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California’s pending ban on sale of new fossil fueled vehicles, abortion, state rights, & the Supreme Court
New Ford F-150s parked outside an assembly plant.

Here’s a not-so-dirty-little secret.

California legally can’t ban the sale of new vehicles powered by fossil fuels without the blessing of the federal government.

More specifically, the Environmental Protection Agency.

The Clean Air Act was  passed in 1970 by Congress and signed into law by President Richard Nixon, a Republican and a California native who at one point represented the Golden State in the United States Senate.

The law gives the federal government the sole power to set emissions standards for new emissions.

However, the Clean Air Act allows California to seek a waiver of the rule prohibiting states from enacting emission standards for new motor vehicles.

The EPA must grant a waiver, however, before California’s rules may be enforced.

When California files a waiver request, EPA publishes a notice for a public hearing and written comment in the Federal Register. The written comment period remains open for a period of time after the public hearing.

Once the comment period expires, EPA reviews the comments and the Administrator determines whether the requirements for obtaining a waiver have been met.

The waiver was enacted as a nod to California’s unique situation. The waiver language was championed in part by  Governor Ronald Reagan based on the realities the Golden State faces.

The presence of two distinctive geographical bowls — the 450-mile long  Great Central Valley and the Los Angeles Basin — create situations where pollutants are trapped for long periods of time. As a result the Central Valley and LA Basin  consistently have the worst air quality in the nation in a number of areas

For the record, the U.S. senators from California at the time were Republican George Murphy and Democrat Alan Cranston.

According to the Clean Air Act Section 209 – State Standards, EPA shall grant a waiver unless the Administrator finds that California:

*was arbitrary and capricious in its finding that its standards are, in the aggregate, at least as protective of public health and welfare as applicable federal standards.

*does not need such standards to meet compelling and extraordinary conditions.

The EPA has consistently granted waivers requested by California connected with vehicle emission standards.

And, like clockwork, the auto industry sued every time waivers were requested that either required catalytic convertors, reformulated gasoline, and even higher vehicle mileage based on aggregate vehicles a manufacturer sold in California.

And, like clockwork, the United States Supreme Court has upheld the California waiver in the Clean Air Act.

The California market represents almost 12 percent of new vehicle sales in the United States.

Sixteen other states — and the District of Columbia — automatically piggyback on new California emission rules five years after they are adopted.

Together, with California they represent 40 percent of the United States new vehicle market.

Because of those two factors and court rulings, those firms building vehicles to sell in the United States now just accept what comes out of Sacramento in terms of proposed rules  vehicle emission standards as inevitable.

It may explain why  the California Air Resources Board (CARB) submission of a letter Monday formally asking the EPA to approve a waiver under the Clean Air Act to implement its proposed ban on fossil fuel vehicles was almost completely ignored by the media.

Rest assured; it wasn’t by more than  a dozen attorney generals from Republican states.

Earlier this year, they filed a lawsuit  with the District of Columbia federal court of appeals to stop the so-called “Advanced Clean Car Rule II” that CARB initially adopted in August and was the reason behind the mandatory waiver request received Monday by the EPA.

The argument that the proposed California rule  “puts it on an uneven playing field compared to other states in violation of the interstate commerce clause of the Constitution” so therefore it is unconstitutional isn’t new.

There is also the somewhat new assertion that the exemption to the Clean Air Act of 1970 has given California “unique power” to regulate global climate change measures.

While that seems like the same argument framed in a  different way, the real “new” development is in Washington, D.C.

The Supreme Court hasn’t been consistent on state’s rights issued since three new justices were confirmed during Trump’s presidency.

Those appointments have given he court its current 6-3 conservative majority.

For their track record on issues that are tied to state’s rights, look no further than abortion and pork productions standards.

It is the court that narrowly overturned Roe vs Wade, a decision many viewed as having been cast in stone.

And it is the same court that unanimously ruled California’s high standard for production regarding pork sold within its boundaries wasn’t a violation of interstate commerce under the constitution.

Arguments in both cases were rooted in whether or the original law passes constitutional muster.

This means the high court will likely weigh in before California can enact its proposed rules.

Rules, by the way, that yearly raise zero emission vehicle rules starting in 2026 and would end the sales of vehicles powered by gasoline by 2035.

There are of course other wrinkles.

President Biden’s administration has steadfastly refused to endorse setting a date to phase-out the sale of gasoline-only vehicles.

At the same time,  the EPA in April released a proposal  to drastically cut vehicle emissions through 2032. To meet that proposal, automakers would need to produce 60% EVs or other zero emission vehicles by 2030 and 67% by 2032 to meet requirements.

Electric vehicles, for an idea of what that proposal means, accounted for 5.8% of U.S. vehicles sales in 2022.

Even if the court ruled California’s waiver as unconstitutional, Congress can still drive fossil fueled vehicles sales to extinction.

They can do so via tax credits for buyers and manufacturers too good to resist or actually legislate clean air quality standards and not passing the buck to bureaucrats as the Clean Air Act of 1970 essentially did.


This column is the opinion of editor, Dennis Wyatt, and does not necessarily represent the opinions of The Bulletin or 209 Multimedia. He can be reached at