Document 2JXQjaVD42ar4K5RdkwmR8pG6

Message From: Sent: To: Subject: Myron Ebell [Myron.Ebell@cei.org] 8/2/2018 1:54:57 PM Myron Ebell [Myron.Ebell@cei.org] Cooler Heads Coalition alert: Trump administration releases proposed CAFE Rule Reminder: the Cooler Heads Coalition will not hold its monthly strategy meeting in August. Our next meeting will be on Monday, 10th September, beginning at 12 noon at CEI, 1310 L Street, N. W., Seventh Floor. Proposed CAF Rule: The proposed CAF rule has finally been released. Everything is posted here: www.nhtsa. gov/safe I have pasted several items below. It's going to need a lot of support because the environmental pressure groups and much of the mainstream media are going to go all out to turn public opinion against it. And the automakers are going to try to stay out of trouble. U.S. EPA and DOT Propose Fuel Economy Standards for MY 2021-2026 Vehicles WASHINGTON (August 2, 2018) --Today, the U.S. Environmental Protection Agency (EPA) and U.S. Department of Transportation' s National Highway Traffic Safety Administration (NHTSA) released a notice of proposed rulemaking, the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (SAFE Vehicles Rule), to correct the national automobile fuel economy and greenhouse gas emissions standards to give the American people greater access to safer, more affordable vehicles that are cleaner for the environment. The SAFE Vehicles Rule is the next generation of the Congressionally mandated Corporate Average Fuel Economy (CAFE) and Light-Duty Vehicle Greenhouse Gas Emissions Standards. This Notice of Proposed Rulemaking (NPRM) is the first formal step in setting the 2021-2026 Model Year (MY) standards that must be achieved by each automaker for its car and light-duty truck fleet. In today' s proposal, EPA and NHTSA are seeking public comment on a wide range of regulatory options, including a preferred alternative that locks in MY 2020 standards through 2026, providing a much-needed tim e-out from further, costly increases. The agencies' preferred alternative reflects a balance of safety, economics, technology, fuel conservation, and pollution reduction. It is anticipated to prevent thousands of on-road fatalities and injuries as compared to the standards set forth in the 2012 final rule. The jo in t proposal initiates a process to establish a new 50-state fuel economy and tailpipe carbon dioxide emissions standard for passenger cars and light trucks covering MY 2021 through 2026. Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00072655-00001 " We are delivering on President Trump's promise to the American public that his administration would address and fix the current fuel economy and greenhouse gas emissions standards," said EPA Acting Administrator Andrew Wheeler. " Our proposal aims to strike the right regulatory balance based on the most recent information and create a 50-state solution that w ill enable more Americans to afford newer, safer vehicles that pollute less. More realistic standards can save lives while continuing to improve the environment. We value the public' s input as we engage in this process in an open, transparent manner." " There are compelling reasons for a new rulemaking on fuel economy standards for 2021-2026," said Secretary Elaine L. Chao. " More realistic standards w ill promote a healthy economy by bringing newer, safer, cleaner and more fuel-efficient vehicles to U.S. roads and we look forward to receiving input from the public." The current standards have been a factor in the rising cost of new automobiles to an average of $35,000 or more--out of reach for many American families. Indeed, compared to the preferred alternative in the proposal, keeping in place the standards finalized in 2012 would add $2,340 to the cost of owning a new car, and impose more than $500 billion in societal costs on the U.S. economy over the next 50 years. Additionally, a 2018 goye.rsiment. styriy by NHTSA shows new model year vehicles are safer, resulting in fewer deaths and injuries when involved in accidents, as compared to older models. Therefore, the Administration is focused on correcting the current standards that restrict the American people from being able to afford newer vehicles with more advanced safety features, better fuel economy, and associated environmental benefits. On April 2, 2018, EPA issued the Mid-Term Evaluation Final Determination which found that the MY 2022-2025 GHG standards are not appropriate and should be revised. For more than a year, the agencies worked together to extensively analyze current automotive and fuel technologies, reviewed economic conditions and projections, and consulted with other federal agency partners to ensure the most reliable and accurate analysis possible. EPA and NHTSA are seeking public feedback to ensure that all potential impacts concerning today' s proposal are fully considered and hope to issue a final rule this winter. The public w ill have 60 days to provide feedback once published at the Federal Register. Details can be found at NHTSA's website and EPA' s website Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00072655-00002 Trump's EPA formally launches attack on California's fuel-economy rules By Evan Halper , Tony Barboza and David Lauter Aug 02, 2018 | 6:25 AM j Washington Morning commuters face very heavy traffic on Southern California freeways. Vehicle use remains the largest single source of emissions blamed for warming the world's climate. (Irfan Khan / Los Angeles Times) The Trump administration Thursday pushed ahead with plans to unravel the federal government's most effective action to fight climate change -- aggressive fuel economy standards aimed at getting the nation's cars and trucks to average more than 50 miles per gallon by 2025. After months of discussion and drafts, the Environmental Protection Agency and the National Highway Traffic Safety Administration formally unveiled their plan to rewrite those rules and replace them with ones so lax even automakers are wary. The administration's proposal would freeze miles-per-gallon targets in 2020. It would also move to end California's current power to set its own, higher standards. The administration's proposal asserts that "attempting to solve climate change, even in part" is "fundamentally different" from the Clean Air Act's "original purpose of addressing smog-related air quality problems." The administration's proposal could set off a high-stakes legal battle with California and the 13 other states that follow its more stringent rules. Those states argue the Clean Air Act empowers them to keep the Obama-era fuel economy standards in place in their markets. The states following California's lead account for more than a third of the vehicles sold nationwide. The Trump administration proposal could also invalidate California's mandate that automakers sell a certain number of electric vehicles. The rollback would undermine efforts by California and several other states to meet commitments the U.S. made in the Paris agreement on climate change. It would also worsen air quality problems in Southern California and other areas where officials are already struggling to clean smog and ease rates of asthma and other illnesses. The release of the administration's proposal was repeatedly delayed in recent weeks as officials debated how aggressively to push. In the end, the White House approved taking a hard line, despite fears of some administration officials that their plan is based on weak evidence that will not hold up under court challenge. The prospect of an extended legal fight has discomfited automakers, who had asked the administration to relax the Obama-era rules but don't want to see the U.S. market split in two, with different models of cars required in blue and red states. Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00072655-00003 Their unease was reflected in a statement released by Gloria Bergquist, vice president of the Alliance of Automobile Manufacturers, which urged negotiations between California and the federal government "to find a common sense solution that sets continued increases in vehicle efficiency standards while also meeting the needs of America's drivers." The administration argues its proposal will reduce traffic fatalities by keeping the cost of vehicles down compared with the current emissions standards, which it claims are a safety hazard that "restrict the American people from being able to afford newer vehicles with more advanced safety features, better fuel economy, and associated environmental benefits." "More realistic standards can save lives while continuing to improve the environment," said EPA Acting Administrator Andrew Wheeler. Vehicles are the single largest cause of emissions in the U.S. that cause global warming, recently surpassing the electricity sector. The plunge in natural gas prices and other market forces have steadily lowered the climate impact of utilities, but transportation is proving more stubborn. Electric cars and trucks still account for a tiny fraction of those sold, and driver preference for SUVs, along with relatively low gas prices, have inhibited progress there. The existing federal fuel economy targets, which were championed by California, ensure automakers keep moving toward higher efficiency vehicles, as other nations also require. The impact of freezing those targets for six years, as the administration favors, would be enormous. The Bay Area firm Energy Innovation, which models the environmental impact of energy policies, projects the proposal would increase U.S. fuel use 20% by 2035. The firm projects the policy would cost the U.S. economy $457 billion and cause 13,000 deaths by 2050, as air quality suffers. But the Trump administration is arguing its plan, which it dubbed Safer and Affordable Fuel Efficient Vehicles Rule, or SAFE, would save lives, replacing current standards that officials claim drive up the cost of vehicles too much and create a safety hazard for motorists. Those assertions are refuted by thousands of pages of data the Obama administration used in developing the regulation. In scrapping it, the administration is relying on disputed modeling that projects vehicles that get more miles to the gallon would lead motorists to drive more frequently, thus increasing the number of traffic fatalities. The administration also projects the efficiency rules would drive up the price of cars enough to push some buyers out of the market, leaving them to remain in older vehicles lacking life-saving new technologies like assisted braking and blind spot warning. The argument may prove a tough sell in court, where attorneys for states and environmental groups will come armed with a wealth of data undermining it. "The fleet of new vehicles today is the most fuel efficient ever, and they have gotten safer every year," said Luke Tonachel, director of clean vehicles and fuels at the Natural Resources Defense Council. "These arguments are not new. They have failed before." Federal data show the increased cost consumers would pay for the more efficient vehicles is dwarfed by the amount of money they would save at the pump, undermining the argument that drivers will stay in older, unsafe vehicles, advocates for the tougher rules say. Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00072655-00004 At a May meeting in the White House, auto firms appealed to Trump to tap the brakes on the administration's aggressive rollback plan. He assured them he would, ordering his EPA chief and Transportation secretary to try to broker a deal with California. Those negotiations have gone nowhere. California is confident the administration has no legal authority to revoke the waiver it has been granted under the Clean Air Act allowing it to keep the Obama-era rules in place. In May, California and 16 other states filed a preemptive lawsuit arguing the rollback would be illegal. "There is no precedent for revoking California's waiver," said Dan Becker, director of the Safe Climate Campaign of the Center for Auto Safety, an advocacy group in Washington. "There is no provision in the Clean Air Act for revoking a waiver... The world is looking to California to hold its ground." CEI: Proposed Changes to CAFE Standards are Good News for Consumers Today, the Department of Transportation and the Environmental Protection Agency released proposed revisions to future fuel economy standards set under the Obama Administration. Director of CEI's Center for Energy and Environment Myron Ebell said: "The administration's announcement that it will relax future fuel economy (CAFE) standards is good news for consumers. It means that the federal government will have slightly less control over the kinds of cars and trucks people can buy. It might even cause car prices to stop increasing so rapidly. Even better news is the decision to take California out of the driver's seat for setting CAFE standards for the entire country. Letting one state make decisions for people in other states makes a bad program even worse, especially since the state is California, which has been pursuing an anti-car agenda for decades." CEI General Counsel Sam Kazman said: "CAFE was recognized long ago as a threat to highway safety. That recognition came from analysts, consumer advocates, and even a federal court. With today's announcement, the federal government is finally acting to reduce that threat. It's doing so despite feverish claims by environmentalists and Sacramento bureaucrats, who apparently think that the US is seceding from California. They need to get real." CEI Senior Fellow Mario Lewis said: "Since California started to determine the stringency of fuel economy standards, new car prices have increased $6,800 above the pre-2009 baseline trend, according to estimates in a Heritage Foundation study. The National Auto Dealers Association estimates the federal standards demanded by California will add $3,000 to the cost of new motor vehicles by 2025, potentially pricing millions of low-income households out of the market for new cars. Kicking California bullies out of the fuel economy playground will expand consumer choice while making new cars more affordable." Mario Lewis: Will Trump Auto Rule End California's Regulation of Fuel Economy? Sam Kazman in WSJ: Coffee Won't Kill You, But CAFE Might Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00072655-00005  Myron Ebell in Sacramento Bee: More Realistic Fuel Economy Rule Will Cut Fatalities and Lower Car Prices The headline inexplicably reads and lower gas prices". I've changed it below. Sacramento Bee PRO: More realistic fuel economy rule would cut traffic fatalities and lower car prices By MYRON EBELL Tribune News Service August 02, 2018 01:00 AM Updated 4 hours 38 minutes ago WASHINGTON - The Trump Administration has proposed to halt the steady increases in auto fuel economy standards that were part of backroom deals made by the Obama administration with California and automakers in 2009-12. In doing so, the administration has struck a blow for consumer choice that will be good news for drivers planning or hoping to buy a new car in the next decade. That's because the mileage mandate is one of the main causes of rapidly rising vehicle prices. Corporate Average Fuel Economy standards were first enacted in 1975 as a response to the 1973 OPEC oil embargo. The idea was that reducing American dependence on foreign oil was a national interest more important than other factors that people consider in buying a new car, such as safety, size, performance and cost. The federal government was therefore justified in imposing a mandate that overrode consumer choice. Even with CAFE, American dependence on foreign oil increased as more people drove many more miles and domestic oil production declined. But by 2012 it was clear that the shale oil and gas revolution was rapidly increasing domestic production and was therefore going to solve the very problem that CAFE was designed to address. Although Congress refused to enact global warming legislation, a 2007 Supreme Court decision allowed Obama's Environmental Protection Agency to repurpose CAFE as a program to reduce greenhouse gas emissions. The average mileage requirements were set to increase rapidly from the existing standard of 35 mpg by 2020 for passenger cars, pickup trucks and SUVs to 54.5 mpg by 2025. After reviewing the impacts of the new standards, the Department of Transportation and EPA have now decided to scale back the rate of annual increases, and then flatline CAFE at 37 mpg from 2020 to 2026. Meeting ever more stringent fuel economy standards is driving up new vehicle prices. Sticker shock is thereby causing a lot of people to hang on to their current cars. The average age of all cars on the road is now at an alltime high of over 111/2 years. Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00072655-00006 The Transportation Department's analysis shows that having so many 15- to 25 year-old cars on the road is a major safety concern. Not only are newer cars safer, but systems such as braking and airbags become less reliable as cars get older. Freezing CAFE standards will make new cars more affordable for millions of Americans and also allow many of them to buy bigger and hence even safer new models. How much safer will be hotly debated. The Transportation Department concludes that the proposed changes will prevent about 1,000 traffic fatalities a year. If that number is anywhere close to reality, then it is going to be hard to argue against making those changes. Supporters of CAFE respond by pointing to polls showing strong public support for higher fuel economy standards. The polls are no doubt accurate on that one question, but they fail to ask whether you would support higher fuel economy standards if it meant that the vehicles you could buy were smaller, less safe and more expensive. That there are trade-offs between price, safety, fuel economy, size, and performance is the key point. Federal CAFE standards have limited consumer choice and forced consumers either to buy models that they would not otherwise buy or to put off buying new cars altogether. For many people, fuel economy will still be the most important factor in choosing a new car. The good news for them is that the Trump administration's action will in no way prevent them from buying a model that gets great gas mileage. The good news for everyone else is that the choice of models will be much wider than if the CAFE standard remained 54.5 mpg. (Myron Ebell is director of the Center for Energy and Environment at the Competitive Enterprise Institute in Washington. He was the EPA team leader for the Trump presidential transition in 2016.) Distributed by Tribune Content Agency, LLC. https://www.sa.cbee.coiTi/pews/news--ser\-ices/a.rticle215964715.fa.tml Also at: httpsi/./www.belli nghamliera!d.com/news/news-servdces/article215964690. htm.l#storylin.k"cpy CON: Slashing current mpg rules would adversely affect all Americans By MICHAEL E. KRAFT Tribune News Service https://www.sacbee.ct.):ni/news/iiews--ser\-ices/aitscle215964715.1itnil Will Trump Auto Rule End California's Regulation of Fuel Economy? Mario Lewis, Jr. August 1, 2018 Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00072655-00007 The Trump administration is expected tomorrow to release its proposed revisions of the Obama administration's Corporate Average Fuel Economy (CAFE) and motor vehicle greenhouse gas emission standards for model years 2021 and later. On Saturday, July 28, The New York Times posted a leaked draft that the National Highway Traffic Safety Administration (NHTSA) sent in May to the White House for review. The question of the hour is whether the final draft released tomorrow will retain or retreat from the May draft's bold initiatives. Bold Initiatives The leaked draft is the perfect complement to the Environmental Protection Agency's (EPA) proposal to repeal the Clean Power Plan and President Trump's decision to withdraw from the Paris climate treaty. The proposal NHTSA sent to the White House in May would topple the third pillar of President Obama's so-called climate policy legacy. It's not just that CAFE standards for passenger cars would plateau in 2020 at 43 miles per gallon rather than rise to 54.5 mpg in 2025, as contemplated in the Obama administration's 2012 rulemaking. More importantly, the leaked draft would permanently change the institutional framework and political dynamics of fuel economy policy. Specifically, it would eliminate California's power to establish carbon dioxide tailpipe standards and mandate sales of zero-emission vehicles--policies that effectively regulate fuel economy. In other words, the leaked draft is a plan for regime change. That is bold, but also conservative because the proposal would restore the statutory system Congress enacted. Congress never authorized California to regulate fuel economy. Indeed, when Congress created the CAFE program in 1975, it expressly prohibited states from adopting or enforcing laws or regulations "related to" fuel economy. Case for Preemption Laws made pursuant to the Constitution "shall be the supreme law of the land . . . anything in the laws or constitution of any state to the contrary notwithstanding" (Article VI). Congress in 1975 enacted the Environmental Policy and Conservation Act (EPCA), which created the national fuel economy program. EPCA's express preemption of state laws or regulations relating to fuel economy is, as the leaked draft says, "broad and clear": When an average fuel economy standard prescribed under this chapter is in effect, a State or a political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under this chapter [49 U.S.C. 32919], The draft goes on to point out that unlike section 209(b) of the Clean Air Act, which allows EPA to waive federal preemption of state automobile emission standards, "EPCA does not allow for a waiver of preemption." It continues: Nor does EPCA allow for states to establish or enforce an identical or equivalent regulation. In a further indication of Congress' intent to ensure that state regulatory schemes do not impinge upon EPCA's goals, the statute preempts state laws merely related to fuel economy standards or average fuel economy standards. The leaked draft cites three Supreme Court cases establishing that the phrase "related to" in preemption statutes is broad. As in common speech, it signifies that one thing stands in some relation to another thing, has some bearing on it, refers or pertains to it, etc. As it happens, the functional relationship between greenhouse gas tailpipe standards and fuel economy standards is so close that "greenhouse gas emissions, and particularly carbon dioxide emissions, are mathematically linked to fuel economy and therefore regulations limiting tailpipe carbon dioxide emissions are directly related to fuel economy." Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00072655-00008 Although Obama administration officials would later deny under oath that fuel economy standards and greenhouse gas tailpipe standards are "related," the Obama EPA and NHTSA's first joint motor vehicle standards rulemaking in 2010 described the relationship as "very direct and close." That's because carbon dioxide constitutes 94 percent of all motor vehicle greenhouse gas emissions, and "there is a single pool of technologies . . . that reduce fuel consumption and thereby reduce C02 emissions as well" (75 FR 2532625327). The leaked draft concludes: Since there is but one pool of technologies for reducing tailpipe C02 emissions and increasing fuel economy available now and for the foreseeable future, regulation of C02 emissions and fuel consumption are inextricably linked. Such state regulations [as California's greenhouse gas motor vehicle standards] are therefore unquestionably "related" and expressly preempted under 49 U.S.C. 32919. Nor is that all. Other state standards that "have the effect of regulating C02 emissions or fuel economy are likewise related to fuel economy standards, and likewise preempted." That means EPCA also preempts California's Zero Emission Vehicle (ZEV) mandates: Likewise, a state law prohibiting all tailpipe emissions, carbon or otherwise, from some or all vehicles sold in the state, would relate to fuel economy standards and be preempted by EPCA, since the majority of tailpipe emissions consist of C02. We recognize that this preempts state programs, such as California's ZEV mandate, that establish requirements that a portion of a vehicle's fleet sold or purchased consist of vehicles that produce no tailpipe emissions. Breaking New Ground Most of the foregoing points have been made before, but the leaked draft also breaks new ground. It rebuts in detail Green Mountain Chrysler v. Crombie (2007) and Central Valley Chrysler-Jeep, Inc, v. Goldstene (2008)--cases in which district courts in Vermont and California ruled that EPCA does not preempt state motor vehicle greenhouse gas standards. Citing Green Mountain, the Obama EPA subsequently granted a waiver authorizing California to implement AB 1493, the state's motor vehicle greenhouse gas emissions law. For brevity's sake, I will summarize (and modestly embellish) a few key points in the leaked draft's rebuttal, focusing on the Central Valley decision, which purports to be the more definitive ruling. In Central Valley, the California district court argued that because Congress wants to respect states' "historic police powers," express preemption statutory provisions "should be given a narrow interpretation." It then concluded that the "narrowest interpretation consistent with the plain language of EPCA's preemptive provision is that it encompasses only those state regulations that are explicitly aimed at the establishment of fuel economy standards, or that are the de facto equivalent of mileage regulation . . ." Since AB 1493 explicitly aims at controlling greenhouse gases, not fuel economy, and also regulates motor vehicle refrigerants, which are not related to fuel economy, EPCA does not preempt AB 1493, the court reasoned. There are several problems here. Labels do not determine the nature of things. The direct functional relationship between fuel economy and greenhouse gas motor vehicle standards is not affected by the "explicit" language used to describe their purposes. As it happens, because the functional relationship between the two types of standards is close and inherent, proponents routinely tout greenhouse gas standards as a means to boost fuel economy and CAFE standards as a means to reduce greenhouse gas emissions. Moreover, "the explicit purpose of the ZEV program is to affect fuel economy." Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00072655-00009 While California's motor vehicle greenhouse gas standards also apply to air conditioner refrigerants based on their global warming potential, such refrigerant emissions represent a small fraction of total motor vehicle greenhouse gas emissions--5.1 percent according to EPA and NHTSA's 2010 joint rule (75 FR 25424). Nearly all the rest, as noted above, is carbon dioxide from motor fuel combustion, and regulating carbon dioxide emissions inextricably regulates fuel economy. Thus AB 1493 cannot escape preemption by commingling refrigerant standards with tailpipe carbon dioxide standards. By the same token, because greenhouse gas emissions from air conditioner refrigerants "have no relation to fuel economy," they are "outside the scope of EPCA preemption." Accordingly, the leaked draft concludes that "states can pass laws specifically regulating or even prohibiting such vehicular refrigerant leakage" and "EPCA would not preempt such laws, if narrowly drafted so as not to include tailpipe C02 emissions." The Central Valley court's argument that EPCA's preemption language must be interpreted narrowly ignores the plain fact that the EPCA preemption, covering anything "related to" fuel economy standards, is very broad. It is not possible to interpret a broad preemption narrowly without interpreting it loosely. The court's key argument is that once EPA grants California a Clean Air Act waiver to adopt its own motor vehicle emission standards, those standards become "other standards of the [federal] government," hence are not subject to EPCA preemption, which applies only to state and local laws or regulations. But if that opinion were correct, it wouldn't matter if AB 1493 explicitly establishes fuel economy standards or is just mileage regulation by another name. EPA could still make the California standards "federal" and immune to EPCA preemption just by pronouncing the magic words: "Waiver granted!" In short, the court's legal theory would give states free rein to openly and unequivocally regulate fuel economy--clearly not what Congress intended. The foregoing reductio adahsurdum refutation is not in the leaked draft but it complements the document's case law argument, which may be summarized as follows. Before California could request a waiver for AB 1493, it first had to enact the statute, and the California Air Resources Board (CARB) had to develop the implementing regulations. EPA can grant a waiver only for lawful statutes and regulations. However, AB 1493 and the associated rules were invalid under federal law from the get-go. As the leaked draft puts it, "When a state establishes a standard related to fuel economy, it does so in violation of EPCA's preemption statute and the standard is therefore void ah initio [from the beginning]." The draft continues: Federal preemption is rooted in the Supremacy Clause of the U S. Constitution. Courts have long recognized that the Supremacy Clause of the Constitution gives Congress the power to specifically preempt State law. Broadly speaking, the United States Supreme Court has long held that "an act done in violation of a statutory prohibition is void," and has specifically noted that such acts are not merely "voidable at the instance of the government," but void from the outset. The Ninth Circuit stated it more plainly: "Under federal law, an act occurring in violation of a statutory mandate is void ah initio" Discussing the Supremacy Clause, the Supreme Court explicitly explained that, "[i]t is basic to this constitutional command that all conflicting state provisions be without effect." And at least one Federal Court of Appeals explicitly stated that the Supremacy Clause means "state laws that `interfere with, or are contrary to the laws of Congress' are void ah initio" Here I would also note that the Central Valley court repeatedly acknowledges that the "touchstone" in preemption cases is "what Congress intended." Congress clearly intended to preempt state regulation of fuel economy. When the Obama EPA granted California a waiver to implement AB 1493, it did not merely authorize California to participate in fuel economy regulation. It set the stage for CARB to be the lead agency in determining fuel economy standards. Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00072655-00010 How so? Again, California's motor vehicle greenhouse gas standards primarily regulate fuel economy. That positions California to propose defacto fuel economy standards more aggressive than the explicit fuel economy standards NHTSA proposes. The auto industry desperately wants to avoid being subject to conflicting fuel economy requirements, but AB 1493 imposes no obligation on CARB to "harmonize" its standards with NHTSA's. Moreover, California has no incentive to adjust its standards to match NHTSA's because most auto companies and auto workers reside outside the state. Consequently, California's political elites face no blowback at the polls from indulging in fuel economy zealotry. Accordingly, in negotiations over the so-called One National Vehicle Program, California always has the whip hand. CARB can imperil businesses and jobs beyond its borders just by hinting that it will "de-couple" from the federal agencies should any future administration dare to relax the Obama administration standards. That is exactly the situation we have today. CARB filed a preemptive lawsuit months before EPA and NHTSA proposed any specific revisions to the Obama rules, and months before that threatened to enforce its own separate standards. CARB has thus exposed for all to see that the "one national program" was never more than an uneasy truce wired to fall apart whenever California does not get its way. "Harmony" exists only as long as the feds dance to CARB's tune. The enormity of California's intrusion into fuel economy regulation has become painfully obvious. A California-led fuel economy regime upends Congress's clear and manifest purpose. Myron Ebell Director, Center for Energy and Environment Competitive Enterprise Institute 1310 L Street, N. W., Seventh Floor Washington, DC 20005, USA Tel direct: (j n v a j Tel mobile:|_ __ J E-mail: Mvron.Ebellfa),cei.org Stop continental drift! Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00072655-00011