Red states resume efforts to limit the Clean Air Act

A group of 17 red states are taking aim again at the Clean Air Act.  

The Republican state attorneys general are seeking to overturn a provision in the law that grants California the ability to seek waivers from federal vehicle emission standards.

The provision allows California to set standards that are stricter than federal rules, and permits other states to adopt the California regime.

The Clean Air Act language has been in place for more than a half-century. It does not cite California by name, but rather grants the right to seek a waiver from federal rules to any state that had vehicle emission standards in place before March 30, 1966; California is the only state that qualifies. Since 1967, the state has sought more than 100 waivers.

The Trump administration halted the practice of granting the waivers; the Biden administration restored it in March, prompting the lawsuit, which was filed in May.

In court documents filed last week, the attorneys general assert the provision is unconstitutional, a violation of the “equal sovereignty” doctrine, which would require Congress to treat states uniformly unless it had sufficient justification.

While the Constitution explicitly requires equal treatment in the admission of states into the union, it otherwise is largely silent on the issue. 

According to an analysis prepared for Congress, “Although the Constitution explicitly mandates equal treatment of states in some particular contexts, no provision of the Constitution explicitly requires Congress to treat states equally as a general matter.”

An analysis by the law firm Morgan Lewis suggests the GOP attorneys have “an eye toward a hearing before a Supreme Court that may be receptive to the challenge.”

In fact, the court in June trimmed the ability of the Environmental Protection Agency to regulate greenhouse gas emissions, invoking the “major questions” doctrine — an argument that Congress must be more explicit in granting agencies sweeping authority to take regulatory actions  that have a broad impact. The decision was striking in part because the Biden administration had not promulgated a new emissions rule.

The court last employed the “equal sovereignty” doctrine in 2013 to overturn a key provision of the Voting Rights Act. Since then, lower courts have rejected its use in cases, with two circuit courts saying the doctrine applied only in “extraordinary situations.”

Reuters: California tailpipe emissions waiver is unconstitutional — red states