[Federal Register Volume 73, Number 45 (Thursday, March 6, 2008)]
[Notices]
[Pages 12156-12169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4350]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8539-6]


California State Motor Vehicle Pollution Control Standards; 
Notice of Decision Denying a Waiver of Clean Air Act Preemption for 
California's 2009 and Subsequent Model Year Greenhouse Gas Emission 
Standards for New Motor Vehicles

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: Under section 209(b) of the Clean Air Act, as amended, 42 
U.S.C. 7543(b), the Environmental Protection Agency denies the 
California Air Resources Board's request for a waiver of the Clean Air 
Act's prohibition on adopting and enforcing its greenhouse gas emission 
standards as they affect 2009 and later model year new motor vehicles. 
This decision is based on the Administrator's finding that California 
does not need its greenhouse gas standards for new motor vehicles to 
meet compelling and extraordinary conditions.

DATES: Petitions for review must be filed by May 5, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2006-0173. All documents and public comments in the 
docket are listed on the www.regulations.gov Web site. Publicly 
available docket materials are available either electronically through 
www.regulations.gov or in hard copy at the Air and Radiation Docket in 
the EPA Headquarters Library, EPA West Building, Room 3334, 1301 
Constitution Ave., NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Reading Room is (202) 566-1744. 
The Air and Radiation Docket and Information Center's Web site is 
http://www.epa.gov/oar/docket.html. The electronic mail (e-mail) 
address for the Air and Radiation Docket is: [email protected], 
the telephone number is (202) 566-1742, and the Fax number is (202) 
566-9744.

FOR FURTHER INFORMATION CONTACT: Specific questions may be addressed to 
David Dickinson, Office of Transportation and Air Quality, Compliance 
and Innovative Strategies Division (6405J), EPA, 1200 Pennsylvania 
Avenue, NW., Washington, DC 20460, telephone: (202) 343-9256, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Finding

    In this decision, I find that the California Air Resources Board's 
(CARB's) amendments to title 13, California Code of Regulations (CCR), 
sections 1900 and 1961, and a new section 1961 for its Passenger Cars, 
Light-Duty Trucks, and Medium-Duty Vehicles, relating to greenhouse 
gases (GHGs), are not needed to meet compelling and extraordinary 
conditions. While I recognize that global climate change is a serious 
challenge,\1\ I have concluded that section 209(b) was intended to 
allow California to promulgate state standards applicable to emissions 
from new motor vehicles to

[[Page 12157]]

address pollution problems that are local or regional. I do not believe 
section 209(b)(1)(B) was intended to allow California to promulgate 
state standards for emissions from new motor vehicles designed to 
address global climate change problems; nor, in the alternative, do I 
believe that the effects of climate change in California are compelling 
and extraordinary compared to the effects in the rest of the country. 
Based on this finding, pursuant to section 209(b)(1) of the Clean Air 
Act (Act), CARB's waiver request for its GHG standards for new motor 
vehicles must be denied. Because my finding regarding section 
209(b)(1)(B) must, and is sufficient to, result in a denial of 
California's waiver request, it is unnecessary for me to determine 
whether the criteria for denial of a waiver under sections 209(b)(1)(A) 
and (C) have been met. I therefore will not address these criteria in 
this decision.
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    \1\ This document does not reflect, and nothing in this document 
should be construed as reflecting, my judgment regarding whether 
emissions of GHGs from new motor vehicles or engines cause or 
contribute to air pollution ``which may reasonably be anticipated to 
endanger public health or welfare,'' which is a separate question 
involving different statutory provisions and criteria; nor should it 
be construed as reflecting my judgment regarding any issue relevant 
to the determination of this question.
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II. Background

A. California's GHG Program for New Motor Vehicles

    California's GHG program for new motor vehicles is included as part 
of its second generation low-emission vehicle program known as LEV II. 
EPA previously issued a waiver for the LEV II program and also issued a 
waiver for CARB's zero-emission vehicle program (known as ZEV) through 
the 2011 model year. By Resolution 04-28 CARB approved the GHG program 
for motor vehicles on September 24, 2004 and California's Office of 
Administrative Law approved the regulations on September 15, 2005.
    CARB's regulations and incorporated test procedures control certain 
greenhouse gas emissions from two categories of new motor vehicles--
passenger cars and the lightest trucks (PC and LDT1) and heavier light-
duty trucks and medium-duty passenger vehicles (LDT2 and MDPV). The 
regulations add four new greenhouse gas air emissions (carbon dioxide 
(CO2), methane (CH4), nitrous oxide 
(N2O), and hydrofluorocarbons (HFCs)) to California's 
existing regulations for criteria and criteria-precursor pollutants, 
along with air toxic contaminants. The regulations establish a 
declining fleet average emission standard for these gases, with 
separate standards for each of the two categories of passenger vehicles 
noted above. CARB sets the declining standards for manufacturers into 
two phases: Near-term standards phased in from 2009 through 2012, and 
mid-term standards, phased in from 2013 through 2016.

B. EPA's Consideration of CARB's Request

    By letter dated December 21, 2005, CARB submitted a request seeking 
a waiver of Section 209(a)'s prohibition for its GHG motor vehicle 
standards.\2\ On February 21, 2007, EPA Acting Assistant Administrator 
for Air and Radiation Bill Wehrum notified the Executive Officer of 
CARB that the timing of EPA's consideration of the GHG waiver request 
was related to the then-pending Massachusetts v. EPA case before the 
United States Supreme Court. EPA believed that the decision and opinion 
in that case could potentially be relevant to issues EPA may address in 
the context of the GHG waiver proceeding. As stated in the February 21, 
2007 letter EPA notified CARB's Executive Officer that it would proceed 
with the waiver request after the Supreme Court decision was issued.\3\ 
The Supreme Court issued its decision for Massachusetts v. EPA on April 
2, 2007, finding among other things that EPA has authority to regulate 
emissions of GHGs from new motor vehicles under section 202(a) of the 
Act, if in the Administrator's judgment such emissions cause or 
contribute to air pollution that may reasonably be anticipated to 
endanger public health or welfare (549 U.S. --, 127 S.Ct. 1438).
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    \2\ Section 209(a) of the Act provides: 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.
    \3\ Docket entry EPA-HQ-OAR-2006-0173-0002.
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    On April 30, 2007, a Federal Register notice was published 
announcing an opportunity for hearing and comment on CARB's request, 
including a public hearing scheduled for May 22, 2007, in Washington, 
DC and a written comment period with a deadline of June 15, 2007.\4\ On 
May 10, 2007, an additional Federal Register notice was published 
announcing an additional public hearing for May 30, 2007, in 
Sacramento, CA with no change in the comment period deadline of June 
15, 2007.\5\ EPA subsequently conducted the two public hearings on May 
22, 2007 and May 30, 2007. The written comment period closed on June 
15, 2007.
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    \4\ 72 FR 21260 (April 30, 2007).
    \5\ 72 FR 26626 (May 10, 2007)
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    On several occasions EPA received requests to extend or re-open the 
comment period; however the Agency did not extend the June 15, 2007 
deadline. The Agency did, however, indicate that consistent with past 
waiver practice, it would continue, as appropriate, to communicate with 
any stakeholders in the waiver process after the comment period ended 
and that it would continue to evaluate any comments submitted after the 
close of the comment period to the extent practicable.\6\ By letter 
dated June 21, 2007, I informed Governor Schwarzenegger that I intended 
to make a decision on the state's request by the end of the year.\7\ By 
letter dated December 19, 2007 I notified Governor Schwarzenegger that 
EPA would be denying the waiver and that I had instructed my staff to 
draft the appropriate documents setting forth the rationale for the 
denial in further detail.\8\
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    \6\ EPA denied these requests by letters to the requestors on 
June 8, 2007 (see EPA-HQ-OAR-0173-1236, EPA-HQ-OAR-0173-1237, EPA-
HQ-OAR-0173-1238, and EPA-HQ-OAR-0173-1239; by letter on August 17, 
2007 (see EPA-HQ-OAR-0173-3604); and by letters on November 6, 2007 
(see EPA-HQ-OAR-0173-3655, EPA-HQ-OAR-0173-3656, and EPA-HQ-OAR-
0173-3657).
    \7\ Docket entry EPA-HQ-OAR-0173-5847.
    \8\ Docket entry EPA-HQ-OAR-0173-4702. This letter merely 
informed the Governor of California that EPA ``will be denying the 
waiver'' based on a finding that California does not have a ``need 
to meet compelling and extraordinary conditions.'' As noted in the 
letter, EPA staff were instructed to draft the appropriate documents 
setting forth the rationale in further detail for why under this 
second criteria under the Clean Air Act the waiver would be denied. 
Both the intent and nature of the letter clearly reflect that the 
letter was not the Agency's final action and that EPA would be 
issuing a separate final decision (to be signed by the 
Administrator); therefore, today's decision is EPA's final decision 
on California's waiver request and represents the Agency's final 
agency action. The State of California has petitioned the United 
States Court of Appeals for the Ninth Circuit for review of EPA's 
December 19, 2007 communication based on its view that such 
communication was final agency action. (See State of California v. 
United States Environmental Protection Agency, No. 08-70011). As 
explained in EPA's Motion to Dismiss California's petition (and 
other joined petitions), the Agency's final agency action that is 
subject to judicial review is the final signed decision document--
which is today's action. To the extent any court finds that the 
December 19, 2007 letter was final action, today's final decision 
supersedes and replaces the December 19, 2007 communication to 
California and reflects EPA's entire decision to deny the waiver.
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III. Analysis of Preemption Under the Clean Air Act

A. Clean Air Act

    Section 209(a) of the Act provides:

    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

[[Page 12158]]

any), or registration of such motor vehicle, motor vehicle engine, 
or equipment.
    Section 209(b)(1) of the Act requires the Administrator, after an 
opportunity for public hearing, to waive application of the 
prohibitions of section 209(a) for any State that has adopted standards 
(other than crankcase emission standards) for the control of emissions 
from new motor vehicles or new motor engines prior to March 30, 
1966,\9\ if the State determines that the State standards will be, in 
the aggregate, at least as protective of public health and welfare as 
applicable Federal standards. However, no such waiver shall be granted 
if the Administrator finds that: (A) the protectiveness determination 
of the State is arbitrary and capricious; (B) the State does not need 
such State standards to meet compelling and extraordinary conditions; 
or (C) such State standards and accompanying enforcement procedures are 
not consistent with section 202(a) of the Act.
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    \9\ California is the only State which meets section 209(b)(1) 
eligibility criteria for obtaining waivers. See e.g., S. Rep. No. 
90-403, at 632 (1967).
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B. Deference

    CARB maintains that EPA's previous waiver practice of leaving 
decisions on ambiguous and controversial matters of public policy to 
California's judgment applies equally if not more so to policy 
considerations over the treatment of GHG emissions. It notes nothing in 
section 209(b) has changed the express Congressional intent for 
California to lead and experiment with cutting edge emission-reduction 
technologies and, just as California paved the way for advances in 
reducing criteria air pollutants, so does California's GHG regulation 
advance the reduction in climate-changing GHG emissions.
    The Alliance of Automobile Manufacturers (the Alliance) discusses 
EPA's historical practice and its ``highly deferential standard of 
review.'' \10\ In its June 5, 2007 comments the Alliance sets out 
examples of EPA's deference toward California's regulations as 
demonstration of EPA's limited scope of review. However, the Alliance 
claims that CARB's GHG regulation has a qualitatively new objective of 
addressing global climate change. Because of this, the Alliance 
believes that EPA must make its own independent judgment, with no 
deference to California, on two questions arising under section 
209(b)(1)(B)--specifically whether California needs its own state-
specific regulations and whether California's particular regulations 
will actually address or meet the perceived need.
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    \10\ Docket Entry EPA-HQ-OAR-2006-0173-1519.1, at p. 3.
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    With respect to the deference due to California's policy judgments 
on the best way to protect the public health and welfare of its 
residents, EPA is not addressing or changing its traditional 
interpretation and practice concerning deference to California's 
judgment with respect to section 209(b)(1)(A) and (C). EPA's role in 
applying the second criterion is not to substitute its judgment for 
California's on the importance, value, or benefit for California that 
might be derived from a specific set of GHG standards and the related 
reductions, assuming it is otherwise appropriate for California to 
adopt its own GHG standards.
    At the same time, as discussed below, EPA's interpretation of 
section 209(b)(1)(B) looks at the nature of GHGs as an air pollution 
problem, and in the alternative looks at the impacts of global climate 
change in California in comparison to the rest of the nation as a 
whole. Applying this interpretation to this waiver application calls 
for EPA to exercise its own judgment to determine whether the air 
pollution problem at issue--elevated concentrations of GHGs--is within 
the confines of state air pollution programs covered by section 
209(b)(1)(B). EPA's evaluation relates to the limits of California's 
authority to regulate GHG emissions from new motor vehicles, not to the 
particular regulatory provisions that California wishes to enforce. 
California has its own views on this issue, but EPA does not believe it 
is required or appropriate to give deference to California of the 
statutory interpretation of the Clean Air Act, including the issue of 
the confines or limits of state authority established by section 
209(b)(1)(B). This does not change EPA's consistent view that within 
such confines it should give deference to California's policy 
judgments, as it has in past in waiver decisions, on the mechanism used 
to address local and regional air pollution problems.

C. Burden of Proof

    In Motor and Equip. Mfrs. Assoc. v. EPA, 627 F.2d 1095 (D.C. Cir. 
1979) (MEMA I), the U.S. Court of Appeals stated that the 
Administrator's role in a section 209 proceeding is to:

consider all evidence that passes the threshold test of materiality 
and * * * thereafter assess such material evidence against a 
standard of proof to determine whether the parties favoring a denial 
of the waiver have shown that the factual circumstances exist in 
which Congress intended a denial of the waiver.\11\
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    \11\ MEMA I, 627 F.2d at 1122.

    The court in MEMA I considered the standards of proof under section 
209 for the two findings necessary to grant a waiver for an 
accompanying enforcement procedure (as opposed to the standards 
themselves): (1) Protectiveness in the aggregate and (2) consistency 
with section 202(a). The court instructed that, ``the standard of proof 
must take account of the nature of the risk of error involved in any 
given decision, and it therefore varies with the finding involved. We 
need not decide how this standard operates in every waiver decision.'' 
\12\
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    \12\ Id.
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    The court upheld the Administrator's position that, to deny a 
waiver, ``there must be `clear and compelling evidence' to show that 
proposed procedures undermine the protectiveness of California's 
standards.'' \13\ The court noted that this standard of proof ``also 
accords with the Congressional intent to provide California with the 
broadest possible discretion in setting regulations it finds protective 
of the public health and welfare.'' \14\ With respect to the 
consistency finding, the court did not articulate a standard of proof 
applicable to all proceedings, but found that the opponents of the 
waiver were unable to meet their burden of proof even if the standard 
were a mere preponderance of the evidence.
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    \13\ Id.
    \14\ Id.
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    Although MEMA I addressed enforcement procedures and did not 
explicitly consider the standards of proof under section 209 concerning 
a waiver request for standards, nothing in the opinion suggests that 
the court's analysis would not apply with equal force to such 
determinations. Both before and after MEMA I, EPA's past waiver 
decisions have consistently made clear that:

    [E]ven in the two areas concededly reserved for Federal judgment 
by this legislation--the existence of `compelling and extraordinary' 
conditions and whether the standards are technologically feasible--
Congress intended that the standards of EPA review of the State 
decision to be a narrow one.\15\
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    \15\ See, e.g., 40 FR.23102-103 (May 28, 1975).

    Finally, opponents of the waiver bear the burden of showing that 
California's waiver request is inconsistent with section 202(a). As 
found in MEMA I, this obligation rests firmly with opponents of the 
waiver in a 209 proceeding, holding that: ``[t]he language of the 
statute and its legislative history

[[Page 12159]]

indicate that California's regulations, and California's determinations 
that they must comply with the statute, when presented to the 
Administrator are presumed to satisfy the waiver requirements and that 
the burden of proving otherwise is on whoever attacks them.'' \16\
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    \16\ MEMA I, 627 F.2d at 1121.
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    The Administrator's burden, on the other hand, is to demonstrate 
that he has made a reasonable and fair evaluation of the information in 
the record in coming to the waiver request decision. As the court in 
MEMA I stated, ``here, too, if the Administrator ignores evidence 
demonstrating that the waiver should not be granted, or if he seeks to 
overcome that evidence with unsupported assumptions of his own, he runs 
the risk of having his waiver decision set aside as `arbitrary and 
capricious.' '' \17\ Therefore, the Administrator's burden is to act 
``reasonably.'' \18\
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    \17\ Id. at 1126.
    \18\ Id. at 1126.
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IV. Discussion

A. Sections 209(b)(1)(A) and (C)

    Under section 209(b) of the Clean Air Act, a waiver shall not be 
granted if the Administrator makes any one of the three findings in 
section 209(b)(1)(A), (B) and (C). As noted above and discussed in 
detail below, I am denying California's request for a waiver based on 
my finding that California does not need its motor vehicle GHG 
standards to meet compelling and extraordinary conditions. We received 
numerous comments regarding the criteria in sections 209(b)(1)(A) and 
(C). Because my finding regarding section 209(b)(1)(B) must, and is 
sufficient to, result in a denial of California's waiver request, it is 
unnecessary for me to determine whether the criteria for denial of a 
waiver under sections 209(b)(1)(A) and (C) have been met. I therefore 
will not address these criteria in this decision nor will I address the 
comments submitted regarding these criteria.

B. Additional Issues Raised by EPA's Federal Register Notice

    In EPA's April 30, 2007 Federal Register Notice the Agency invited 
comment on three issues with regard to our review of this waiver 
request: (1) Given that the regulations referenced in the December 21, 
2005, request letter relate to global climate change, should that have 
any effect on EPA's evaluation of the criteria, and if so, in what 
manner?; (2) whether the United States Supreme Court decision in 
Massachusetts v. EPA, issued on April 2, 2007, regarding the regulation 
of emissions of greenhouse gases from new motor vehicles under Title II 
of the Clean Air Act is relevant to EPA's evaluation of the three 
criteria, and if so, in what manner?; and (3) whether the Energy Policy 
and Conservation Act (EPCA) fuel economy provisions are relevant to 
EPA's consideration of this petition or to CARB's authority to 
implement its vehicle GHG regulations?
    With regard to the first two issues, the responses to the questions 
are generally subsumed into the discussion of section 209(b)(1)(B) 
below, to the extent they are relevant to my consideration of that 
criterion. With regard to the third issue, my decision is based solely 
on the statutory criteria in section 209(b) of the Act and this 
decision does not attempt to interpret or apply EPCA or any other 
statutory provision.\19\
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    \19\ EPA notes that there are two recent U.S. District Court 
decisions recognizing that California GHG standards are preempted 
under section 209(a) of the Clean Air Act. These cases do not 
address the issue of whether it is appropriate for EPA to grant a 
waiver under section 209(b) of the Clean Air Act, including the 
second criterion of section 209(b)(1), which is the subject of 
today's decision. See Central Valley Chrysler-Jeep v. Goldstene, 
2007 WL 437878 (ED Cal Dec. 11, 2007); Green Mountain Chrysler v. 
Crombie, 508 F.Supp. 2nd 295 (D. Vt. 2007).
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C. Does California Need Its GHG Standards To Meet Compelling and 
Extraordinary Conditions?

1. It Is Appropriate To Apply This Criterion to California's GHG 
Standards Separately, as Compared to California's Motor Vehicle Program 
as a Whole
    Under section 209(b)(1)(B) of the Clean Air Act, the Administrator 
may not grant a waiver if he finds that the ``State does not need such 
State standards to meet compelling and extraordinary conditions.'' 
California's submissions state that EPA has in the past recognized 
California's unique needs when reviewing waiver requests. California 
states that the relevant inquiry is whether California needs its own 
motor vehicle emissions control program to meet compelling and 
extraordinary conditions, not whether any given standard is needed to 
meet compelling and extraordinary conditions related to that air 
pollution problem. On the other hand, several commenters opposing the 
waiver suggest EPA's determination should be based on whether 
California needs its greenhouse gas standards in particular to meet 
compelling and extraordinary conditions, saying that a proposed set of 
standards must be linked to compelling and extraordinary conditions. 
These commenters suggest that the Act requires EPA to look at the 
particular ``standards'' at issue, not the program.
    I find that it is appropriate to review whether California needs 
its GHG standards to meet compelling and extraordinary conditions 
separately from the need for the remainder of California's new motor 
vehicle program. I base this decision on the fact that California's GHG 
standards are designed to address global climate change problems that 
are different from the local pollution problems that California has 
addressed previously in its new motor vehicle program. The climate 
change problems are different in terms of the distribution of the 
pollutants and the effect of local factors, including the local effect 
of motor vehicle emissions as differentiated from other GHG emissions 
worldwide on the GHG concentrations in California.
    This waiver decision represents the first instance of EPA applying 
the section 209(b)(1)(B) criterion to a California waiver request for a 
fundamentally global air pollution problem. Although EPA's review of 
this criterion has typically been cursory due to California needing its 
motor vehicle emission program due to fundamental factors leading to 
local and regional air pollution problems (as discussed below), it is 
appropriate in this case to carefully review the purpose of section 
209(b)(1)(B) when applying it to the new circumstance of California's 
intent to regulate greenhouse gases. By doing so EPA gives meaning to 
Congress's decision to include this provision in section 209(b).\20\
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    \20\ See United States v. Menashe, 348 U.S. 528, 538-39, 75 
S.Ct. 513, 520 (1955) (courts must give effect to every word, 
clause, and sentence of a statute).
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a. EPA Practice in Previous Waivers
    In past waivers that addressed local or regional air pollution, EPA 
has interpreted section 209(b)(1)(B) as looking at whether California 
needs a separate motor vehicle program to meet compelling and 
extraordinary conditions. Under this approach EPA does not look at 
whether the specific standards at issue are needed to meet compelling 
and extraordinary conditions related to that air pollutant. For 
example, EPA reviewed this issue in detail with regard to particulate 
matter in a 1984 waiver decision.\21\ In that waiver proceeding, 
California argued that EPA is restricted to considering whether 
California needs its own motor vehicle program to meet compelling and 
extraordinary conditions, and not whether any given standard is 
necessary to meet such conditions. Opponents of

[[Page 12160]]

the waiver in that proceeding argued that EPA was to consider whether 
California needed these PM standards to meet compelling and 
extraordinary conditions related to PM air pollution.
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    \21\ See 49 FR 18887 (May 3, 1984).
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    The Administrator agreed with California that it was appropriate to 
look at the program as a whole in determining compliance with section 
209(b)(1)(B). One justification of the Administrator was that many of 
the concerns with regard to having separate state standards were based 
on the manufacturers' worries about having to meet more than one motor 
vehicle program in the country, but that once a separate California 
program was permitted, it should not be a greater administrative 
hindrance to have to meet further standards in California. The 
Administrator also justified this decision by noting that the language 
of the statute referred to ``such state standards,'' which referred 
back to the use of the same phrase in the criterion looking at the 
protectiveness of the standards in the aggregate. He also noted that 
the phrase referred to standards in the plural, not individual 
standards. He considered this interpretation to be consistent with the 
ability of California to have some standards that are less stringent 
than the federal standards, as long as, per section 209(b)(1)(A), in 
the aggregate its standards were at least as protective as the federal 
standards.
    The Administrator further stated that in the legislative history of 
section 209, the phrase ``compelling and extraordinary circumstances'' 
refers to ``certain general circumstances, unique to California, 
primarily responsible for causing its air pollution problem,'' like the 
numerous thermal inversions caused by its local geography and wind 
patterns. The Administrator also noted that Congress recognized ``the 
presence and growth of California's vehicle population, whose emissions 
were thought to be responsible for ninety percent of the air pollution 
in certain parts of California.'' \22\ EPA reasoned that the term 
compelling and extraordinary conditions ``does not refer to the levels 
of pollution directly.'' Instead, the term refers primarily to the 
factors that tend to produce higher levels of pollution--``geographical 
and climatic conditions (like thermal inversions) that, when combined 
with large numbers and high concentrations of automobiles, create 
serious air pollution problems.''
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    \22\ Id. at 18890.
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    The Administrator summarized that the question to be addressed in 
the second criterion is whether these ``fundamental conditions'' (i.e. 
the geographical and climate conditions and large motor vehicle 
population) that cause air pollution continued to exist, not whether 
the air pollution levels for PM were compelling and extraordinary, or 
the extent to which these specific PM standards will address the PM air 
pollution problem.
    From this it can be seen that EPA's interpretation in the context 
of reviewing standards designed to address local or regional air 
pollution has looked at the local causes of the air pollution 
problems--geographic and climatic conditions that turn local emissions 
into air pollution problems, such as thermal inversions, combined with 
a large number of motor vehicles in California emitting in the 
aggregate large quantities of emissions. Under this interpretation, it 
is the common factors that cause or produce local or regional air 
pollution problems, and the particular contribution of local vehicles 
to such problems, that set California apart from other areas when 
Congress adopted this provision.
    EPA's review of this criterion has usually been cursory and not in 
dispute, as the fundamental factors leading to air pollution problems--
geography, local climate conditions (like thermal inversions), 
significance of the motor vehicle population--have not changed over 
time and over different local and regional air pollutants. These 
fundamental factors have applied similarly for all of California's air 
pollution problems that are local or regional in nature. California's 
circumstances of geography, climate, and motor vehicle population 
continue to show that it has compelling and extraordinary conditions 
leading to such local air pollution problems related to traditional 
pollutants.
    To date, California's motor vehicle program has addressed air 
pollution problems that are generally local or regional in nature. The 
emission standards have been designed to reduce emissions coming from 
local vehicles, in circumstances where these local emissions lead to 
air pollution in California that will affect directly the local 
population and environment in California. In that context, EPA's prior 
interpretation has been and continues to be a reasonable and 
appropriate interpretation of the second criterion, and EPA is not 
reconsidering or changing it here for local or regional air pollution 
problems. The narrow question in this waiver proceeding is whether this 
interpretation is appropriate when considering motor vehicle standards 
designed to address a global air pollution problem and its effects, as 
compared to a local or regional air pollution problem that has close 
causal ties to conditions in California.
b. The Distinct Nature of Global Pollution as It Relates to Section 
209(b)(1)(B)
    The air pollution problem at issue here is elevated atmospheric 
concentrations of greenhouse gases, and the concern is the impact these 
concentrations have on global climate change and the effect of global 
climate change on California. In contrast to local or regional air 
pollution problems, the atmospheric concentrations of these greenhouse 
gases is basically uniform across the globe, based on their long 
atmospheric life and the resulting mixing in the atmosphere. The 
factors looked at in the past--the geography and climate of California, 
and the large motor vehicle population in California, which were 
considered the fundamental causes of the air pollution levels found in 
California--no longer perform the same causal function. The atmospheric 
concentration of greenhouse gases in California is not affected by the 
geography and climate of California. The long duration of these gases 
in the atmosphere means they are well-mixed throughout the global 
atmosphere, such that their concentrations over California and the U.S. 
are, for all practical purposes, the same as the global average. The 
number of motor vehicles in California, while still a notable 
percentage of the national total and still a notable source of GHG 
emissions in the State, bears no more relation to the levels of 
greenhouse gases in the atmosphere over California than any other 
comparable source or group of sources of greenhouse gases anywhere in 
the world. Emissions of greenhouse gases from California cars do not 
generally remain confined within California's local environment but 
instead become one part of the global pool of GHG emissions, with this 
global pool of emissions leading to a relatively homogenous 
concentration of greenhouse gases over the globe. Thus, the emissions 
of motor vehicles in California do not affect California's air 
pollution problem in any way different from emissions from vehicles and 
other pollution sources all around the world. Similarly, the emissions 
from California's cars do not just affect the atmosphere in California, 
but in fact become one part of the global pool of GHG emissions that 
affect the atmosphere globally and are distributed throughout the 
world, resulting in basically a uniform global atmospheric 
concentration.

[[Page 12161]]

    Given the different, and global, nature of the pollution at issue, 
it is reasonable to find that the conceptual basis underlying the 
practice of considering California's motor vehicle program as a whole 
does not apply with respect to elevated atmospheric concentrations of 
GHGs. Therefore EPA has considered whether it is appropriate to apply 
this criterion in a different manner for this kind of air pollution 
problem; that is, a global air pollution problem. EPA continues to 
believe that it is appropriate to apply its historical practice to air 
pollution problems that are local or regional in nature, and is not 
suggesting the need to change such interpretation. The only question 
addressed is whether it is appropriate to employ a different practice 
to the very different circumstances present for this global air 
pollution problem.
c. Analysis of the Text and History of Section 209(b)(1)(B)
    The text of section 209(b)(1)(B) does not limit EPA to its previous 
practice as the language of the statute is ambiguous on this point.\23\ 
The second criterion refers to the need for ``such State standards.'' 
While it is clear that this language refers at least to all of the 
standards that are the subject of the particular waiver proceeding 
before the Administrator, it could reasonably be considered as 
referring either to the standards in the entire California program, the 
program for similar vehicles, or the particular standards for which 
California is requesting a waiver under the pending request.\24\
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    \23\ I note that because the statute is not clear with respect 
to the interpretation of this paragraph, my decision is entitled to 
deference and should be upheld as long as it is a permissible 
construction of the statute. Chevron v. NRDC, 467 U.S. 837, 843, 104 
S. Ct. 2778, 2782 (1984). See Engine Manufacturers Ass'n v. EPA, 88 
F.3d 1075, 1084 (DC Cir. 1996) (``the court need only find that the 
EPA's understanding of * * * [the] statute is a sufficiently 
rational one to preclude a court from substituting its judgment for 
that of EPA'' [internal quotes and citations omitted]).
    \24\ As noted above, EPA's 1984 waiver justified its review of 
California's program as a whole in part on the fact that section 
209(b)(1)(B) referred to ``standards'' in the plural, rather than 
the singular. However, the fact that ``standards'' is plural does 
not in and of itself determine what set of standards is being 
reviewed, since many waiver requests encompass a set of standards, 
rather than a single standard. EPA notes that the words ``in the 
aggregate'' are not found in section 209(b)(1)(B).
---------------------------------------------------------------------------

    The 1984 PM waiver referred to the need for consistency with the 
``in the aggregate'' finding, where Congress explicitly allowed 
California to adopt some standards that are less stringent than federal 
standards. This provision was specifically aimed at allowing California 
to adopt less stringent CO standards at a time when California wanted 
to adopt NOX standards that were tighter than the federal 
NOX standards, to address ozone problems. California judged 
that a relaxed CO standard would facilitate the technological 
feasibility of the desired more stringent NOX standards. EPA 
noted that it would be inconsistent for Congress to allow EPA to look 
at each air pollutant separately for purposes of determining compelling 
and extraordinary conditions for that air pollution problem, and at the 
same time allow California to adopt standards for an air pollutant that 
were less stringent than the federal standards. While EPA continues to 
believe, for local or regional air pollution problems, that it is 
appropriate to look at California's program as a whole under the second 
criterion, allowing less stringent standards for some pollutants does 
not by itself mandate that this is the only possible interpretation of 
this criterion, especially when a global pollutant is at issue. For 
example, it is not implausible to think that even if EPA traditionally 
were to look at air pollution problems separately under the second 
criterion, EPA could readily determine that the less stringent CO 
standards should be considered with respect to the ozone problem when 
evaluating compelling and extraordinary conditions, not the CO problem, 
as ozone control was the purpose of the less stringent CO standard.\25\
---------------------------------------------------------------------------

    \25\ See ``Waiver for Standards for Model Year 1979 and later 
Passenger Cars, Certification Procedures and High Altitude 
Regulations'' at 43 FR 25729 (June 14, 1978).
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    The legislative history for section 209 also supports EPA's 
decision to examine the second criterion specifically in the context of 
global climate change. It indicates that Congress was moved to allow 
waivers of preemption for California motor vehicle standards based on 
the particular effects of local conditions in California on the air 
pollution problems in California. Congress discussed ``the unique 
problems faced in California as a result of its climate and 
topography.'' H.R. Rep. No. 728, 90th Cong. 1st Sess., at 21 (1967). 
See also Statement of Cong. Holifield (CA), 113 Cong. Rec. 30942-43 
(1967). Congress also noted the large effect of local vehicle pollution 
on such local problems. See, e.g., Statement of Cong. Bell (CA) 113 
Cong. Rec. 30946. In particular, Congress focused on California's smog 
problem, which is especially affected by local conditions and local 
pollution. See Statement of Cong. Smith (CA) 113 Cong. Rec. 30940-41 
(1967); Statement of Cong. Holifield (CA), id. at 30942. See also, MEMA 
I, 627 F.2d 1095, 1109 (D.C. Cir., 1979) (noting the discussion of 
California's ``peculiar local conditions'' in the legislative history). 
Congress did not justify this provision based on pollution problems of 
a more national or global nature in justifying this provision.\26\
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    \26\ In reference to another argument made in the 1984 waiver, 
while the administrative costs of a program may not increase 
significantly based on the addition of new standards, there is still 
cost in the implementation of new standards, particularly in terms 
of changes in design necessitated by the new standards. In any case, 
this issue does not appear to be particularly relevant to the issue 
of whether California needs its standards to meet compelling and 
extraordinary conditions.
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d. It Is Appropriate To Apply Section 209(b)(1)(B) Separately to GHG 
Standards
    EPA believes that in the context of reviewing California GHG 
standards designed to address global climate change, it is appropriate 
to apply the second criterion separately for GHG standards. For this 
waiver proceeding EPA will not look at whether California continues to 
need its separate motor vehicle program in general to meet compelling 
and extraordinary conditions, as the core factors underlying that 
interpretation, which are related to local conditions, do not apply to 
the circumstances of this global air pollution problem.
    The intent of Congress, in enacting section 209(b) and in 
particular Congress's decision to have a separate section 209(b)(1)(B), 
was to require EPA to specifically review whether California continues 
to have compelling and extraordinary conditions and the need for state 
standards to address those conditions. Thus I believe it is appropriate 
to review California's GHG standards separately from the remainder of 
its motor vehicle emission control program for purposes of section 
209(b)(1)(B).\27\
---------------------------------------------------------------------------

    \27\ I note that this does not represent a change in EPA 
practice regarding its previous waiver decisions, which addressed 
California standards designed to address local or regional 
pollution.
---------------------------------------------------------------------------

    In this context it is appropriate to give meaning to this criterion 
by looking at whether the emissions from California motor vehicles, as 
well as the local climate and topography in California, are the 
fundamental causal factors for the air pollution problem--elevated 
concentrations of greenhouse gases--apart from the other parts of 
California's motor vehicle program, which are intended to remediate 
different air pollution concerns. In the alternative, EPA has also 
considered the effects in California of this global air pollution 
problem in California in comparison to

[[Page 12162]]

the rest of the country, again addressing the GHG standards separately 
from the rest of California's motor vehicle program. While the 
atmospheric concentrations of GHGs may be basically uniform around the 
globe, and GHG emissions distributed globally, EPA has considered 
whether the potential impact of climate change resulting from these 
concentrations will differ across geographic areas and if so whether 
the effects in California amount to compelling and extraordinary 
conditions. These alternative approaches are consistent with the text 
of the provision, and give it a meaning relevant to the air pollution 
circumstances at issue.
    The appropriate criteria to apply therefore is whether the 
emissions of California motor vehicles, as well as California's local 
climate and topography, are the fundamental causal factors for the air 
pollution problem of elevated concentrations of greenhouse gases, and 
in the alternative whether the effect in California of this global air 
pollution problem amounts to compelling and extraordinary conditions.
2. Relationship of California Motor Vehicles, Climate, and Topography 
to Elevated Concentrations of Greenhouse Gases in California
    I recognize that Congress' purpose in establishing the prohibition 
in section 209(a) and the waiver in 209(b) was to balance the benefit 
of allowing California significant discretion in deciding how to 
protect the health and welfare of its population, and that part of that 
benefit is allowing California to act as a laboratory for potential 
federal motor vehicle controls, with the burden imposed on the 
manufacturers of being subject to two separate motor vehicle programs. 
S. Rep. No. 403, 90th Cong. 1st Sess., at 32-33 (1967). It is clear 
that Congress intended this balance to be premised on a situation where 
California needs the state standards to meet compelling and 
extraordinary conditions. Thus, if I find that California does not need 
its state GHG standards to meet compelling and extraordinary 
conditions, it would not be appropriate to grant a waiver of preemption 
for California's state requirements.
    Commenters opposed to EPA granting the waiver commented that 
California should be denied the waiver because separate state GHG 
standards are not needed to meet compelling and extraordinary 
conditions because there is no link between motor vehicle emissions in 
California and any alleged extraordinary conditions in California. 
These commenters state that while California spends a great deal of 
time discussing the effects of climate change in California (discussed 
below), California does not link these emission standards with such 
effects. They note that GHGs are not localized pollutants that can 
affect California's local climate or which are problematic due to 
California's specific topography. Instead, emissions from vehicles in 
California become mixed with the global emissions of GHG and affect 
global climate (including California's climate) in the same way that 
any GHG from around the world affect global (and California) climate 
conditions. They claim that Congress authorized EPA to grant a waiver 
of preemption only in cases where California standards were necessary 
to address peculiar local air quality problems. They claim that there 
can be no need for separate California standards if the standards are 
not aimed at, and do not redress, a California-specific problem.
    California and others supporting the waiver counter that the 
reductions in GHG emissions from the standards are needed to reduce 
future impacts of climate change.
    In previous waiver decisions, EPA was asked to waive preemption of 
standards regulating emissions that were local or regional in effect. 
Local air pollution problems are affected directly by local conditions 
in California, largely the emissions from motor vehicles in California 
in the context of the local climate and topography. As a result state 
standards regulating such local motor vehicle emissions will have a 
direct effect on the concentration of pollutants directly affecting 
California's environment. They are effective mechanisms to reduce the 
levels of local air pollution in California because local conditions 
are the primary cause of that kind of air pollution problem. In 
addition, reductions in emissions from motor vehicles that occur 
elsewhere in the United States will not have the same impact, and often 
will have no impact, on reducing the levels of local air pollution in 
California.
    By contrast, GHGs emitted by California motor vehicles become part 
of the global pool of GHG emissions that affect concentrations of GHGs 
on a uniform basis throughout the world. The local climate and 
topography in California have no significant impact on the long-term 
atmospheric concentrations of greenhouse gases in California. 
Greenhouse gas emissions from vehicles or other pollution sources in 
other parts of the country and the world will have as much effect on 
California's environment as emissions from California vehicles. As a 
result, reducing emissions of GHGs from motor vehicles in California 
has the same impact or effect on atmospheric concentrations of GHGs as 
reducing emissions of GHGs from motor vehicles or other sources 
elsewhere in the US, or reducing emissions of GHGs from other sources 
anywhere in the world. California's motor vehicle standards for GHG 
emissions do not affect just California's concentration of GHGs, but 
affect such concentrations globally, in ways unrelated to the 
particular topography in California. Similarly, emissions from other 
parts of the world affect the global concentrations of GHGs, and 
therefore concentrations in California, in exactly the same manner as 
emissions from California's motor vehicles.
    In Section IV.C.1, the previous section, EPA discussed the reasons 
for concluding that it is appropriate to look at California's GHGs 
standards separately, as compared to looking at its need for a motor 
vehicle program in general. These reasons also lead to the conclusion 
that California does not need these GHG standards to meet compelling 
and extraordinary conditions, without the need to compare impacts in 
California with impacts in the rest of the nation. The legislative 
history indicates that Congress' intent in the second criterion was to 
allow California to adopt new motor vehicle standards because of 
compelling and extraordinary conditions in California that were 
causally related to local or regional air pollution levels in 
California. These factors--climate, topography, large population of 
motor vehicles--cause these kinds of local or regional air pollution 
levels in California and because of this causal link, California's 
motor vehicle standards can be effective mechanisms to address these 
local problems. Reductions outside California would not be expected to 
be as effective as reductions from California's state motor vehicle 
standards in addressing California's local or regional air pollution 
problems, as there is not such a causal link between emissions outside 
California and local or regional air quality conditions inside 
California.
    Some have argued that the decision of the Supreme Court in 
Massachusetts v. EPA, which determined that EPA has authority to 
regulate GHGs under section 202(a) of the Act, if EPA makes certain 
findings, requires that EPA grant a waiver of preemption under section 
209(b). However, this argument does not address a critical difference 
between sections 202(a) and 209(b). Section 202(a) requires EPA to 
promulgate ``standards applicable to the emission of

[[Page 12163]]

any air pollutant from any class or classes of new motor vehicle * * * 
which in his judgment cause, or contribute to, air pollution which may 
reasonably be anticipated to endanger public health or welfare,'' 
without regard to the local, regional or national nature of the 
conditions. However, section 209(b)(1)(B) explicitly requires EPA to 
review whether California needs its state standards to meet compelling 
and extraordinary conditions. I believe that section 209(b) was 
intended to allow California to promulgate state standards applicable 
to emissions from new motor vehicles to address pollution problems that 
are local or regional. I believe that the inclusion of section 
209(b)(1)(B) indicated Congress's desire not to allow waiver of 
preemption for California standards to reduce emissions related to 
global air pollution problems, as compared to local or regional air 
pollution. Section 209(b) was a compromise measure that allowed 
disruption of the introduction of new motor vehicles into interstate 
commerce by allowing California to have its own motor vehicle program, 
but limited this to situations where the air pollution problems have 
their basic cause, and therefore their solution, locally in 
California.\28\ Congress allowed California to promulgate its own new 
motor vehicle standards based in part on the fact that California motor 
vehicles were such a large part of the local air pollution problem in 
California, see e.g., Statement of Cong. Bell (CA) 113 Cong. Rec. 30946 
and ``the unique problems faced in California as a result of its 
climate and topography.'' H.R. Rep. No. 728, 90th Cong. 1st Sess., at 
21 (1967). California's ability to address these local or regional air 
pollution problems through local measures that reduce emissions of 
pollutants that directly affect California's own local environment, and 
the effectiveness of such measures to deliver emission reductions in 
the area that needs it, was the basis for allowing California the 
authority, unique among the states, to promulgate such state standards.
---------------------------------------------------------------------------

    \28\ See S. Rep. No 403, 90th Cong. 1st Sess., at 32-33 (1967).
---------------------------------------------------------------------------

    In contrast, Congress did not indicate any particular desire to 
allow California to promulgate local standards to deal with global air 
pollution like atmospheric concentrations of GHGs. California comments 
on the need for reductions in GHG atmospheric concentrations and 
therefore emissions, but the issue is not whether such reductions are 
needed but whether Congress intended them to be effectuated on a state 
basis by California through its new motor vehicle program. This type of 
pollution seems ill-fitted to Congress's intent to provide California 
with a method of handling its local air pollution concentrations and 
related problems with local emission control measures. I believe that 
standards regulating emissions of global pollutants like greenhouse 
gases were not part of the compromise envisioned by Congress in passing 
section 209(b).
    California argues that increased temperatures associated with 
climate change would increase ozone levels in California, and that EPA 
has long recognized that California has compelling and extraordinary 
conditions concerning ozone, and therefore the waiver should be granted 
based on the impact of climate change on ozone levels. However, as 
discussed above, in specifying the need for standards to meet 
compelling and extraordinary conditions Congress had in mind the causal 
factors of local or regional air pollution problems, not the level of 
the air pollution per se. GHG emissions from California cars are not a 
causal factor for local ozone levels any more than GHG emissions from 
any other source of GHG emissions in the world. It is not the impact on 
ozone levels that is the key question, but the nature of the causal 
factors. The second criterion identifies local and regional air 
pollution problems where the causal factors are local to California, 
and therefore local controls will be effective and controls outside the 
state would not be as effective. While climate change may impact levels 
of ozone in California, this does not change the fact that the factors 
causing elevated concentrations of greenhouse gases are not solely 
local to California. This is in contrast to the kinds of motor vehicle 
emissions normally associated with ozone levels, such as VOCs and 
NOX, and the local climate and topography that in the past 
have lead to the conclusion that California has the need for state 
standards to meet these kinds of compelling and extraordinary 
conditions.
    California also claims that the GHG standards are needed to meet 
``compelling and extraordinary conditions'' because the net impact of 
upstream emission reductions of ozone precursors from reduced fuel 
throughput (including a reduction of emissions from refineries in 
California) helps to reduce California ozone levels. However, without 
taking a position on whether or to what extent such reductions would 
occur, any such reduction in local stationary source emissions would 
not be reductions in the emissions of ozone precursors from motor 
vehicles, but instead are indirect reductions caused by the expected 
actions of stationary sources. The second criterion in section 
209(b)(1)(B) focuses on the need to control emissions from new motor 
vehicles because of the impact of motor vehicle emissions on local or 
regional air pollution problems, not on the need to indirectly control 
stationary source emissions through motor vehicle standards. California 
has independent authority to directly regulate stationary sources in 
the State. Therefore, California cannot rely on the emission reductions 
from stationary sources in the State as the justification for 
satisfying the waiver criterion under section 209(b)(1)(B). This waiver 
decision does not affect California's ability to reduce emissions of 
ozone precursors from stationary sources directly in California. This 
analysis of section 209(b)(1)(B) is separate and distinct from the 
analysis of whether any reduction from indirect sources is relevant 
under the ``protectiveness'' criterion of section 209(b)(1)(A).
    Given that Congress enacted section 209(b) to provide California 
with a unique ability to receive a waiver of preemption, which provides 
California with authority that it would not otherwise have under 
section 209, and given the specific language in section 209(b)(2) 
pointing out the need for extraordinary and compelling conditions as a 
condition for the waiver, I believe that it is not appropriate to waive 
preemption for California's standards to regulate GHGs. Atmospheric 
concentrations of greenhouse gases are an air pollution problem that is 
global in nature, and this air pollution problem does not bear the same 
causal link to factors local to California as do local or regional air 
pollution problems. I believe that atmospheric concentrations of GHGs 
are not the kind of local or regional air pollution problem Congress 
intended to identify in the second criterion of section 209(b)(2). As 
such I find that California does not need its GHG standards to meet 
compelling and extraordinary conditions.
3. Relationship of Impacts of Global Climate Change in California to 
the Rest of the Country
    As noted above, in section IV.C.1., as an alternative to the 
approach discussed in section IV.C.2, EPA has also considered the 
effects of this global air pollutant problem in California in

[[Page 12164]]

comparison to the rest of the country.\29\ While the air pollution 
concentrations may be relatively uniform around the globe, and GHG 
emissions distributed globally, EPA has considered whether the 
potential impact of climate change resulting from these emissions and 
concentrations will differ across geographic areas and if so whether 
the likely effects in California amount to compelling and extraordinary 
conditions.
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    \29\ The review in this section is independent of the analysis 
in the previous section. That analysis is sufficient to deny the 
waiver request. This analysis provides an independent reason for 
denial.
---------------------------------------------------------------------------

    In determining whether the effect in California is compelling and 
extraordinary, guidance can be found in the legislative history, which 
speaks of California demonstrating ``compelling and extraordinary 
circumstances sufficiently different from the nation as a whole to 
justify standards on automobile emissions which may, from time to time, 
need to be more stringent than national standards.'' S. Rep. No. 403, 
90th Cong. 1st Sess., at 32 (1967). The history refers to California's 
``peculiar local conditions'' and ``unique problems.'' Id. This 
indicates a Congressional intent that there be particular circumstances 
in California sufficiently different from the nation as a whole that 
justify separate standards in California. Therefore the criterion to 
apply is whether the effects in California from elevated concentrations 
of GHGs and any resulting climate change are different enough from the 
rest of the nation as a whole that California should be considered to 
have compelling and extraordinary conditions under section 
209(b)(1)(B).
    In its waiver request CARB restates its need for its own engine and 
vehicles programs to meet serious air pollution problems. CARB states 
that climate change threatens California's public health, water 
resources, agricultural industry, ecology, and economy. Direct health 
impacts due to climate change that CARB cites include extreme events, 
such as heat waves, droughts, increased fire frequency, and increased 
storm intensity. CARB also notes that air quality impacts, such as 
increases in ground-level ozone due to higher temperatures, will cause 
secondary health effects. CARB's waiver request also anticipates that 
manufacturers may argue that California's position vis-[agrave]-vis 
other states regarding climate change impacts is not ``extraordinary.'' 
In addition to stating that this claim is not legally pertinent to 
EPA's review of California's continuing need for its own ``motor 
vehicle program,'' CARB also notes that both the Assembly Bill 1493 
(Chap. 200, Stats, 2002 (Pavley)) and the CARB Board Resolution 04-28 
(September 23, 2004) recognize that global warming would impose 
compelling and extraordinary impacts such as those noted above.
    EPA also received comment from CARB and others supporting the 
waiver stating that California faces unique and compelling geographical 
and population issues in their state, which have not changed since 
Congress and EPA originally recognized California's need to establish 
separate vehicle standards. According to the comments, along with 
exacerbating ozone impacts and increasing wildfires, there are a number 
of other compelling and extraordinary circumstances in California that 
justify the passage of GHG emission standards, including: declining 
snowpack and early snowmelt and resultant impacts on water storage and 
release, sea level rise, salt water intrusion, and adverse impacts to 
agriculture (e.g., declining yields, increased pests, etc.), forests, 
and wildlife. During EPA's two public hearings and in written 
submissions to the docket many commenters provided additional 
discussion regarding the variety and severity of adverse impacts of GHG 
emissions and global warming on the environment. In addition, some 
commenters specifically point to a direct threat to public health 
(e.g., asthma) since increased temperatures due to increased GHG 
emissions will lead to increased levels of ozone and other pollutants. 
Some commenters also assert that there is nothing in section 
209(b)(1)(B) of the CAA that limits the ``extraordinary and compelling 
conditions'' that should be considered to those associated with smog, 
and that as a result, California should be able to consider these 
additional conditions.
    EPA also received comments suggesting that in order for 
California's conditions to be ``extraordinary'' they need not be worse 
or unique among states. CARB points out, in reference to the 1984 PM 
waiver, California's conditions need not be worse or unique among 
States because if that were the case only California could be setting 
its own standards for specific California purposes. These commenters 
suggest in addition that, in any case, conditions are indeed worse in 
California. CARB points to the testimony of Dr. Stephen Schneider of 
Stanford University and others to demonstrate that not only are 
California's conditions ``unique and arguably more severe'' (e.g. 
temperature impacts from global warming are more certain for Western 
states like California) but also that no other state faces the 
combination of ozone exacerbation, wildfire emission's contribution, 
water system and coastal system impacts and other impacts faced by 
California.
    On the other hand, several commenters opposed to granting the 
waiver state that global warming is not a compelling and extraordinary 
condition specific to California. They assert that the 
``extraordinary'' aspect of section 209(b)(1)(B) embodies a concept of 
uniqueness and to date, EPA has granted waivers for California to 
address the issue of localized urban air pollution caused by criteria 
and other health-related pollutants. In its interpretation of the term 
``compelling and extraordinary conditions'' CARB describes a number of 
potential impacts to tourism, public health, water resources, 
agriculture, ecology, wildfires, droughts, heat waves, flooding, and 
other adverse effects, many of which, according to some commenters, 
could also be claimed by other States as resulting from climate change. 
The commenters state that CARB has not demonstrated that the negative 
impacts it would face from global climate change are ``extraordinary'' 
as compared to other States in the nation. Even though California can 
claim that it is more susceptible to some kinds of risks because it is 
a coastal state, that does not differentiate California from other 
coastal states, of which there are many. According to commenters, the 
level of significance implied by the structure of the Act, as set 
against constitutional principles, requires that California face truly 
unique circumstances. The Alliance states that California has not 
satisfied the requirement under section 209(b)(1)(B) because, apart 
from the arguments discussed in section IV.C.2 above, California has 
not pointed to an effect that is not widely shared and sufficiently 
unique with respect to the nature or degree of the effect to be 
experienced. In addition, several commenters that supported the waiver, 
in particular commenters representing states and localities other than 
California, commented that global climate change would also have a 
substantial effect on areas other than California.\30\ These comments 
may tend

[[Page 12165]]

to indicate that the effects of global climate change in California are 
not extraordinary compared to the rest of the country.\31\
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    \30\ EPA received comment during its public hearings and written 
comment period from representatives from several states, including: 
New Jersey, Rhode Island, Maryland, Illinois, Maine, Pennsylvania, 
Massachusetts, New York, New Mexico, Oregon, Illinois, Connecticut, 
Vermont, and Florida. Many of these comments note studies or 
concerns where specific and critical risks or vulnerabilities are 
identified (e.g., coastal flooding and erosion, increased 
temperatures, frequent and intense storms, aging populations 
vulnerable to intensities in weather systems, vector-borne diseases, 
etc.).
    \31\ EPA received comment from the Western Environmental Law 
Center (EPA-HQ-OAR-0173-1404.1), among others, suggesting that 
although many states have submitted comment outlining the challenges 
and impacts that they face as a result of climate change this 
nevertheless does not undermine the fact that California faces 
compelling and extraordinary conditions. The Western Environmental 
Law Center notes ``Moreover, as California has noted, the state `is 
particularly vulnerable' to climate change impacts, including, in 
its Bay-Delta area, `to saltwater intrusion from sea-level rise, 
levee collapse, and flooding, any of which would severely tax 
California's increasingly fragile water-supply system * * *. The 
state notes, as well, that `[t]he predicted decrease in winter snow 
pack would exacerbate these impacts by reducing spring and summer 
snowmelt runoff critical for municipal and agricultural uses, a 
situation further strained by fish and wildlife considerations. 
Also, of course, California's high ozone levels--clearly a condition 
Congress considered--will be exacerbated by higher temperatures from 
global warming.' ''.
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    In order to assess such comments and the arguments made both in 
favor and against a determination that California faces extraordinary 
and compelling conditions, the following section discusses the 
atmospheric effect of GHG emissions, observed and projected climate 
change, the context within which climate change impacts may occur, and 
the projected risks and impacts associated with climate change, both in 
California and nationally.
a. Atmospheric Effect of Greenhouse Gases and Their Atmospheric 
Concentrations
    It is widely recognized that greenhouse gases have a climatic 
warming effect by trapping heat in the atmosphere that would otherwise 
escape to space.\32\ Greenhouse gases, once emitted, can remain in the 
atmosphere for decades to centuries, meaning that their concentrations 
become well-mixed throughout the global atmosphere regardless of 
emission origin. Therefore, the concentrations of the six primary GHGs 
directly emitted by human activities (CO2, CH4, N2O, HFCs, PFCs, SF6) 
over the U.S. and California are, for all practical purposes, the same 
as the global average. In contrast, the concentrations of more 
``traditional'' pollutants, such as tropospheric ozone, are more 
variable over space and time due to their much shorter atmospheric 
lifetimes (e.g., days to weeks) compared to GHGs.\33\
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    \32\ See http://www.epa.gov/climatechange/science/stateofknowledge.html.
    \33\ Forster, P. et al. (2007) Changes in Atmospheric 
Constituents and in Radiative Forcing. In: Climate Change 2007: The 
Physical Science Basis. Contribution of Working Group I to the 
Fourth Assessment Report of the Intergovernmental Panel on Climate 
Change [Solomon, S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. 
Avery, M. Tignor and H.L. Miller (eds.)]. Cambridge University 
Press, Cambridge, United Kingdom and New York, NY, USA.
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    The global atmospheric CO2 concentration has increased about 35% 
from pre-industrial levels to 2005, and almost all of the increase is 
due to anthropogenic (i.e., man-made) emissions.\34\ The global 
atmospheric concentration of CH4 has increased by 148% from pre-
industrial levels; and the N2O concentration has increased 18%. The 
observed concentration increase in these gases can also be attributed 
primarily to anthropogenic emissions. The industrial fluorinated gases, 
HFCs, PFCs, and SF6, have relatively low atmospheric concentrations but 
are increasing rapidly; these gases are entirely anthropogenic in 
origin.\35\
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    \34\ IPCC (2007) Summary for Policymakers. In: Climate Change 
2007: The Physical Science Basis. Contribution of Working Group I to 
the Fourth Assessment Report of the Intergovernmental Panel on 
Climate Change [Solomon, S., D. Qin, M. Manning, Z. Chen, M. 
Marquis, K.B. Averyt, M. Tignor and H.L. Miller (eds.)]. Cambridge 
University Press, Cambridge, United Kingdom and New York, NY, USA.
    \35\ Id.
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b. Observed Global, U.S. and California Climate Change
i. Global Temperature
    According to the most recent reports of the International Panel on 
Climate Change, warming of the climate system is unequivocal and is now 
evident from observations of increases in global average air and ocean 
temperatures, widespread melting of snow and ice, and rising global 
average sea level.\36\ Global mean surface temperatures have risen by 
0.74[deg]C (1.3[deg]F) over the last 100 years. The rate of warming 
over the last 50 years is almost double that over the last 100 years. 
Global mean surface temperature was higher during the last few decades 
of the 20th century than during any comparable period during the 
preceding four centuries.\37\ Most of the observed increase in global 
average temperatures since the mid-20th century is very likely due to 
the observed increase in anthropogenic GHG concentrations.\38\ Climate 
model simulations suggest natural forcings alone (e.g., changes in 
solar irradiance) cannot explain the observed warming. Likewise, North 
America's observed temperatures over the last century can only be 
reproduced using model simulations containing both natural and 
anthropogenic forcings.\39\
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    \36\ Id.
    \37\ Id.
    \38\ Id.
    \39\ Id.
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    Widespread changes in extreme temperatures have been observed in 
the last 50 years across all world regions including the U.S. Cold 
days, cold nights, and frost have become less frequent, while hot days, 
hot nights, and heat waves have become more frequent.\40\
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    \40\ Id.
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ii. U.S. and California Temperatures
    U.S. temperatures also warmed during the 20th century and into the 
21st century. U.S. temperatures are now approximately 1.0 [deg]F warmer 
than at the start of the 20th century, with an increased rate of 
warming over the past 30 years. The Southeast experienced a very slight 
cooling trend over the entire period (-0.04 [deg]F per century), but 
shows warming since 1979. California itself has experienced a warming 
trend of 2.3 [deg]F over the period 1901 to 2005,\41\ while the 
greatest temperature increase occurred in Alaska (3.3 [deg]F per 
century).
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    \41\ Data obtained from: http://www.ncdc.noaa.gov/oa/climate/research/ushcn/ushcn.html.
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iii. U.S. and California Precipitation
    Data show that over the contiguous U.S., total annual precipitation 
increased at an average rate of 6% per century from 1901-2005.\42\ The 
greatest increases in precipitation were in the East North Central 
climate region (12% per century) and the South (11%). Precipitation in 
the Northeast increased by 7%, in the Southeast by 3%, the Central U.S. 
by 8%, the West North Central by 3%, the Southwest by 1%, the West by 
9%, and the Northwest by 5%. Precipitation trends for the state of 
California alone are not as clear as the increased temperature 
trends.\43\
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    \42\ Data obtained from: http://www.ncdc.noaa.gov/oa/climate/research/ushcn/ushcn.html.
    \43\ California Energy Commission (2005) Climate Change Impacts 
and Adaptation in California. CEC-500-2005-103-SD.
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iv. Global and U.S. Sea Level Rise
    There is strong evidence that global sea level gradually rose in 
the 20th century and is currently rising at an increased rate. The 
total 20th century global sea level rise is estimated to be 6.7  2 inches (0.17  0.05 m).\44\ Nearly

[[Page 12166]]

all of the Atlantic Ocean shows sea level rise during the past decade 
with the rate of rise reaching a maximum (over 0.08 inches or 2 mm per 
year) in a band along the U.S. east coast. Sea level \45\ has been 
rising 0.08-0.12 inches per year (2.0-3.0 mm per year) along most of 
the U.S. Atlantic and Gulf coasts. The rate of sea level rise varies 
from about 0.36 inches per year (10 mm per year) along the Louisiana 
Coast (due to land sinking), to a drop of a few inches per decade in 
parts of Alaska (because land is rising).
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    \44\ Bindoff, N.L. et al. (2007) Observations: Oceanic Climate 
Change and Sea Level. In: Climate Change 2007: The Physical Science 
Basis. Contribution of Working Group I to the Fourth Assessment 
Report of the Intergovernmental Panel on Climate Change [Solomon, 
S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Avery, M.Tignor 
and H.L. Miller (eds.)]. Cambridge University Press, Cambridge, 
United Kingdom and New York, NY, USA.
    \45\ U.S. sea level data obtained from the Permanent Service for 
Mean Sea Level http://www.pol.ac.uk/psmsl/ of the Proudman 
Oceanographic Laboratory.
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    Historical trends along the California coast, quantified from a 
small set of California tide gauges, have approached 0.08 inches per 
year (2 mm per year), which are rates very similar to those estimated 
for global mean sea level.\46\ On average this is generally less than 
or equal to the rate of sea level rise elsewhere in the US.
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    \46\ California Climate Change Center (2006) Scenarios of 
Climate Change in California: An Overview. CEC-500-2005-186-SF.
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c. Projected Climate Change
i. Global Context
    The majority of future reference-case scenarios (assuming no 
explicit GHG mitigation actions beyond those already enacted) project 
an increase of global GHG emissions over the century, with climbing GHG 
concentrations and rising net positive radiative forcing. Carbon 
dioxide is expected to remain the dominant anthropogenic GHG over the 
course of the 21st century. The radiative forcing associated with the 
non-CO2 GHGs is still significant and growing over time.\47\
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    \47\ CCSP (2007) Scenarios of Greenhouse Gas Emissions and 
Atmospheric Concentrations (Part A) and Review of Integrated 
Scenario Development and Application (Part B). A Report by the U.S. 
Climate Change Science Program and the Subcommittee on Global Change 
Research [Clarke, L., J. Edmonds, J. Jacoby, H. Pitcher, J. Reilly, 
R. Richels, E. Parson, V. Burkett, K. Fisher-Vanden, D. Keith, L. 
Mearns, H. Pitcher, C. Rosenzweig, M. Webster (Authors)]. Department 
of Energy, Office of Biological & Environmental Research, 
Washington, DC., USA, 260 pp. See also, IPCC (2000) Special Report 
on Emissions Scenarios. A Special Report of Working Group III of the 
Intergovernmental Panel on Climate Change [N. Nakicenovic et al. 
(eds.)]. Cambridge University Press, Cambridge, United Kingdom and 
New York, NY, USA.
---------------------------------------------------------------------------

    Through about 2030, projections for the global warming rate are 
affected little by different scenario assumptions or different model 
sensitivities.\48\ By mid-century, the choice of scenario becomes more 
important for the magnitude of the projected warming; about a third of 
that warming is projected to be due to climate change that is already 
committed. By the end of the century, projected average global warming 
(compared to average temperature around 1990) varies significantly by 
emissions scenario, ranging from 1.8 to 4.0 [deg]C (3.2 to 7.2 [deg]F), 
with an uncertainty range of 1.1 to 6.4 [deg]C (2.0 to 11.5 [deg]F), 
according to the IPCC.\49\
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    \48\ IPCC (2007) Summary for Policymakers. In: Climate Change 
2007: The Physical Science Basis. Contribution of Working Group I to 
the Fourth Assessment Report of the Intergovernmental Panel on 
Climate Change [Solomon, S., D. Qin, M. Manning, Z. Chen, M. 
Marquis, K.B. Avery, M.Tignor and H.L. Miller (eds.)]. Cambridge 
University Press, Cambridge, United Kingdom and New York, NY, USA.
    \49\ Id.
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    By the end of the century, globally averaged sea level is projected 
to rise between 0.18 and 0.59 meters relative to around 1990.\50\ These 
numbers represent the lowest and highest projections of the 5 to 95% 
ranges for all scenarios considered collectively and include neither 
uncertainty in carbon cycle feedbacks nor rapid dynamical changes in 
ice sheet flow. In all scenarios, the average rate of sea level rise 
during the 21st century very likely exceeds the 1961 to 2003 average 
rate (1.8  0.5 mm per year).\51\
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    \50\ Id.
    \51\ Id.
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ii. U.S. Projections for Temperature, Precipitation and Sea Level Rise
    All of the U.S. is very likely to warm during this century, and 
most areas of the U.S. are expected to warm by more than the global 
average. The average warming in the U.S. is projected to exceed 2 
[deg]C (3.6 [deg]F) by the end of the century, with 5 out of 21 models 
from IPCC projecting average warming in excess of 4 [deg]C (7.2 
[deg]F).\52\ The largest warming is projected to occur in winter over 
northern parts of Alaska. In western, central and eastern regions of 
North America, the projected warming has less seasonal variation and is 
not as large, especially near the coast, consistent with less warming 
over the oceans.
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    \52\ Christensen, J.H. et al. (2007) Regional Climate 
Projections. In: Climate Change 2007: The Physical Science Basis. 
Contribution of Working Group I to the Fourth Assessment Report of 
the Intergovernmental Panel on Climate Change [Solomon, S., D. Qin, 
M. Manning, Z. Chen, M. Marquis, K.B. Avery, M. Tignor and H.L. 
Miller (eds.)]. Cambridge University Press, Cambridge, United 
Kingdom and New York, NY, USA.
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    It is very likely that heat waves will become more intense, more 
frequent, and longer lasting in a future warm climate, whereas cold 
episodes are projected to decrease significantly.
    Intensity of precipitation events is projected to increase in the 
U.S. and other regions of the world, increasing the risk of flooding, 
greater runoff and erosion, and thus the potential for adverse water 
quality effects.\53\ Increases in the amount of precipitation are very 
likely in higher latitudes, while decreases are likely in most 
subtropical, more southern regions, continuing observed patterns in 
recent trends in observations. The mid-continental area is expected to 
experience drying during summer, indicating a greater risk of drought. 
It is likely that hurricanes will become more intense, with stronger 
peak winds and more heavy precipitation associated with ongoing 
increases of tropical sea surface temperatures.\54\
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    \53\ Id. See also, Field, C.B. et al. (2007) North America. In: 
Climate Change 2007: Impacts, Adaptation and Vulnerability. 
Contribution of Working Group II to the Fourth Assessment Report of 
the Intergovernmental Panel on Climate Change [M.L. Parry, O.F. 
Canziani, J.P. Palutikof, P.J. van der Linden and C.E. Hanson 
(eds.)]. Cambridge University Press, Cambridge, United Kingdom and 
New York, NY, USA.
    \54\ IPCC (2007) Summary for Policymakers. In: Climate Change 
2007: The Physical Science Basis. Contribution of Working Group I to 
the Fourth Assessment Report of the Intergovernmental Panel on 
Climate Change [Solomon, S., D. Qin, M. Manning, Z. Chen, M. 
Marquis, K.B. Avery, M.Tignor and H.L. Miller (eds.)]. Cambridge 
University Press, Cambridge, United Kingdom and New York, NY, USA.
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    For the U.S. coastline, a mid-range emissions scenario shows sea 
level rise values close to the global mean, with slightly higher rates 
in eastern Canada and western Alaska, and stronger positive anomalies 
in the Arctic. The projected rate of sea level rise off the low-lying 
U.S. South Atlantic and Gulf coasts is also higher than the global 
average.\55\
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    \55\ Nicholls, R.J. et al. (2007) Coastal Systems and Low-lying 
Areas. In: Climate Change 2007: Impacts, Adaptation and 
Vulnerability. Contribution of Working Group II to the Fourth 
Assessment Report of the Intergovernmental Panel on Climate Change 
[M.L. Parry, O.F. Canziani, J.P. Palutikof, P.J. van der Linden and 
C.E. Hanson (eds.)]. Cambridge University Press, Cambridge, United 
Kingdom and New York, NY, USA.
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iii. California Projections of Temperature, Precipitation and Sea Level 
Rise
    Climate change projections were also conducted by California using 
many of the same global GHG emission scenarios that underlie the IPCC's 
projections. Over the course of the 21st century, temperatures are 
projected to increase by 3[deg] to 10.4 [deg]F.\56\ Precipitation 
trends, which are more difficult to project at the regional scale, do 
not show consistent trends among different modeling

[[Page 12167]]

scenarios. Sea level rise is expected to continue along California.\57\ 
The middle to higher end of the projected range would substantially 
exceed the historical rate of sea level rise observed at San Francisco 
and San Diego during the past 100 years.\58\
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    \56\ California Energy Commission (2006). Our Changing Climate: 
Assessing the Risks to California. [Accessed 08.08.07: http://www.energy.ca.gov/2006publications/CEC-500-2006-077/CEC-500-2006-077.PDF].
    \57\ Id.
    \58\ California Climate Change Center (2006) Scenarios of 
Climate Change in California: An Overview. CEC-500-2005-186-SF.
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d. Projected Risks and Impacts Associated With Climate Change
    The IPCC states that vulnerability to climate change is ``a 
function of the character, magnitude and rate of climate change and the 
variation to which a system is exposed, its sensitivity and its 
adaptive capacity.'' \59\ Therefore, even though GHGs are global 
pollutants that remain in the atmosphere long enough to distribute 
themselves homogenously around the globe, the end-point risks and 
impacts associated with the resultant climate change vary across and 
within countries, and over time.
a. Across the U.S.
---------------------------------------------------------------------------

    \59\ IPCC (2007) Summary for Policymakers. In: Climate Change 
2007: Impacts, Adaptation and Vulnerability. Contribution of Working 
Group II to the Fourth Assessment Report of the Intergovernmental 
Panel on Climate Change [M.L. Parry, O.F. Canziani, J.P. Palutikof, 
P.J. van der Linden and C.E. Hanson (eds.)]. Cambridge University 
Press, Cambridge, United Kingdom and New York, NY, USA.
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    The IPCC \60\ made the following conclusions with very high 
confidence \61\ regarding what are expected to be key impacts for North 
America:\62\ Coastal communities and habitats will be increasingly 
stressed by climate change impacts interacting with development and 
pollution; climate change will constrain North America's over-allocated 
water resources, increasing competition among agricultural, municipal, 
industrial and ecological uses; climate change impacts on 
infrastructure and human health and safety in urban centers will be 
compounded by aging infrastructure, maladapted urban form and building 
stock, urban heat islands, air pollution, population growth and an 
aging population; and, disturbances such as wildfire and insect 
outbreaks are increasing and are likely to intensify in a warmer future 
with drier soils and longer growing seasons.
---------------------------------------------------------------------------

    \60\ Field, C.B. et al. (2007) North America. In: Climate Change 
2007: Impacts, Adaptation and Vulnerability. Contribution of Working 
Group II to the Fourth Assessment Report of the Intergovernmental 
Panel on Climate Change [M.L. Parry, O.F. Canziani, J.P. Palutikof, 
P.J. van der Linden and C.E. Hanson (eds.)]. Cambridge University 
Press, Cambridge, United Kingdom and New York, NY, USA.
    \61\ According to IPCC terminology, ``very high confidence'' 
conveys a 9 out of 10 chance of being correct.
    \62\ Though the IPCC chapter on which this information is based 
is focused on North America, the IPCC convening lead authors of this 
chapter confirmed for EPA in a written statement that the chapter's 
executive summary conclusions are equally applicable to the U.S. See 
EPA-HQ-OAR-2006-0173-6401.
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    Severe heat waves are projected to intensify in magnitude and 
duration over the portions of the U.S. where these events already 
occur, with likely increases in mortality and morbidity, especially 
among the elderly, young and frail. Ranges of vector-borne and tick-
borne diseases in North America may expand but with modulation by 
public health measures and other factors.\63\
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    \63\ Field, C.B. et al. (2007) North America. In: Climate Change 
2007: Impacts, Adaptation and Vulnerability. Contribution of Working 
Group II to the Fourth Assessment Report of the Intergovernmental 
Panel on Climate Change [M.L. Parry, O.F. Canziani, J.P. Palutikof, 
P.J. van der Linden and C.E. Hanson (eds.)]. Cambridge University 
Press, Cambridge, United Kingdom and New York, NY, USA.
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    Climate change is also expected to facilitate the spread of 
invasive species and disrupt ecosystem services. Over the 21st century, 
changes in climate will also cause species to shift north and to higher 
elevations and fundamentally rearrange U.S. ecosystems. Differential 
capacities for range shifts and constraints from development, habitat 
fragmentation, invasive species, and broken ecological connections will 
alter ecosystem structure, function, and services.
    The IPCC projects with virtual certainty declining air quality in 
U.S. and other world cities due to warmer and fewer cold days and 
nights and/or warmer/more frequent hot days and nights over most land 
areas.\64\ Climate change is expected to lead to increases in ozone 
pollution, with associated risks in respiratory infection and 
aggravation of asthma. Ozone exposure also may contribute to premature 
death in people with heart and lung disease.\65\ In addition to human 
health effects, tropospheric ozone has significant adverse effects on 
certain vegetation.\66\ The directional effect of climate change on 
ambient particulate matter levels remains uncertain.
---------------------------------------------------------------------------

    \64\ IPCC (2007) Summary for Policymakers. In: Climate Change 
2007: Impacts, Adaptation and Vulnerability. Contribution of Working 
Group II to the Fourth Assessment Report of the Intergovernmental 
Panel on Climate Change [M.L. Parry, O.F. Canziani, J.P. Palutikof, 
P.J. van der Linden and C.E. Hanson (eds.)]. Cambridge University 
Press, Cambridge, United Kingdom and New York, NY, USA.
    \65\ But see discussion above.
    \66\ EPA is currently reviewing the ozone NAAQS, including the 
impact of ozone on vegetation with respect to the secondary standard 
for ozone. (72 FR 37818, July 11, 2007).
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    It should be noted that moderate climate change in the early 
decades of the century is projected to have some ``positive'' effects 
including an increase in aggregate yields of rainfed agriculture by 5-
20% in the U.S. Such effects, however, contain important variability 
among regions. Moreover, major challenges are projected for crops that 
are near the warm end of their suitable range or depend on highly 
utilized water resources.\67\ Recent studies indicate that climate 
change scenarios that include increased frequency of heat stress, 
droughts and flooding events reduce crop yields and livestock 
productivity beyond the impacts due to changes in mean variables alone. 
Climate variability and change also modify the risks of pest and 
pathogen outbreaks.
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    \67\ Field, C.B. et al. (2007) North America. In: Climate Change 
2007: Impacts, Adaptation and Vulnerability. Contribution of Working 
Group II to the Fourth Assessment Report of the Intergovernmental 
Panel on Climate Change [M.L. Parry, O.F. Canziani, J.P. Palutikof, 
P.J. van der Linden and C.E. Hanson (eds.)]. Cambridge University 
Press, Cambridge, United Kingdom and New York, NY, USA.
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b. Across California
    California is expected to experience many of the key risks and 
impacts from climate change that have been highlighted above for the 
U.S. as a whole. Additionally, California has a number of physical and 
economic characteristics to consider when evaluating climate change 
impacts within the state, and how those impacts may compare to those in 
the rest of the country. First, as a state, California has the largest 
agricultural based economy (based on 13% of U.S. market value of 
agricultural products sold).\68\ Second, California has the largest 
state coastal population, representing 25% of the U.S. oceanic coastal 
population.\69\
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    \68\ See USDA's 2002 Census of Agriculture, National 
Agricultural Statistics Service: http://www.agcensus.usda.gov/Publications/2002/index.asp.
    \69\ See NOAA (2004) Population Trends Along the Coastal United 
States: 1980-2008. Note that this figure excludes the coastal 
population along the Great Lakes. California also has the largest 
state population, representing just over 12% of the total U.S. 
population. See Table 1: Annual Estimates of the Population of the 
United States, Regions, States, and Puerto Rico: April 1, 2000 to 
July 1, 2007 (Population Division, U.S. Census Bureau).
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    California's agricultural sector is heavily dependent on 
irrigation, has the nation's highest crop value and is the nation's 
leading dairy producer.\70\ Though most scientific literature has 
focused on how elevated CO2 concentrations and climate change may

[[Page 12168]]

affect crop yields, there is improved information on how livestock 
productivity may be affected by thermal stress and through nutritional 
changes in forage caused by elevated CO2 concentrations. Wine is 
California's highest value agricultural product;\71\ the wine grapes 
are very sensitive to temperature changes.
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    \70\ California Regional Assessment Group (2002) The Potential 
Consequences of Climate Variability and Change for California: A 
California Regional Assessment.
    \71\ Id.
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    The conditions which create California's tropospheric ozone 
problems remain (e.g., topography, regional meteorology, number of 
vehicles). Climate change is expected to exacerbate tropospheric ozone 
levels. A number of studies in the U.S. have shown that summer daytime 
ozone concentrations correlate strongly with temperature, i.e., ozone 
is shown to increase with increasing temperature. Atmospheric 
circulation can be expected to change in a warming climate and, thus, 
modify pollutant transport and removal. The more frequent occurrence of 
stagnant air events in urban or industrial areas could enhance the 
intensity of air pollution events, although the importance of these 
effects is not yet well quantified.\72\
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    \72\ Denman, K.L., et al. (2007) Couplings Between Changes in 
the Climate System and Biogeochemistry. In: Climate Change 2007: The 
Physical Science Basis. Contribution of Working Group I to the 
Fourth Assessment Report of the Intergovernmental Panel on Climate 
Change [Solomon, S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. 
Avery, M. Tignor and H.L. Miller (eds.)]. Cambridge University 
Press, Cambridge, United Kingdom and New York, NY, USA.
---------------------------------------------------------------------------

    Wildfires, which are already increasing in duration and intensity, 
may be exacerbated. Wildfires can also contribute to health problems 
through increased generation of particulate matter.
    California's water resources are already stressed due to competing 
demands from agricultural, industrial and municipal uses. Climate 
change is expected to introduce an additional stress to an already 
over-allocated system by increasing temperatures (increasing 
evaporation), and by decreasing snowpack, which is an important water 
source in the spring and summer.
    California has the greatest variety of ecosystems in the U.S., and 
the second most threatened and endangered species (of plants and 
animals combined) and the most threatened and endangered animal 
species, representing about 21% of the U.S. total.\73\ As noted above, 
climate change is expected to have a range of impacts on U.S. 
ecosystems.
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    \73\ U.S. Fish and Wildlife Service, Threatened and Endangered 
Species System as of February 20, 2008. http://ecos.fws.gov/tess_public/StartTESS.do.
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c. The Impacts of Climate Change in California Compared to the Nation 
as a Whole
    As the previous section indicates, global climate change is a 
substantial and critical challenge for the environment. There is little 
question that the conditions brought about as a result of global 
climate change are serious, whether reviewing the issue as a global, 
national or state-specific issue. However, section 209(b)(1)(B) also 
requires that conditions be ``compelling and extraordinary,'' in 
particular with regard to California. The legislative history, when 
discussing the justification for this provision, discusses conditions 
in California as ``unique,'' and speaks of California demonstrating 
``compelling and extraordinary circumstances sufficiently different 
from the nation as a whole to justify standards on automobile emissions 
which may, from time to time, need to be more stringent than national 
standards.'' S. Rep. No. 403, 90th Cong. 1st Sess., at 32 (1967). The 
compromise that brought about section 209(b)(1)(B) was contingent on 
the condition that vehicle manufacturers would not have to meet 
separate state standards for conditions in California that were not 
sufficiently different from the rest of the country to justify such 
standards.
    While I find that the conditions related to global climate change 
in California are substantial, they are not sufficiently different from 
conditions in the nation as a whole to justify separate state 
standards. As the discussion above indicates, global climate change has 
affected, and is expected to affect, the nation, indeed the world, in 
ways very similar to the conditions noted in California.\74\ While 
proponents of the waiver claim that no other state experiences the 
impacts in combination as does California, the more appropriate 
comparison in this case is California compared to the nation as a 
whole, focusing on averages and extremes, and not a comparison of 
California to the other states individually. These identified impacts 
are found to affect other parts of the United States and therefore 
these effects are not sufficiently different compared to the nation as 
a whole. California's precipitation increases are not qualitatively 
different from changes in other areas. Rises in sea level in the 
coastal parts of the United States are projected to be as severe, or 
more severe, particularly in consequences, in the Atlantic and Gulf 
regions than in the Pacific regions, which includes California. 
Temperature increases have occurred in most parts of the United States, 
and while California's temperatures have increased by more than the 
national average, there are other places in the United States with 
higher or similar increases in temperature.
---------------------------------------------------------------------------

    \74\ Indeed, California in an attachment to its Motion for 
Summary Judgment filed in the U.S. District Court for the District 
of Columbia, claims `` Other States that have adopted or are 
considering adoption of the California Standard are also adversely 
affected by increasing concentrations of atmospheric greenhouse 
gases, including an increase in coastal erosion, damage to low-lying 
coastal infrastructure, increased heat waves, increased frequency 
and intensity of wildfires and the alteration of hardwood forests,'' 
and cites several EPA documents that discuss global climate change 
impacts in other states. Plaintiff's Motion for Summary Judgment, 
Separate Statement of Undisputed Material Facts, California v. EPA, 
No. 1:07-CV-02024 (D.C.D.C., Feb. 11, 2008).
---------------------------------------------------------------------------

    It is true that many of the effects of global climate change (e.g. 
water supply issues, increases in wildfires, effects on agriculture) 
will affect California. But these effects are also well established to 
affect other parts of the United States.\75\ Many parts of the United 
States may have issues related to drinking water (e.g., increased 
salinity) and wildfires and effects on agriculture are by no means 
limited to California. These are issues of national, indeed 
international, concern and Congress has indicated that such conditions 
do not merit separate standards in California unless the conditions are 
sufficiently different in California compared to the rest of the nation 
as a whole. In my judgment, the impacts of global climate change in 
California, compared to the rest of the nation as whole, are not 
sufficiently different to be considered ``compelling and extraordinary 
conditions'' that merit separate state GHG standards for new motor 
vehicles.
---------------------------------------------------------------------------

    \75\ See also, EPA's archived Web Site http://yosemite.epa.gov/oar/globalwarming.nsf/content/impactsstateimpacts.html, which 
compiles state-by-state information of global warming impacts.
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V. Decision

    Having given due consideration to all material submitted for the 
record and other relevant information and the requisite burden of proof 
required to deny a waiver, I find that California does not need its GHG 
standards for new motor vehicles to meet compelling and extraordinary 
conditions, pursuant to section 209(b)(1)(B). Therefore, I deny 
California's request to waive application of section 209(a) of the Act 
with respect to its GHG standards for new motor vehicles. I make no 
findings with regard to sections 209(b)(1)(A) and 209(b)(1)(C) of the 
Act.
    My decision will affect not only persons in California, but also

[[Page 12169]]

manufacturers outside the State who would have otherwise had to comply 
with California's requirements in order to produce new motor vehicles 
for sale in California. In addition, because other states have adopted 
or may adopt California's GHG program for new motor vehicles--which is 
allowed if certain criteria under section 177 of the Act are met, this 
decision will also affect those states and those persons in such 
states. For these reasons, I determine and find, as in past waiver 
decisions, that this is a final action of national applicability for 
purposes of section 307(b)(1).
    As with past waiver decisions, this action is not a rule as defined 
by Executive Order 12866. Therefore, it is exempt from review by the 
Office of Management and Budget as required for rules and regulations 
by Executive Order 12866.
    In addition, this action is not a rule as defined in the Regulatory 
Flexibility Act, 5 U.S.C. section 601(2). Therefore, EPA has not 
prepared a supporting regulatory flexibility analysis addressing the 
impact of this action on small business entities.

    Dated: February 29, 2008.
Stephen L. Johnson,
Administrator.
 [FR Doc. E8-4350 Filed 3-5-08; 8:45 am]
BILLING CODE 6560-50-P