Guest essay by Eric Worrall
California has geared up to defy President Trump’s efforts to dismantle ridiculously strict auto-emission standards. But there may be a way President Donald Trump can overturn their intransigence.
California Upholds Auto Emissions Standards, Setting Up Face-Off With Trump
By HIROKO TABUCHIMARCH 24, 2017
California’s clean-air agency voted on Friday to push ahead with stricter emissions standards for cars and trucks, setting up a potential legal battle with the Trump administration over the state’s plan to reduce planet-warming gases.
The vote, by the California Air Resources Board, is the boldest indication yet of California’s plan to stand up to President Trump’s agenda. Leading politicians in the state, from the governor down to many mayors, have promised to lead the resistance to Mr. Trump’s policies.
Mr. Trump, backing industry over environmental concerns, said easing emissions rules would help stimulate auto manufacturing. He vowed last week to loosen the regulations. Automakers are aggressively pursuing those changes after years of supporting stricter standards.
But California can write its own standards because of a longstanding waiver granted under the Clean Air Act, giving the state — the country’s biggest auto market — major sway over the auto industry. Twelve other states, including New York and Pennsylvania, as well as Washington, D.C., follow California’s standards, a coalition that covers more than 130 million residents and more than a third of the vehicle market in the United States.
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One option is to allow US states to choose their own emissions standards – after all, one of the benefits of federalism is it allows experimentation, testing of different legislative solutions and frameworks. States which succeed, which embrace the best, most effective policies, inspire others by their example.
But a fragmented emissions framework could leave auto-makers in a situation where they have to attempt to satisfy 50 different emissions standards.
Another option might be to use the US constitution to overturn unfair barriers to interstate trade.
Article I section 8 of the US constitution contains the following clause;
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
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How might the power to regulate commerce apply to vehicle emission standards?
The Supreme Court has seldom restrained the use of the commerce clause for widely varying purposes. The first important decision related to the commerce clause was Gibbons v. Ogden, decided by a unanimous Court in 1824. The case involved conflicting federal and state laws: Thomas Gibbons had a federal permit to navigate steamboats in the Hudson River, while the other, Aaron Ogden, had a monopoly to do the same granted by the state of New York. Ogden contended that “commerce” included only buying and selling of goods and not their transportation. Chief Justice John Marshall rejected this notion. Marshall suggested that “commerce” included navigation of goods, and that it “must have been contemplated” by the Framers. Marshall added that Congress’s power over commerce “is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution”.
Read more: https://en.wikipedia.org/wiki/Article_One_of_the_United_States_Constitution#Commerce_Clause
If I have understood the Gibbons vs Ogden case of 1824, the Federal government has the power to regulate the navigation of goods, the transportation of goods. This obviously includes the right to regulate vehicles which transport goods. Vehicles registered in one state appear to have an unambiguous right to cross state lines, and be used in another state.
If a Californian resident wants to defeat Californian vehicle emissions laws, it might be as simple as buying a SUV out of state and registering it as a commercial transport vehicle in a friendly jurisdiction, possibly as part of a leaseback deal through that business registered in another state. California arguably does not have the right to prevent someone from doing this, as attempting to regulate the use of vehicles owned by an out of state business seems likely to infringe the Federal government’s right to regulate vehicles used for interstate commerce.
Such a leaseback deal would likely cost thousands of dollars over the life of the vehicle. The lawyers would get richer. But attempting to conform to lunatic Californian emissions standards could easily cost a lot more.
I am not a lawyer, so I may have misunderstood the Gibbons v. Ogden ruling, or there may be a ruling which supersedes and modifies the Gibbons v. Ogden precedent. But if the scheme I proposed is constitutionally and legally valid, California’s power to regulate vehicle emissions could be rendered essentially meaningless, by the large scale deployment of fleets of vehicles in California which do not conform to Californian vehicle emission standards, because they are registered out of state, in less insanely stringent jurisdictions.
Whenever I read about the global warming fraud, “carbon” taxes, etc. I think of The Beatles song, “Taxman”.
I have no wish to intrude on a private grief here but there is a story in the British press about a plan for California to be divided by Californians fed up with the LA elite and the state to have two separate electoral constituencies, one of which would likely be Republican and less urban. I have no idea if this is likely to happen but it certainly shows some people are very angry with the Moonbeam faction.
Incidentally, it is not environmentally friendly to crush old cars which are often less polluting than many think if you are going to replace them with new cars which each require the industrial process of producing them (and built to last only a few years with inferior materials compared to the older vehicles).
And I too remember the London smogs – it was caused by coal and wood burning smoke trapped by a temperature inversion in the air above London. Nothing much to do with cars. For air pollution today follow a badly tuned diesel vehicle. Can’t beat a pre emission control American muscle car for fun and fresh air.
You are very accurate in your assessment of California. It is at least two separate societies. The first is the ultra- liberal self described elites living in the urban areas. These Elois are anti agriculture, elitists who view those in the rest of the state, no matter how well educated, as Morlocks who could not survive without their oversight. Many or most of us in the interior would feel blessed to be rid of the Elois but lack the political power to secede. Endless propositions to leave California are voted down.]
We are therefore stuck with their decisions to build a multi billion dollar trains8 to nowhere in a state rapidly going bankrupt and provide only 65% of a contractual water allotment to farmers during one of the wettest seasons [ o.oever, while huge amounts roll endlessly out to sea.
The biggest argument to seccesion is that we would be the poorest state in the country. I respond that we would be no poorer than we are now but we would be a lot richer by charging a fee to use our water and making Hwys 99 and 5 toll roads.
Let the left coast lefties live on hummus and brea. If they’d like a steak they can buy the beef from us, at our “special price” and if they want a swig (Morlock term) of water they can cross the border into the frontier and buy some from us aliens, cause we’ll have plenty of both.[
Actually, the power SCOTUS has assumed under the Commerce Clause is almost unlimited. See landmark case of Wickard v Filburn, 317 U.S. 111 (1942) (for non-lawyer, Wikipedia has a good summary at https://en.wikipedia.org/wiki/Wickard_v._Filburn ). There is a doctrine formulated by SCOTUS that once the Federals enter a area of law, there is no room for the States except by specific exception granted by the Feds.
For automobiles, it’s very clear that Federal regulatory power is absolute. Even if CA banned all autos except those made out of Redwood trees ala the Fred Flintstone foot sedan, one cannot conceive how a new car does not “effect” commerce since most of the parts and assembly are done outside the state. And the list would just go on and on and on.
Exactly right, but I would disagree with the word assumed. It is a reality that interstate commerce is ubiquitous and that virtually everything we own or buy has some part made from some other state or country. The decision simply reflects reality. Anything opinion to the contrary would be a legal fiction.
It is my opinion that they improperly dragged in things that are not interstate commerce (egresiously so in the Fickard case) because they wanted power they could not have gotten otherwise. Interstate commerce is me going to another state to engage in trade or someone else from another state coming to me to engage in trade (remember that here in These United States, I am a citizen of both my state and the Union). The rationale behind that clause was the fact that the several states imposed tariffs designed to ‘protect’ locals. If my trade requires me to have stuff brought to me from out of state, my state has no business taxing me for such, directly or otherwise, and more especially so if the purpose is punitive.
I wouldn’t worry about California. I understand more U.S. citizens are moving out of land of the fruit and nuts than moving in. In 20 years there will be two class of people, very rich and poor. The poor will not be able to afford to own a car. California will have to implement more hidden taxes on businesses. So on and so on until the only people left will be the very, very poor and the ultra rich to pay the taxes. Personally I hope southern Cal would exit the U.S. so I don’t have to pay for their stupidity.
Well the ultra rich never pay taxes so that will mean California will be just like Greece.
BS. ‘Rich’, especially here in These United States pay far more than do the ‘poor’. How and what the mechanism for the payments happen to be varies.
Stick some Archoil in your tank. Jay Leno recommends it.
Man proposes, nature disposes. California exists on borrowed time, according to Valerie Sahakian of Scripps Institution of Oceanography at the University of California San Diego.
https://scripps.ucsd.edu/news/fault-system-san-diego-orange-los-angeles-counties-could-produce-magnitude-73-quake
So if I may summarize the discussion so far: CA writing their own standards for auto emissions (equipment) was on legally defensible but probably reversible grounds, and was allowed to over-regulate for the last 40+ years. But now trying to classify CO2 as a pollutant may be a bridge too far, and cause the cancellation of their entire air pollution standard? Way past time. But could an end result be that CA can continue to write its own standards as long as they don’t try to regulate CO2? A result that I believe still unnecessarily drives up costs for all US consumers, and possibly global consumers.
One federal appeals court (if I recall correctly) ruled that CO2 is a pollutant. I don’t know if that case was overturned or not. But if it wasn’t, California can probably regulate CO2 as well.
Actually Scotus never said that. Scotus upheld the EPA’s *power* under the Clean Air Act, to make an ‘endangerment finding’ that CO2 is a pollutant. The finding was a PoS as a scientific examination, and may have been improperly issued.
I think we can expect that Priutt will retract and revise that particular finding… which is the basis for ALL the rest of the ‘CO2-will-kill-us-all’ legal frenzy.
Would it be feasible for the auto companies to produce vehicles to a uniform national emissions standard and offer a dealer installed option paid for by the customer to meet local emission requirements?
I wouldn’t get too deep into the meaning of the interstate commerce clause of the Constitution because it now means whatever those in power want it to mean. The last time it was addressed was during the fight to institute Obama’s Affordable Care Act, also known as “Obamacare”. It was used to argue in favor of the “individual mandate” that required everyone in the U. S. to purchase healthcare insurance or be fined. The lawyers argued that the Fed had a right to force people to buy health insurance, and fine them if they didn’t, under the interstate commerce clause even though health insurance can not be purchased from a state other than where you live or work by law, and people being fined for not buying health insurance can not be said to be engaging in commerce, interstate or otherwise.
The court did not rely on that argument to make its decision. That part of the opinion is what is called dicta. Since that argument did not decide the case, it technically has little if any precedence. The case was decided based on Congress’ right to levy taxes and Congress has the right to determine what income is that is subject to tax, what a tax deduction is, what a tax credit is and what a penalty is.
But it would have been an insane decision to hold that health care is not interstate commerce as virtually everything about healthcare has an interstate component. It would have been a legal fiction of the highest order.
I don’t pretend to be a lawyer but, this was the first time in history I can think of where the right to levy taxes included taxing someone that wasn’t doing anything, like not buying health insurance. Imagine the government taxing you for not buying an electric car, or not putting solar on your roof, or anything else you are, or are not doing. It would be impossible to escape any tax and is equivalent to slavery to a degree because the government then has an unlimited power to take your money. The United States government was founded under the principle of a limited government. A government that can tax anything and everything and nothing to any extent is not a limited government.
Also I did not state that getting health care is not interstate commerce, but specifically buying health insurance, which is not interstate commerce, which is the subject of the tax. If you think it is, then everything is and again we have an unliimited government. What’s the point of specifying in the Constitution that which is under the perview of the Federal government and what is under the states if everything can be argued such that it falls withing the powers of the federal government?
But then maybe you are a lawyer and can argue any side of an argument equally well.
In California, the full force of the law will be brought to bear on undocumented cars.
In the mid 1960s in Nigeria they had an industry that would be popular in California today. I bought an Austin Gypsy (a bad substitute for a Landrover) and drove it a couple of hundred miles to the city of Jos to my job with the Geological Survey of Nigeria. I had go to the Motor Vehicle Office to get a driver’s licence and for a vehicle inspection.
Later, I went to the market place to buy food and stuff and came upon a bustling business out in the open air that looked like an auto repair ‘shop’. There were rickety buses and trucks held together with bailing wire, rope, and all manner of jerry-built doors and panels. When I asked, I was informed that they rented out parts, tires, lights, windshield wipers… for the motor vehicle infections. You took your vehicle in and they did an inspection and then switched all the necessary parts for you. You paid plus a premium which you reclaimed when you returned. After the inspection, you returned to the stall and they switched all the parts back and away you went until the next inspection. That was my first experience with the entrepreneurial craftiness of these people. I’m not surprised that the Nigerian internet scam bears their name.
Ah come on now, the Gypsy wasn’t all that bad, I mean you could use all forward gears available in reverse. Talking of this, I know someone, or rather knew someone, who used to do the exact same thing with his car in South Australia. He’d fit standard parts, like wheels, tires, exhaust etc, for an inspection. When the inspection was over, he’d re-fit all the parts that would fail an inspection. I would not like to be involved in a crash with this person because all insurance he may have had would be null and void. Incidentally, he was one of the people who initiated the biggest, maybe the second biggest, IT disaster in Australia on July 26 2012.
It seems simple enough to me: just rescind the California waiver to the Clean Air Act. According to SCOTUS, they must then adhere to the Federal rules, just like all the other states. In other words, they could not mandate stricter or more lenient rules.
They might rescind it, but California would likely appeal the decision. Tie it up in court for decades. One argument California could make is that the state has relied on this waiver for decades and it would cause substantial harm to the state to implement new rules. I am not saying this argument would necessarily work, but a claim of reliance on a permitted course of action is almost always a legitimate claim that could be litigated.
I was in Los Angeles last May and I can’t see why California even bothers with emissions standards when there are so many cars bogged down in traffic on both the freeways and surface streets at all hours. What kind of fuel economy is the standard there under conditions where traffic is just crawling along even when the road surfaces are in ideal condition?
California has had a smog problem in the past and more stringent regualtions have helped. But, CO2 is not the culprit. A clean burning engine converts fossil fuel and air into CO2, H2O, and energy. CO2 and H2O are not the cause of the smog problem. There is also no evidence that CO2 has any effect on climate and plenty of scientific rational to support the idea that the climate sensivity of CO2 is really zero.
Caveat right off the bat: I’m actually a Rightist ….
In any case … sooooooo … States’ rights are good when it’s a State taking a Right / conservative position vs Fed.gov, but when it’s a Lefty state taking a Lefty position vs Fed.gov it’s bad? ….
….. face palm ……
….. roll eyes ……
If one is going to tout States’ rights, one must tout them no matter what.
Just for fun:
https://www.google.at/search?q=ktm+auto+gel%C3%A4nde&client=ms-android-samsung&prmd=isvn&tbm=isch&tbo=u&source=univ&fir=wOsPT410-jm56M%253A%252Cm2JXi5GKvQzhbM%252C_%253BIzFQfyyrz9yROM%253A%252CmPrR_fjqK6ybQM%252C_%253B1kfGYqBLT07-IM%253A%252CRk6N9GXm88FcnM%252C_%253BhgUAS7wVSIZz3M%253A%252CGCvItXdk6UNPuM%252C_%253BgfaxxVApGkF7WM%253A%252CsYrZp4EtUT-5PM%252C_%253BoHoxWWjNhOF8DM%253A%252CQjgMyX_nFe0l-M%252C_%253BHN9ux8EHnxYtCM%253A%252CQjgMyX_nFe0l-M%252C_%253BjDMVtmv8LY_e9M%253A%252CyD6TrUdvdVhopM%252C_%253BlC0fr-UYhDbrrM%253A%252CJjjREI9jXfIkuM%252C_%253BO6YYK_SS7_w54M%253A%252CF37etpCsZec9gM%252C_&usg=__88LENA6kDqEY7x1ONnBhMqUWtVI%3D&sa=X&ved=0ahUKEwitw-X_h4bTAhWlFJoKHe7FDnAQ420IRg&biw=360&bih=560
https://youtu.be/ywXDC2_hfeQ