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Warming Law is the premier blog for legal analysis on major climate change litigation taking place in federal courts. We began our work in the wake of the Supreme Court’s historic ruling in Massachusetts v. EPA, and provide the best coverage of the legal and political actions that have followed this case. Learn more ...

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In April 2007, the U.S. Supreme Court ruled that carbon dioxide is an “air pollutant” within the definition of the Clean Air Act, giving the Environmental Protection Agency the authority to regulate carbon emissions. We’re tracking the impacts of this decision, on the Obama Administration and in Congress.

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California Auto Standards Are Going Global (With or Without the EPA)

From yesterday’s LA Times:

Seven Western states and four Canadian provinces proposed a sweeping regional crackdown on global warming emissions Tuesday in the face of continuing reluctance by the Bush administration and Congress to pass comprehensive climate legislation.

The Western Climate Initiative, endorsed by the 11 governors and provincial premiers, aims to slash regional greenhouse gas pollutants by about 15% below 2005 levels in the next 12 years.

The announcement follows a similar one made last week at the annual Conference of New England Governors and Eastern Canadian Premiers (NEG/ECP), during which the group of 6 US states and 4 Canadian provinces endorsed California’s strict auto emissions standards, though not without commenting on how Washington, through the inaction of the EPA, held them back from taking any real action.

Since denying California a waiver to raise its auto emission standards last year, the EPA has been blocking 13 US states from enforcing the so-called “Clean Cars program,” a set of tough new auto emissions standards that have already been approved by state lawmakers. Five of the six New England members of the NEG/ECP bloc are among the states that have adopted the California standards, while the Canadian members stated they’d like to proceed with the standards but could not do so alone.

Several things are interesting about this trend. The first, and most obvious, is that states have overwhelmingly taken the lead in the US’s reaction to climate change. Not only have Congress and the EPA failed to regulate greenhouse gas emissions on their own, but the only successful federal action on climate change to date was the result of states suing the EPA for its inaction, which resulted in the Supreme Court’s landmark ruling in Massachusetts v. EPA (2007) that the EPA must investigate and regulate greenhouse gases under the Clean Air Act.

Now states are taking their battle to raise emissions standards international. Rather than wait for one federal government to cooperate with another federal government on emissions, they are themselves forming alliances with Canadian provinces to create wider-reaching and more impactful climate policy.

The second point of interest is that Canadians are now chiming in through litigation on how the US federal government’s negligence is holding them back.

As has been covered extensively on Warming Law, California challenged the EPA’s decision to deny its waiver, and its case is set to be heard in the District of Columbia Circuit Court. Among the parties supporting California is the Canadian province of British Columbia, which argues that the EPA’s refusal to allow California to raise its auto emission standards would render the province’s own efforts to raise auto emission standards ineffective. Their reasoning: while British Columbia is a large enough jurisdiction that adopting the Clean Cars program would result in a dramatic reduction of greenhouse gases, British Columbia is not on its own a large enough market to make auto manufacturers actually build cleaner cars. California, on the other hand, is a large enough market, implying that without California’s waiver jurisdictions throughout North America, including outside of the US, are being prevented from effectively mandating cleaner cars.

All of this demonstrates that the pressure on the EPA to deal with global warming, and specifically to allow the enforcement of notched-up auto emission standards, is going global. Rather than support the EPA in its argument that we should wait for a national standard, Canadians have weighed in on the side of states trying to address global warming via a second auto emissions standard. They have stated their stake in the EPA waiver case – both as global citizens susceptible to climate change and as local citizens trying to regulate an international auto industry – making it all the more important that California be granted its waiver to go forward.

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