By Mike Kastner, NTEA Managing Director
This article was published in the May 2018 edition of NTEA News.
Motor vehicle emission regulations can be viewed as a tale of two cities, or rather, two governments — California and the U.S.
Recent actions by both governments indicate the Obama era of cooperation may be at an end. Will this affect truck manufacturers and fleets? Probably.
Going back to the 1960s, Congress was considering how to deal with the smog problem. California had already recognized its own issues and was attempting to address them with regulations. As a result, when Congress wrote the Federal Air Quality Act (a precursor to the current Clean Air Act) in 1967, it provided the State of California with a mechanism to enforce its own stricter regulations (known as the California waiver).
California has the ability to enact and enforce its own vehicle emission regulations — as long as Environmental Protection Agency (EPA) grants that waiver. By law, EPA must allow the waiver if the California regulation would be “at least as protective of public health and welfare” as the federal regulation and that such standards are needed to meet compelling and extraordinary conditions. EPA denied granting California a waiver only once in recent history (2007), and the challenge never made it through the courts as the then-new Obama Administration overturned the denial in 2009.
Preemption
The California waiver provides a process by which one state can choose to have a different set of (emission) regulations for motor vehicles than the rest of the country. Typically, motor vehicle regulations operate under a standard of federal preemption — meaning, if the federal government has a rule, a state cannot create a conflicting one. Just consider the potential confusion and disruption to commerce if each state had a different set of rules for vehicle headlamps. How could a manufacturer manage to produce 50 different versions?
Because of the California waiver, the U.S. can have a situation where there is a federal emission standard and a differing one for California.
Other states
Under Section 177 of the Clean Air Act, other states are allowed to adopt — but not amend — the California standards without EPA approval.
Currently, 15 states (most in the northeast) have adopted California’s standards — representing about 40 percent of motor vehicles sold in the U.S.
Motor vehicle manufacturers can choose to build what is commonly known as a 49-state vehicle and a California-compliant vehicle. Economically, manufacturers determine it typically makes more sense to build only one vehicle that meets the most stringent (California) regulations and can be sold anywhere.
By default, California has effectively become the decider of U.S. motor vehicle emission standards. Will the Trump Administration have a different view on this issue? Probably.
Trucks, Phase 2 and California
In 2016, EPA and National Highway Traffic Safety Administration issued Phase Two greenhouse gas rules for medium- and heavy-duty trucks, tractors and trailers. Developed under the Obama Administration, these rules were negotiated with California to allow for a single set of truck and trailer emission standards.
California recently adopted its version of Phase Two, which closely tracks with the federal version on trucks, trailers and glider kits. The storm that may be brewing is federal Phase Two standards will likely change in a way California will not — and the state will need a waiver for different standards.
A challenge to the federal trailer rules of Phase Two is working its way through the courts, and EPA indicated a willingness to change — or even rescind — those regulations. Similarly, EPA has given notice it’s considering the rescission of finalized regulations on glider kits.
California has existing regulations on trailers and further decided to adopt the Phase Two trailer regulations. Similarly, it is committed to regulating the manufacture of glider kits in the state by requiring their engines to be 2010 or newer emissions-compliant.
Will this result in differing federal and California standards for the truck community? Likely.
MPG requirements
In a related issue concerning passenger cars, the Trump Administration proposed rolling back future mile-per-gallon (MPG) requirements, much to the consternation of California regulators, who will presumably continue down their own emissions path.
As part of the 2012 greenhouse gas rule for 2017–2025 model year cars, EPA was required to determine by April 1, 2018, whether the 2022–2025 standards were appropriate. Short-circuiting the April 2018 deadline, the Obama Administration in its last days issued a January 2017 determination that the standards as set were appropriate.
When the Trump Administration came into office, it announced mid-term evaluation under the originally issued timetable. On April 2, 2018, EPA Administrator Scott Pruitt signed the Mid-term Evaluation Final Determination which finds model year 2022–2025 greenhouse gas standards are not appropriate in light of the record before EPA and, therefore, should be revised.
One federal standard?
In recent discussions with top EPA officials, they have made clear their preference for one national standard. They stopped short of saying they would refuse to grant, or even rescind, California waivers in order to secure a single standard, but have not denied the possibility of those actions.
If EPA is determined to seek a single set of federal emission standards, it is certainly setting the stage. However, in order to do so, it would need to refuse a California waiver request or rescind an existing one — which clearly leads to a court battle. On the other hand, Congress could repeal the California waiver language in the Clean Air Act, which seems unlikely and would probably end up in court if it occurred.
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