Brown Exposes Covert Federal Preemption In New Gas Mileage Standard

Tuesday, April 22, 2008
Contact: (916) 210-6000,

LOS ANGELES--California Attorney General Edmund G. Brown Jr. today attacked the National Highway Traffic Safety Administration’s new fuel economy rules, calling them “a covert assault” on California’s landmark tailpipe greenhouse gas regulations.

“This fuel economy plan, while attractive on the surface, is a shameful and unlawful assault on California’s landmark vehicle emissions standards,” Attorney General Brown said.

Last year, the Bush administration had ordered a paltry one mile per gallon increase for light trucks from 22 to 23 miles per gallon by 2010, which Brown challenged in court, asserting that the plan failed to consider the effects of greenhouse gas emissions. A 9th Circuit decision issued in November struck down the inadequate national standard and directed the federal government to come up with a new plan.

Today’s vehicle standard, an increase to 31.6 miles per gallon by 2015, falls short of state efforts which curb greenhouse gas emissions directly and are estimated to be equivalent to 36 miles per gallon by 2016.

The Energy Independence and Security Act (EISA) required the Bush Administration to increase gas mileage standards. But today’s regulations, buried on page 378, there is an attempt--in violation of law--to ignore the Supreme Court’s ruling in Massachusetts v. EPA and two district court opinions which affirm that gas mileage standards are separate from state greenhouse gas regulations.

Today’s regulations purport to preempt 'any state regulation regulating tailpipe carbon dioxide emissions from automobiles...” This violates legal precedent which clearly established that pollution emissions from cars, including greenhouse gases, are regulated by the U.S. Environmental Protection Agency and the State of California, not NHTSA.

The preemption provisions clearly contradict language in the original EISA statue itself which states that nothing in the law, “supersedes, limits the authority provided or responsibility conferred by, or authorizes any violation of any provision of law (including a regulation), including any energy or environmental law or regulation.”

Under the Clean Air Act, the Environmental Protection Agency and California both have authority to regulate motor vehicle pollution, including greenhouse gases. Individuals states may then choose to adopt the California or federal standards. The Bush Administration argued that neither the EPA nor California had that authority, but it lost that argument last year when the U.S. Supreme Court ruled that the Clean Air Act applies to greenhouse gases and that NHTSA’s mileage standard authority must be coordinated with greenhouse gas emissions controls under the Clean Air Act.

Two federal district courts, Vermont and the Eastern District of California, determined that California’s authority to control greenhouse gas emissions cannot be overruled by NHTSA.

California’s law requires a 30 percent reduction in greenhouse gas emissions standards from motor vehicles by 2016. Under the Clean Air Act, California can adopt stricter standards by obtaining a waiver from EPA.

California is the world’s 12th largest producer of greenhouse gas emissions and the state’s auto regulations are an important part of California’s strategy to fight global warming. The regulations would account for about 17 percent of the state’s goal, set under AB 32 the Global Warming Solutions Act, of reducing emissions 25 percent by 2020.

Seventeen other states have adopted or are poised to adopt California's landmark regulations: Arizona, Colorado, Connecticut, Florida, Maine,Maryland, Massachusetts, New Mexico, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Washington

Brown recently expanded the Attorney General’s Website to provide valuable and up-to-date information about how public officials, industry leaders, and private citizens can join the fight against global warming. For more information visit:

The preemption provision, hidden on page 378, is attached.

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