Are state attempts to regulate CO2 emissions permissible, or preempted by the Clean Air Act CAA

1. Are state attempts to regulate CO2 emissions permissible, or preempted by the Clean Air Act (CAA)? Clif Cottrell Matt Blackstock Michael Yates John Doumany

2. What Is Preemption? The Supremacy Clause ARTICLE VI Section II U.S. Constitution �The Constitution and the laws of the United States which shall be made in Pursuance thereof; and all treaties, or which shall be made, under the Authority of the United States shall be the Supreme Law of the Land��

3. Express Preemption When Congress explicitly states in the statute �we hereby preempt� other state and local regulations.

4. Implied Preemption Conflicts Preemption: When the state or local regulation conflicts with the federal. States cannot have less stringent rules than the Federal Government. The state and federal regulations cannot be mutually exclusive. Where not preempted, states may have more stringent regulations than the federal government. State law cannot impede the goal or objective of a Federal act.

5. Implied Preemption Occupation of the field Must look at congressional intent Decide whether the federal law was meant to be exclusive in that area

6. Police Powers Where congress has not legislated on an issue, the states are free to pass regulations concerning environmental, health and safety issues. These are commonly known as state �police powers.�

7. State Rights in the CAA: Section 116 �Retention of State Authority� Ability to Regulate Level of Regulation

8. Expanding on Section 116 Section 233- Can adopt identical aircraft emissions standards Section 111- Comparable New Source Standards Section 211- Comparable Fuel Additive Standards

9. CO2 in the CAA Section 112- List of Hazardous Pollutants 196 Compounds on list (not CO2) Section 103 (g) (1)- Research and Tech. Program to develop �non-regulatory� strategies for pollution prevention: carbon dioxide listed as research topic

10. Why States Are Not Preempted From Regulating CO2 Not Expressly Preempted Not Impliedly Preempted

11. Not Expressly Preempted CO2 not expressly regulated in the CAA CO2 mentioned in only one portion of the CAA Section 103(g) CO2 only listed as a research gas Non-regulatory in nature

12. EPA General Counsel Explicitly Refuses to Classify CO2 as an Air Pollutant In 2003 the EPA�s General Counsel reversed a position taken by the Agency�s two previous Attorney Generals when he argued that, 1. The EPA does not have the authority to regulate CO2; and 2. CO2 does not fall into the CAA�s definition of �air pollutant.�

13. Not Impliedly Preempted Conflicts Preemption There is no Federal Regulation within the CAA that would conflict with state regulation Occupation of the Field State law is preempted when Congress intends to �occupy the field� through a pervasive regulatory scheme or when there is an explicit conflict with a federal statute where it is impossible to comply with both the state and federal law The CAA is a comprehensive regulatory scheme that explicitly excludes CO2 Congressional Intent was explicitly to exclude CO2 regulation

14. Not Preempted By Foreign Affairs In 2001, the United States withdrew from the Kyoto Protocol. Since then, the Administration has not advocated for any international agreement or domestic legislation that would impose mandatory limits on the emission of greenhouse gases Without a controlling law indicating that state GHG regulations constitute a �matter of foreign policy� or some form of direct interaction between the states and foreigners, applying dormant foreign affairs preemption to state GHG regulations would dangerously expand a doctrine that already lacks clear limits

15. Case Law State of Connecticut, et. al. v. American Electric Power (2004) Federal nuisance case currently on appeal from the Southern District of New York The suit alleged that the companies' carbon dioxide emissions from coal-fired electric power plants contributed to global warming and sought an injunctive order limiting the amount of CO2 emissions from the utilities' plants in eight states The Court held that explicit statements of both Congress and the Executive branch over the years on the issue of global climate change in general and the federal government's specific refusal to impose limits on carbon dioxide emissions in the CAA made clear that making the initial policy determination as to how to address global climate change was vested in the other political branches and not the courts

16. Political Considerations Unlikely that judge will hold in favor of Federal preemption until either the EPA or Congress speaks directly on the issue Environmental Concerns Federalism Conservative tendency to defer to states for lawmaking Minnesota, Wisconsin, Oregon, and New Hampshire currently have GHG regulatory laws on the books

17. New Motor Vehicles Exception

18. CAA Explicitly Preempts States �209(a) of the Clean Air Act: �No State�shall adopt�any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines�� Although �emissions� is not defined in the CAA, �202(a)(1)�s reference to �emissions of any air pollutant� suggest a broad interpretation.

19. California CO2 Regulations

20. California CO2 Regulations 2002: California passes law regulating CO2 emissions on new motor vehicles beginning in 2009 Central Valley Chrysler Jeep, Inc. v. Witherspoon Arguments against California law: Preempted by CAA �209(a). But there�s a possible waiver under CAA � 209(b)(1) Preempted by EPCA

21. Old Cars Despite the preemption on state regulation of CO2 emissions from new motor vehicles, states may still regulate CO2 emissions from in-use on-road vehicles.

22. Conclusion The EPA has refused to classify CO2 as an �air pollutant� under the CAA, thus leaving such regulation to the states. States are neither expressly nor impliedly preempted from regulating CO2 emissions from stationary sources, such as power plants. States may also regulate CO2 emissions from in-use on-road motor vehicles. The CAA does, however, preempt states from regulating CO2 emissions from new motor vehicles.