Yesterday, Donald Trump, vowed to fight to make California, the state with the strictest auto emission standards, reduce them to meet his own lowering of national standards to increase the use of fossil fuels and ramp up pollution in the United States (not to mention climate change, which he continues to insist is a hoax). As both a physician and an attorney, I have two separate but connected opinions on this.
First, as a physician, I can virtually guarantee that with decreased emission standards in the US, the rate of lung cancer and especially debilitating COPD (“Chronic Obstructive Pulmonary Disease”) will dramatically increase. It will be like mandating that people start smoking again because quitting is hurting tobacco company profits. This will not only kill people (not a concern of Trump’s), but make people sicker, requiring increasing health care and hospitalizations which will substantially increase the cost of health care and thus insurance in the country. Moreover, without the mandate for coverage for pre-existing conditions that Trump wants gone, many more people will be bankrupted by their illnesses and severely limited in their lifestyles.
Secondly, as an attorney, I have no doubt that we are in for a flurry of expensive litigation regarding this move. We live in a country guided by a constitution which wisely established a federal system of government. It states, simply, that whatever power not specifically granted to the federal government is specifically relegated to the states, because they had just thrown off the yolk of a king and were wary of a strong central government. In most cases, therefore, while the federal government can establish national standards, states are mandated to meet them, but may exceed them if the wish. Plainly put, the issue is whether the federal government can set the floor, but not the ceiling for emissions. I firmly believe that to be the case.
When the Clean Air Act (“Act”) was passed, it “preempted the field,” meaning that states were not free to pass any other standards (presumably lower ones) without a “waiver.” Thus, it would seem that the federal government could withdraw the current waiver at its discretion. I do not, however, believe this to be true in this case. Within the Act it clearly states in section 209 that the EPA SHALL grant such a waiver unless it finds that the California standards:
- 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; or
- such standards and accompanying enforcement procedures are not consistent with Section 202(a) of the Clean Air Act.
Having read the applicable portions of the ACT, I do not believe the EPA, under Trump control, could reasonably establish any of the above and therefore should be unable to withdraw California’s waiver. If you have another opinion (based upon fact or legal opinion, not just love of Trump), please comment.
POWER OF ATTORNEY 