Special Topics in Environmental Management

EPA Administrator Pruitt on the California waiver

In his June 15, 2017, testimony before the House of Representatives Committee on Appropriations on the administration’s proposed budget for the EPA, Administrator Scott Pruitt said nothing to dim industry’s hope that many regulatory rollbacks will be forthcoming or that changed the minds of liberals who view Pruitt as a solid representative of President Donald Trump’s economy-first, environment-second policies.

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But one possible exception is contained in a brief exchange with Representative Ken Calvert, Chair of the House Appropriations Subcommittee on Interior, Environment, and Related Agencies. Calvert is a Republican, but he also represents the 42nd Congressional District in Southern California. The district includes Riverside County, which is in severe nonattainment with the 2008 National Ambient Air Quality Standards (NAAQS) for ozone, a status that has been consistent for decades.

Calvert noted that California has been regulating air emissions since 1963, and there has been consistent bipartisan effort to address the Southern California’s pollution issues, which are unique in the nation because of a combination of industrial and mobile source emissions and the region’s geography. Calvert said that the California waiver is one important tool the state relies on for dealing with its air pollution.

Criteria for granting the waiver

Under the Clean Air Act (CAA), California may request that the EPA grant a waiver of the preemption that prohibits states from enacting their own emissions standards for new motor vehicles. The Agency must grant the waiver provided it does not find 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; does not need such standards to meet compelling and extraordinary conditions; or such standards and accompanying enforcement procedures are not consistent with Section 202(a) of the CAA.

Once California sets its vehicle emissions standards for which the EPA has granted a waiver, other states may adopt them without having to seek or obtain EPA approval to do so. California’s emissions standards for new vehicles are consistently more stringent than the federal standards.

Pruitt’s nomination hearing

Concerns about EPA’s willingness to continue meeting California’s waiver request emerged during Pruitt’s Senate nomination hearing. When asked by Senator Kamala Harris (D-CA) if he would continue to uphold the waiver, Pruitt said the issue is under review and added that past administrators have both granted and denied the state’s waiver request. In a 2008 report, the Congressional Research Service (CRS) estimated that California has made at least 95 waiver requests. “Nearly half of these were relatively minor actions that may not deserve to be counted as formal requests,” said the CRS. Only once, in 2007, was a request denied.

Pruitt testified that he could not know what his response to any waiver requests would be until the matter was reviewed. The response resulted in major protests from stakeholders both in California and nationwide, who assumed that Pruitt was setting the stage for a denial. This led to Calvert asking at the budget hearing if Pruitt intends to continue granting the waiver.

California’s leadership acknowledged

“Currently, the waiver is not under review,” responded Pruitt. “This is something that has been granted going back to the beginning of the Clean Air Act because of the leadership California demonstrated.”

While Pruitt’s apparent change in position was welcomed by waiver supporters, some observers noted his use of the word “currently” suggests that there is no guarantee that a “review” of California’s waiver request and a change in the Agency’s consistent approval of the requests are out of the question.

Pruitt’s testimony at the budget hearing is available here.

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