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Op-ed Placement

California's Fuel Economy Power Grab is Hijacking the American Car

BY Ken Cuccinelli
09/18/2018
Originally Published in Real Clear Energy by Ken Cuccinelli on 9/18/18.

There are many reasons why residents are choosing to flee California. But imagine leaving the state only to find that the socialists in Sacramento have successfully imposed their will nationwide. That is exactly what is happening with vehicle fuel economy standards. Thankfully, the Trump administration is slamming on the brakes.

California’s air pollution standards are more rigorous than the rest of the country, thanks to special authority to grant the state via waiver under the Clean Air Act (CAA). You might ask yourself, what does air pollution in California have to do with the fuel economy of cars manufactured in places like Michigan and Ohio and sold across the country? Thanks to this special waiver and help from the Obama administration, California now exerts outsized influence on the entire American automobile market.

In 2009 and again in 2013, the Environmental Protection Agency granted California CAA waivers allowing the state to regulate greenhouse gas (GHG) emissions from vehicles at levels more stringent than those set by EPA. It’s not an explicit regulation on vehicle fuel economy. But since the only practical way for automakers to achieve greater GHG reductions is by boosting fuel economy, the effect is the same. The root problem is a separate federal law that already regulates fuel economy.

The Energy Policy and Conservation Act (EPCA) was created to reduce American dependence on foreign oil by enforcing policies such as the corporate average fuel economy (CAFE) standards. Unlike California’s special power to impose requirements in excess of the CAA, California is explicitly preempted from regulating fuel economy under EPCA. Here’s where the power grab comes in.

The population of California is huge, almost 40 million, which means automakers can’t afford to bypass the entire market. In addition, while no other states enjoys the authority to craft their own CAA standards, they can choose to adopt those of California — and some have. Thus, the American automarket is now subject to multiple sets of standards.

To mitigate the obvious chaos of multiple fuel economy standards, the Obama administration brokered a three-way deal between EPA, California, and the automakers, effectively establishing California’s seat at the table as a national regulator. Through its CAA power grab, the progressives in Sacramento have, in effect, imposed stricter fuel economy standards on the rest of the country. Moreover, they have the power to hold the national market hostage to push for even more stringent regulations.

Both the Supremacy Clause and the Commerce Clause outlined in the U.S. Constitution make it clear that the federal government’s fuel economy standards should trump California’s special fuel economy standards. While California’s regulations are not explicit fuel economy standards, EPCA preempts any regulation “related to fuel economy standards.” Not only is greater fuel economy the only practical way for automakers to comply with higher GHG standards, the structure of GHG regulations is based on fleet average, which is unlike other CAA emission regulations — yet identical to the existing CAFE standards.

California’s misused CAA waiver is a classic example of the slippery slope that comes with picking winners and losers in the regulatory space. By granting California exclusive authority under one law to regulate one thing (air pollution), the federal government has given the state an opening to impose its political agenda on something else (fuel economy).

Thankfully, the Trump administration has proposed more realistic national fuel economy standards and moved to revoke California’s waiver. This would disarm Sacramento, ending its bullying of the auto industry and drivers in other states. California was given special authority under the CAA to regulate emissions due to its unique geography, weather, and rapid growth and gridlock that produced localized smog. But GHG regulations are aimed at global climate change, not problems unique to California. There’s simply no reason for the state to have special powers above and beyond national GHG standards.

One-time special privileges are not, it turns out, just a one-time thing. As in the childhood classic “If You Give a Mouse a Cookie,” if you give a regulator a cookie, he’ll ask for a glass of milk. And then a straw … and so on.

In addition to being bad policy, California’s CAA waiver sets an irresponsible precedent. It must be revoked to prevent future abuses of regulatory power. States should not be allowed to wield their consumer market as a weapon to impose a progressive political agenda on the rest of the country.

*Ken Cuccinelli is Director of the Regulatory Action Center at FreedomWorks Foundation. *