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Could Congress Overturn Mass. v. EPA?

In Massachusetts v. EPA, the Supreme Court ruled that Congress delegated to the Environmental Protection Agency authority to regulate carbon dioxide and other greenhouse gases as pollutants under the Clean Air Act. Some members of Congress do not seem too happy with this result. How else to explain draft legislation, noted on the Warming Law Blog, that would limit the EPA's ability to impose greenhouse gas regulations? It also seems that this legislation, drafted by Democrats in the House Energy and Commerce Committee, would prevent the EPA from granting California a waiver of preemption for its regulations controlling greenhouse gas emissions from new motor vehicles (see also here). Automakers would not be completely off the hook, however, as the draft legislation would require the National Highway Transportation and Safety Administration to tighten federal automobile fuel efficiency standards. Oil companies would also be required to reduce the carbon content of their fuel offerings. "Discussion drafts" and summaries of the legislative proposals are available here

If this legislation seems to be tailored to the needs of the automobile industry, it should be no surprise. Michigan Representative John Dingell, a longtime ally of the auto industry, chairs the House Energy and Commerce Committee. But industry-friendly emission controls did not begin with him. Back in the 1960s, after California adopted the first-in-the-nation automobile emission controls, and other states appeared ready to follow suit, the automakers ran to Congress asking for uniform federal standards. The automakers feared a patchwork of variable state standards, and also believed that federal rules would be less stringent than those developed in the states, particularly those states without a significant auto industry presence. So began federal regulation of automotive emissions.

Justin (mail):
Federalism and Preemption: Shafting people in favor of special interest groups both ways since 1800.
6.6.2007 7:38pm
Paul B:
Given that the nature of greenhouse warming is that there is no relationship between emissions in a given state and the effect upon temperatures within that state (similar to CFC emissions and unlike CO,SO2, and nitrogen oxide releases), there is no reason for states to be setting policy in this area.
6.6.2007 7:56pm
occidental tourist (mail):
Paul,

just to play the devil's advocate here, what if CA believes adopting state regulation in such an influential state as California would actually lead to national and/or international regimes that would produce results.

Seems to be an obvious pre-emption question that ought to have already been put to rest. I still get a laugh every day out of the number of consumer items I use that have a label on them that says: "contains compounds known by the state of California to cause cancer". I'm dieing all the way to the bank.

Brian
6.6.2007 8:27pm
Mark Field (mail):
According to the SF Chronicle, Pelosi has already expressed her opposition to this bill. I strongly suspect that means the bill is going nowhere.
6.6.2007 8:30pm
whackjobbbb:
It's going everywhere. California has driven emissions targets in vehicle programs in this country for the longest. The automakers have gone along with this for the most part, and scrambled to meet CARB as best they can, but that regime is beginning to fall apart within the industry, and some vehicles and companies are starting to say "screw you... no sale in Cali". I don't think the honorables will allow an unlevel playing field, Pelosi or no, and they'll default to one standard. CARB and the Cali legislature have had their fun, but I think the adults will take over now.
6.7.2007 12:36am
Andrew Okun:
It's going everywhere.

Seems already dead, from what I can tell.

California has driven emissions targets in vehicle programs in this country for the longest.

A sound argument in favor of granting the waiver.

CARB and the Cali legislature have had their fun, but I think the adults will take over now.


I think the "adults" know they don't have the votes, the power or the tide of history on their side on this one. How can we tell? Because the "adults" are whining, wriggling and going limp like pouty two-year-olds in the face of parental determination. It'd be funny if it weren't such a damaging crock.
6.7.2007 3:25am
whackjobbbb:
I think you underestimate the Congress here, and their collective desire to undermine attempts to encroach on what they perceive as their role. "The raised nail gets pounded down", is the old line from the East, as I recall, and the adults will do the pounding here, I suspect, after a long, fitful period of raised-nailedness on the left coast.

But, recognizing the existence of competing interests here, let me give the lawyers one of your famous hypotheticals. What if Cali's legistative adolescents, through CARB, begin hammering on... say... airliner emissions... to a degree that begins to significantly encroach on design cues and corporate business models, creating a mosaic of acceptable airliner platforms across the country, and in a way that begins to affect consumers and our economy... skewing both to a noticeable degree that percolates litigation and regulatory turf scrambling at the federal level?

A long, stupidly worded question, but you may be able to piece out a response and take it somewhere productive, and apply it to the case at hand.
6.7.2007 11:18am
markm (mail):
"Oil companies would also be required to reduce the carbon content of their fuel offerings." Have they consulted chemists as to whether this is even possible?
6.7.2007 12:47pm
markm (mail):
Aside from that detail, it seems like the courts interpreted the law in an unexpected way when issues arose that weren't known at the time the law was passed, probably correctly to the text of the law but not how most of Congress would have preferred, and now Congress is considering changing the law to override that re-interpretation. Isn't this how the system is supposed to work?

Amazing, isn't it? The system working for once, that is.
6.7.2007 12:54pm
Justin (mail):
If people stop responding to wackjobbbb's excesses, he will go away.
6.7.2007 2:58pm
whackjobbbb:
No, I won't, but perhaps you should if I'm that much of a bother to you.
6.7.2007 3:37pm
Anon. E. Mouse (mail):
Wow.

Not only does it escape the intelligentsia that NHTSA already directly regulates automobile CO2 emissions through CAFE standards....they now call for oil companies to "to reduce the carbon content of their fuel offerings."

UFB. What next, repeal the 2nd law of thermodynamics?

I just can't get my mind around such a level of ignorance about how the physical world works.
6.7.2007 5:04pm
Bryan DB:
I wonder how many people ranting about the "reduce the carbon content" phrase have actually thought about where that phrase came from and, if so, have read the original source. Wasn't there a post about that on this blog in the recent past?
6.7.2007 5:43pm
NickM (mail) (www):
Don't bet against Chairman John Dingell getting 218 votes. He's very effective in passing legislation, especially when he can work with members of the GOP who are motivated to pass the bill.

Nick
6.8.2007 2:36am
whackjobbbb:

I wonder how many people ranting about the "reduce the carbon content" phrase have actually thought about where that phrase came from...


Bryan, I don't think it much matters where the phrase comes from, at least not as much as does the carbon composition of the fuels in question, which may not be absolutely "fixed", but have likely approached a fixed limit.

Dingell is a master legislator, no doubt. But, it won't be simply the "GOP" working with him, I suspect. Collectively, the Congress will stand up to challenges to what it perceives as it's role. When the Governator stands up with Tony Blair and announces his own private foreign policy, which will have marked effects on the entire nation, based upon "science" he think's pretty but that does not have broad-based support in peered review... then you can expect the Congress to rise to that challenge.

I sorta empathize with Cali, and if they stuck only with emissions directly affecting the health of the citizens of that state, they'd be on firmer ground. I personally would choose to ignore what they want, and go ahead and build some of the nice little 3-cylinder turbocharged diesels that wouldn't have a prayer of passing CARB's nonsense, but would markedly improve our powertrain technology base, but that's just me.
6.8.2007 11:04am
NickM (mail) (www):
Actually, reducing the carbon content of the fuel is easy - oxygenate it (ethanol, propanols, butanols, etc.). It makes it less efficient, but it definitely does reduce the percentage of the fuel that is carbon.

Nick
6.8.2007 5:18pm
markm (mail):
Nick, yes, but it doesn't reduce the amount of carbon released from the car's tailpipe per mile - oxygenated fuels have less energy per gallon, so you burn more. Not to mention the energy required to produce those fuels, meaning more carbon released elsewhere. Against that, ethanol can be produced from corn (absorbing CO2), but the way US farmers operate, the energy content of the ethanol isn't much more than the energy used to produce it. (Brazil does much better with ethanol from sugar cane, and I suspect far less mechanization.)

Biodiesel can actually reduce the net carbon emissions, at least when it's reprocessed from used cooking oil and other waste, and assuming the processing and distribution don't take too much energy. But there's only enough waste oil available to replace a few percent of the petroleum used for diesel fuel, and if you start growing crops just for biodiesel, you'll probably get the same problem of using too much energy for production as with ethanol. And it doesn't do anything at all for all the gasoline-burners.
6.8.2007 6:25pm