Can the Golden State Catch a Greenhouse Waiver?


In 2004, California adopted the nation's first regulations limiting the emission of greenhouse gases from new motor vehicles. Before these regulations can take effect, however, California must obtain a waiver of preemption under the Clean Air Act from the U.S. Environmental Protection Agency. California has sought, and received, numerous waivers of preemption for air pollution control programs in the past. EPA approval of this waiver request is not automatic, however. This essay provides an overview of the distinct legal and policy issues raised by California's request for a waiver of federal preemption of its new greenhouse gas emission regulations. After summarizing the legal requirements for obtaining a waiver of preemption under the Clean Air Act, this essay explains why it may be more difficult for California to obtain a waiver for greenhouse gas emission regulations than it has been for prior state regulations governing traditional air pollutants. The essay then considers how California's waiver request fits into a broader policy framework dividing responsibility for environmental protection between the federal and state governments. Accepting there are strong arguments for greater state flexibility in environmental law, this essay assesses the relative strength of California's demand for greater freedom to set its own greenhouse gas emission control policies.


Clean Air Act, EPA, waiver of federal preemption, California's greenhouse gas emission regulations, Energy Policy & Conservation Act, Massachusetts v. EPA, California Air Resources Board, vehicle emission standards

Publication Date


Document Type


Place of Original Publication

Engage: The Journal of the Federalist Society’s Practice Groups

Publication Information

8 (4) Engage: The Journal of the Federalist Society’s Practice Groups 75 (2007)

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COinS Jonathan H. Adler Faculty Bio