[Federal Register: March 6, 2008 (Volume 73, Number 45)]
[Notices]
[Page 12156-12169]
[DOCID:fr06mr08-58]

-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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<PHONE_NUMBER>.
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_ADDRESS>
the telephone number is<PHONE_NUMBER>, 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:<PHONE_NUMBER>, e-mail:
<EMAIL_ADDRESS>
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

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \4\ 72 FR 21260 (April 30, 2007).
    \5\ 72 FR 26626 (May 10, 2007)
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \10\ Docket Entry EPA-HQ-OAR-2006-0173-1519.1, at p. 3.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \12\ Id.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \13\ Id.
    \14\ Id.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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

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\
---------------------------------------------------------------------------

    \16\ MEMA I, 627 F.2d at 1121.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \17\ Id. at 1126.
    \18\ Id. at 1126.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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

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.
---------------------------------------------------------------------------

    \21\ See 49 FR 18887 (May 3, 1984).
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \22\ Id. at 18890.
---------------------------------------------------------------------------

    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.

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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

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

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

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.
---------------------------------------------------------------------------

    \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

to indicate that the effects of global climate change in California are
not extraordinary compared to the rest of the country.\31\
---------------------------------------------------------------------------

    \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.' ''.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \36\ Id.
    \37\ Id.
    \38\ Id.
    \39\ Id.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \40\ Id.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \41\ Data obtained from: http://www.ncdc.noaa.gov/oa/climate/
research/ushcn/ushcn.html.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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

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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \46\ California Climate Change Center (2006) Scenarios of
Climate Change in California: An Overview. CEC-500-2005-186-SF.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \50\ Id.
    \51\ Id.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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

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.
---------------------------------------------------------------------------

    \70\ California Regional Assessment Group (2002) The Potential
Consequences of Climate Variability and Change for California: A
California Regional Assessment.
    \71\ Id.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

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

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