California State Motor Vehicle Pollution Control Standards; Advanced Clean Car Program; Reconsideration of a Previous Withdrawal of a Waiver of Preemption; Opportunity for Public Hearing and Public Comment |
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Michael S. Regan
Environmental Protection Agency
28 April 2021
[Federal Register Volume 86, Number 80 (Wednesday, April 28, 2021)]
[Notices]
[Pages 22421-22430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08826]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2021-0257; FRL-10022-05-OAR]
California State Motor Vehicle Pollution Control Standards;
Advanced Clean Car Program; Reconsideration of a Previous Withdrawal of
a Waiver of Preemption; Opportunity for Public Hearing and Public
Comment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Opportunity for Public Hearing and Comment.
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SUMMARY: The Environmental Protection Agency (EPA) is reconsidering a
prior action that withdrew a waiver of preemption for California's zero
emission vehicle (ZEV) mandate and greenhouse gas (GHG) emission
standards within California's Advanced Clean Car (ACC) program for
purposes of rescinding that action. The ACC program waiver, as it
pertains to the GHG emission standards and ZEV mandates, will become
effective should EPA rescind the prior action. On September 27, 2019,
EPA and the National Highway Transportation Safety Administration
(NHTSA) issued an action titled ``The Safer Affordable Fuel-Efficient
Vehicles Rule Part One: One National Program'' (SAFE 1) that included,
among other matters, EPA's determination that the Agency had authority
to reconsider the ACC program waiver and that elements of the ACC
program waiver should be withdrawn due to NHTSA's action under the
Energy Policy & Conservation Act (EPCA) and Clean Air Act (CAA)
preemption provisions. In addition, SAFE 1 included EPA's
interpretation of whether States can adopt California's GHG emission
standards under section 177 of the CAA.
EPA believes that there are significant issues regarding whether
SAFE 1 was a valid and appropriate exercise of agency authority,
including the amount of time that had passed since EPA's 2013 waiver
decision, the novel approach and legal interpretations used in SAFE 1,
and whether EPA took proper account of the environmental conditions in
California and the environmental consequences from the waiver
withdrawal in SAFE 1. Further, EPA will be addressing issues raised in
several petitions for reconsideration of SAFE 1, including one filed by
California (jointly with a number of States and Cities) and one jointly
filed by nongovernmental organizations. Finally, on January 20, 2021,
President Biden issued an Executive Order on ``Protecting Public Health
and the Environment and Restoring Science to Tackle the Climate
Crisis.'' The President directed the Federal Agencies to ``immediately
review'' SAFE 1, and to consider action ``suspending, revising, or
rescinding'' that action by April 2021. Therefore, based upon the
issues associated with SAFE 1, the petitions for reconsideration, and
the Executive Order, this Federal Register notice initiates
reconsideration of SAFE 1 and announces a virtual public hearing as
well as an opportunity to submit new written comment.
DATES:
Comments: Comments must be received on or before July 6, 2021.
Public Hearing: EPA will hold a virtual public hearing on June 2,
2021. Please refer to the SUPPLEMENTARY INFORMATION section for
additional information on the public hearing. Additional information
regarding the virtual public hearing and this action can be found at:
https://www.epa.gov/regulations-emissions-vehicles-and-engines/public-hearing-information-epas-notice-reconsideration.
ADDRESSES: Comments. You may send your comments, identified by Docket
ID No. EPA-HQ-OAR-2021-0257, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov
(our preferred method). Follow the online instructions for submitting
comments.
Email: a-and-r-Docket@epa.gov. Include Docket ID No. EPA-
HQ-OAR-2021-0257 in the subject line of the message.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Air Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW,
Washington, DC 20460.
Hand Delivery or Courier (by scheduled appointment only):
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004. The Docket Center's hours of
operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal
Holidays).
Instructions: All submissions received must include the Docket ID
No. for this action. Comments received may be posted without change to
https://www.regulations.gov, including any personal information
provided. For the full EPA public comment policy, information about CBI
or multimedia submissions, and general guidance on making effective
comments, please visit
[[Page 22422]]
http://www.epa.gov/dockets/commenting-epa-dockets.
Out of an abundance of caution for members of the public and our
staff, the EPA Docket Center and Reading Room are closed to the public,
with limited exceptions, to reduce the risk of transmitting COVID-19.
Our Docket Center staff will continue to provide remote customer
service via email, phone, and webform. We encourage the public to
submit comments via https://www.regulations.gov or email, as there may
be a delay in processing mail and faxes. Hand deliveries and couriers
may be received by scheduled appointment only. For further information
on EPA Docket Center services and the current status, please visit us
online at https://www.epa.gov/dockets.
EPA continues to monitor information carefully and continuously
from the Centers for Disease Control and Prevention (CDC), local area
health departments, and our Federal partners so that we can respond
rapidly as conditions change regarding COVID-19.
Public Hearing. The virtual public hearing will be held on June 2,
2021. The hearing will begin at 9:00 a.m. Eastern Time (ET) and end
when all parties who wish to speak have had an opportunity to do so.
All hearing attendees (including those who do not intend to provide
testimony and merely listen) should notify the SAFE1Hearing@epa.gov
email address listed under FOR FURTHER INFORMATION CONTACT by May 25,
2021. Once an email is sent to this address you will receive an
automatic reply with further information for registration. Be sure to
check your clutter and junk mailboxes for this reply. Additional
information regarding the hearing appears below under SUPPLEMENTARY
INFORMATION.
FOR FURTHER INFORMATION CONTACT: For questions regarding this proposed
action, contact David Dickinson, Office of Transportation and Air
Quality, Transportation and Climate Division, Environmental Protection
Agency; telephone number: (202) 343-9256; email address:
dickinson.david@epa.gov. To register for the virtual public hearing,
contact SAFE1hearing@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Participation in Virtual Public Hearing
II. Background
A. Scope of Preemption and Criteria for a Waiver Under the Clean
Air Act
B. The ACC Program Waiver
C. The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part
One: One National Program'' (SAFE 1)
D. Prior EPA Waiver Decisions for California Greenhouse Gas
Emission Standards
E. The Petitions for Reconsideration
III. Request for Comments
I. Participation in Virtual Public Hearing
Please note that EPA is deviating from its typical approach because
the President has declared a national emergency. Because of current CDC
recommendations, as well as state and local orders for social
distancing to limit the spread of COVID-19, EPA cannot hold in-person
public meetings at this time.
EPA will begin pre-registering speakers for the hearing upon
publication of this document in the Federal Register. To register to
speak at the virtual hearing, please contact the email address listed
in the FOR FURTHER INFORMATION CONTACT section. The last day to pre-
register to speak at the hearing will be May 25, 2021.
Each commenter will have 3 minutes to provide oral testimony. EPA
may ask clarifying questions during the oral presentations but will not
respond to the presentations at that time. EPA recommends submitting
the text of your oral comments as written comments to the rulemaking
docket. Written statements and supporting information submitted during
the comment period will be considered with the same weight as oral
comments and supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will be
posted online at: https://www.epa.gov/regulations-emissions-vehicles-and-engines/public-hearing-information-epas-notice-reconsideration.
While EPA expects the hearing to go forward as set forth above,
please monitor the website or contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to determine if there are any
updates. EPA does not intend to publish a document in the Federal
Register announcing updates. A copy of the hearing transcript will be
placed into the docket.
If you require the services of a translator or special
accommodations such as audio description, please pre-register for the
hearing and describe your needs by May 25, 2021. EPA may not be able to
arrange accommodations without advance notice.
II. Background
EPA is reconsidering a prior action that withdrew the January 9,
2013 waiver of preemption for the state of California's (California)
Advanced Clean Car (ACC) program for purposes of rescinding the
withdrawal action. The ZEV mandates and GHG emission standards within
the ACC program waiver will come into effect should EPA rescind this
prior action.\1\
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\1\ 78 FR 2112 (January 9, 2013). EPA's waiver action on January
9, 2013 was for several California emission standards, including the
low emission vehicle (LEV) III regulations for criteria pollutants.
SAFE 1 withdrew elements of the January 9, 2013 waiver pertaining to
certain ZEV mandate and GHG emission standards. Other elements of
the ACC program waiver remain in effect.
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Specifically, on September 27, 2019, NHTSA and EPA each finalized
agency actions that addressed greenhouse gas (GHG) emissions standards
for new motor vehicles and zero emissions vehicle (ZEV) mandates in a
single Federal Register notice titled: ``The Safer Affordable Fuel-
Efficient Vehicles Rule Part One: One National Program'' (SAFE 1).\2\
In that notice, NHTSA codified regulatory text, and appendices, that
provided its view that state regulation of fuel economy is preempted
under the Energy Policy and Conservation Act (EPCA). On its part, EPA
withdrew a waiver of preemption that had been previously granted to
California for the regulation of motor vehicle emissions through GHG
standards and a ZEV mandate. EPA's action also took into consideration
preemption regulations issued by NHTSA under EPCA in SAFE 1. On January
20, 2021, President Biden issued an Executive Order 13990 on
``Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis.'' The President directed each Federal agency
to ``immediately review'' SAFE 1, and consider taking action
``suspending, revising, or rescinding'' it by April 2021.\3\
Accordingly, EPA has conducted a review of both the legal and factual
predicates for SAFE I. EPA now believes that there are significant
issues with the SAFE 1 action, including the time elapsed since EPA's
2013 waiver decision (and associated reliance interests), the novel
statutory interpretations set forth in SAFE 1, and whether EPA took
proper account of the environmental conditions in California and the
environmental consequences of the waiver withdrawal in SAFE 1. Further,
subsequent to SAFE 1, EPA received several petitions for
reconsideration, including one filed by California seeking
clarification of the scope of the SAFE 1 action, one filed by
California (jointly with a number of States and Cities), and one
jointly filed by nongovernmental organizations that
[[Page 22423]]
raised significant issues related to the agency's action in SAFE 1. EPA
has evaluated each petition for reconsideration and believes there is
merit in reviewing issues that petitioners have raised such as whether
the withdrawal of the ACC program waiver was a valid exercise of EPA
authority, and whether the Agency properly interpreted and applied the
CAA preemption provisions. EPA has notified these petitioners that the
agency will be addressing issues raised in their petitions as part of
this proceeding.
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\2\ The SAFE 1 action is at 84 FR 51310 (September 27, 2019).
\3\ This action is being issued only by EPA and, therefore, does
not bear upon any future or potential action NHTSA may take
regarding its decision or pronouncements in SAFE 1.
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In considering whether to rescind the action that withdrew portions
of the ACC program waiver, EPA is seeking to determine whether it
properly evaluated and exercised its authority to reconsider a previous
waiver granted to CARB and whether the withdrawal was a valid and
appropriate exercise of authority and consistent with judicial
precedent.
EPA is providing the following summary of sections of the Clean Air
Act that are applicable to the Agency's review of the California Air
Resources Board's (CARB's) new motor vehicle emissions program, an
overview of CARB's ACC program waiver and subsequent EPA action to
withdraw portions of the ACC program waiver pertaining to CARB's GHG
emission standards and ZEV mandate in SAFE 1, an overview of prior EPA
waiver actions applicable to CARB's GHG emission standards for motor
vehicles, and a brief description of the petitions for reconsideration
filed with EPA after the completion of SAFE 1 in order to provide the
context for agency solicitation of comments, which can be found in
section ``III. Request for Comments.'' EPA is not soliciting comments
on the 2013 ACC program waiver decision, and therefore has not reopened
that decision for comments. Specifically, EPA is not soliciting
comments on issues addressed in the ACC program waiver decision beyond
those issues addressed in the final SAFE 1 action. EPA will treat any
other comments it receives as beyond the scope of this reconsideration
proceeding.
A. Scope of Preemption and Criteria for a Waiver Under the Clean Air
Act
Title II of the Clean Air Act, as amended, generally preempts
states from setting emission standards for new motor vehicles. Section
209(a) provides:
No State or any political subdivision thereof shall adopt or
attempt to enforce any standard relating to the control of emissions
from new motor vehicles or new motor vehicle engines subject to this
part. No state shall require certification, inspection or any other
approval relating to the control of emissions from any new motor
vehicle or new motor vehicle engine as condition precedent to the
initial retail sale, titling (if any), or registration of such motor
vehicle, motor vehicle engine, or equipment.\4\
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\4\ Section 209(a) of the Clean Air Act, 42 U.S.C. 7543(a).
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California is the only state that is eligible to seek and receive a
waiver of preemption under the terms of section 209(b)(1). This section
provides:
The Administrator, after notice and opportunity for public hearing,
to waive application of the prohibitions of section 209(a) for any
state that has adopted standards (other than crankcase emission
standards) for the control of emissions from new motor vehicles or new
motor vehicle engines prior to March 30, 1966, if the state determines
that the state standards will be, in the aggregate, at least as
protective of public health and welfare as applicable Federal
standards. No such waiver shall be granted if the Administrator finds
that--
(A) the determination of the state is arbitrary and capricious,
(B) the state does not need the state standards to meet compelling
and extraordinary conditions, or
(C) the state standards and accompanying enforcement procedures are
not consistent with section 202(a) of the Act.\5\
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\5\ Section 209(b)(1) of the Clean Air Act, 42 U.S.C.
7543(b)(1).
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Previous decisions granting California waivers of Federal
preemption for motor vehicle emission standards have stated that State
standards are inconsistent with section 202(a) if there is inadequate
lead time to permit the development of the necessary technology giving
appropriate consideration to the cost of compliance within that time
period or if the Federal and State test procedures impose inconsistent
certification procedures.\6\
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\6\ To be consistent, the California certification procedures
need not be identical to the Federal certification procedures.
California procedures would be inconsistent, however, if
manufacturers would be unable to meet the state and Federal
requirements with the same test vehicle during the same test. See,
e.g., 43 FR 32182 (July 25, 1978).
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EPA has consistently interpreted Section 209(b) to require issuance
of a waiver unless EPA finds that at least one of the three criteria is
met.\7\ As noted above, the three waiver criteria are properly seen as
the criteria for denial. Prior to SAFE 1, EPA has consistently declined
to consider other potential bases for denying a waiver such as
Constitutional claims or the preemptive effect of other Federal
statutes.\8\ In addition, EPA, given the text, legislative history and
judicial precedent, has consistently interpreted section 209(b) as
placing the burden on the opponents of a waiver to demonstrate that one
of the criterion for a denial has been met.\9\ Thus, EPA's practice has
been to defer and not to intrude in policy decisions made by California
in adopting standards for protecting the health and welfare of its
citizens.\10\
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\7\ This is different from most waiver proceedings before the
Agency, where EPA typically determines whether it is appropriate to
make certain findings necessary for granting a waiver, and if the
findings are not made then a waiver is denied. This reversal of the
normal statutory structure embodies and is consistent with the
congressional intent of providing deference to California to
maintain its own new motor vehicle emissions program. In previous
waiver decisions, EPA has recognized that the intent of Congress in
creating a limited review based on specifically listed criteria was
to ensure that the Federal government did not second-guess state
policy choices. See 40 FR 23102, 23103 (May 28, 1975); 78 FR 2112,
2115 (January 9, 2013); 40 FR 23103-23104; see also LEV I waiver at
58 FR 4166 (January 13, 1993), Decision Document at 64. Similarly,
EPA has stated its practice of leaving the decision on ``ambiguous
and controversial matters of public policy'' to California's
judgment. 78 FR 2112, 2115; 40 FR 23103, 23104; 58 FR 4166.
\8\ ``As EPA has stated on numerous occasions, section 209(b) of
the Clean Air Act limits our authority to deny California's requests
for waivers to the three criteria therein, and EPA has refrained
from denying California's requests for waivers based on any other
criteria. Where the Court of Appeals for the District of Columbia
Circuit has reviewed EPA decisions declining to deny waiver requests
based on criteria not found in section 209(b), the court has upheld
and agreed with EPA's determination.'' 78 FR 2112, 2145 (citing
Motor and Equipment Manufacturers Ass'n v. Nichols (MEMA II), 142
F.3d 449, 462-63, 466-67 (D.C. Cir. 1998), Motor and Equipment
Manufacturers Ass'n v. EPA (MEMA I), 627 F.2d 1095, 1111, 1114-20
(D.C. Cir. 1979).
\9\ MEMA at 1120-1121; MEMA II.
\10\ EPA is ``to afford California the broadest possible
discretion in selecting the best means to protect the health of its
citizens and the public welfare.'' MEMA II, 142 F.3d at 453 (quoting
H.R. Rep. No. 95-294, at 301-02 (1977)); EPA `` `is not to overturn
California's judgment lightly,' '' Id., at 463 (quoting H.R. Rep.
No. 95-294, at 302 (1977), reprinted in 1977 U.S.C.C.A.N. at 1381).
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In 1977, Congress promulgated section 177 of the Clean Air Act,
which permitted States to adopt California new motor vehicle emission
standards for which a waiver of preemption has been granted if certain
criteria are met.\11\ Also known as the ``opt-in'' provision, section
177 of the Act, 42 U.S.C. 7507, provides:
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\11\ Motor Vehicle Mfrs. Ass'n v. NYS Dep. of Envt'l
Conservation, 17 F.3d 521, 532 (2d Cir. 1994).
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Notwithstanding section 7543(a) of this title, any State which has
plan provisions approved under this part may adopt and enforce for any
model year standards relating to control of emissions from new motor
vehicles or new motor vehicle engines and take such other actions as
are referred to in
[[Page 22424]]
section 7543(a) of this title respecting such vehicles if--
(1) such standards are identical to the California standards for
which a waiver has been granted for such model year, and
(2) California and such State adopt such standards at least two
years before commencement of such model year (as determined by
regulations of the Administrator).
Nothing in this section or in subchapter II of this chapter shall
be construed as authorizing any such State to prohibit or limit,
directly or indirectly, the manufacture or sale of a new motor vehicle
or motor vehicle engine that is certified in California as meeting
California standards, or to take any action of any kind to create, or
have the effect of creating, a motor vehicle or motor vehicle engine
different than a motor vehicle or engine certified in California under
California standards (a ``third vehicle'') or otherwise create such a
``third vehicle''.
B. The ACC Program Waiver
On June 27, 2012, CARB notified EPA of its adoption of the ACC
program regulatory package that contained amendments to its low-
emission vehicle (LEV) and ZEV mandate and requested a waiver of
preemption under section 209(b) to enforce regulations pertaining to
this program.\12\ The ACC program combined the control of smog and
soot-causing pollutants and GHG emissions into a single coordinated
package of requirements for passenger cars, light-duty trucks, and
medium-duty passenger vehicles (and limited requirements related to
heavy-duty vehicles for certain model years). On August 31, 2012, EPA
issued a notice of opportunity for public hearing and written comment
on CARB's request and solicited comment on all aspects of a full waiver
analysis under the criteria of section 209(b) of the CAA.\13\ On
January 9, 2013, EPA granted California's request for a waiver of
preemption to enforce the ACC program regulations.\14\
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\12\ CARB's June 12, 2012 waiver request (including its
attachments) was included in EPA's Air Docket at EPA-HQ-OAR-2012-
0562-0002 et seq. The waiver request and attachments have also now
been placed in EPA's Air Docket pertaining to this reconsideration
at EPA-HQ-OAR-2021-0257. A complete description of the ACC program,
as it existed at the time that CARB applied for the 2013 waiver, can
be found in the docket for the January 2013 waiver action, Docket
No. EPA-HQ-OAR- 2012- 0562.
\13\ 77 FR 53199 (August 31, 2012).
\14\ 78 FR 2112 (January 9, 2013).
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Set forth in the ACC program waiver decision is a summary
discussion of EPA's decision to depart from its traditional
interpretation of section 209(b)(1)(B) (the second waiver prong) in the
2008 waiver denial for CARB's initial GHG standards for certain earlier
model years along with EPA's return to the traditional interpretation
in the waiver issued in 2009.\15\ The traditional interpretation, which
EPA stated is the better interpretation of section 209(b)(1)(B), calls
for evaluating California's need for a separate motor vehicle emission
program to meet compelling and extraordinary conditions. Because EPA
received comment on this issue during the ACC program waiver
proceeding, as it pertained to both CARB's GHG emission standards and
ZEV mandate, the Agency once again recounted the interpretive history
associated with standards for both GHG emissions and criteria air
pollutants to explain EPA's belief that section 209(b)(1)(B) should be
interpreted the same way for all air pollutants.\16\ Applying this
approach, and with deference to California, EPA found that it could not
deny the waiver under the second waiver prong.\17\ Without adopting an
alternative interpretation, EPA noted that to the extent that it was
appropriate to examine the need for CARB's GHG standards to meet
compelling and extraordinary conditions, EPA had discussed at length in
its 2009 GHG waiver decision that California does have compelling and
extraordinary conditions directly related to regulations of GHGs.\18\
Similarly, to the extent that it was appropriate to examine the need
for CARB's ZEV mandate, EPA noted that the ZEV mandate in the ACC
program enables California to meet both its air quality and climate
goals into the future. EPA recognized CARB's coordinated strategies
reflected in the ACC program for addressing both criteria pollutants
and greenhouse gases and the magnitude of the technology and energy
transformation needed to meet such goals.\19\ Therefore, EPA determined
that to the extent the second waiver criterion should be interpreted to
mean a need for the specific standards at issue, then CARB's GHG
emission standards and ZEV mandate satisfy such a finding.\20\
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\15\ 73 FR 12156 (March 6, 2008); 74 FR 32744 (July 8, 2009).
\16\ 78 FR 2112, 2125-2128.
\17\ Id. at 2129. ``CARB has repeatedly demonstrated the need
for its motor vehicle program to address compelling and
extraordinary conditions in California. As discussed above, the term
compelling and extraordinary conditions ``does not refer to the
levels of pollution directly.'' Instead, the term refers primarily
to the factors that tend to produce higher levels of pollution--
geographical and climatic conditions (like thermal inversions) that,
when combined with large numbers and high concentrations of
automobiles, create serious air pollution problems. California still
faces such conditions.''
\18\ Id. at 2129-2130.
\19\ Id. at 2130-2131.
\20\ Id. at 2129-2131.
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Also included in the ACC program waiver is a discussion of the
technological feasibility of the ACC program GHG emission standards and
the ZEV mandate as evaluated under section 209(b)(1)(C).\21\
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\21\ Id. at 2131-2143.
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Further, in response to a comment that the waiver request for GHG
emission standards should be denied because GHG standards relate to
fuel economy and are expressly preempted by the Energy Policy and
Conservation Act (EPCA), EPA explained that section 209(b) of the Act
limits the Agency's authority to deny California's requests for waivers
to the three criteria therein and that the Agency has consistently
refrained from denying California's requests for waivers based on any
other criteria. EPA also relied on judicial precedent as support.\22\
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\22\ Id. at 2145 (``Where the Court of Appeals for the District
of Columbia Circuit has reviewed EPA decisions declining to deny
waiver requests based on criteria not found in section 209(b), the
court has upheld and agreed with EPA's determination.'' See MEMA II
at 462-63, MEMA I at 1114-20).
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C. ``The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One:
One National Program'' (SAFE 1)
In 2018, NHTSA issued a proposal for the next generation of the
Congressionally-mandated Corporate Average Fuel Economy (CAFE)
standards that must be achieved by each manufacturer for its car and
light-duty truck fleet while EPA revisited its light-duty vehicle GHG
emissions standards for certain model years in the rulemaking titled:
``The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model
Years 2021-2026 Passenger Cars and Light Trucks.'' \23\ EPA also
proposed to withdraw the waiver for the ACC program GHG emission
standards and ZEV mandate under both sections 209(b)(1)(B) and (C),
based upon the Agency's exercise of its inherent authority to
reconsider a previously granted waiver under the Clean Air Act. As part
of EPA's asserted authority to reconsider that ACC program waiver
issued in 2013, EPA noted the changed circumstances including its
reassessment of section 209(b)(1)(B) as well as EPA's new assessment of
the feasibility of CARB's standards under section 209(b)(1)(C). In
addition, EPA noted that the proposal presented a unique situation to
consider the implications of NHTSA's proposed
[[Page 22425]]
conclusion of EPCA preemption for California's GHG emission standards
and ZEV mandate. EPA proposed to conclude that state standards
preempted under EPCA cannot be afforded a valid section 209(b) waiver
and thus also proposed that, if NHTSA finalized its determination
regarding California's GHG standards and ZEV mandate, it would be
necessary to withdraw the waiver separate and apart from section
209(b)(1)(B) and (C).
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\23\ 83 FR 42986 (August 24, 2018).
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On September 27, 2019, EPA and NHTSA published a final action
titled: ``The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part
One: One National Program'' (SAFE 1) that promulgated regulations
reflecting NHTSA's conclusion that EPCA preempted California's GHG
standards and ZEV mandate. In the same action EPA withdrew the waiver
of preemption for California to enforce the ACC program GHG and ZEV
mandate on two grounds.\24\ First, EPA posited that standards preempted
under EPCA could not be afforded a valid waiver of preemption under
section 209(b). EPA explained that agency pronouncements in the ACC
program waiver decision on the historical practice of disregarding the
preemptive effect of EPCA in the context of evaluating California's
waiver applications ``was inappropriately broad, to the extent it
suggested that EPA is categorically forbidden from ever determining
that a waiver is inappropriate due to consideration of anything other
than the `criteria' or `prongs' at CAA section 209(b)(1)(B)(A)-(C).''
\25\ EPA further explained that those pronouncements were made in
waiver proceedings where the agency was acting solely on its own in
contrast to a joint action with NHTSA such as SAFE 1. Additionally, EPA
expressed intentions not to consider factors other than statutory
criteria set out in section 209(b)(1)(A)-(C) in future waiver
proceedings, but explained that addressing the preemptive effect of
EPCA and its implications for EPA's waiver for California standards was
called for in SAFE 1 because EPA and NHTSA were coordinating regulatory
actions in a single notice.\26\
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\24\ 84 FR 51310 (September 27, 2019).
\25\ Id. at 51338.
\26\ Id.
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Second, EPA withdrew the waiver for GHG standards and ZEV mandate
on two alternative grounds under the second waiver prong. Specifically,
EPA determined that California does not need the GHG standards ``to
meet compelling and extraordinary conditions,'' under section
209(b)(1)(B) and even if California does have compelling and
extraordinary conditions in the context of global climate change,
California does not ``need'' the GHG standards, under section
209(b)(1)(B) because they will not meaningfully address global air
pollution problems of the type associated with GHG emissions.\27\
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\27\ 84 FR 51310, 51328-51333.
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EPA premised the agency's finding on a consideration of
California's ``need'' for its own GHG and ZEV programs, instead of the
``need'' for a separate motor vehicle emission program to meet
compelling and extraordinary conditions. In doing so, EPA read ``such
State standards'' in section 209(b)(1)(B) as ambiguous with respect to
the scope of agency analysis of California waiver requests and posited
that reading this phrase as requiring EPA to only and always consider
California's entire motor vehicle program would limit the application
of this waiver prong in a way that EPA did not believe Congress
intended. EPA further noted that the Supreme Court had found that Clean
Air Act provisions may apply differently to GHGs than they do to
traditional pollutants in UARG v. EPA, 134 S. Ct. 2427 (2014)
(partially reversing the GHG ``Tailoring'' Rule on grounds that the
section 202(a) endangerment finding for GHG emissions from motor
vehicles did not compel regulation of all sources of GHG emissions
under the Prevention of Significant Deterioration and Title V permit
programs).
EPA then interpreted section 209(b)(1)(B) as turning on whether
there is a particularized, local nexus between (1) pollutant emissions
from sources, (2) air pollution, and (3) resulting impact on health and
welfare.\28\ EPA stated that these elements match the elements of the
predicate finding EPA must make before regulating, under section
202(a)(1), and are evident in California's criteria-pollutant problems,
which prompted Congress to enact the waiver provision.\29\ Under this
interpretation, EPA concluded that no such California nexus exists for
greenhouse gases: (1) These emissions from California cars are no more
relevant to climate-change impacts in the state than emissions from
cars elsewhere; (2) the resulting pollution is globally mixed; and (3)
climate-change impacts in California are not extraordinary to that
state.\30\ EPA further determined that ``such State standards'' in
sections 209(b)(1)(B) and (C) should be read consistently, which was a
departure from the traditional approach where this phrase is read as
referring back to ``in the aggregate'' in section 209(b)(1).\31\ EPA
further reasoned that the most stringent regulatory alternative
considered in the 2012 final rule and Final Regulatory Impact Analysis,
which would have required a seven percent average annual fleetwide
increase in fuel economy for MYs 2017-2025 compared to MY 2016
standards, was forecasted to decrease global temperatures by only 0.02
[deg]C in 2100.\32\
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\28\ Id. at 51339, 51347.
\29\ Id. at 51339-5134040, 51348-451349.
\30\ Id.
\31\ Id. at 51345.
\32\ Id. at 51349.
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Finally, as support for the determination that California did not
need the ZEV mandate requirements to meet compelling and extraordinary
conditions, EPA relied on a statement in the ACC program waiver support
document where CARB noted that there were no criteria emissions benefit
in terms of vehicle (tank-to-wheel) emissions because its LEV III
criteria pollutant fleet standard was responsible for those emission
reductions.\33\
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\33\ ``There is no criteria emissions benefit from including the
ZEV proposal in terms of vehicle (tank-to-wheel or TTW) emissions.''
CARB ACC program waiver request at 15 (May 2012), EPA-HQ-OAR- 2012-
0562-0004.
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Regarding burden of proof in waiver proceedings, the agency posited
that it was ``not necessary to resolve this issue as regardless of
whether a preponderance of the evidence or clear and compelling
evidence standard is applied, the Agency was concluding that withdrawal
of the waiver was appropriate.'' \34\
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\34\ 84 FR 51310, 51344 n.268. At proposal, EPA also took
comment on the burden of proof in waiver proceedings even though the
Agency had initiated reconsideration of the grant of the ACC program
waiver and such evidentiary aspects for section 209(b) waivers had
long been settled. Motor and Equip. Mfrs Ass'n. v. EPA, 627 F.2d
1095, 1121, n.19, 1126 (D.C. Cir. 1979) (MEMA I).
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EPA did not finalize the withdrawal of the waiver under the third
waiver criterion at section 209(b)(1)(C), as proposed, explaining
instead that EPA and NHTSA were not finalizing the proposed assessment
regarding the technological feasibility of the Federal GHG standards
for MY 2021 through 2025 in SAFE 1.\35\
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\35\ 84 FR 51310, 51350. EPA had proposed to determine, as an
additional basis for the waiver withdrawal, that new GHG standards
and ZEV mandate for 2021 through 2025 model years are not consistent
with section 202(a) of the Clean Air Act, including how costs should
be properly considered. EPA's waiver for CARB's ACC program, issued
in 2013, fully evaluated this criterion.
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In withdrawing the waiver, EPA asserted that authority to
reconsider and withdraw the grant of a waiver for the ACC program was
implicit in section 209(b) given that the authority to revoke a waiver
is implied in the authority for EPA to grant a waiver. The Agency
[[Page 22426]]
claimed further support for authority based on the legislative history
of section 209(b) and the judicial principle that agencies possess
inherent authority to reconsider their decisions:
The legislative history from the 1967 CAA amendments where Congress
enacted the provisions now codified in section 209(a) and (b) provides
support for this view. The Administrator has ``the right . . . to
withdraw the waiver at any time [if] after notice and an opportunity
for public hearing he finds that the State of California no longer
complies with the conditions of the waiver.'' S. Rep. No. 50-403, at 34
(1967).\36\
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\36\ Id. at 51332.
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EPA also noted that, subject to certain limitations, administrative
agencies possess inherent authority to reconsider their decisions in
response to changed circumstances:
It is well settled that EPA has inherent authority to reconsider,
revise, or repeal past decisions to the extent permitted by law so long
as the Agency provides a reasoned explanation. This authority exists in
part because EPA's interpretations of the statutes it administers ``are
not carved in stone.'' Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837,
863 (1984). An agency ``must consider varying interpretations and the
wisdom of its policy on a continuing basis.'' Id. at 863-64. This is
true when, as is the case here, review is undertaken ``in response to .
. . a change in administration.'' National Cable & Telecommunications
Ass'n v. Brand X internet Services, 545 U.S. 967, 981 (2005). The EPA
must also be cognizant where it is changing a prior position and
articulate a reasoned basis for the change. FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009).\37\
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\37\ Id. at 51333.
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EPA opined that the text, structure, and context of section 209(b)
support EPA's interpretation that it has this authority. EPA further
asserted that no cognizable reliance interests had accrued sufficient
to foreclose EPA's ability to exercise this authority.\38\ EPA stated:
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\38\ Id. at 51331-51337.
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In tying the third waiver prong to CAA section 202(a), Congress
gave a clear indication that, in determining whether to grant a waiver
request, EPA is to engage in a review that involves a considerable
degree of future prediction, due to the expressly future-oriented terms
and function of CAA section 202(a). In turn, where circumstances arise
that suggest that such predictions may have been inaccurate, it
necessarily follows that EPA has authority to revisit those predictions
with regard to rules promulgated under CAA section 202(a), the
requirements of that section, and their relation to the California
standards at issue in a waiver request, and, on review, withdraw a
previously granted waiver where those predictions proved to be
inaccurate.\39\
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\39\ Id. at 51332, 51334. As noted above, however, EPA did not
withdraw the ACC waiver based on the third waiver prong of Section
209(b). 84 FR at 51334. Further, by way of example, EPA stated that
California as well as other parties, such as section 177 states,
were on notice that EPA would be conducting a midterm evaluation
(MTE) of the Federal GHG emission standards and that such
circumstances indicate a lack of sufficient reliance interests to
preclude EPA's reconsideration of the ACC waiver issued in 2013. As
relevant here, EPA's October 15, 2012 rulemaking setting GHG
emission standards for 2017 and later model years included a
commitment to perform the MTE for the Federal 2022 through 2025
model year standards. 77 FR 62624 (October 15, 2012). The MTE called
for EPA to issue a final determination regarding whether the Federal
MY 2022-2025 GHG standards remained appropriate under section
202(a). On January 12, 2017, EPA completed the MTE and determined
that GHG standards for MY 2022-2025 remained appropriate under
section 202(a). Subsequently, EPA withdrew the January 2017 final
determination and revised the finding of appropriateness, concluding
instead that GHG standards for MY 2022-2025 were not appropriate
and, therefore, should be revised. 83 FR 16077 (April 13, 2018).
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EPA also disagreed with some commenters' assertions that ostensible
reliance interests foreclose withdrawal of the waiver for MY 2021-2025
GHG and ZEV standards.\40\ EPA stated that ``CAA section 177 States do
not have any reliance interests that are engendered by the withdrawal
of the waiver for the MY 2021-2025 GHG and ZEV standards.'' \41\
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\40\ According to commenters ``California, and the section 177
states that have elected to adopt those standards as their own have
incurred reliance interests ultimately flowing from those standards.
For instance, California has incurred reliance interests because it
is mandated to achieve an aggressive GHG emissions reduction target
for 2030 . . .``[b]ut EPA provides no justification for applying
that change in policy retroactively to upend a five-year old
decision to which substantial reliance interests have attached.'' 84
FR 51310, 51331, 51334-51335.
\41\ Id. at 51336. Regarding states that had adopted the GHG
standards into state implementation plans (SIPs), under section 177,
EPA explained that because ``Title I does not call for NAAQS
attainment planning as it relates to GHG standards, those States
that may have adopted California's GHG standards and ZEV standards
for certain MYs would also not have any reliance interests. 84 FR
51310, 52335. ``EPA did, however, acknowledge the possibility of SIP
implications arising from the withdrawal of these standards and
indicated that the agency would engage in future actions to address
those implications. Id. at 51338, n. 256.
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In SAFE 1, EPA provided an interpretation of section 177 of the
CAA, including the notion that this section does not authorize other
states to adopt California's greenhouse gas emission standards for
which EPA had granted a waiver of preemption under section 209(b).
Although section 177 does not require States that adopt California
emission standards to submit such regulations for EPA review, EPA chose
to nevertheless provide an interpretation that this provision is
available only to states with approved nonattainment plans. EPA stated
that nonattainment designations exist only as to criteria pollutants
and greenhouse gases are not criteria pollutants; therefore, states
could not adopt GHG standards under section 177.\42\ Notably,
California in previous waiver requests has addressed the benefits of
GHG emissions reductions as it relates to ozone.
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\42\ Id. at 51350-51351. Since EPA was offering its views of
section 177 in the abstract, its interpretation of section 177 in
SAFE 1 did not have direct and appreciable legal consequences and
was not a ``final action'' of the agency.
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D. Prior EPA Waiver Practice
For over fifty years, EPA has evaluated California's requests for
waivers of preemption under section 209(b), primarily considering
CARB's motor vehicle emission program that addresses criteria
pollutants.\43\ More recently, the Agency has been tasked with
determining how section 209(b)(1)(B) should be interpreted and applied
in the context of GHG standards and California's historical air quality
problems, including the public health and welfare challenge of climate
change. Although the withdrawal and revocation of the waiver for CARB's
ACC program, in SAFE 1, represents a snapshot of this task, it is
important to examine EPA's waiver practice in general, including prior
waiver decisions pertaining to CARB GHG emission standards, in order to
determine whether EPA properly reconsidered the ACC program waiver and
properly applied the waiver criterion in section 209(b)(1)(B) in SAFE
1. A summary of EPA's historical waiver practice and decisions
regarding CARB's regulation of criteria and GHG emissions, including
EPA's consideration of the second waiver prong, is provided below.
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\43\ EPA notes that the 1990 amendments to the Clean Air Act
added subsection (e) to section 209. Subsection (e) addresses the
preemption of State or political subdivision regulation of emissions
from nonroad engines or vehicles. Section 209(e)(2)(A) sets forth
language similar to section 209(b) in terms of the criteria
associated with EPA waiving preemption, in this instance for
California nonroad vehicle and engine emission standards. Congress
directed EPA to implement subsection (e). See 40 CFR part 1074. EPA
review of CARB requests submitted under section 209(e)(2)(A)(ii)
includes consideration of whether CARB needs its nonroad vehicle and
engine program to meet compelling and extraordinary conditions. See
78 FR 58090 (September 20, 2013).
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EPA has consistently interpreted and applied the second waiver
criterion by
[[Page 22427]]
considering whether California needed a separate mobile source program
as compared to the individual standards at issue to meet compelling and
extraordinary conditions. As previously noted, this is known as the
``traditional approach'' of interpreting section 209(b)(1)(B).\44\ At
the same time, in the event and in response to commenters that have
argued that EPA is required to examine the specific standards at issue
in the waiver request, EPA's practice has been to retain the
traditional approach but to nevertheless review the specific standards
to determine whether California needs such standards. This has not
meant that EPA has adopted an ``alternative approach'' and required a
demonstration for the need of specific standards; rather, this
additional Agency review has been afforded to address commenters'
concerns. For example, EPA granted an authorization for CARB's In-use
Off-road Diesel Standards (Fleet Requirements) that included an
analysis under both approaches.\45\
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\44\ 49 FR 18887, 18890 (May 3, 1984).
\45\ 78 FR 58090 (Sept. 20, 2013). The United States Court of
Appeals for the Ninth Circuit upheld EPA's grant of a waiver of
preemption under either approach. Dalton Trucking v. EPA, No. 13-
74019 (9th Cir. 2021) (finding that EPA was not arbitrary in
granting the waiver of preemption under either approach). The court
opinion noted that ``[t]his disposition is not appropriate for
publication and is not precedent except as provided by Ninth Circuit
Rule 36-3.''
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The task of interpreting and applying section 209(b)(1)(B) to
California's GHG standards and consideration of the state's historical
air quality problems that now include the public health and welfare
challenge of climate change began in 2005, with CARB's waiver request
for 2009 and subsequent model years' GHG emission standards. On March
6, 2008, EPA denied the waiver request based on a new interpretive
finding that section 209(b) was intended for California to enforce new
motor vehicle emission standards that address local or regional air
pollution problems, and an Agency belief that California could not
demonstrate a ``need'' under section 209(b)(1)(B) for standards
intended to address global climate change problems. EPA also employed
this new alternative interpretation to state a belief that the effects
of climate change in California are not compelling and extraordinary in
comparison with the rest of the country. Therefore, within this waiver
denial, EPA no longer evaluated whether California had a need for its
motor vehicle emission program to meet compelling and extraordinary
conditions (the traditional interpretation) but rather focused on the
specific GHG emission standard in isolation and not in conjunction with
the other motor vehicle emission standards for criteria pollutants.
In 2009, EPA initiated a reconsideration of the 2008 waiver denial
based on a belief that significant issues had been raised since the
denial of the waiver.\46\ The reconsideration resulted in granting CARB
a waiver for its GHG emission standards commencing in the 2009 model
year.\47\ This led to a rejection of the Agency's novel alternative
interpretation of the second waiver prong announced in the previous
waiver denial. Instead, EPA returned to its traditional approach of
evaluating California's need for a separate motor vehicle emission
program to meet compelling and extraordinary conditions because the
agency viewed it as the better interpretation. Under the traditional
interpretation of the second waiver prong, EPA found that the opponents
of the waiver had not met their burden of proof to demonstrate that
California did not need its motor vehicle emission program to meet
compelling and extraordinary conditions. EPA also determined that, even
if the alternative interpretation were to be applied, the opponents of
the waiver had not demonstrated that California did not need its GHG
emissions standards to meet compelling and extraordinary
conditions.\48\ Since then EPA has employed the traditional approach
for evaluating California's need for a separate motor vehicle emissions
program in waiver requests. Notably, EPA also relied on the traditional
approach in granting the waiver for the ACC program.
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\46\ 74 FR 7040 (February 12, 2009).
\47\ 74 FR 32744 (July 8, 2009).
\48\ Id. at 32759-32767. See also 76 FR 34693 (June 14, 2011).
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Within the context of EPA's evaluation of the second waiver prong
and California's GHG emission standards for on-highway vehicles, EPA
notes the existence of two waivers of preemption for CARB's heavy-duty
tractor-trailer (HD) GHG emission standards.\49\ Once again, EPA relied
upon its traditional approach of evaluating California's need for a
separate motor vehicle emission program to meet compelling and
extraordinary conditions and found that no evidence had been submitted
to demonstrate that California no longer needed its motor vehicle
emissions program to meet compelling and extraordinary conditions.\50\
EPA's second waiver for the HD GHG emission standards made a similar
finding that California's compelling and extraordinary conditions
continue to exist under the traditional approach for the interpretation
of the second waiver criterion.\51\
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\49\ The first HD GHG emissions standard waiver related to
certain new 2011 and subsequent model year tractor-trailers. 79 FR
46256 (August 7, 2014). The second HD GHG emissions standard waiver
related to CARB's ``Phase I'' regulation for 2014 and subsequent
model year tractor-trailers. 81 FR 95982 (December 29, 2016).
\50\ Relatedly, California explained the need for these
standards based on projected ``reductions in NOx emissions of 3.1
tons per day in 2014 and one ton per day in 2020 due to the HD GHG
Regulations. California state[d] that these emissions reductions
will help California in its efforts to attain applicable air quality
standards. California further projects that the HD GHG Regulations
will reduce GHG emissions in California by approximately 0.7 million
metric tons (MMT) of carbon dioxide equivalent emissions (CO2e) by
2020.'' 79 FR 46256, 46261.
\51\ 81 FR 95982, 95987. At the time of CARB's Board adoption of
the HD Phase I GHG regulation, CARB determined in Resolution 13-50
that California continues to need its own motor vehicle program to
meet serious ongoing air pollution problems. CARB asserted that
``[t]he geographical and climatic conditions and the tremendous
growth in vehicle population and use that moved Congress to
authorize California to establish vehicle standards in 1967 still
exist today. EPA has long confirmed CARB's judgment, on behalf of
the State of California, on this matter.'' (See EPA Air Docket at
regulations.gov at EPA-HQ-OAR-2016-0179-0012). In enacting the
California Global Warming Solutions Act of 2006, the Legislature
found and declared that ``Global warming poses a serious threat to
the economic well-being, public health, natural resources, and the
environment of California. The potential adverse impacts of global
warming include the exacerbation of air quality problems, a
reduction in the quality and supply of water to the state from the
Sierra snowpack, a rise in sea levels resulting in the displacement
of thousands of coastal businesses and residences, damage to the
marine ecosystems and the natural environment, and an increase in
the incidences of infectious diseases, asthma, and other health-
related problems.''
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F. Petitions for Reconsideration
After it issued SAFE 1, EPA received multiple petitions for
reconsideration urging the agency to reconsider the withdrawal of the
ACC program's GHG standards and ZEV mandate on various grounds. EPA has
granted the following petitions for reconsideration of SAFE 1 that were
pending before the Agency: \52\
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\52\ Separately from this action, EPA has notified the Parties
to each of the Petitions for Reconsideration and informed them that
EPA is initiating an action under the Administrative Procedure Act
to reconsider SAFE 1. Copies of EPA's reply letters can be found in
the public docket at EPA-HQ-OAR-2021-0257.
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1. A Petition for Clarification/Reconsideration submitted by the
State of California (the California Attorney General and the California
Air Resources Board), on October 9, 2019 (California Petition for
Clarification).\53\ The Petitioner sought both a
[[Page 22428]]
clarification and reconsideration of the scope of SAFE 1 as it related
to the withdrawal of portions of the ACC program waiver. Regarding
clarification, the Petitioner cited somewhat contradictory statements
in SAFE 1 and indicated that there was confusion regarding model years
that were affected by the waiver withdrawal.\54\ The Petitioner also
requested reconsideration on grounds that the final action relied on
analyses and justifications not presented at proposal and thus, was
beyond the scope of the proposal.\55\
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\53\ Copies of the petitions for reconsideration can be found in
the public docket at EPA-HQ-OAR-2021-0257.
\54\ The California Petition for Clarification notes ``[i]n the
Final Actions, EPA makes statements that are creating confusion,
and, indeed, appear contradictory, concerning the temporal scope of
its action(s)--specifically, which model years are covered by the
purported withdrawal of California's waiver for its GHG and ZEV
standards. In some places, EPA's statements indicate that it has
limited its action(s) to the model years for which it proposed to
withdraw and for which it now claims to have authority to withdraw--
namely model years 2021 through 2025. In other places, however,
EPA's statements suggest action(s) with a broader scope--one that
would include earlier model years.''
\55\ ``To the extent that EPA's response to this petition would
result in final action(s) beyond the scope of what EPA proposed, or
would contain analyses or justifications not included in the
Proposal (such as purported justifications for broader withdrawal
authority), then EPA must withdraw at least the portion of the Final
Actions that extend beyond the Proposal, issue a revised proposal
and accept and consider public comment before taking any final
action.'' California Petition for Clarification at 9.
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2. A Petition for Reconsideration was submitted by several States
and Cities on November 26, 2019 (States and Cities' Petition).\56\ This
petition presented several issues, including whether EPA failed to
articulate a valid rationale to support its authority to revoke the GHG
standards and ZEV mandate and instead relied on facially unclear
theories not made available at proposal for public comment.
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\56\ See EPA-HQ-OAR-2021-0257. This Petition was joined by the
States of California, Colorado, Connecticut, Delaware, Hawaii,
Illinois, Maine, Maryland, Minnesota, Nevada, New Jersey, New
Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont,
Washington, Wisconsin, Michigan, the Commonwealths of Massachusetts,
Pennsylvania, and Virginia, the District of Columbia, and the Cities
of Los Angeles, New York, San Francisco, and San Jose..
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Petitioners further asserted that EPA unlawfully changed course in
SAFE 1 by considering (and relying on) the purported preemptive effect
of EPCA, which is outside the confines of section 209(b) and argued
that the agency rationale for withdrawing the waiver was flawed. They
also disagreed with the Agency's interpretation of section 209(b)(1)(B)
and EPA's reassessment of the factual record that existed at the time
of the ACC program waiver, which led to a new finding under the second
waiver prong and a new result in SAFE 1. They asserted, for example,
that EPA's new reliance on the ``endangerment provision'' in Section
202(a) does not support EPA's section 209(b)(1)(B) interpretation or
conclusion and that the use of the equal sovereignty principle to
inform EPA's interpretation of ``compelling and extraordinary
conditions'' was inappropriate. Additionally, Petitioners asserted that
EPA should have considered all supporting documentation instead of only
considering the 2013 waiver record and that EPA failed to consider new
evidence that further demonstrated California's need for GHG emission
standards and ZEV mandates to address compelling and extraordinary
conditions in California.
3. Petition for Reconsideration by several non-governmental
organizations on November 25, 2019 (NGOs' Petition).\57\ Petitioners
asserted that EPA's reconsideration of the ACC program waiver was not a
proper exercise of agency authority and that EPA relied on improper
considerations in its decision-making. Petitioners cast the agency's
rationale as ``pretextual.'' The NGOs' Petition further noted that EPA
did not properly interpret and apply the second waiver prong and
markedly ignored new evidence that further demonstrated California's
need for its GHG emission standards and ZEV mandates to address
compelling and extraordinary conditions in California.\58\
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\57\ See EPA-HQ-OAR-2021-0257. This Petition was joined by The
Center for Biological Diversity, Chesapeake Bay Foundation,
Environment America, Environmental Defense Fund, Environmental Law &
Policy Center, Natural Resources Defense Council, Public Citizen,
Inc., Sierra Club, and the Union of Concerned Scientists.
\58\ Among the comments is a letter from the CARB, dated June
17, 2019, in support of Petitioners' arguments that EPA improperly
considered the reliance interests associated with the ACC program
waiver and that EPA improperly understood the scope of the need for
the ZEV mandate and GHG standards to address a variety of
transportation conformity obligations as well as State
Implementation Plan planning requirements.
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V. Request for Comment
When EPA receives new waiver requests from CARB, EPA traditionally
publishes a notice of opportunity for public hearing and comment and
then, after the comment period has closed, publishes a notice of its
decision in the Federal Register. EPA believes it is appropriate to use
the same procedures for reconsidering SAFE 1. EPA notes that,
consistent with caselaw and EPA's past practice for California waivers,
this proceeding is subject to the Administrative Procedure Act (APA)
and is considered an informal adjudication under the APA. EPA
encourages interested parties to provide comments on the topics below
for consideration by EPA, in the context of reconsidering SAFE 1 and
reaching a decision on rescinding that prior agency action. As noted
below, EPA seeks public comment, in the context of SAFE 1 and now the
Agency's reconsideration, on whether the Agency properly exercised its
authority in reconsidering the ACC program waiver and whether the
second waiver prong at section 209(b)(1)(B) was properly interpreted
and applied. Additionally, EPA seeks comment on whether EPA had the
authority in the SAFE 1 context to interpret section 177 of the CAA and
whether the interpretation was appropriate, as well as whether EPA
properly considered EPCA preemption and its effect on California's
waiver. EPA will take all relevant comments into consideration before
taking final action.
The full waiver analysis, for new waiver requests, includes
consideration of the following three criteria: Whether (a) California's
determination that its motor vehicle emission standards are, in the
aggregate, at least as protective of public health and welfare as
applicable Federal standards is arbitrary and capricious, (b)
California needs such standards to meet compelling and extraordinary
conditions, and (c) California's standards and accompanying enforcement
procedures are consistent with section 202(a) of the Clean Air Act.
In contrast, in this instance EPA is not considering an initial
waiver request (e.g., the 2012 ACC program waiver request from CARB,
which EPA granted long ago, in 2013). Rather, EPA is now in the
position of reconsidering the Agency's prior withdrawal of a waiver
action (SAFE 1) for the purpose of determining whether the withdrawal
was a valid exercise of the Agency's authority and consistent with
judicial precedent and whether the agency's action in SAFE 1 should now
be rescinded. Relatedly, certain ZEV mandate and GHG emission standards
within the ACC program would become effective should EPA rescind SAFE
1.
EPA's purpose in soliciting public comment is to determine whether
SAFE 1 was a valid and appropriate exercise of the Agency's authority.
EPA is only reconsidering SAFE 1 and not reopening the ACC program
waiver decision for comments. Therefore, EPA is not soliciting comments
on issues raised and evaluated by EPA in the 2013 ACC program waiver
decision that were not raised and evaluated in the final SAFE 1
decision. EPA intends to treat any
[[Page 22429]]
such comments as beyond the scope of this action.
EPA is seeking to determine whether it properly evaluated and
exercised its authority in reconsidering a previous waiver granted to
CARB and whether the withdrawal was a valid exercise of authority and
consistent with judicial precedent. EPA specifically seeks comment on
the matters raised in the Petitions for Reconsideration as they pertain
to these evaluations.
EPA is interested in any information or comments regarding EPA's
inherent or implied authority to reconsider previously granted waivers.
In particular, to the extent EPA has such authority, EPA seeks comments
as to whether there are particular factors or issues that the Agency is
required to take into consideration, and whether EPA properly evaluated
such factors when reaching the decision in SAFE 1 to reconsider the ACC
program waiver and withdraw elements of it. For example, was it
permissible for EPA to withdraw elements of the ACC program waiver over
five years after it was issued? Were the grounds EPA provided in SAFE 1
a valid basis for withdrawing the identified elements of the ACC
program waiver? Did EPA properly identify and consider any relevant
reliance interests, such as the inclusion of GHG emission standards and
ZEV mandates in approved SIPs, in its SAFE 1 action? Similarly, are
there particular factors or reliance interests that EPA should consider
in reconsidering the SAFE 1 action and recognizing the validity of
EPA's 2013 ACC program waiver?
EPA's decision to change course and withdraw the ACC program
waiver, as it related to CARB's GHG emission standards and EPA's
finding that such standards were only designed to address climate
change and a global air pollution problem, was based in large part on a
new interpretation of section 209(b)(1)(B)--the second waiver prong
regarding whether California ``needs such standards to meet compelling
and extraordinary conditions.'' EPA is also interested in any new or
additional information or comments regarding whether it appropriately
interpreted and applied section 209(b)(1)(B) in SAFE 1. For example,
was it permissible for EPA to construe section 209(b)(1)(B) as calling
for a consideration of California's need for a separate motor vehicle
program where criteria pollutants are at issue and a consideration of
California's specific standards where GHG standards are at issue?
Likewise, EPA's decision to withdraw the ACC program waiver as it
relates to California's ZEV mandate, based on the same new
interpretation and application of the second waiver prong, rested
heavily on the conclusion that California only adopted the ZEV program
to achieve GHG emission reductions. EPA recognizes that this
conclusion, in turn, rested solely on a specific reading of CARB's ACC
program waiver request.\59\ EPA requests comment on these specific
conclusions and readings as well as within the context of environmental
conditions in California whether the withdrawal of the ACC program
waiver as it applied to the ZEV mandate was permissible and
appropriate, under applicable factors identified above and in relevant
caselaw.
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\59\ ``Regarding the ACC program ZEV mandate requirements,
CARB's waiver request noted that there was no criteria emissions
benefit in terms of vehicle (tank-to-wheel--TTW) emissions because
its LEV III criteria pollutant fleet standard was responsible for
those emission reductions.'' 84 FR at 51330.
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We also seek comment on EPA's action in SAFE 1 regarding section
177 of the CAA. Specifically, EPA seeks comment on whether it was
appropriate for EPA to provide an interpretation of section 177 within
the SAFE 1 proceeding. To the extent it was appropriate to provide an
interpretation, EPA seeks comment on whether section 177 was properly
interpreted and whether California's mobile source emission standards
adopted by states pursuant to Section 177 may have both criteria
emission and GHG emission benefits and purposes.
As explained above, SAFE 1 represented a unique and unprecedented
circumstance where two Federal agencies issued a joint notice and
provided separate interpretive opinions regarding their respective
federal preemption statutes.\60\ Although EPA has historically declined
to look beyond the waiver criteria in section 209(b) when deciding the
merits of a waiver request from CARB, in SAFE 1 EPA chose not only to
void portions of a waiver it had previously granted, but also to
evaluate the effect of a pronouncement of preemption under EPCA on an
existing Clean Air Act waiver. We seek comment on whether EPA properly
considered and withdrew portions of the ACC program waiver pertaining
to GHG standards and the ZEV mandate based on NHTSA's EPCA preemption
action, including whether EPA has the authority to withdraw an existing
waiver based on a new action that is beyond the scope of section 209 of
the CAA. Because EPA relied on NHTSA's regulation on preemption, what
significance should EPA place on the repeal of that regulation if NHTSA
does take final action to do so?
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\60\ The September 27, 2019 joint agency action is properly
considered as two severable actions, a rulemaking by NHTSA and a
final informal adjudication by EPA.
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Determination of Nationwide Scope or Effect
Section 307(b)(1) of the CAA governs judicial review of final
actions by EPA. This section provides, in part, that petitions for
review must be filed in the Court of Appeals for the District of
Columbia Circuit: (i) When the agency action consists of ``nationally
applicable regulations promulgated, or final actions taken, by the
Administrator,'' or (ii) when such action is locally or regionally
applicable, if ``such action is based on a determination of nationwide
scope or effect and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.'' For
locally or regionally applicable final actions, the CAA reserves to EPA
complete discretion whether to invoke the exception in (ii). \61\
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\61\ In deciding whether to invoke the exception by making and
publishing a finding that this final action is based on a
determination of nationwide scope or effect, the Administrator
intends to take into account a number of policy considerations,
including his judgment balancing the benefit of obtaining the D.C.
Circuit's authoritative centralized review versus allowing
development of the issue in other contexts and the best use of
agency resources.
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In addition to California, thirteen other states and the District
of Columbia have adopted California's greenhouse gas standards.\62\ The
other states are New York, Massachusetts, Vermont, Maine, Pennsylvania,
Connecticut, Rhode Island, Washington, Oregon, New Jersey, Maryland,
Delaware, and Colorado. These jurisdictions represent a wide geographic
area and fall within seven different judicial circuits.
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\62\ In addition, other states are currently in the process of
adopting California standards.
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If the Administrator takes final action to revise or rescind SAFE
1, then, in consideration of the effects of SAFE 1 not only on
California, but also on those states that had already adopted
California's standards under section 177, to the extent a court finds
this action to be locally or regionally applicable, the Administrator
intends to exercise the complete discretion afforded to him under the
CAA to make and publish a finding that this action is based on a
determination of
[[Page 22430]]
``nationwide scope or effect'' within the meaning of CAA section
307(b)(1).\63\
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\63\ In the report on the 1977 Amendments that revised CAA
section 307(b)(1), Congress noted that the Administrator's
determination that the ``nationwide scope or effect'' exception
applies would be appropriate for any action that has a scope or
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at
323-24, reprinted in 1977 U.S.C.C.A.N. 1402-03.
Michael S. Regan,
Administrator.
[FR Doc. 2021-08826 Filed 4-27-21; 8:45 am]
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