Clean Air Act:

Historical Information on EPA's Process for Reviewing California Waiver Requests and Making Waiver Determinations

GAO-09-249R: Published: Jan 16, 2009. Publicly Released: Feb 17, 2009.

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Emissions from mobile sources, such as automobiles and trucks, contribute to air quality degradation and can threaten public health and the environment. Under the Clean Air Act, the Environmental Protection Agency (EPA) regulates these emissions. The act generally allows one set of federal standards for new motor vehicle emissions and pre-empts states from adopting or enforcing their own standards. However, it also authorizes the EPA Administrator to waive this provision to allow the state of California1 to enact and enforce emission standards for new motor vehicles that are as protective, in the aggregate, as federal government standards. Other states may also adopt California's standards if they choose. The waiver provision was added to the Federal Air Quality Act (one of the precursors of the current Clean Air Act) in 1967 because of California's severe air pollution problems and because the state had already established its own emission standards for mobile sources. California has used this waiver provision regularly to establish and enforce standards for vehicle emissions more stringent than those required by federal law. However, California must request a waiver of federal pre-emption and the EPA Administrator must approve it before California or any other state can implement such standards. Since being given this authority, California has requested and been granted waivers more than 50 times. In December 2005, California requested a waiver from EPA to allow it to regulate motor vehicle emissions of greenhouse gases, which are closely linked to global climate change. At the time, EPA was responding to litigation initiated by environmental groups and state and local governments regarding whether greenhouse gas emissions were air pollutants that the agency had authority to regulate under the Clean Air Act. EPA delayed action on California's waiver request pending the outcome of that litigation. On April 2, 2007, the U.S. Supreme Court decided the question in Massachusetts v. EPA by holding that EPA did have the authority to regulate greenhouse gas emissions. Nevertheless, on December 19, 2007, the EPA Administrator announced his intent to deny California's request. The Administrator subsequently formalized the denial in a decision document he signed and EPA published in the Federal Register on March 6, 2008. The decision has received a high level of attention for a number of reasons. For example, it departed in certain respects from EPA's previous waiver determinations--it was the first time that EPA denied a formal waiver request outright, and it also was the first time EPA used the "compelling and extraordinary conditions" criterion in the Clean Air Act as the basis for denying a waiver request. Due to the atypical outcome of EPA's decision regarding California's greenhouse gas waiver request, Congress asked GAO to review the decision to deny the waiver. As agreed with Congressional offices, we focused our work on the process for and outcomes of past waiver requests because the greenhouse gas waiver decision is the subject of ongoing litigation. Thus, we did not seek to examine the basis for the greenhouse gas decision itself or the process EPA used in reviewing this waiver request. This report summarizes the information about prior waiver requests and decisions provided to Congressional staff during our November 21, 2008, briefing.

EPA's process for responding to waiver requests has typically consisted of an informal five-step process, through which staff evaluate the waiver request and review its adherence to criteria laid out in section 209(b) of the Clean Air Act. According to EPA officials, the agency (1) receives and begins review of the waiver request; (2) issues a notice in the Federal Register about the waiver request, including the opportunity for a hearing; (3) holds a hearing, if interest is expressed, and accepts public comments on the proposed waiver; (4) holds internal discussions and conducts internal analysis on the waiver request, including consideration of public comments; and (5) prepares a decision document and publishes the decision in the Federal Register. EPA officials said that as the draft decision document is routed through the approval chain at EPA, it is typically accompanied by a draft Federal Register notice, which lays out the decision and the three statutory criteria in section 209(b) and summarizes the analysis behind the decision. The draft decision document is also usually accompanied by an "action memorandum" that identifies the issues, examines the three Clean Air Act section 209(b) criteria, summarizes public comments, discusses anticipated reaction from external parties and potential for litigation, and provides a recommendation for action. For the past 15 years, several officials in EPA's Office of Transportation and Air Quality have been the primary staff involved in reviewing waiver requests and preparing documents supporting decisions. Typically, EPA's Office of General Counsel then reviews these documents before a final decision is made by EPA's Assistant Administrator for Air and Radiation. According to the EPA Office of Transportation and Air Quality officials involved in the process over the past 15 years, the approving official's decisions have generally aligned with staff recommendations to approve waivers, whether in full or in part. While some of these steps are documented in the Federal Register and the public docket that EPA maintains for each decision, others--specifically internal discussions, internal analyses, decision document drafts, and the documents that accompany the drafts through the approval chain--are generally not formally documented, retained, or made publicly available. In addition, the contents of the public dockets for waiver decisions are not standardized and vary from decision to decision. The majority of the dockets were prepared 10 or more years ago, and we could not determine the extent to which they are complete. Consequently, it is not feasible to identify the specific internal actions that EPA has taken or the discussions the agency has held with internal and external parties when deliberating previous waiver requests.

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