Feinstein Says Effort to Preempt California Contrary to Congressional Intent
Senator Feinstein will continue to oppose any preemption efforts
Published on Apr 24, 2008 - 9:47:41 AM

By: Feinstein office

Washington, DC April 23, 2008 - U.S. Senator Dianne Feinstein (D-Calif.) today stated that the Administration's effort to preempt the right of California, and any other state, to regulate greenhouse gas emissions from tailpipes is "contrary to Congressional intent" and to the Supreme Court ruling in Massachusetts v. EPA.

The Administration yesterday included this preemption language in the proposed rule-making to increase fuel economy standards to 31.6 miles per gallon. The rule-making is the first step towards full implementation of the new fuel economy law, which Senator Feinstein sponsored.

Following is the text of the letter sent by Senator Feinstein today to Transportation Secretary Mary Peters:

April 23, 2008



The Honorable Mary Peters

Secretary

U.S. Department of Transportation

1200 New Jersey Ave, SE

Washington, DC 20590


Dear Madam Secretary:


I write to correct a misrepresentation of Congressional intent related to recently enacted vehicle fuel economy standards. As a lead author of the fuel economy provision in the Energy Independence and Security Act of 2007 (EISA), I can tell you that this bill was specifically drafted so as not to preempt state regulation of tailpipe emissions under the Clean Air Act.

The National Highway Transportation Safety Administration (NHTSA) has proposed regulations to raise the fuel economy of America's cars and trucks to 31.6 mpg by 2015, an increase consistent with the mandate Congress enacted in EISA. This regulatory proposal represents the first fleetwide fuel economy increase since the 1970s. This fuel economy increase is considerable, and I thank you for acting quickly to put this in place.

However, I am seriously concerned about language buried deep in the draft regulation, which seeks to preempt California's landmark tailpipe emissions law. It reads: "any state regulation regulating tailpipe carbon dioxide emissions is impliedly preempted" under CAFE standards. This language is in direct contradiction to Congressional intent. In fact, Section 3 of the Act clearly states:

Except to the extent expressly provided in this Act or an amendment made by this Act, nothing in this Act or an amendment made by this Act 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.

This provision - which Speaker Pelosi and I fought to keep in the bill - expressly maintains the authority provided by any environmental law. This necessarily includes the authority provided to California under Section 202 of the Clean Air Act to regulate tailpipe emissions, with a waiver from the Environmental Protection Agency.

In fact, President Bush sought an amendment to EISA to blunt the effect of this language. In the Statements of Administration policy on the Senate version of the bill, he repeatedly encouraged Congress to remove EPA's existing authority. On December 6, 2007, the President argued that "the bill needs to clarify one agency as the sole entity, after consultation with other affected agencies, to be responsible for a single national regulatory standard for both fuel economy and tailpipe greenhouse gas emissions from vehicles." But Congress refused to do this.

Congress did not make the President's requested changes because it would have stripped California of the ability to protect the health and safety of its citizens from the threats posed by climate change under the EPA's Clean Air Act authority. A Federal District Court in Vermont ruled that state rules do not conflict with federal mileage standards, and a Federal District Court in Fresno found that both California and the EPA are empowered to set limits on vehicle emissions. As the Supreme Court observed in Massachusetts v. EPA, 127 S. Ct. 1438, 1462 (2007), the fact "that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public's health and welfare, a statutory obligation wholly independent of DOT's mandate to promote energy efficiency. The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency."

On December 6, 2007, Senator Barbara Boxer and I wrote to President Bush, explaining: "we disagree with your Administration's conclusion that increased fuel economy standards should be accompanied by a provision preempting Clean Air Act authority to address greenhouse gas emissions from vehicles."

Simply put, NHTSA's proposed regulation is contrary to Congressional intent and to the Supreme Court ruling in Massachusetts v. EPA. Additionally, we were specifically asked by the Administration to add language which would preempt state laws, and we declined to do so. Now, after rejection in court and in the Congress, efforts to preempt California or other state laws, in my strong view, are above and contrary to law.

I am prepared to work with Speaker Pelosi and Chairman Inouye to fight this proposed preemption, and I urge you to reconsider it.


Sincerely,



Dianne Feinstein

United States Senator

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