its way.  The Clean Air Act gives the E.P.A. the power to set national standards and preempts state regulation of emissions.  However, it also contains a provision that allows the E.P.A. to grant a waiver to California so that it can set higher standards so long as they are needed “to meet compelling and extraordinary conditions.” California has set higher emissions standards pursuant to this provision, and other states have adopted the California standards under a 1977 amendment to the Clean Air Act.  Presumably, the E.P.A. may seek to rescind the waivers given to California and deny any future waiver requests, leading to a fight with California in the realm of administrative law.

Two constitutional issues are potentially relevant, but neither should not block California’s emissions standards. 

First, scholars have argued that California’s special treatment under the Clean Air Act is unconstitutional because it violates Shelby County’s equal sovereignty principle. In Shelby County, the Court said that “any disparate geographic coverage” of a law that limits state sovereignty “must be sufficiently related to the problem that it targets.” Unlike most constitutional scholars, I think the equal sovereignty principle makes sense and has deep historical support, as I explain in In Defense of Shelby County’s Principle of Equal State Sovereignty.  The Clean Air Act unequally limits state sovereignty because it allows California—and no other state—to pass emissions regulations.  The Act, however, easily passes the “sufficiently related to” requirement of Shelby County.  To get the waiver, the E.P.A. must have determined that the higher emissions standards were needed “to meet compelling and extraordinary conditions.” Moreover, as my paper discusses in greater detail, there are many reasons to think California is uniquely suited to regulate this area.  The Court’s problem with the Voting Rights Act in Shelby County was that it thought the formula used to select jurisdictions for preclearance was irrational (I think the Court was wrong on that point), but allowing California a special role in regulating auto emissions seems to make perfect sense.

Second, Pruitt said that California “shouldn’t and can’t dictate to the rest of the country what these levels are going to be.”  This concern is given doctrinal form in the extraterritoriality doctrine.  Under that doctrine, state law cannot have the “practical effect” of regulating conduct that “takes place wholly outside of the State’s borders.” Although the Court has tied the extraterritoriality doctrine to the dormant commerce clause, it has also recognized that the doctrine has deeper constitutional foundations. 

In Making Sense of Extraterritoriality: Why California’s Progressive Global Warming and Animal Welfare Legislation Does not Violate the Dormant Commerce Clause, I argue that state laws that have the practical effect of indirectly controlling out-of-state conduct should only be unconstitutional if the state has no corresponding in-state interest in the out-of-state conduct. Here, even though California’s law has the practical effect of regulating conduct in Detroit, the regulations are not constitutionally problematic because California has a strong interest in how cars bound for California are manufactured. Preventing California from regulating in-state conduct just because doing so would have the practical effect of controlling out-of-state conduct would be an unacceptable limitation on California’s sovereignty. Of course, Congress can preempt state legislation under the Commerce Clause, but there is nothing inherently problematic about California’s emissions regulations.

Comments

[Patrick S. O'Donnell]

As a resident of California since 1969 (recalling how bad the smog once was in the San Fernando Valley), that's a legal conclusion all of us who reside here can happily live with. In fact, I've never been more proud of those who govern our state, especially Governor (Edmund Gerald) “Jerry” Brown Jr. (I disagree with this and that policy and I happen to be far to his left, but given the state of politics in this country, he's heaven-sent.)

[Deep State Special Legal Counsel]

Hypocrites. Police shootings are a local issue. Education is a local issue, except for regulation of Student Loans. If it involves Koch brothers money, Cliven Bundy, and desecrating National Parks its about the big gub-mint that needs to be drowned in the bathtub. Their good at campaigning on State and local control and invoking Ronald Deficit Arms for Hostages Reagan.