In 2019, we covered the awful situation between then-president Donald Trump and the State of California. For decades, since the Clean Air Act was enacted, the EPA allowed California and other states to have tougher emissions standards compared to the federal rules. But, for a variety of reasons, Trump wanted to strip California of that authority and set a single set of low standards across all 50 states (and territories, districts, etc). With the end of Trump’s administration, that challenge ended and California got its clean air waiver back, but some states are challenging that in court.

Before we get to how Ford got involved with this latest case, let’s do some background.

Why California Can Set Its Own Rules

To understand this situation, you have to go back to the Clean Air Act of 1970. In that law, the idea was to have the federal government regulate emissions in all 50 states, and the act gave the EPA the criteria they’d use to set clean air rules.

That sounds straightforward, but at the time, California was already using state authority to regulate emissions. To respect states’ rights and allow California to continue doing what it was doing, they added an exception to the law. California can request waivers from the EPA, and the EPA has to grant the waiver, unless the following is true:

• 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
• such standards and accompanying enforcement procedures are not consistent with Section 202(a) of the Clean Air Act.

The state’s most recent waivers were granted under the Obama administration, but only after a similar request was denied by the Bush administration. Regardless of that, the fact remains that the state has waivers and those waivers were in force in 2019. While the Act gives the EPA power to review requests for and grant or deny them, there is no power given in the Clean Air Act to review previously granted waivers or to revoke these existing waivers.

Trump’s 2019 Action

Despite having zero authority to do this, Trump’s EPA leadership thought they had a loophole they could use to revoke California’s waivers. To justify revocation, they pointed out in their responses to a lawsuit over the action that the EPA has denied waivers in the past, and then later granted the waivers after a second request. So, they claim this ability to deny and then approve later gives them the power to revisit past grants and unapprove them.

So, they revoked California’s waiver and tried to lump the state in with all other states under weak Clean Air rules. The law didn’t give Trump the authority to do away with Clean Air rules altogether, so he crafted the weakest rules he could and tried to force everyone to follow those rules instead of tighter ones.

“Two courts have already upheld California’s emissions standards, rejecting the argument the Trump Administration resurrects to justify its misguided Preemption Rule. Yet, the Administration insists on attacking the authority of California and other states to tackle air pollution and protect public health,” said California Attorney General Xavier Becerra at the time. “The Oval Office is really not a place for on-the-job training. President Trump should have at least read the instruction manual he inherited when he assumed the Presidency, in particular the chapter on respecting the Rule of Law. Mr. President, we’ll see you in court.”

There was a lawsuit over this, and several automakers sided against California in that lawsuit. Ford was one of the few to side with California at that time, and says they were the only large automaker to do this.

Ultimately, the lawsuit ended up going away not because one side or the other won, but because Trump ended up getting evicted from the White House sooner than he would have liked (and we all know what a dramatic episode that all was). Right at the beginning of the Biden administration, the action to revoke California’s clean air waiver was dropped, and the lawsuit went away because it was moot.

The Issue That Just Won’t Go Away

Technically speaking, Biden didn’t just hit Ctrl+Z on what Trump did. Because he gave California their waiver back, that gave conservative states’ attorneys general an opportunity to sue.

Their argument? That the law giving California authority that other states don’t have is unconstitutional. Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah, and West Virginia were the states that filed the suit last month. They further argue that when a large and influential state like California sets their own standards, it pulls the whole automotive industry into doing things California’s way and robs them of the ability to regulate automakers in their own states.

California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington as well as the District of Columbia and the cities of Los Angeles and New York all filed in support of letting California keep its waiver. They argue that the Clean Air Act has existed and let California set a second set of rules for over half a century, and that it is fair to all states because it balances things.

In reality, these states are taking sides in accordance with what party is in power in that state, so it’s yet another fight between Democrats and Republicans (as usual) over the environment.

Ford’s Position

Rather than tell you what Ford thinks, I’ll just give you some quotes they gave us in their press release:

“Ford is combatting climate change. We support the EPA’s recent Waiver Decision to allow California and other states to protect people’s health and combat climate change by establishing and enforcing air pollution standards and zero emission vehicle requirements. This is the right thing to do for people and the planet – but it also is critical to the automotive industry’s future success. It moves us closer to a zero-emissions transportation future, and it creates regulatory stability and a level regulatory playing field for the entire industry.” — Steven Croley, Chief Policy Officer and General Counsel

“Ford is proud to have been the only full-line American automaker to take the side of more aggressive emissions standards in 2019 and we’re the only one to do so today. By joining this action, we are joining a diverse coalition of States and communities already feeling the impacts of climate change to advocate for the health, economic and mobility benefits electric vehicles can provide.” — Bob Holycross, Chief Sustainability, Environment and Safety Engineering Officer

Republicans May Get The Last Laugh

At present, the Republican Party’s picks for the Supreme Court run the place. I’d explain why, but to do so, I’d have to write another long article. But, you probably already know that story. The timing of this lawsuit and the advantageous position they’re in could lead to California’s waivers going the way of Roe v Wade. That would be yet another bad outcome for environmentalism.

Or Will They?

On the other hand, I’d argue that clean vehicle technology is in a position now that it’s too strong to stop with weak standards. Just because states set a minimum standard for clean vehicles doesn’t mean that buyers have to want dirty (and expensive to operate) vehicles, or that automakers have to build inefficient vehicles. Even if Republican states take this to a Republican Supreme Court and win, it’s entirely possible that the industry and the public will just keep on cleaning up the air without them.

So, that’s why it’s important that we don’t rely on laws and courts for everything. We need to be fighting this battle not only there, but for hearts and minds. If enough people want clean vehicles with instant torque that run on American fuel, no politician is going to stop them.

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