Environmentalism, Meet Federalism

This Washington Post story about automakers' suing states for instituting their own regulations of carbon dioxide emissions from tailpipes reminded me of a note I made regarding pre-emption last semester in a federalism seminar. In Geier, Sprietsma and Bates, the Court was assessing whether a federal regulation that in itself has no problems of validity pre-empts the state common law on torts. This goes beyond the concern raised by the U.S. Chamber of Commerce in opposing H.R. 2245, the Federalism Act of 1999, because the bill opened the possibility of conflicting federal and state standards that, without pre-emption, could leave businesses open to suit for having failed to comply with a state standard more stringent than the federal one. Business groups tended to disfavor the failed bill because they preferred a national standard to minimize their expenditures on compliance.

I was a little confused about pre-emption with the conflict between national emission standards and California's often-stricter ones, though Googling explained some of the discrepancy. For example, in 1988 the federal EPA standard permitted 10.7 grams of nitrogen oxides, but the 1987 California standard -- presumably in effect until 1991, when the next set of standards was released -- allowed only 6.0. California's authority was grandfathered in because the state was setting air quality rules before the Clean Air Act existed, and other states are allowed to follow either California's or the federal government's rules, but this seems to discriminate among the states somewhat. Suppose a state wants to set standards even stricter than California's?

Automakers currently are suing to prevent several states from following California's lead on carbon dioxide regulation, under the contention that only the National Highway Traffic Safety Administration has the authority to set fuel economy standards and that carbon dioxide emissions are synonymous with fuel economy standards. The states counter-argue that such emissions are an environmental regulation, not a fuel economy one, and this seems to me at least facially more plausible. There appears to be no history of legislative intent to regulate fuel economy by regulating carbon dioxide, only a desire to prevent environmental harm.

Letting states set their own regulations strikes me as mightily preferable to having them sue the EPA to make the federal agency do it, and one conservative commentator claims that the EPA doesn't have the authority to regulate carbon dioxide anyway. On the other hand, he also says, "Regulation of vehicular CO2 emissions is fuel economy regulation by another name," because the catalytic converters that California's standard eventually made universal don't fix CO2 -- in fact, they convert carbon monoxide to carbon dioxide. A three judge panel of the D.C. Circuit held for the EPA in the states' suit, albeit rather messily. Randolph declared that even if EPA had statutory authority to regulate greenhouse gases from new motor vehicles, EPA properly declined to exercise that authority; Sentelle thought that the states had no Article III standing anyway and concurred in the judgment on a rationale that cited Souter and Ginsburg in Hamdi; Tatel dissented.

But none gave a definitive answer to the questions behind the suit discussed in the Post article: does state regulation of carbon dioxide emission constitute fuel economy regulation? and if so, is it preempted by the Department of Transportation's regulations?