[Senate Report 110-243]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 320
110th Congress                                                   Report
                                 SENATE
 1st Session                                                    110-243

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    AMENDING THE CLEAN AIR ACT TO ESTABLISH DEADLINES BY WHICH THE 
  ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY SHALL ISSUE A 
 DECISION ON WHETHER TO GRANT CERTAIN WAIVERS OF PREEMPTION UNDER THAT 
                                  ACT

                                _______
                                

               December 12, 2007.--Ordered to be printed

                                _______
                                

    Mrs. Boxer, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1785]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 1785) to amend the Clean Air Act to 
establish deadlines by which the Administrator of the 
Environmental Protection Agency shall issue a decision on 
whether to grant certain waivers of preemption under that Act, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the bill (as amended) do pass.

                       Purpose of the Legislation

    S. 1785 establishes deadlines for action by the 
Administrator of the Environmental Protection Agency (EPA) on 
State requests under section 209(b) of the Clean Air Act to 
waive federal preemption for State standards controlling motor 
vehicle emissions of air pollutants. The bill amends the Clean 
Air Act to ensure timely decisions on waiver requests by 
establishing legally enforceable deadlines for EPA action.

                    General Statement and Background

    Title II of the Clean Air Act (Title 42, Chapter 85, 
Subchapter II, United States Code) establishes a comprehensive 
program for controlling emissions of air pollutants from new 
motor vehicles and other mobile sources of air pollution. In 
accordance with section 202 of the Act, the Administrator of 
EPA is required to prescribe standards applicable to the 
emission of any air pollutant from new motor vehicles which, in 
the judgment of the Administrator, cause or contribute to air 
pollution which may reasonably be anticipated to endanger 
public health or welfare.
    The Clean Air Act generally preempts States and local 
jurisdictions from setting their own emission standards for new 
motor vehicles. However, section 209(b) of the Act requires the 
Administrator to waive preemption with respect to a State that 
meets specified criteria if the State determines that its motor 
vehicle standards will be, in the aggregate, at least as 
protective of public health and welfare as applicable Federal 
standards. Section 209(b) further provides that a waiver of 
preemption shall not be granted if the Administrator makes any 
of three specified findings. The Administrator may act on a 
waiver request only after providing notice and an opportunity 
for a public hearing.
    The State that meets the criteria set forth in section 
209(b) and may thus seek a waiver of federal preemption is 
California. The Clean Air Act affords California the unique 
opportunity to set its own vehicle emission standards in 
recognition of California's early leadership in setting such 
standards and the State's particularly severe air pollution 
problems. Section 177 of the Act authorizes any other State 
that has an EPA-approved plan for areas in non-attainment of a 
federal air quality standard to adopt and enforce California 
emission standards for which a waiver has been granted under 
section 209(b).
    EPA has a long history of granting California requests for 
a waiver of federal preemption under section 209(b), based on 
its assessment of the merits of these requests. According to a 
2007 report by the Congressional Research Service, in over 30 
years, EPA has granted over 50 waiver requests in whole or in 
part. California's Waiver Request to Control Greenhouse Gases 
under the Clean Air Act, July 24, 2007, p. 9. A 2006 report by 
the National Research Council of the National Academies of 
Science concluded that ``California has used its authority as 
Congress envisioned: to implement more aggressive measures than 
the rest of the country and to serve as a laboratory for 
technological innovation.'' State and Federal Standards for 
Mobile-Source Emissions, National Academies Press, 2006, p. 4.
    In 2005, California adopted the first standards in the 
nation for reducing vehicle emissions of emissions of 
greenhouse gases. The State's standards require a gradual 
reduction in the greenhouse gas emissions of new passenger 
vehicles beginning in model year 2009. By the 2016 model year, 
the standards cut greenhouse gas emissions from new passenger 
vehicles by almost 30 percent.
    California submitted to EPA a request for a waiver of 
preemption for its greenhouse gas standards on December 21, 
2005. EPA did not begin acting on the request until 16 months 
later, after the U.S. Supreme Court ruled in Massachusetts v. 
EPA that the Clean Air Act authorizes to regulate greenhouse 
gases. EPA has stated its intent to issue a decision on the 
waiver request by the end of 2007, but the Clean Air Act 
contains no explicit deadline by which the Agency must act.
    As of July 2007, the following 12 States have adopted 
California's greenhouse gas emission standards and are awaiting 
EPA's action on California's waiver request: Connecticut, 
Florida, Maine, Maryland, Massachusetts, New Jersey, New York, 
Oregon, Pennsylvania,Rhode Island, Vermont and Washington. 
Together with California, these states represent over 30% of the 
national vehicle fleet.

                      Section-by-Section Analysis


                    SECTION 1. WAIVERS OF PREEMPTION

Summary

    Section 1 amends section 209 of the Clean Air Act to 
establish deadlines for pending and future requests for waivers 
under section 209(b) of the Act.

Description

    For waiver requests submitted to EPA before January 31, 
2006, and pending as of the date the bill is enacted, the 
section requires the Administrator of EPA to issue a decision 
on the request not later than 30 days after the date the bill 
is enacted but in no case later than September 30, 2007. This 
deadline would apply to California's request for a waiver for 
its greenhouse gas vehicle standards if EPA has not decided the 
request by the date the bill is enacted.
    For waiver requests submitted to EPA after the date the 
bill is enacted, the section requires the Administrator of EPA 
to issue a decision within 180 days of EPA's receipt of the 
request. This deadline will ensure that all future waiver 
requests are decided on a timely basis by EPA.

                          Legislative History

    On July 12, 2007, Senator Nelson of Florida introduced S. 
1785, joined by original cosponsors Senators Boxer, Lautenberg, 
Sanders, Feinstein, Menendez, and Cardin. Senators Whitehouse 
and Reed were added as cosponsors. The bill was read twice and 
referred to the Senate Committee on Environment and Public 
Works. The committee met on July 31, 2007, to consider the bill 
as amended by a substitute amendment. S. 1785 as revised by the 
substitute amendment was ordered favorably reported without 
amendment by a vote of 10 to 9.

                                Hearings

    The Committee did not hold hearings on S. 1785 during the 
110th Congress. However, the Committee held two hearings on 
EPA's handling of California's request for a waiver for its 
greenhouse gas vehicles standards. At a May 22, 2007 hearing on 
``The Case for the California Waiver'' the Committee heard 
testimony from Edmund G. Brown, Attorney General of California; 
Alexander B. Grannis, Commissioner of Department of 
Environmental Conservation of the State of New York; and 
Jonathan H. Adler, Director of the Center for Business Law and 
Regulation at Case Western Reserve University School of Law. At 
a July 26, 2007 hearing entitled, ``Examining the Case for the 
California Waiver: An Update from EPA,'' the committee heard 
testimony from Senator Nelson of Florida concerning S. 1785 and 
from EPA Administrator Stephen L. Johnson.

                             Rollcall Votes

    The Committee on Environment and Public Works met to 
consider S. 1785, as revised by the Chairman's mark amendment, 
on July 31, 2007. The Chairman's mark was ordered favorably 
reported by rollcall vote. The vote was 10 to 9 in favor of the 
bill as revised (Ayes--Baucus, Cardin, Carper, Clinton, 
Klobuchar, Lautenberg, Lieberman, Sanders, Whitehouse, Boxer. 
Nays--Alexander, Barrasso, Bond, Craig, Inhofe, Isakson, 
Vitter, Voinovich, and Warner).

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee finds that S. 1785 
does not create any additional regulatory burdens, nor will it 
cause any adverse impact on the personal privacy of 
individuals.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the committee finds that S. 1785 would 
impose no Federal intergovernmental unfunded mandates on State, 
local or tribal governments. The bill contains no new private-
sector mandates as defined in UMRA.

               Congressional Budget Office Cost Estimate

    CBO estimates that enacting S. 1785 would have no 
significant impact on the federal budget.
    Enacting the legislation would not affect direct spending 
or revenues. S. 1785 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
and would impose no costs on State, local, or tribal 
governments.
    S. 1785 would require the Administrator of the 
Environmental Protection Agency (EPA) to issue certain 
decisions within deadlines established by the bill. Those 
decisions concern whether states should be granted waivers to 
preempt federal standards for motor vehicle emissions. The bill 
would require EPA to issue a decision on any requests for 
waivers that were submitted before January 31, 2006, and are 
still pending on the date of enactment of S. 1785, no later 
than September 30, 2007. Any subsequent requests for waivers 
would require a determination by EPA within 180 days after the 
agency receives the request.
    Currently, EPA is reviewing a request for a waiver for 
California that would permit the state to implement a 
regulation it approved in 2004 that is designed to reduce 
emissions from automobiles and regulate greenhouse gas 
emissions. According to EPA, enacting this bill could require 
the agency to redirect personnel and other resources to its 
ongoing review of California's request to meet the deadline 
established under S. 1785. CBO does not expect that EPA would 
require additional funds in 2007 to complete its review. 
Furthermore, EPA expects that any future requests for waivers 
would be less time-consuming than the current request from 
California. CBO estimates that EPA would not require any 
significant additional resources in subsequent years to 
expedite its decisions on similar requests for waivers. Thus, 
we estimate that implementing this legislation would not have a 
significant effect on the federal budget.
    The CBO staff contact for this estimate is Susanne S. 
Mehlman.
    This estimate was approved by Peter H. Fontaine, Assistant 
Director for Budget Analysis.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:

           *       *       *       *       *       *       *

                              ----------                              


CLEAN AIR ACT

           *       *       *       *       *       *       *



             TITLE I--AIR POLLUTION PREVENTION AND CONTROL


              Part A--Air Quality and Emission Limitations


                         findings and purposes

    Sec. 101. (a) The Congress finds--
          (1) * * *

           *       *       *       *       *       *       *


                            state standards

    Sec. 209. (a) No State or any political subdivision thereof 
shall adopt or attempt to enforce any standard relating to the 
control of emissions from new motor vehicles or new motor 
vehicle engines subject to this part. No State shall require 
certification, inspection, or any other approval relating to 
the control of emissions from any new motor vehicle or new 
motor vehicle engine as condition precedent to the initial 
retail sale, titling (if any), or registration of such motor 
vehicle, motor vehicle engine, or equipment.
    (b)(1) * * *

           *       *       *       *       *       *       *

  (f) Waivers of Preemption.--
          (1) Pending requests.--Not later than 30 days after 
        the date of enactment of this subsection, but in no 
        case later than September 30, 2007, the Administrator 
        shall issue a decision on each request for a waiver of 
        preemption under subsection (b) that--
                  (A) was submitted before January 31, 2006; 
                and
                  (B) is pending as of the date of enactment of 
                this subsection.
          (2) Subsequent requests.--With respect to a request 
        for a waiver of preemption under subsection (b) that is 
        submitted by a State after the date of enactment of 
        this subsection, not later than 180 days after the date 
        on which the Administrator receives the request, the 
        Administrator shall issue a decision on whether to 
        grant the waiver.

                                  
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