Published on September 24th, 2019 | by Jennifer Sensiba0
Trump Betrays Conservative Principles To Attack California, Tesla, & EVs
September 24th, 2019 by Jennifer Sensiba
Now that the legal battle between the Trump Administration and California over emissions standards is underway, we can get a good look “under the hood” at the legal arguments and strategies each side is using. Parties arguing in court will always do whatever it takes to support their own agenda, but this legal battle is particularly instructive.
Conservatives claim to be staunch defenders of the Constitution, federalism (states’ rights), and free markets, while being against “activist judges.” Unfortunately, this case shows that the Trump administration is willing to do anything, no matter how it may betray conservative beliefs, to protect Big Oil from the transition to electric vehicles.
Before I get into the meat of this particular case, I want to do a quick review of the basics. I grew up in a conservative household, and know that not everybody is familiar with what conservatives believe about government (at least when it’s convenient).
One very important thing is the US Constitution’s separation of powers. After having bad experiences with the powerful British monarchy that led to the Revolutionary War, and then having bad experiences with a weak central government (The Articles of Confederation), US leadership was in a tough spot. They felt the need to expand the power of the central government over the states, but many feared making it too powerful. To prevent abuses, they eventually settled on a system of checks and balances, where the larger power of the new federal government would be spread out.
Unless a power is specifically mentioned in the Constitution, an official or group of officials does not have that power. To get something done, like pass a law, the branches of government must work in concert and combine their powers. When the different branches of government disagree on an issue, government is slowed down or stopped by checks on power until the impasse can be overcome and consensus established.
In some cases, Congress passes laws that give the executive branch authority to do certain things on their behalf, like write regulations, within certain guidelines. While regulations made by the executive branch (under the president) can have the force of law, they only have that authority within the rules Congress stipulated in the original law.
In theory, when a president, Congress, or judges exceed their constitutional authorities, conservatives are opposed to this. Congress can’t just write any law they want, and presidents can’t just write any regulation they want. For anything to be valid, you have to be able to trace it back to the Constitution.
Clean Air Act Waivers
When it comes to California’s authority to regulate emissions, it all comes from the Clean Air Act of 1970. In that act, Congress intended to have the federal government regulate emissions nationwide, and allowed the Environmental Protection Agency (EPA) to draft these regulations within a lengthy set of guidelines.
However, they knew that prior to this time California was already regulating emissions under state laws. To respect states’ rights and allow California to continue doing this, they created an exception to the law. California can request waivers from the EPA, and the EPA must grant the waiver unless 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
- such standards and accompanying enforcement procedures are not consistent with Section 202(a) of the Clean Air Act
California’s most recent waivers were granted under the Obama administration after a similar request was denied by the Bush administration, but either way, the waivers are already in force.
While the Act has provisions for reviewing requests for and granting/denying these requests, there is no provision in the Act for the review of previously granted waivers or for the revocation of these existing waivers.
The EPA’s Recent Regulation Change
Recently, the EPA (under Trump) decided to create new regulations for US emissions. The stated goal is to create a single set of standards for all 50 states.
For every state under the regulations, the new standards from now until 2025 require lower fuel economy than standards set under Obama. Nobody should be surprised to see Trump’s EPA do this, as it’s straight out of the anti-regulation conservative playbook. Looser regulations are all they could get away with under the law (as opposed to no regulations at all), so that’s what they did.
What’s surprising is what Trump did that other Republican presidents didn’t dare do: try to revoke California’s waivers. The lawyers writing the new regulation knew that the Clean Air Act doesn’t give them this authority, though. To justify the move, they point out that the EPA has denied waivers in the past and then later granted the waivers after a second request, so they claim this gives them the power to revisit past grants.
There’s one problem, though: revisiting a past denial is just using the authority to grant/deny waivers. They’re just using that power a second time and coming to a different conclusion than their predecessors. Going back to ungrant past waivers, on the other hand, is a different authority the law didn’t give to the EPA. Ending California’s waivers would require either a new law ending them, or a court decision that finds past waivers weren’t granted properly.
How This Hurts Tesla & Other EV Makers (If It Stands)
By lowering CAFE fuel economy standards for vehicles, there’s less incentive for manufacturers to sell EVs. While several manufacturers did agree to hold to California’s standards regardless of Trump’s rules or the court battle, they do have more wiggle room to sell less efficient vehicles and have fewer EVs in the mix.
A bigger problem for Tesla in particular is what happens if California’s ZEV credit program were to go away. Manufacturers must have a certain number of zero-emission vehicles, or credits bought from other manufacturers, to be allowed to sell cars in California or in states that follow the ZEV program. Most manufacturers who sell a few EVs use the credits earned from their EV sales to keep being able to sell gas and diesel vehicles in the state.
Tesla doesn’t sell any gas vehicles to need their ZEV credits for themselves, so they are able to sell their credits to other manufacturers. It’s not a huge part of Tesla’s cashflow, but it has saved their skins a few times in the past when they were struggling. Taking that away would definitely have a negative impact on the company.
Unsurprisingly, California and nearly half of other states are suing the Trump administration over this recent act. Other states are joining the suit because the Clean Air Act allows states to choose between following federal or California rules. Trump’s order would deny them that choice.
“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. “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.”
While the attorneys general of 24 states collaborated to debunk Trump’s lengthy arguments in favor of his action, the central point is still that the Trump Administration lacks any lawful authority to rescind Clean Air Act waivers or force states to not follow California’s lead.
It’s like the Earth has been sucked through a wormhole into some bizarro alternate dimension where conservatives fight for a powerful central government with more power and liberals are fighting for the Constitution and states’ rights.
What Happens Now?
Unfortunately, the obvious illegality of Trump’s order for uniform 50-state standards won’t simply go away. The legal battle will likely rage on for years.
What conservatives don’t realize is that it could prove to be a rather pyrrhic victory. Even if successful, it may take Trump until he’s almost out of office due to term limits before he manages to get the issue to a friendly Supreme Court. Should the justices rule politically instead of lawfully, they’d hand Trump a victory that he wouldn’t enjoy for long before a new president could sweep his changes away.
The real nightmare for constitutionalism comes after that. If the Supreme Court rules that the executive branch has unlimited authority to change regulations at a whim regardless of applicable laws, then there’s nothing to stop the next Democratic president from doing the same on a variety of issues. Firearms, religious tax exemptions, and many other things could all find their way onto the chopping block.
If conservatives are smart, they’ll work within their own party to rein Trump’s unconstitutional actions in now before it costs them big later.
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