Federal Judge postpones CA CO2 case

Several automakers and dealers are suing (warning: big PDF file) California to overturn the “landmark” (pro-Kyoto) legislation requiring new vehicles sold in the state to meet CO2 emission standards. The automakers are suing under the 1975 Energy Policy and Conservation Act, which prohibits states from adopting laws or regulations “related to” fuel economy. The automakers correctly argue that CO2 standards are just fuel economy standards by another name. As EPA has explained, “No technology currently exists or is under development that can capture and destroy or reduce emissions of CO2, unlike other emissions from motor vehicle tailpipes. At present, the only practical method for reducing tailpipe emissions of CO2 is to improve fuel economy.” Thus, although federal law expresses fuel economy standards in terms of miles per gallon, EPA measures and monitors fuel economy performance in terms of grams of CO2 per mile.

The San Francisco Chronicle (SFC) reports that the federal judge in the case, Anthony Ishii, has postponed the lawsuit until the Supreme Court decides a related case, Massachusetts v. EPA. In that case, the AGs of 12 states and numerous green groups are suing EPA for refusing to promulgate California-like CO2 standards for automobiles nationwide.

SFC reports that Natural Resources Defense Council (NRDC) attorney David Doniger asked to have the case postponed, because the decision “might be out of cinq” with the Supreme Court’s ruling, whereas Ray Ludwiszewski, an attorney for the International Alliance of Automobile Manufacturers, wanted the case to proceed. This suggests that the law and facts are quite clear and favor the automakers: California’s CO2 standards are sub rosa fuel economy standards and thus are prohibited by federal law.

It is also obvious why NRDC would be particularly chagrined about a federal district court shooting down the CA CO2 law before the Supreme Court rules on Mass v. EPA. The very same 1975 Energy Policy and Conservation Act that prohibits states from legislating in the area of fuel economy also designates the National Highway Traffic Safety Administration (NHTSA)–not EPA–as the federal agency charged with administering federal fuel economy standards. Because CO2 standards are de facto fuel economy standards, to say that only NHTSA may lawfully regulate fuel economy is to say that EPA may not regulate CO2 emissions from cars.