Golden State v. Trump
Much at stake in California’s battle against federal efforts to weaken land, sea and air protections
The punch-counterpunch sparring between the Trump administration and the state of California over rollbacks of federal environmental regulations is often described as a war of words, with neither the president nor Gov. Jerry Brown giving an inch.
Some of the disputes are largely symbolic—foot-stamping gestures from Washington designed to resonate with the president’s core supporters rather than to hold up in court.
But the latest skirmish is serious. The federal Environmental Protection Agency’s decision to unravel fuel-efficiency standards for cars and light trucks not only threatens California’s autonomy in setting its own emissions limits but also could derail the state’s ability to reach its future greenhouse-gas-reduction goals.
“This is a politically motivated effort to weaken clean-vehicle standards with no documentation, evidence or law to back up that decision,” Mary Nichols, chairwoman of the state Air Resources Board, said in a statement. “This is not a technical assessment; it is a move to demolish the nation’s clean-car program. EPA’s action, if implemented, will worsen people’s health with degraded air quality and undermine regulatory certainty for automakers.”
The gauntlet was thrown down by EPA Administrator Scott Pruitt, a darling of the Trump administration for his zeal in dismantling Obama-era environmental regulations. Even though Pruitt is the target of multiple investigations for alleged ethical transgressions and has found his job security in question, the effect of his current decisions can resonate far beyond his or his boss’ terms in office.
“There have been some troubling developments,” said Deborah Sivas, director of the Environmental Law Clinic at Stanford Law School. “But I think a lot of this is ultimately not going to happen.”
Putting the brakes on fuel efficiency
Sivas said an attack on the fuel-efficiency standard is one of the critical fights for California, which must drastically reduce emissions from the state’s enormous transportation sector to stay on track in cutting carbon.
At issue are miles-per-gallon standards set near the end of the Obama administration. They require an average 45.4 miles per gallon by 2022 and more than 50 miles per gallon by 2025. Standards differ by vehicle type and are stricter for cars than for SUVs and light trucks.
Chester France, the former EPA senior executive who directed the office that crafted the regulations, termed the fuel-standard rule solid. France, who retired in 2012, said the benchmarks were the product of rigorous technical research and vetting with federal agencies, the California air board and car manufacturers.
The rule was reviewed again during the last days of the Obama administration and determined to be reasonable.
“The mid-term review was thorough and found that advances in auto-industry technology meant that meeting the standards was easier and cheaper than EPA had predicted,” France said. “It concluded that the standards were attainable, and, if anything, they could have gone further.”
Pruitt called the current regulations inappropriate, saying they “set the standards too high.” He said his agency and the National Highway Traffic Safety Administration would revisit them, but he has not yet announced any proposed changes.
Some insiders say a draft document has been submitted that calls for scrapping the next adjustment, scheduled to take effect after 2022.
In explaining its rationale, the EPA has dusted off a decades-old analysis that suggests lighter, more fuel-efficient cars are not substantial enough to withstand crashes and thus pose a danger to drivers. Federal and state crash tests disprove that, but Sivas said she anticipates similar arguments.
The state is pushing back hard. Brown, during a recent visit to Washington, told reporters that the rollback is “not going to happen, and the attempts to do this are going to be bogged down in litigation long after we have a new president.”
Last month, California filed its 32nd lawsuit against the Trump administration, asserting that in preparing to change the emission standards, the EPA is violating the Clean Air Act and failing to follow its own regulations. In announcing the suit, which 16 other states and the District of Columbia have joined, Brown conjured images of floods and wildfires ravaging the state as greenhouse gases warm the planet.
“This is real stuff,” he said. “I intend to fight this as hard as I can.”
In addition to rolling back mileage requirements, Pruitt has signaled that he may revoke California’s legal authority to establish its own emissions standards, independent of federal benchmarks. A dozen other states have adopted California’s standards; together, that coalition represents more than a third of the national auto market.
“California is not the arbiter of these issues,” Pruitt said in a television interview in March. While the state may set its own limits on greenhouse-gas emissions, he said, it “shouldn’t and can’t dictate to the rest of the country.”
California’s right to request a waiver from federal clean-air laws is well established and, legal experts say, the burden would be high for the administration to convince a court that there is a compelling reason to change the longstanding policy.
Pruitt recently told lawmakers in Washington that his agency was engaged in talks with California officials regarding proposed changes.
California air board spokesman Stanley Young said the state has had three meetings with the EPA since December, adding: “Nothing substantive was discussed, so I wouldn’t characterize them as negotiations.”
He said the board had not seen a final proposal, and no future meetings were scheduled.
On Friday, Nichols tweeted to Pruitt: “Call me.”
Opening the coast to drilling
Perhaps the most consequential of the administration’s many moves to expand domestic energy production is the Interior Department’s five-year plan to offer lease sales in federal waters off the outer continental shelf, including parcels where drilling has been banned for decades. That includes the California coast.
The plan, announced by Interior Secretary Ryan Zinke, envisions drilling in the Arctic, off the Hawaiian coast and in the Atlantic and Pacific oceans, as well as expanding existing exploration into the eastern Gulf of Mexico. The leasing is scheduled to begin in 2019 off the north coast of Alaska, then move to the lower 48 states, the agency said.
Zinke said the leasing plans would expand the country’s energy independence. “This is the beginning of an opening up,” he said, promising that the months-long public comment period before enactment would include all stakeholders. “The states will have a voice.”
Whose voice will be heeded may be another matter. Florida’s governor has already negotiated directly with President Trump to exempt his state from leasing. Even though Brown had a conversation with administration officials relaying California’s wish to be included in a similar exemption, no announcement has been made that would prevent drilling in federal waters off the coast.
But this is one issue where the state may get its way, thanks to current market forces and a stubborn regulatory blockade.
The oil and gas industries have shown little interest in exploring off the California coast, and the State Lands Commission has resolved to make it much more difficult and expensive for companies to get crude oil to land and into pipelines.
The commission’s policy to prevent construction of onshore infrastructure does nothing to stop drilling but could limit the volume of oil shipped at a time when the low price per barrel is already discouraging new exploration.
Given those financial and logistical headaches, companies may take a pass.
“A state like California is going to put its full force and resources on the line,” said Timothy O’Connor, a California-based attorney for the Environmental Defense Fund. “There’s still an element of local and state control, and we are going to defend our values to their very core. That’s certainly one of them.”
Rolling back air rules
California has notched two victories over the Trump administration’s effort to undo a methane regulation instituted during Obama’s term.
The Waste Prevention Rule was to have gone into effect in January 2017, regulating emissions of natural gas leaking from more than 100,000 oil and gas wells on public lands across the country.
The federal Interior Department delayed enactment of the rule and was sued by California and New Mexico. The states prevailed. The agency then suspended part of the new rule and the two states sued again, winning in court once more.
The victory has significant impact in California, home to vast, aging oil fields and energy infrastructure. Methane’s potent heat-trapping capacity makes it many times more damaging to the atmosphere than carbon dioxide. The state Air Resources Board recently limited methane coming from both new and existing oil and gas sources.
Another win came in a suit the state joined after the EPA postponed implementation of yet another Obama-era rule aimed at combating smog. The “Ozone Rule” reduced allowable concentrations of ozone, a main component of smog.
Pruitt ordered the EPA to extend the deadline to comply with the new standards by at least a year. Two days after California and 15 other states filed suit, Pruitt reversed his decision.
The state also won a suit calling for federal transportation officials to monitor greenhouse-gas emissions along national highways, but the government is considering repealing the regulations.
In another pending case, California and other states are suing the EPA to identify areas of the country with the most polluted air. In April, Trump weighed in, directing the EPA to relax restrictions on state governments and businesses that have been key to cutting smog.
In a memo, the president instructed Pruitt to expedite review of state smog-reduction plans and streamline the process for businesses to get air-quality-related permits. In addition, Trump ordered a review of other air-quality regulations related to public health to determine whether they “should be revised or rescinded.”
The agency said the directive was aimed at trimming costs and maximizing efficiency.
Dropping protection for water
In an effort to more precisely define which bodies of water are covered under federal law, the Obama administration adopted a rule in 2015 that effectively expanded the number of protected waterways, including springs and floodplains that appear for only part of the year.
The idea was to safeguard both water quality and water quantity, and to put an end to the time-consuming practice of determining status on a case-by-case basis. The U.S. Supreme Court had already weighed in, but the high court’s definitions of the “waters of the United States” failed to provide adequate clarification.
The Obama definition-stretching rules were strenuously opposed by developers, who said they swept up much of the undeveloped land in California, including wetlands.
Soon after Trump came into office, the EPA launched a review of the rule, and then got rid of it.
In February, California sued the EPA and the U.S. Army Corps of Engineers, which signs off on development permits in protected wetlands.
The legal case is still pending, but Sivas said the Trump administration is doing an end-run by requiring the Army Corps to run all permit requests through Washington, rather than making those determinations in regional offices.
By centralizing the decision- making, Sivas said, political appointees can circumvent scientific and legal analysis performed by field offices and determine the outcome based on other factors.
“My guess is they are going to say [to developers], ‘You don’t need a permit,’” she said.