California officials in Los Angeles are coming to terms with the fact that Donald Trump may have already triumphed as they gear up to defend their climate policies against a potential second Trump administration.
Leaders at all levels of government are currently evaluating the effectiveness of their climate laws. They are actively seeking collaborations with industry stakeholders to find solutions that can potentially avoid legal challenges.
Additionally, they are urging the Environmental Protection Agency to grant California the authority to implement clean air regulations before the upcoming election.
They are also coming to the realization that regardless of the election outcome in November, their climate regulations may face scrutiny from a Supreme Court that has been filled with Trump-appointed justices who are not supportive of climate regulation.
According to Ann Carlson, the former head of the National Highway Traffic Safety Administration under President Joe Biden, there are two significant threats in play. The first threat comes from the Trump administration, while the second threat stems from the courts.
California’s environmental regulators have become accustomed to facing lawsuits from various industries.
However, there is a growing concern among climate leaders that recent Supreme Court rulings, which have restricted the EPA’s authority to safeguard wetlands and regulate greenhouse gases on a national level, may also impact California’s leading environmental regulations. These developments have raised apprehensions about the future of the state’s stringent environmental rules.
According to Professor Carlson, a renowned environmental law expert at the University of California, Los Angeles, it is highly likely that the court will consider taking up the California waiver, given its keen interest in climate and Clean Air Act matters.
Even if Vice President Kamala Harris, a longtime advocate of the California waiver system, emerges victorious, industry leaders who are against the state’s tailpipe regulations are determined to challenge the rules in court.
During a rally in Southern California, Trump restated his stance on the proposed ban on the sale of gas-powered cars and trucks. He firmly expressed his opposition, stating, “I would not allow California politicians to get away with their plan to impose a 100 percent ban.”
He specifically referred to the regulations that would gradually phase out the sales of combustion engine trucks by 2045 and gas-powered cars by 2035.
Threats on all sides
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If Trump wins the election, California has the potential to leverage the courts in its favor. The state can file lawsuits and strategically exhaust the clock on his environmental rollbacks, particularly his waiver attacks, just as it did during his previous presidency.
However, if the waiver is challenged in the Supreme Court, regardless of the administration, the state should be concerned.
“It’s like a direct attack on environmental protection and the administrative state,” Carlson warned. “We need to be cautious and vigilant.”
California’s tailpipe regulations, which have been adopted by seventeen other states, have far-reaching consequences across the country and have faced legal challenges from both in-state and out-of-state plaintiffs.
In April, the U.S. Court of Appeals for the District of Columbia Circuit rejected a lawsuit filed by fossil fuel interests and Republican states, led by Ohio.
These parties argued that they did not have standing to claim harm resulting from California’s clean car rules, which were reinstated by President Biden after being revoked by Trump in 2012.
The federal waivers of California are expected to be brought before the Supreme Court in the near future. The Supreme Court has been displaying a growing skepticism towards the use of the Clean Air Act for the regulation of greenhouse gases.
“The threat doesn’t truly dissipate until victory is achieved in the Supreme Court, where their stance becomes clear,” expressed Craig Segall, formerly a deputy executive officer with the California Air Resources Board and currently serving as vice president of the environmental organization, Evergreen Action.
But the industry is poised to strike back with new lawsuits against the EPA as soon as the decisions are made. “Once the waiver is issued, we will file the lawsuit promptly,” Schrap warned.
Legal strategies shifting
According to Carlson, the court could employ the major questions doctrine to argue that California’s adoption of the zero emission Advanced Clean Cars II standard, which aims to ban gas-powered car sales by 2030, is a significant transformation of the industry.
Alternatively, they could invoke Chevron and assert that the EPA’s interpretation of compelling and extraordinary circumstances is flawed in granting the waiver.
During a July event in Los Angeles, Joseph Goffman, the lead air quality official at the EPA, acknowledged the legal challenges surrounding the rules. He assured that federal regulators are collaborating with state officials to ensure that the rules will withstand scrutiny in court.
“We are ensuring meticulous attention to detail in order to announce our decisions on those waivers. Our approach is rooted in a strong technical and legal foundation,” he emphasized.
California government lawyers are focusing on addressing conventional pollution rather than solely targeting carbon emissions. The Clean Air Act has been less reliable in using carbon as a basis for regulation, as indicated by the Supreme Court’s skepticism.
The waiver system was established in the 1960s to regulate air pollutants such as ozone and particulate matter. At that time, California had significantly different standards compared to the federal regulations, leading to the need for stronger rules to address the unique circumstances in the state.
Despite the progress made by the state, pollution from the transportation sector and industry, coupled with the valley topography, continues to hinder large areas from meeting even the outdated air quality standards set in the 1990s, let alone the more recent regulations highlighted by California air regulators.
According to Segall, implementing this strategy is a wise move. However, he emphasized that there are no guarantees of success.
“We often witness the court creating new legal rules on a regular basis,” he remarked. “The appropriate legal response may vary depending on whether one believes that the Trump-appointed justices are adhering to the principles of law or not.”
Other tactics
Advocating for deals with industry is a proven strategy to protect against potential legal challenges, and it is a strategy that he strongly supports. In fact, just recently, he took action by sending a letter to automakers, urging them to align themselves with California and the EPA in the event of any legal disputes.
Several companies, including Ford, Volkswagen, Honda, and Stellantis, have already agreed to support this approach in California. However, when it comes to the trucking industry, reaching a deal may be more challenging. This is because the trucking industry is still in the early stages of transitioning to electric vehicles.
State Senator Henry Stern expressed his concerns about the heavy-duty piece during a recent UCLA panel. He emphasized that there hasn’t been a definitive global decision regarding electrification yet.
California is facing legal challenges and potential funding cuts from the Trump administration, but the state is determined to pursue its climate goals. Rather than relying on federal waivers, California is focusing on implementing policies that can be achieved at the state level.
For instance, the state is planning to put a spending bond on the November ballot, aiming to raise $10 billion for climate-related projects. Additionally, California is preparing to reauthorize its carbon-pricing program under state law. These initiatives demonstrate the state’s commitment to addressing climate change, even in the face of obstacles.
California’s rules and programs that draw their authority from state law, as opposed to federal law, can still be targeted by companies. However, the chances of these cases reaching the Supreme Court are significantly lower, unless there is a constitutional challenge involved.
According to Paul Cort, director of Earthjustice’s zero-emission campaign, California may actually benefit from Trump’s threat to revoke the waivers immediately. The revocation process can be lengthy, as demonstrated by the Trump administration’s year-long withdrawal of California’s car emissions waiver. This prolonged process could potentially buy California more time to address legal challenges.
According to him, the industry challenges were essentially doomed due to the constant back and forth. He explained, “They didn’t have a fair chance to address these litigation issues before the standards expired.”
The election remains significant for future legal challenges against California’s clean air rules, despite the stable composition of the Supreme Court in the near term.
Lower courts have gained a newfound ability to question agency prerogatives with the demise of Chevron. It is expected that the next administration will appoint numerous judges, further strengthening this power.
According to Carlson, judges appointed by Trump show a greater inclination to invalidate regulations, asserting that they are not obligated to defer to the agency. This is in contrast to judges appointed by Obama or Biden.