69–010 

Calendar No. 320 

110TH CONGRESS REPORT " ! SENATE 1st Session 110–243 

AMENDING THE CLEAN AIR ACT TO ESTABLISH DEADLINES BY WHICH 

THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY 

SHALL ISSUE A DECISION ON WHETHER TO GRANT CERTAIN WAIVERS 

OF PREEMPTION UNDER THAT ACT 

DECEMBER 12, 2007.—Ordered to be printed 

Mrs. BOXER, from the Committee on Environment and Public 

Works, submitted the following 

R E P O R T 

[To accompany S. 1785] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Environment and Public Works, to which was 

referred the bill (S. 1785) to amend the Clean Air Act to establish 

deadlines by which the Administrator of the Environmental Protection Agency shall issue a decision on whether to grant certain 

waivers of preemption under that Act, having considered the same, 

reports favorably thereon with an amendment and recommends 

that the bill (as amended) do pass. 

PURPOSE OF THE LEGISLATION

S. 1785 establishes deadlines for action by the Administrator of 

the Environmental Protection Agency (EPA) on State requests 

under section 209(b) of the Clean Air Act to waive federal preemption for State standards controlling motor vehicle emissions of air 

pollutants. The bill amends the Clean Air Act to ensure timely decisions on waiver requests by establishing legally enforceable deadlines for EPA action. 

GENERAL STATEMENT AND BACKGROUND

Title II of the Clean Air Act (Title 42, Chapter 85, Subchapter 

II, United States Code) establishes a comprehensive program for 

controlling emissions of air pollutants from new motor vehicles and 

other mobile sources of air pollution. In accordance with section 

202 of the Act, the Administrator of EPA is required to prescribe 

standards applicable to the emission of any air pollutant from new 

motor vehicles which, in the judgment of the Administrator, cause 


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or contribute to air pollution which may reasonably be anticipated 

to endanger public health or welfare. 

The Clean Air Act generally preempts States and local jurisdictions from setting their own emission standards for new motor vehicles. However, section 209(b) of the Act requires the Administrator to waive preemption with respect to a State that meets specified criteria if the State determines that its motor vehicle standards will be, in the aggregate, at least as protective of public health 

and welfare as applicable Federal standards. Section 209(b) further 

provides that a waiver of preemption shall not be granted if the 

Administrator makes any of three specified findings. The Administrator may act on a waiver request only after providing notice and 

an opportunity for a public hearing. 

The State that meets the criteria set forth in section 209(b) and 

may thus seek a waiver of federal preemption is California. The 

Clean Air Act affords California the unique opportunity to set its 

own vehicle emission standards in recognition of California’s early 

leadership in setting such standards and the State’s particularly 

severe air pollution problems. Section 177 of the Act authorizes any 

other State that has an EPA-approved plan for areas in non-attainment of a federal air quality standard to adopt and enforce California emission standards for which a waiver has been granted 

under section 209(b). 

EPA has a long history of granting California requests for a 

waiver of federal preemption under section 209(b), based on its assessment of the merits of these requests. According to a 2007 report by the Congressional Research Service, in over 30 years, EPA 

has granted over 50 waiver requests in whole or in part. California’s Waiver Request to Control Greenhouse Gases under the Clean 

Air Act, July 24, 2007, p. 9. A 2006 report by the National Research Council of the National Academies of Science concluded that 

‘‘California has used its authority as Congress envisioned: to implement more aggressive measures than the rest of the country and 

to serve as a laboratory for technological innovation.’’ State and 

Federal Standards for Mobile-Source Emissions, National Academies Press, 2006, p. 4. 

In 2005, California adopted the first standards in the nation for 

reducing vehicle emissions of emissions of greenhouse gases. The 

State’s standards require a gradual reduction in the greenhouse 

gas emissions of new passenger vehicles beginning in model year 

2009. By the 2016 model year, the standards cut greenhouse gas 

emissions from new passenger vehicles by almost 30 percent. 

California submitted to EPA a request for a waiver of preemption 

for its greenhouse gas standards on December 21, 2005. EPA did 

not begin acting on the request until 16 months later, after the 

U.S. Supreme Court ruled in Massachusetts v. EPA that the Clean 

Air Act authorizes to regulate greenhouse gases. EPA has stated its 

intent to issue a decision on the waiver request by the end of 2007, 

but the Clean Air Act contains no explicit deadline by which the 

Agency must act. 

As of July 2007, the following 12 States have adopted California’s 

greenhouse gas emission standards and are awaiting EPA’s action 

on California’s waiver request: Connecticut, Florida, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, PennsylVerDate Aug 31 2005 13:18 Dec 13, 2007 Jkt 069010 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\SR243.XXX SR243

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vania, Rhode Island, Vermont and Washington. Together with California, these states represent over 30% of the national vehicle fleet. 

SECTION-BY-SECTION ANALYSIS

SECTION 1. WAIVERS OF PREEMPTION

Summary 

Section 1 amends section 209 of the Clean Air Act to establish 

deadlines for pending and future requests for waivers under section 

209(b) of the Act. 

Description 

For waiver requests submitted to EPA before January 31, 2006, 

and pending as of the date the bill is enacted, the section requires 

the Administrator of EPA to issue a decision on the request not 

later than 30 days after the date the bill is enacted but in no case 

later than September 30, 2007. This deadline would apply to California’s request for a waiver for its greenhouse gas vehicle standards if EPA has not decided the request by the date the bill is enacted. 

For waiver requests submitted to EPA after the date the bill is 

enacted, the section requires the Administrator of EPA to issue a 

decision within 180 days of EPA’s receipt of the request. This deadline will ensure that all future waiver requests are decided on a 

timely basis by EPA. 

LEGISLATIVE HISTORY

On July 12, 2007, Senator Nelson of Florida introduced S. 1785, 

joined by original cosponsors Senators Boxer, Lautenberg, Sanders, 

Feinstein, Menendez, and Cardin. Senators Whitehouse and Reed 

were added as cosponsors. The bill was read twice and referred to 

the Senate Committee on Environment and Public Works. The 

committee met on July 31, 2007, to consider the bill as amended 

by a substitute amendment. S. 1785 as revised by the substitute 

amendment was ordered favorably reported without amendment by 

a vote of 10 to 9. 

HEARINGS

The Committee did not hold hearings on S. 1785 during the 

110th Congress. However, the Committee held two hearings on 

EPA’s handling of California’s request for a waiver for its greenhouse gas vehicles standards. At a May 22, 2007 hearing on ‘‘The 

Case for the California Waiver’’ the Committee heard testimony 

from Edmund G. Brown, Attorney General of California; Alexander 

B. Grannis, Commissioner of Department of Environmental Conservation of the State of New York; and Jonathan H. Adler, Director of the Center for Business Law and Regulation at Case Western 

Reserve University School of Law. At a July 26, 2007 hearing entitled, ‘‘Examining the Case for the California Waiver: An Update 

from EPA,’’ the committee heard testimony from Senator Nelson of 

Florida concerning S. 1785 and from EPA Administrator Stephen 

L. Johnson. 


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ROLLCALL VOTES

The Committee on Environment and Public Works met to consider S. 1785, as revised by the Chairman’s mark amendment, on 

July 31, 2007. The Chairman’s mark was ordered favorably reported by rollcall vote. The vote was 10 to 9 in favor of the bill as 

revised (Ayes—Baucus, Cardin, Carper, Clinton, Klobuchar, Lautenberg, Lieberman, Sanders, Whitehouse, Boxer. Nays—Alexander, Barrasso, Bond, Craig, Inhofe, Isakson, Vitter, Voinovich, 

and Warner). 

REGULATORY IMPACT STATEMENT

In compliance with section 11(b) of rule XXVI of the Standing 

Rules of the Senate, the committee finds that S. 1785 does not create any additional regulatory burdens, nor will it cause any adverse impact on the personal privacy of individuals. 

MANDATES ASSESSMENT

In compliance with the Unfunded Mandates Reform Act of 1995 

(Public Law 104–4), the committee finds that S. 1785 would impose 

no Federal intergovernmental unfunded mandates on State, local 

or tribal governments. The bill contains no new private-sector mandates as defined in UMRA. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

CBO estimates that enacting S. 1785 would have no significant 

impact on the federal budget. 

Enacting the legislation would not affect direct spending or revenues. S. 1785 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on State, local, or tribal governments. 

S. 1785 would require the Administrator of the Environmental 

Protection Agency (EPA) to issue certain decisions within deadlines 

established by the bill. Those decisions concern whether states 

should be granted waivers to preempt federal standards for motor 

vehicle emissions. The bill would require EPA to issue a decision 

on any requests for waivers that were submitted before January 

31, 2006, and are still pending on the date of enactment of S. 1785, 

no later than September 30, 2007. Any subsequent requests for 

waivers would require a determination by EPA within 180 days 

after the agency receives the request. 

Currently, EPA is reviewing a request for a waiver for California 

that would permit the state to implement a regulation it approved 

in 2004 that is designed to reduce emissions from automobiles and 

regulate greenhouse gas emissions. According to EPA, enacting this 

bill could require the agency to redirect personnel and other resources to its ongoing review of California’s request to meet the 

deadline established under S. 1785. CBO does not expect that EPA 

would require additional funds in 2007 to complete its review. Furthermore, EPA expects that any future requests for waivers would 

be less time-consuming than the current request from California. 

CBO estimates that EPA would not require any significant additional resources in subsequent years to expedite its decisions on 

similar requests for waivers. Thus, we estimate that implementing 


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this legislation would not have a significant effect on the federal 

budget. 

The CBO staff contact for this estimate is Susanne S. Mehlman. 

This estimate was approved by Peter H. Fontaine, Assistant Director for Budget Analysis. 

CHANGES IN EXISTING LAW

In compliance with section 12 of rule XXVI of the Standing Rules 

of the Senate, changes in existing law made by the bill as reported 

are shown as follows: Existing law proposed to be omitted is enclosed in øblack brackets¿, new matter is printed in italic, existing 

law in which no change is proposed is shown in roman: 

* * * * * * * 

CLEAN AIR ACT 

* * * * * * * 

TITLE I—AIR POLLUTION PREVENTION AND CONTROL 

PART A—AIR QUALITY AND EMISSION LIMITATIONS

FINDINGS AND PURPOSES

SEC. 101. (a) The Congress finds—

(1) * * * 

* * * * * * * 

STATE STANDARDS

SEC. 209. (a) No State or any political subdivision thereof shall 

adopt or attempt to enforce any standard relating to the control of 

emissions from new motor vehicles or new motor vehicle engines 

subject to this part. No State shall require certification, inspection, 

or any other approval relating to the control of emissions from any 

new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such 

motor vehicle, motor vehicle engine, or equipment. 

(b)(1) * * * 

* * * * * * * 

(f) WAIVERS OF PREEMPTION.— 

(1) PENDING REQUESTS.—Not later than 30 days after the 

date of enactment of this subsection, but in no case later than 

September 30, 2007, the Administrator shall issue a decision on 

each request for a waiver of preemption under subsection (b) 

that— 

(A) was submitted before January 31, 2006; and 

(B) is pending as of the date of enactment of this subsection. 

(2) SUBSEQUENT REQUESTS.—With respect to a request for a 

waiver of preemption under subsection (b) that is submitted by 

a State after the date of enactment of this subsection, not later 

than 180 days after the date on which the Administrator reVerDate Aug 31 2005 13:18 Dec 13, 2007 Jkt 069010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\SR243.XXX SR243

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ceives the request, the Administrator shall issue a decision on 

whether to grant the waiver. 

Æ 


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