Eight is Enough

Will the EPA outsource itself to California before Trump’s inauguration?

Doomberg

 

Nov 26, 2024

 

“I can promise you that when I go to Sacramento, I will pump up Sacramento.” – Arnold Schwarzenegger 

If they could be injected with truth serum, one wonders whether the high-profile Democratic governors of certain US states would admit to being not entirely disappointed with the outcome of the presidential election. Had Vice President Kamala Harris emerged victorious, those with national ambitions would have had to almost certainly wait until 2032 for a shot at the big chair. With President-elect Donald Trump returning to office, both parties are set for open, competitive primaries next time around, and don’t doubt for a second that jockeying for those contests is already well underway.

Among the more determined aspirants is California Governor Gavin Newsom, whose political biography checks all the big blue boxes. After succeeding Willie Brown as mayor of San Francisco in 2004 and winning re-election four years later, Newsom was elected lieutenant governor of the Golden State under Jerry Brown. After two terms in that position, he secured the state’s top role in the 2018 election and triumphed again in 2022. Having maxed out his eligibility to serve as governor, Newsom will be looking for his next gig just as the 2028 nomination season is spooling up, and one would be foolish to underestimate his chances. Whatever your view of his politics, he is a formidable politician, a sharp debater, and backed by big money.

TFW the 2028 election is up for grabs

Presumably, the Democratic candidate who can best claim to have blunted the Trump agenda will be in a highly advantageous position to secure the nomination next time around. In this regard, Newsom holds a strong hand because of a decades-old federal law that treats California differently than every other state on certain high-stakes environmental issues. We turn to the Congressional Research Service for a helpful backgrounder:

“In the Air Quality Act of 1967… later amended to the Clean Air Act (CAA)… Congress preempted state governments from adopting their own air pollutant emissions standards for new motor vehicles and new motor vehicle engines. Notwithstanding, Congress decided to provide an exemption for the State of California. Under CAA Section 209, California can apply to the US Environmental Protection Agency (EPA) for a waiver from the federal preemption, and EPA is to grant this waiver absent certain disqualifying conditions. As of 2024, California has used this authority to receive more than 100 federal preemption waivers for new and amended state-level vehicle emissions standards. Further… Congress allowed other states to adopt California’s vehicle emissions standards under certain conditions. As of 2024, 17 states and the District of Columbia have used the authority under CAA Section 177 to adopt some subset of California’s standards.”

To the chagrin of conservatives, Section 209 of the CAA has proven an effective loophole, used by those on the progressive environmental left to impose upon the rest of the country the edicts of the California Air Resources Board (CARB). With manufacturers loath to create bespoke products for individual states, the CARB edicts effectively supersede those of the EPA, and entire industries have been forced to retool once the latter grants waivers to the former. For a sense of the upcoming war that motivates our current dispatch, we return to President Trump’s first term, when he launched a gambit to change the status quo by executive dictate:

“President Trump said Wednesday his administration is revoking a waiver that allowed California to set its own standards for automobile emissions — a move that could derail a years-long push to produce more fuel efficient cars. In a series of tweets Wednesday, Trump said the action will result in vehicles that are safer and cheaper, and that ‘there will be very little difference in emissions between the California standard and the new U.S. standard.’

Environmental Protection Agency Administrator Andrew Wheeler telegraphed the planned announcement on Tuesday. Speaking to the National Automobile Dealers Association, he said, ‘In the very near future, the Trump administration will begin taking the steps necessary to establish one set of national fuel-economy standards.’”

Although Trump’s maneuver was legally dubious and likely would have been stopped by the courts, the Biden administration reversed the revocation upon assuming power in January of 2021, and no real precedent was set.

Pen to pen, dust to dust

Since Biden took office, the relationship between CARB and the EPA has been mostly business as usual, with one important exception. For reasons few can articulate, Biden’s EPA has slow-rolled the approval of eight major CARB waiver applications currently sitting before it—some have been waiting for several years—and how that backlog will be handled has taken on renewed urgency in the aftermath of Trump’s electoral triumph. Many of these proposed waivers would radically alter the everyday life of average Americans and transfer enormous power from Washington to Sacramento, yet the issue is not on most people’s radar. Let’s put it on yours.

 

For a sense of just how intrusive the proposed rule changes are, we turn to a recent report in the Los Angeles Times titled “Trump victory puts California clean air initiatives in jeopardy.” In it, we learn that CARB seeks to impose an outright ban on the sale of gas-powered landscaping equipment, including leaf blowers and lawnmowers. It would also force farmers to upgrade machinery equipped with old diesel engines, and “require new ferry boats and excursion vessels to be zero-emission where feasible.” CARB also thinks it wise to “phase out diesel-powered refrigeration units for cargo trucks,” “ban fossil-fuel-powered cargo trucks from registering to serve California ports and rail yards” and “ultimately require all cargo trucks serving the ports to be zero-emission in 2035.” California processes approximately 40% of all containerized imports into the US and the last two rules in particular would have nationwide impact.

Those electric blowers are just as good…right?

But these are just the appetizers. By far the two most controversial decrees involve a total ban on the sale of new cars powered by internal combustion engines and a massively disruptive rule that effectively forces a complete (and provably unworkable) change in how freight trains are powered. Let’s take each in order.

While consumers may be rejecting battery electric vehicles (EVs) across the US, the do-gooders at CARB are unmoved by the cacodoxy of consumer preferences. If the EPA grants the Advanced Clean Cars II waiver, it will be illegal to sell fully gas-powered vehicles in the state by 2035, and no more than 20% of new vehicles sold can be plug-in hybrids. Automakers are pleading with the state to reconsider, as the rules are all but impossible to meet:

“The updated CARB rules not only specify that all new car sales in the state are to be 100 percent zero-emission vehicles (ZEV) by 2035 but that, ahead of the change-up, more than a third of 2026 model-year sales also had to be ZEVs. Because calendar years and model years no longer jive, 2026 cars will be available starting next year. Even though ZEVs include battery-electric, fuel cell, and some plug-in hybrid propulsion, Toyota’s argument is consumer demand simply doesn’t exist to meet the CARB standards.

‘I have not seen a forecast by anyone… government or private, anywhere that has told us that that number is achievable,’ said Jack Hollis, chief operating officer of Toyota Motor North America, in a CNBC report. ‘At this point, it looks impossible. Demand isn’t there. It’s going to limit a customer’s choice of the vehicles they want.’”

Plug one, plug all |

The final waiver awaiting adjudication is unquestionably the most economically disruptive. As we have previously chronicled, the In-Use Locomotive rule would require an overhaul of the entire US freight train fleet and mandate the implementation of technology that simply does not exist. Amazingly, train operators claim they were not even consulted during the rulemaking process. Here’s how the American Association of Railroads (AAR) describes the consequences:

“CARB’s In-Use Locomotive regulation would effectively ban the operation in California of locomotives more than 23 years old. There are approximately 23,000 locomotives in the U.S. Class I railroad locomotive fleet. Of those more than 15,000 locomotives were originally built before 2007. If CARB’s regulation is authorized, more than 2/3 of the locomotive fleet could not enter California, home to the two largest intermodal ports in the United States, creating a severe impediment to interstate commerce.”

That’s a nice train you have there

Should Biden’s EPA grant some or all of these eight waivers, it is unclear what the incoming Trump administration and new Congress could do about it. During Trump’s first attempt to gut California’s special status under the CAA, a fair reading of the law called into question whether the EPA even has the authority to revoke any rule waivers it has previously granted. Newsom’s office certainly thinks itself immune from even congressional oversight if Biden pulls the trigger. We return to the Los Angeles Times for more color:

“Some have speculated that even if Biden’s EPA acts before the Jan. 19 deadline, a potential Republican sweep of the U.S. House of Representatives and Senate could allow for any newly passed rules to be overturned. The Congressional Review Act allows Congress to scrutinize any major federal rules adopted within the final 60 legislative session days.

However, a spokesperson for California Gov. Gavin Newsom said that unlike federal regulations, approval of a California waiver isn’t subject to the Congressional Review Act. Newsom’s office cited a decision last year by the US Government Accountability Office that said an EPA decision on a California vehicle pollution standard was not subject to congressional review.”

Whatever the person currently running the Biden administration decides, Newsom is in a prime position to be seen as Trump’s most effective antagonist. If the waivers are granted, he becomes the superhero defending against the new president’s attempts to roll back environmental progress. If the waivers are left for Trump to decide, Newsom can grandstand against each decision without having to face the economic consequences.

Either way, it is going to be a fascinating few weeks.