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JuLY 2007

Auto emissions legally a pollutant

The United States Supreme Court issued two major rulings regarding the environment that will have far-reaching consequences in terms of controlling pollution.

In the first judgment, the court ruled that in Massachusetts vs. Environmental Protection Agency (EPA) that carbon dioxide (CO2) should be legally considered as a pollutant that can be regulated under the Clean Air Act.

The Bush administration, since it took office in 2001, has contended that CO2 is not a pollutant and that the federal government does not have the authority to regulate greenhouse gas (GHG) emissions from power plants and vehicles.

The Court clearly stated that CO2 is a GHG, that it causes harm to the environment and that the United States EPA violated the Clean Air Act by not regulating them.

In another ruling, the Court declared that companies operating power plants are not exempt from regulations in regards to emission controls.

While the Supreme Court ruled, another legal challenge regarding emissions recently concluded at the United States District Court in Burlington, Vermont. The automobile manufacturers are trying to overturn the GHG emissions limits on SUVs, pickup trucks and passenger vehicles.

While the federal government has refused to initiate such limits, the State of California has the authority to do so on its own and has on numerous occasions. Other states seek to follow California’s lead.

The automakers say these regulations would be costly monetarily and that they do not have the technology to reduce CO2. The goal of such regulation is to reduce fuel consumption by internal combustion engines (ICE) and improve mileage per gallon.

The automakers reject this legislative authority, stating that the legislation for such action resides in federal authority under the Department of Transportation (DOT) and that no state has the authority to pass legislation affecting gas mileage.

While the question of CO2 as a pollutant has not been a central argument of the automakers, they are relying on the DOT’s sole authority to regulate fuel efficiency and fuel economy standards to force Vermont and other states to drop their standards.

Prior to the trial, Vermont’s Attorney General argued that the Supreme Court ruling on CO2 as a pollutant had settled the case - based on the ability of the EPA to regulate CO2, and hence the state governments have jurisdiction, but Judge William Sessions decided that the case should be heard in order to collect information, noting that whatever ruling is given, that the verdict will be appealed.

During the trial, auto manufacturer engineering vice presidents testified that even to make a 5 percent improvement in fuel economy could take between 5 and 12 years.

Representatives from environmental groups, familiar with auto industry testimony and who have been in previous legal challenges with industry, told the media covering the case that they had heard these arguments before.

It was noted by them that the auto industry said that installing catalytic converters would bankrupt it, a similar argument that was used against mandatory seat belts. Moreover, the environmental representatives stressed that when the government refused to back down on new regulations, the automakers were able to survive.

The judge noted that he would like to issue a ruling this year, possibly in late summer.

Evan Edgar, the director of regulatory affairs for the California Refuse Removal Council (CRRC), Northern District, is pleased with the Supreme Court rulings.

“The court knocked down the Bush denial of allowing states’ rights to regulate carbon emissions,” he says. “That’s a huge push for the states back east who want to do something about GHG, which then leads to clean energy, biomass power and more recycling. That was a key agenda decision in order to keep pushing the GHG and sustainability agenda with broad green policies that trickle down into accelerating renewable power for clean energy and motivate more biomass and carbon offsets for more recycling.

“They are having a broader umbrella for sustainability and business practices where you have future 500 companies from Nike to Apple, even DuPont, stepping up to lessen their carbon foot print, save money, minimize waste and be successful,” he adds. “All these business models are proving worthwhile, showing that businesses are changing their ways and the consumer is making conscious choices to buy specific products.”

In 1966, California was the first state to legislate tailpipe controls to reduce smog, a problem that is still very real. Now the state wants to be the first jurisdiction in the nation to regulate GHG emissions from vehicles. It is estimated that motor vehicles account for one-third of GHG emissions in the United States.

The state contends that as GHG contributes to global warming, that limiting CO2 is necessary in terms of protecting the health of its citizens.

The dispute between California and the Bush administration, via the EPA, is a state law passed in 2002 that requires automakers to reduce GHG emissions by 25 percent in cars and light trucks and by 18 percent in larger trucks and sport-utility vehicles. Automakers would be required to start installing the technology in their 2009 models. They would then have until 2016 to meet the 30 percent requirement.

The state insists that affordable technology already exists to attain this objective.

However, California is now in the position of having to negotiate with the federal government to implement the legislation.

Through the Clean Air Act, the EPA is the sole authority to make air pollution rules. However, the legislation also allows states to establish their own rules via an EPA-approved waiver.

If granted to California, the 11 other states that want to follow California’s regulations will be able to implement tailpipe emissions legislation that they have already passed. These states account for approximately 30 percent of the total United States fleet and by extension, will force automakers to alter the technology for all vehicles sold in the United States.

The EPA sought public input on the waiver issue following the Supreme Court ruling with hearing in Washington, D.C. and Sacramento.

“This is more important than any issue that EPA’s going to have to face,” said California Attorney General Jerry Brown at the Washington, D.C. hearings. “Protecting our planet is not a partisan issue, and the states now want to do what we can in the absence of federal action, and the EPA has no right to deny us the ability to move forward.”

Brown’s testimony was bolstered by representatives from several states, including Maryland, New Jersey, Rhode Island and Illinois, who back the 2002 California law.

Opposing California at the hearings was Jonathan Adler, the director of Case Western Reserve University’s Center for Business Law and Regulation.

He notes that the EPA would have to deny the waiver if the state’s problem was not “compelling and extraordinary.”

Some of the presenters for the automobile industry stated that waivers should not be granted to California and other states because it would force them to manufacture specialized models for various jurisdictions.

“A patchwork of state-level fuel economy regulations, as is now proposed by California, is not simply unnecessary, it’s patently counterproductive,” said Steven Douglas, director of environmental affairs of the Alliance of Automobile Manufacturers at the hearings.

In prior situations, the EPA backed automakers on the basis that rather than concentrating on the tailpipe emissions, GHG emission reductions could be garnered by improved fuel economy standards, which are set by the DOT.

While the DOT changed fuel efficiency rules for light trucks last year, the last time car efficiency standards were set was back in 1990 at 27.5 miles per-gallon.

California Governor Arnold Schwarzenegger says he cannot wait and unless the EPA takes concrete action by October, his state is threatening to sue the federal government, as are 11 others.

“We can’t wait,” Brown recently told the media, “because if we don’t request, nothing happens. And as a matter of fact, EPA has been dragging their feet - they’re now forced by the United States Supreme Court. The law is relatively clear - any kind of a substance that is emitted from vehicles that causes harm is a pollutant that can be regulated, and the EPA really has no choice, unless they’re going to scientifically demonstrate there’s no such thing as human-induced global warming.”