How will EPA move forward on revisiting Calif. waiver? 5

Now that President Obama has directed regulators to revisit California’s request for a waiver to set higher tailpipe emissions standards, what’s next?

A statement from Environmental Protection Agency Administrator Lisa Jackson wasn’t too revealing on the process for revisiting and approving the waiver: “Knowing EPA has the full support of the President as we proceed to revisit the Bush era denial of the California waiver is very encouraging. The President’s actions today herald a sea change in America’s commitment to addressing climate change.”

Jackson had already promised as much in her confirmation hearing, so this isn’t terribly enlightening. Attempts to get more, er, details out of an EPA spokesperson were unsuccessful. Luckily, the agency has put together this handy guide to waivers. One tidbit:

The Clean Air Act gives California special authority to enact stricter air-pollution standards for motor vehicles than the federal government’s. EPA must approve a waiver, however, before California’s rules may go into effect. Once California files a waiver request, EPA publishes a notice for public hearing and written comment in the Federal Register. The written comment period typically remains open for a period of time after the public hearing. Once the comment period expires, EPA reviews the comments and the administrator determines whether California has satisfied the law’s requirements for obtaining a waiver.

Under the Clean Air Act’s Section 209, the EPA is supposed to grant a waiver unless it finds that California “was arbitrary and capricious in its finding that its standards are in the aggregate at least as protective of public health and welfare as applicable federal standards.” Other reasons for rejecting a waiver are if the state “does not need such standards to meet compelling and extraordinary conditions,” or if the state’s policy conflicts with other sections of the act.

Because the Bush administration’s EPA already went through the entire process of reviewing the information on this waiver, it’s unlikely that Obama’s team will have to go through that again; the science and the law haven’t changed (despite the Bush administration’s best efforts). According to David Doniger, the policy director at the Natural Resources Defense Council’s climate center, the most likely scenario is that Jackson and her staff review the previous records and come to their own determination about whether to grant the waiver.

Evidence indicates that the majority of the EPA’s scientists supported the petition, informing Bush-appointee Stephen Johnson last year that “compelling and extraordinary conditions” justify a waiver for the state. Nonetheless, Johnson, allegedly acting under the guidance of the White House, turned the state down.

Once the EPA completes its re-review of the California request, Doniger said that Jackson will likely issue a notice of her intention to approve the waiver and open up a period of public comment—probably around 30 days—allowing any additional evidence to be presented.

California Air Resources Board Chair Mary Nichols said last week that she thinks her state could have their waiver as early as May. And as soon as California gets its waiver, the 12 other states—Arizona, Connecticut, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont,  and Washington—that have set the same standards would also be able to move forward immediately with implementation (unless lawsuits are filed in state or federal court challenging the rules).

The original rule called for cars to meet the higher standards by model year 2009, but the two-year delay means that date would need to be pushed back another few years, likely beginning with the 2011 model year.

At least five other states are currently considering similar emissions rules, including populous states like New York and Florida. In 2007 Florida Gov. Charlie Crist (R) signed an executive order committing the state to California’s standard. The state’s Environmental Regulatory Commission approved the implementation plan in December 2008, and the legislature is set to vote on it in the spring.

Jerry Karnas, the Florida climate project director for the Environmental Defense Fund, told Grist that today’s news makes it even more likely that the Florida legislature, though pretty conservative, will approve the plan. “The action today by President Obama further provides evidence that Gov. Crist’s effort to lead on climate change is well worth while,” said Karnas. “Obama said today that for too long we have been delaying, we’ve been avoiding decisive action. This is the type of decisive action that the governor has been portending, and Florida legislature has a choice ... I think the pressure from Washington, the inevitability, and the potential economic benefits to the state of Florida will push it over the top.”

If all 18 states move forward with implementation, more than 40 percent of the U.S. population would live in areas covered by the new, tougher rules. But this hasn’t stopped opponents of the waiver on both sides of the aisle from balking about the potential effect that this would have on the already-ailing automobile industry. “A strong, national standard is what the country needs, not a confusing patch work of different state standards,” said Michigan Sen. Debbie Stabenow (D) in a statement today.

Industry types are also up in arms about the other auto-related move Obama made today—ordering the Department of Transportation to implement higher fuel-economy standards. “Federal fuel economy standards are already a huge hidden burden on the industry, and the President is now proposing that make that burden even heavier,” said Sam Kazman, general council at the Competitive Enterprise Institute. “Congress is spending billions to bail out the auto industry, and here’s the President coming up with new ways to sink it.”

But Greg Sargent over at WhoRunsGov reports that the Obama team is spinning this as a measure to help the auto industry. White House press secretary Robert Gibbs argued today that it’s a signal to the auto giants that they need to “create a product that is more appealing to the American people” and make sure that “manufacturers have something they can produce and sell in this country.”

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