TodayApril 17, 2022

Congress vs. States over CAFE: EPA vs. CARB

Fourteen states are fed up with Congress not enacting a CAFE regulation and are taking matters into their own hands.

It looked hopeful for a while, the Dems coming into the office and taking over, but then reality set in. “The” election is just 18 months away and playing for votes has already begun. What should have been a slam-dunk has been put on the back burner and is causing fourteen states to take matters into their own hands.

Why is it that Congress won’t pass a law that would require automobile manufacturers to increase the miles per gallon of vehicles? How are states being allowed to do what Congress won’t do?

Some background history is needed to understand how and why we have more than one government entity in charge of automobile regulations.


The United States had a small oil crisis back in the 1970s that made Congress realize that we were too heavily dependent on foreign oil. The U.S. Congress passed Energy Policy and Conservation Act of 1975, which directed the Department of Transportation (DOT) to implement a corporate average fuel economy (CAFE) standard with a goal to get the United States off the dependence of foreign oil.

The Secretary of Transportation delegated authority to establish CAFE standards to one of his subordinates, the Administrator of the National Highway Traffic Safety Administration (NHTSA). NHTSA’s directives come from orders voted into law by Congress.

Since CAFE regulates fuel economy, they get to regulate carbon dioxide because miles per gallon directly create carbon dioxide. One gallon of gas has been proven to create 19 pounds of carbon dioxide.


The U.S. Federal Environmental Protection Agency (Fed-EPA) is responsible for setting standards for all new cars sold in the United States. The Clean Air Act (CAA) is a federal act that was established in 1970 to create nationwide air quality standards for public health. Each state has its own EPA group that implements the Fed-EPA requirements.

Linda Adams is the head of the California EPA (Cal-EPA) and reports to Governor Schwarzenegger. A division of Cal-EPA is the California Air Resources Board (CARB). California was the first state to institute emission standards; even before the CAA enactment. Because of this, the CAA has always granted California a waiver to set higher emission standards.

Once California has received the waiver, other states can follow suit or stick with the Federal requirements. CARB has applied for and received waivers from the Fed-EPA concerning vehicle emissions in the past, but the emissions were not for greenhouse gases. CARB filed a waiver request for greenhouse gases, but the Fed-EPA has not approved it as of yet.

Governor Schwarzenegger has met with U.S. EPA Administrator Stephen Johnson to personally request assistance regarding granting California its waiver. The Fed-EPA has said they will decide on the waiver by the end of the year. They are working on a proposed rulemaking that was directed by President Bush, but CARB is sticking to their guns, and they say that if they don’t receive the waiver by October 24, 2007, they will sue the government.

Fourteen states are now following California’s emissions standards; Arizona, California, Connecticut, Florida, Maine, Maryland, Massachusetts, New Mexico, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington. All other states are following the Federal EPA standards. Canada has expressed interest in following California’s emission standards.

According to the Pew Center on Global Climate Change, “CARB has proposed near-term standards to be phased in from 2009 through 2012 and mid-term standards to be phased in from 2013 through 2016. The GHG emission standards will be incorporated directly into the current low emission vehicle (LEV) program.

The Pew Center notes the most significant change in CAFE rules is that there are two categories; the passenger car/light-duty truck 1(PC/LDT1) category, which includes all passenger cars and the second category, which is the light-duty truck 2 (LDT2) that will include trucks that weigh up to 10,000 pounds.

The Rub

Recently, the Supreme Court ruled that the Environmental Protection Agency (EPA) has the responsibility of regulating greenhouse gas emissions. If the EPA regulates greenhouse gases from vehicles, the EPA would have to indirectly regulate miles per gallon (fuel economy) because the less gasoline or diesel your car uses per mile, the fewer greenhouse gases your car will emit.

This has created an overlap between NHTSA (part of DOT) and Fed-EPA authorities. Actually, the Fed-EPA probably wouldn’t have gone up against NHTSA, but they had this pesky little group called CARB that decided to be a pain in their tailpipe. CARB has asked for the waiver to implement a reduction in greenhouse gas emissions, effectively telling the auto industry that they will raise miles per gallon.

Most agree that the current national CAFE is not stringent enough and that the United States needs a national CAFE that keeps greenhouse gases in check. The states are seething because Congress won’t do their job. The auto industry is fighting the states because they say it would be cost prohibitive and the auto industry wants a national standard.

Vermont lawsuit

On September 12, 2007, Vermont’s federal court upheld Californias global warming tailpipe emissions standards, which was brought into legal action by the auto industry.

If California gets the waiver, this decision by Vermont’s Judge Sessions will preclude the auto industry from tieing up Vermont’s ability to implement the regulations set by California. Remember, California is the only state allowed a waiver, and they haven’t received it yet.

But why did the auto industry pick on little ole Vermont and Rhode Island? Precisely, says David Doniger, Chief Counsel for the National Resources Defense Council (NRDC), “there were ten states involved (there are fourteen now), but the auto industry thought if they sued California and the two smallest states that it would overwhelm the states and be caught up in litigation.”

According to Doniger, “Judge Sessions’ decision clears away one obstacle. He threw out the auto industry’s claim that California’s and Vermont’s standards conflict with federal fuel economy standards. Now there’s just one hurdle left. The Bush EPA has to give California a waiver that has been routinely issued 50 times in the last 40 years.”

“The auto companies threw everything they had at Vermont — high-powered, expensive lawyers and their best witnesses. They thought they could overwhelm Vermont’s small legal staff. But with our help, Vermont fought back. And the judge concluded the car companies couldn’t prove their gloom and doom claims. Their loss in Vermont makes it harder for the Bush administration to bail them out. It’s time for the Bush EPA to get out of the states’ way.”

The auto alliance disagrees, “Federal law is designed to ensure a consistent fuel economy program across the country,” said Dave McCurdy, president & CEO, Alliance. “It makes sense that only the federal government can regulate fuel economy. Automakers support improving fuel economy standards nationally, rather than piecemeal, and will continue to work with the Congress, NHTSA and EPA to reduce our oil dependence while increasing fuel economy.

“Concerning EPA’s decision on whether to grant the requested waiver, the Alliance remains committed to working with policymakers to make sure that the EPA’s judgment is based on credible, sound scientific data as to what policies truly impact California, its citizens, and global climate concerns.

“The Alliance will continue studying the decision and considering the options, including an appeal.”

Beth Lowery, Vice President of Environment, Safety, Policy, General Motors has concerns about CARBs regulations and their time frame, “if CO2 regulations come in before the technology is ready it really impacts the products we can produce and provide to our customers.”

When I asked about the CARB regulation timeframe of 2009 Lowery said, “Lead times are very important, and 2009 is very challenging for us (General Motors).

The credit CAFE gave for new technology was incredibly important: the new technology would not get credit under the CARB regulations. According to Lowery, “Some of the flex-fuel vehicles initially were produced because CAFE did give incentives for that. That was an incentive that worked because the products are on the road today. The government needs to continue with the incentives the production and distribution of the fuel.”

The auto alliance endorses the compromise bill named “Hill-Terry” after it’s sponsors, Reps. Baron Hill, D-Ind., and Lee Terry, R-Neb. It would raise fuel economy requirements to between 32 mpg and 35 mpg, and give the auto companies till 2022 to meet those requirements.

My Editorial

Setting miles per gallon is a complex and burdensome task and should be a national issue, not a state issue. If left to each state it will cause a patchwork of regulations that auto manufacturers will be required to adhere to, causing mass confusion and more expensive cars. President Bush and the EPA should be more motivated to set national standards that the states can live with, even if some of the regulations come from CARB standards. Otherwise, it is worse for the auto industry and the consumers.

One of the other problems with having states regulate CAFE emissions is that states have politics of their own. For instance, if California regulators really wanted to lower evaporative emissions in their state they would get rid of the law that allows cars that are over thirty years old to stay on the road without a smog check. It takes almost 70 2007 cars to equal one 1970 car in evaporative emissions. Evaporative emissions come from a car even when the car isn’t running. They say it would hurt the poor people, but then they require all this new technology to compensate for the older, polluting cars, which make a car more expensive.

And if they aren’t going to give credit for flex-fuel vehicles in their equation why should auto companies make more flex-fuel vehicles? The Governor of California has issued a mandate for lower carbon fuel and has stated that ethanol will be in the mix. If the auto manufacturers aren’t going to receive credits for flex-fuel why should the auto companies make them?

Also, corn ethanol is not the fuel du jour of the day; it is already passé. Within five years we will have six cellulosic ethanol plants up and running in the United States. But California has a law on the books “ STILL “ that makes it difficult to put a cellulosic ethanol plant in a landfill, which could use the methane to power the plant. And that is precisely the plans for the plant that DOE gave subsidies to help it get started.

Of course, there are some states that don’t even have smog checks, saying that their state complies with air quality standards.

There are other approaches the government can take to reduce automobile fuel consumption. These ideas are gas taxes, research and development (R&D) programs, technology mandates and incentives, and traffic control measures, such as timing lights in all cities to the speed limit.

If Congress really wants to decrease fuel consumption, they need to find dramatic ways, such as shutting down every drive-thru in the country during the summer peak season for gasoline usage. Or how about carbon and evaporative emissions tax?

It’s easy to try to put all the blame on the auto companies and the oil companies, but at some point, these legislative bodies need to come together and realize that they, too, have created some of this mess with their hodge-podge regulations and posturing for votes.

Why don’t the legislative groups get off their duffs and work together for a comprehensive CAFE regulation with credits and incentives for technology and usage? Because all they have to do is thump their chest and tell their constituents that they did all they could. Approximately 98 percent of Congress that wants to get re-elected does get re-elected.

Lou Ann Hammond

Lou Ann Hammond is the CEO of Carlist and Driving the Nation. She is the co-host of Real Wheels Washington Post carchat every Friday morning and is the Automotive, energy correspondent for The John Batchelor Show and a Contributor to Automotive Electronics magazine headquartered in Korea. Hammond is a founding member of the Women's World Car of the Year #WWCOTY, and board member of the Women in Automotive.

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