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Old 09-17-2019, 09:21 PM
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Trump administration plan to revoke/overule California's emission standards - constitutional?


This is not about the desirability (or morality) of Trump's plan. I am curious to know how such a thing can be constitutional.

I am not an American so may have this wrong, but don't the states frequently establish their own standards and regulations? Obvious examples include gun legislation, gambling, cannabis, even abortion. On what grounds could SCOTUS say that emission standards - emission standards in one state - are the strict purview of the Federal Government?

I understand that the Feds can penalize a state for not upholding certain federally-defined standards. But can the Federal Government make a credible case against a state for upholding federal standards too well?

Will they invoke the interstate commerce clause? But anything California does will affect interstate commerce only indirectly (by other states either feeling compelled to use the California standards or actually preferring them). That seems like a stretch to me, based as it would be on some presumption of what might happen not what will happen, and certainly not a direct result of what California legislates.

I must be missing something.

Last edited by KarlGauss; 09-17-2019 at 09:22 PM.
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Old 09-17-2019, 09:25 PM
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Trump can't use the EPA to overturn a power Congress granted California.
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Old 09-17-2019, 09:28 PM
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Originally Posted by silenus View Post
Trump can't use the EPA to overturn a power Congress granted California.
So far, Congress has failed to control Trump's emissions.
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Old 09-17-2019, 09:31 PM
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Trump can't use the EPA to overturn a power Congress granted California.
If so, how will federal lawyers justify his proposal?

Last edited by KarlGauss; 09-17-2019 at 09:32 PM.
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Old 09-17-2019, 09:50 PM
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Originally Posted by KarlGauss View Post
Will they invoke the interstate commerce clause? But anything California does will affect interstate commerce only indirectly (by other states either feeling compelled to use the California standards or actually preferring them). That seems like a stretch to me, based as it would be on some presumption of what might happen not what will happen, and certainly not a direct result of what California legislates.
That's pretty much how most of the New Deal legislation -- and, later, civil rights legislation -- was judged constitutional. Almost everything has some effect on interstate commerce.
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Old 09-18-2019, 07:53 AM
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Typical Trump pouting. Certain auto manufacturers refused to relax their standards, so Trump went after them. Now he's trying to force California to do the same. Just stupid. I said that out loud, even though it goes without saying.
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Old 09-18-2019, 09:19 AM
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The way I understood it, the law provides that the Federal government can set the fuel economy and emissions standards, but that EPA can issue a waiver to California to allow it to set its own. So if the Trump Administration doesn't want to allow for the waiver, well, its dumb policy but certainly not unconstitutional. (At least as far as I understand it.)
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Old 09-18-2019, 09:44 AM
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That's pretty much it. Trump would revoke the previously granted waiver of the Clean Air Act.
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Old 09-18-2019, 10:07 AM
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So, at the end of the day, a state can't set its own, more stringent standards. Fine.

But I assume that nothing would prevent it from, say, taxing manufacturers of certain vehicles (and only certain vehicles), or from compelling certain automakers to install expensive additional on-board emission monitors, you know, just to be certain the standards are being maintained in the real world.

IOW, if I can rephrase my OP, other than further inflaming and dividing people, will the Administration's plan actually change anything?
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Old 09-18-2019, 10:22 AM
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But I assume that nothing would prevent it from, say, taxing manufacturers of certain vehicles (and only certain vehicles), or from compelling certain automakers to install expensive additional on-board emission monitors, you know, just to be certain the standards are being maintained in the real world.
To the extent that California seeks to overturn lawful Federal rulemaking on emissions standards, which is pretty clearly a matter of interstate commerce, such actions are on pretty shaky ground. For example, in the 1990s, California had a special registration fee on vehicles that were bought out of state and then registered in California. I want to say it was about $500 or so, and it was imposed to discourage people from going to buy cars in other states that didn't have emissions control equipment that was required in California. I had to pay that fee because I moved from another state back to California for a while.

Sometime in the early 2000s or so, I got a check out of the blue for a refund of those fees. Someone had sued and won stating that California's registration fees for such vehicles was an illegal infringement of interstate commerce, and clearly they won.
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Old 09-18-2019, 07:56 PM
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OK, so California adopts the Federal Emission standards. However, as I understand it, the inspection process is under state control. So any car that meets stricter California standards gets a pass and a two-year sticker. But if you're closer to the federal limit, it's more risky that something might go out of adjustment, so if you don't pass the California standards (but do pass the Federal), you pass but get a one-month sticker.

I'd think that would be legal and would pretty quickly make the sale or importation of cars that don't pass the stricter standards pretty limited in California.
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Old 09-18-2019, 08:27 PM
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OK, so California adopts the Federal Emission standards. However, as I understand it, the inspection process is under state control. So any car that meets stricter California standards gets a pass and a two-year sticker. But if you're closer to the federal limit, it's more risky that something might go out of adjustment, so if you don't pass the California standards (but do pass the Federal), you pass but get a one-month sticker.

I'd think that would be legal and would pretty quickly make the sale or importation of cars that don't pass the stricter standards pretty limited in California.
Why on earth would it be legal? California couldn’t charge an extra fee for out of state cars - why could they get away with requiring 12 inspections per year of out of cars?

Let’s not be silly here.

Last edited by Ravenman; 09-18-2019 at 08:28 PM.
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Old 09-18-2019, 08:49 PM
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OK, so California adopts the Federal Emission standards. However, as I understand it, the inspection process is under state control. So any car that meets stricter California standards gets a pass and a two-year sticker. But if you're closer to the federal limit, it's more risky that something might go out of adjustment, so if you don't pass the California standards (but do pass the Federal), you pass but get a one-month sticker.
Never mind legal. Is this something California voters will accept? This strikes me as something that would piss off a lot of constituents. Even the Trump hating ones.
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Old 09-18-2019, 08:57 PM
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Of course California has to comply with the federal standards. But stricter California standards would still comply with the federal standards. It's not like the federal standards are going to set some minimum amount of pollution that vehicles are required to produce.
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Old 09-18-2019, 09:11 PM
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Why on earth would it be legal? California couldnít charge an extra fee for out of state cars - why could they get away with requiring 12 inspections per year of out of cars?

Letís not be silly here.
Are states allowed to set different standards for window tinting?
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Old 09-18-2019, 10:13 PM
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Why on earth would it be legal? California couldnít charge an extra fee for out of state cars - why could they get away with requiring 12 inspections per year of out of cars?

Letís not be silly here.
They're not charging an extra fee for out of state cars or requiring extra inspections for out-of-state cars, they're saying you need to be inspected more often if you are too close to the Federal standards. There are out-of state cars which would meet the higher standards and as it wouldn't be illegal to sell cars that met the Federal standards in California so there would be California cars that that required more frequent inspections.
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Old 09-18-2019, 11:21 PM
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The interplay of the Interstate Commerce Clause and the judicature regarding federal pre-emption are not simple matters. First-year law students read a series of cases on things like short-coupled freight trains and curved truck mudflaps.

But basically, states may have their own health and safety regulations unless those would impermissibly burden interstate commerce, as for instance, if it would keep you from being able to drive the same vehicle from one state to another. And when Congress has undertaken to regulate a particular area of interstate commerce, that regulation preempts any state efforts to regulate the same aspect.

As I understand it, the Clean Air Act would ordinarily preempt any state regs on the same subject. But one of the compromises made to get it passed was to allow this waiver for California's preexisting stricter laws.
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Old 09-19-2019, 08:39 AM
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Are states allowed to set different standards for window tinting?
Sure, and if the Feds decided to preempt those laws, which Uncle Sam has not done, the states would likely be out of Schlitz.
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Old 09-19-2019, 08:43 AM
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They're not charging an extra fee for out of state cars or requiring extra inspections for out-of-state cars, they're saying you need to be inspected more often if you are too close to the Federal standards. There are out-of state cars which would meet the higher standards and as it wouldn't be illegal to sell cars that met the Federal standards in California so there would be California cars that that required more frequent inspections.
This scheme is even more burdensome than the out-of-state registration fee I had to pay, and courts ruled that fee an unconstitutional interference in interstate commerce.

If the Feds make a standard that "this" is an acceptable level of pollution, and under the Clean Air Act the Feds don't give a waiver to California to tinker with that standard, then the Federal standard is the standard and states can't tinker with it. Welcome to Federalism. It doesn't always result in my preferred policy.
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Old 09-19-2019, 09:03 AM
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So basically, as Chronos expressed better than me, the Feds can mandate some minimum degree of pollution? Wow.

In any case, I don't understand why it's okay for a state where cannabis is illegal to bar the importation of cannabis from another state where it's legal, but not for a state to bar the importation of certain vehicles from another state if those vehicles are illegal in the former and not in the latter.

Last edited by KarlGauss; 09-19-2019 at 09:03 AM.
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Old 09-19-2019, 09:22 AM
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The part I don't get is that as I understood our Federal system all along is that the Supremacy clause of the Constitution means that State regulations on things can be more restrictive than the Federal ones, as the state law already meets the Federal standard.

For example, if the Federal standard was less than 100 ppb of gasoline in drinking water, then a State standard of less than 150 ppb would be moot. But there's nothing stopping a state from saying "The State standard is less than 80 ppb of gasoline". In this case, it works because any water meeting the State standard also meets the Federal one.

We see this all the time- gun laws are a good example where states are often more restrictive than the Federal government.

How would this NOT be the same thing? Is the Clean Air Act written in some kind of weird way that would imply a state can't impose stricter emissions controls, thereby requiring a waiver?

Last edited by bump; 09-19-2019 at 09:23 AM.
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Old 09-19-2019, 09:48 AM
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Are car manufacturers really going to rush to make more "lax standard" compliant vehicles? Aren't they too busy trying to figure out how to get in on the electric vehicle wave. And they've already spent all that money tooling up to make cars meeting California standards. Why would they spend money retooling again?
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Old 09-19-2019, 09:52 AM
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The part I don't get is that as I understood our Federal system all along is that the Supremacy clause of the Constitution means that State regulations on things can be more restrictive than the Federal ones, as the state law already meets the Federal standard.

For example, if the Federal standard was less than 100 ppb of gasoline in drinking water, then a State standard of less than 150 ppb would be moot. But there's nothing stopping a state from saying "The State standard is less than 80 ppb of gasoline". In this case, it works because any water meeting the State standard also meets the Federal one.

We see this all the time- gun laws are a good example where states are often more restrictive than the Federal government.

How would this NOT be the same thing? Is the Clean Air Act written in some kind of weird way that would imply a state can't impose stricter emissions controls, thereby requiring a waiver?
The water example does not fit as you wouldn't bring your tap water with you as you move from one state to the next. It could be an issue with bottled water if a state blocked import of water meeting federal standards. Someone could sue in a case like that.


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Old 09-19-2019, 10:00 AM
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. It's not like the federal standards are going to set some minimum amount of pollution that vehicles are required to produce.
Give them time....
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Old 09-19-2019, 10:14 AM
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In any case, I don't understand why it's okay for a state where cannabis is illegal to bar the importation of cannabis from another state where it's legal, but not for a state to bar the importation of certain vehicles from another state if those vehicles are illegal in the former and not in the latter.
Well, interstate commerce in marijuana is illegal at the Federal level in any case. Interstate commerce in automobiles isnít.

Quote:
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For example, if the Federal standard was less than 100 ppb of gasoline in drinking water, then a State standard of less than 150 ppb would be moot. But there's nothing stopping a state from saying "The State standard is less than 80 ppb of gasoline". In this case, it works because any water meeting the State standard also meets the Federal one.

We see this all the time- gun laws are a good example where states are often more restrictive than the Federal government.

How would this NOT be the same thing? Is the Clean Air Act written in some kind of weird way that would imply a state can't impose stricter emissions controls, thereby requiring a waiver?
Different laws are written different ways. As you state, in some areas the Federal Government sets out a minimum standard for things, but the law allows the states to exceed that minimum. You point out a few examples, and minimum wage laws are another major example.

But in other areas, the Federal Government looks at an issue and for whatever reasons, sees that enacting minimums that the states are free to exceed would just result in a total mess. One example in this area is the regulation of aircraft: the FAA defines the way our airways and aircraft work, and states donít get to tinker with that. And in that case it makes sense: if California required airplanes to use renewable fuels from algae due to environmental concerns, but Iowa required the use of ethanol because farmers and Texas required the use of West intermediate crude because Houston, then things quickly get to be a mess.

So for auto emission standards, thereís sort of a hybrid setup. Feds get the final say... but... at the Feds discretion, California could be stricter. And if the Feds donít want to allow the waiver, California unfortunately doesnít have a leg to stand on. Itís literally why the waiver was created in the first place.
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Old 09-19-2019, 11:03 AM
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The way I understood it, the law provides that the Federal government can set the fuel economy and emissions standards, but that EPA can issue a waiver to California to allow it to set its own. So if the Trump Administration doesn't want to allow for the waiver, well, its dumb policy but certainly not unconstitutional. (At least as far as I understand it.)
(Emphasis added.) It's more complicated than that. The Clean Air Act provides that California shall receive a waiver unless the EPA makes certain determinations.

Quote:
Originally Posted by 42 U.S. Code ß 7543(b)(1)
The Administrator shall, after notice and opportunity for public hearing, waive application of this section to any State which 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 tható
(A)the determination of the State is arbitrary and capricious,
(B)such State does not need such State standards to meet compelling and extraordinary conditions, or
(C)such State standards and accompanying enforcement procedures are not consistent with section 7521(a) of this title.
As Fotheringay-Phipps linked, the EPA already gave that waiver. In other words, the EPA already declared that those three conditions that would bar a waiver are not so. As I understand it, the argument that the EPA can't revoke the waiver is not constitutional but statutory: the statute does not provide for revocation or withdrawal of an already-issued waiver, it has no provision for the EPA to essentially un-find what it already found.

This isn't a brlef from the California AG, but it looks like someone has thought through the argument against revocation. "No Turning Back" pdf.
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Old 09-19-2019, 11:10 AM
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Under the Clean Air Act, the EPA must grant the waiver unless it violates certain narrow restrictions. From the California Air Resources Board website:

"Under CAA Section 209 U.S. EPA must grant California a waiver unless the Administrator 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;

� California does not need such standards to meet compelling and extraordinary conditions; or

� such standards and accompanying enforcement procedures are not consistent with Section202(a) of the Clean Air Act."

The Trump administration will likely claim that one of theses provisions was violated, and that will likely end up in court, but I believe it's the White House that doesn't have a leg to stand on. The Administration will have to have that section of the CAA declared unconstitutional, or get Congress to revoke California's waiver privilege.


-------- On preview, ninja'd by John Bredin.
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Old 09-19-2019, 11:11 AM
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Thanks for the very interesting points!

But the general point I was trying to make wasnít about the waiver itself, but that states are inherently holding the short end of the stick when the Federal government as a whole (not the EPA specifically) chooses to flex its muscles.
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Old 09-19-2019, 01:28 PM
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I understand that the Feds can penalize a state for not upholding certain federally-defined standards. But can the Federal Government make a credible case against a state for upholding federal standards too well?
The question about federalism (which is preempted by the statutory issue in this case) might be addressed with a Baldwin test. Basically, both federal and state governments claim concurrent powers to regulate some aspect of commerce. Assuming the federal government's regulation is valid and the state wants to go above and beyond, the Baldwin test asks the state to identify its interests and then determines whether a less discriminatory approach could satisfy that interest. If a less discriminatory approach is available, the state law gets struck down.

But I am not a lawyer and may very well be wrong. That case would be Baldwin v. G. A. F. Seelig (1935). See also Dean Milk Co. v. Madison (1951) and Maine v. Taylor (1986) for relevant applications of the Baldwin test.

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Baldwin v. G. A. F. Seelig, 294 U.S. 511 (1935)
Dean Milk Co. v. Madison, 340 U.S. 349 (1951)
Maine v. Taylor, 477 U.S. 131 (1986)
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