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David Doniger’s Blog

Congressman Issa, Please Step Away from the CARB

David Doniger

Posted November 15, 2011 in Curbing Pollution, Solving Global Warming

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The Environmental Protection Agency and the Department of Transportation are expected to formally propose new carbon pollution and fuel economy standards this week, implementing the Obama administration’s third historic Clean Car Peace Treaty reached last July.  The new standards will nearly double new vehicles’ miles per gallon and nearly halve their heat-trapping carbon pollution by 2025.  

The clean car agreement enjoys broad support from car and truck manufacturers, auto workers, environmentalists, and states.  And it is highly popular, with 80 percent of the American people backing the 54.5 miles per gallon standard coming by 2025, according to a new Consumers Union-sponsored poll

But Congressman Darrell Issa (R-CA), chairman of the House Oversight and Government Reform Committee, dances to his own drummer.  I’ve written here how the Congressman who made his fortune selling car alarms has boldly gone where other House Republicans have declined to go, by attacking all three agreements forged by the president to curb carbon pollution and fuel use by the nation’s cars and trucks. 

Other House chairmen who are no pushovers for the president or the EPA have been savvy enough to leave the clean car agreements alone.   Last summer Rep. Ed Whitfield (R-KY), for example, told Politico Pro:  "If these automobile manufacturers want to reach agreements with EPA, that's their business."

But that’s not enough for Congressman Issa.  Last month he hauled officials of the Environmental Protection Agency and the Transportation Department before his committee, and later accused them of misleading the committee under oath for differing with him on the meaning of the federal fuel economy law.  Last week he fired off a letter accusing the California Air Resources Board of violating that same law. 

Well, it turns out that both federal agencies and California’s air officials are faithfully following decisions of the U.S. Supreme Court and two lower federal courts.  The Supreme Court has ruled – not once but twice – that the Clean Air Act covers the carbon dioxide and other greenhouse gas emissions.  As the Supreme Court said in Massachusetts v. EPA

[T]hat DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities.  EPA has been charged with protecting the public’s “health” and “welfare”. . . , a statutory obligation wholly independent of DOT’s mandate to promote energy efficiency. . . . The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.

Congressman Issa doggedly asserts that California’s standards violate the fuel economy law’s prohibition of state rules that “relate to” fuel economy.  But following the Supreme Court’s lead, two federal courts rejected that very argument, holding that that the federal fuel economy law does not preempt California and other states from curbing carbon emissions under the Clean Air Act.  The federal court in Vermont said this:

Construing the statute as a whole, Congress could not have considered an EPA-approved California emissions standard to be automatically subject to express preemption as a "law or regulation relating to fuel economy standards," because it required that NHTSA take into consideration the effect of such standards when determining maximum feasible average fuel economy. ... Nothing in EPCA or its legislative history indicates that Congress intended to displace emission regulation by California that would have an effect on fuel economy; on the contrary, the legislative history is quite clear that Congress expected NHTSA to take such regulations into consideration. ... Unless this Court is to ignore decades of EPA-issued and approved regulations that also can be said to “relate to” fuel economy, this regulation does not “relate to” fuel economy within the meaning intended by Congress.  Vermont's [greenhouse gas] emissions regulation is not expressly preempted by [the federal fuel economy law’s] preemption provision.

The federal court in California agreed:

The court concludes that, just as the Massachusetts Court held EPA's duty to regulate greenhouse gas emissions under the Clean Air Act overlaps but does not conflict with DOT's duty to set fuel efficiency standards under [the fuel economy law], so too California's effort to regulate greenhouse gas emissions through the waiver of preemption provisions of the Clean Air Act overlaps, but does not conflict with DOT's activities under [the fuel economy law]. . . . State laws that are granted waiver of preemption under the Clean Air Act that have the effect of requiring even substantial increases in average fuel economy performance are not preempted where the required increase in fuel economy is incidental to the state law's purpose of assuring protection of public health and welfare under the Clean Air Act.

The clean car agreements enjoy the broadest possible support of car and truck manufacturers, auto workers, environmentalists, and states.  Car owners will fill up half as often and their cars will release only half as much dangerous carbon pollution.  American families will save $80 billion a year at the pump and cut our national oil addiction by 2.2 million barrels per day.  And we’ll create up to 150,000 new American jobs. 

Yet Congressman Issa soldiers on.

To paraphrase the words that made him famous:  “Congressman Issa, please step away from the car deal.” 

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Switchboard is the staff blog of the Natural Resources Defense Council, the nation’s most effective environmental group. For more about our work, including in-depth policy documents, action alerts and ways you can contribute, visit NRDC.org.

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