14332 Federal Register / Vol. 87, No. 49 / Monday, March 14, 2022 / Notices 

1The CAA section 209(b) waiver is limited ‘‘to 

any State which has adopted standards . . . for the 

control of emissions from new motor vehicles or 

new motor vehicle engines prior to March 30, 

1966,’’ and California is the only State that had 

standards in place before that date. ‘‘California’’ and 

‘‘California Air Resources Board’’ (CARB) are used 

interchangeably in certain instances in this notice 

when referring to the waiver process under section 

209(b). 

2 78 FR 2111 (January 9, 2013). 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2021–0257; FRL–9325–01– 

OAR] 

California State Motor Vehicle 

Pollution Control Standards; Advanced 

Clean Car Program; Reconsideration 

of a Previous Withdrawal of a Waiver 

of Preemption; Notice of Decision 

AGENCY: Environmental Protection 

Agency. 

ACTION: Notice of decision. 

SUMMARY: The Environmental Protection 

Agency (EPA) has completed the 

reconsideration of its 2019 action 

withdrawing a 2013 Clean Air Act 

(CAA) waiver of preemption for 

California’s greenhouse gas (GHG) 

emission standards and zero emission 

vehicle (ZEV) sale mandate, which are 

part of California’s Advanced Clean Car 

(ACC) program. This decision rescinds 

EPA’s 2019 waiver withdrawal, thus 

bringing back into force the 2013 ACC 

program waiver, including a waiver of 

preemption for California’s ZEV sales 

mandate and GHG emissions standards. 

In addition, EPA is withdrawing the 

interpretive view of CAA section 177 

included in its 2019 action, that States 

may not adopt California’s GHG 

standards pursuant to section 177 even 

if EPA has granted California a waiver 

for such standards. Accordingly, other 

States may continue to adopt and 

enforce California’s GHG standards 

under section 177 so long as they meet 

the requirements of that section. 

DATES: Petitions for review must be filed 

by May 13, 2022. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2021–0257. All 

documents relied upon in making this 

decision, including those submitted to 

EPA by CARB, are contained in the 

public docket. Publicly available docket 

materials are available electronically 

through www.regulations.gov. After 

opening the www.regulations.gov 

website, enter EPA–HQ–OAR–2021– 

0257 in the ‘‘Enter Keyword or ID’’ fillin box to view documents in the record. 

Although a part of the official docket, 

the public docket does not include 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. EPA’s Office of 

Transportation and Air Quality (OTAQ) 

maintains a web page that contains 

general information on its review of 

California waiver and authorization 

requests. Included on that page are links 

to prior waiver Federal Register notices, 

some of which are cited in this notice; 

the page can be accessed at https://

www.epa.gov/state-and-localtransportation/vehicle-emissionscalifornia-waivers-and-authorizations. 

FOR FURTHER INFORMATION CONTACT: 

David Dickinson, Office of 

Transportation and Air Quality, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW. Telephone: 

(202) 343–9256. Email: 

Dickinson.David@epa.gov or Kayla 

Steinberg, Office of Transportation and 

Air Quality, U.S. Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW. Telephone: (202) 564–7658. 

Email: Steinberg.Kayla@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

II. Background 

A. California’s Advanced Clean Car (ACC) 

Program and EPA’s 2013 Waiver 

B. Prior Waivers for GHG Standards 

C. SAFE 1 Decision 

D. Petitions for Reconsideration 

III. Principles Governing This Review 

A. Scope of Preemption and Waiver 

Criteria Under the Clean Air Act 

B. Deference to California 

C. Standard and Burden of Proof 

IV. EPA did not Appropriately Exercise Its 

Limited Authority To Reconsider the 

ACC Program Waiver in SAFE 1 

A. Comments Received 

B. Analysis: EPA Inappropriately Exercised 

Its Limited Authority To Reconsider 

C. Conclusion 

V. The SAFE 1 Interpretation of Section 

209(b)(1)(B) was Inappropriate and, in 

any Event, California met Its 

Requirements 

A. Historical Practice 

B. Notice of Reconsideration of SAFE 1 and 

Request for Comment 

C. Comments Received 

D. Analysis: California Needs the ACC 

Program GHG Standards and ZEV Sales 

Mandate to Address Compelling and 

Extraordinary Conditions Under Section 

209(b)(1)(B) 

1. EPA is Withdrawing the SAFE 1 Section 

209(b)(1)(B) Interpretation 

2. California Needs the GHG Standards and 

ZEV Sales Mandate Even Under the 

SAFE 1 Interpretation 

a. GHG Standards and ZEV Sales Mandates 

Have Criteria Emission Benefits 

b. California Needs Its Standards To 

Address the Impacts of Climate Change 

in California 

3. California’s ZEV Sales Mandate as Motor 

Vehicle Control Technology 

Development 

E. Conclusion 

VI. EPA Inappropriately Considered 

Preemption Under the Energy and Policy 

Conservation Act (EPCA) in Its Waiver 

Decision 

A. Historical Practice and Legislative 

History 

B. Notice of Reconsideration of SAFE 1 and 

Request for Comment 

C. Comments Received 

D. Analysis: EPA is Rescinding its SAFE 1 

Actions Related to Preemption Under 

EPCA 

1. NHTSA Has Since Repealed Its Findings 

of Preemption Made in SAFE 1 

2. EPA Improperly Deviated From its 

Historical Practice of Limiting its Review 

to Section 209(b) Criteria 

E. Conclusion 

VII. EPA Inappropriately set Forth an 

Interpretive View of Section 177 in SAFE 

1 

A. SAFE 1 Interpretation 

B. Notice of Reconsideration of SAFE 1 and 

Request for Comment 

C. Comments Received 

D. Analysis: EPA Is Rescinding SAFE 1’s 

Interpretive Views of Section 177 

E. Conclusion 

VIII. Other Issues 

A. Equal Sovereignty 

B. CARB’s Deemed-to-Comply Provision 

IX. Decision 

X. Statutory and Executive Order Reviews 

I. Executive Summary 

CAA section 209(a) generally 

preempts states from adopting emission 

control standards for new motor 

vehicles. But Congress created an 

important exception from preemption. 

Under CAA section 209(b), the State of 

California 1 may seek a waiver of 

preemption, and EPA must grant it 

unless the Agency makes one of three 

statutory findings. California’s waiver of 

preemption for its motor vehicle 

emissions standards allows other States 

to adopt and enforce identical standards 

pursuant to CAA section 177. Since the 

CAA was enacted, EPA has granted 

California dozens of waivers of 

preemption, permitting California to 

enforce its own motor vehicle emission 

standards. 

Of particular relevance to this action, 

in 2013, EPA granted California’s waiver 

request for the state’s Advanced Clean 

Car (ACC) program (ACC program 

waiver).2 California’s ACC program 

includes both a Low Emission Vehicle 

(LEV) program, which regulates criteria 

pollutants and greenhouse gas (GHG) 

emissions, as well as a Zero Emission 

Vehicle (ZEV) sales mandate. These two 

requirements are designed to control 

smog- and soot-causing pollutants and 

GHG emissions in a single coordinated 

package of requirements for passenger 

cars, light-duty trucks, and mediumduty passenger vehicles (as well as 


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3 84 FR 51310 (September 27, 2019). 

4 In SAFE 1, EPA did not withdraw the entire 

2013 waiver, but instead only withdrew the waiver 

as it related to California’s GHG emission standards 

and the ZEV sales mandate. The waiver for the lowemission vehicle (LEV III) criteria pollutant 

standards in the ACC program remained in place. 

EPA’s reconsideration of SAFE 1 and the impact on 

the ACC waiver therefore relates only to the GHG 

emission standards and the ZEV sales mandate, 

although ‘‘ACC program waiver’’ is used in this 

document. This action rescinds the waiver 

withdrawal in SAFE 1. In this decision, the Agency 

takes no position on any impacts this decision may 

have on state law matters regarding 

implementation. 

5EPA’s 2018 proposal was jointly issued with the 

National Highway Traffic Safety Administration 

(NHTSA). 83 FR 42986 (August 24, 2018) (the 

‘‘SAFE proposal’’). In addition to partially 

withdrawing the waiver, that proposal proposed to 

set less stringent greenhouse gas and CAFE 

standards for model years 2021–2026. NHTSA also 

proposed to make findings related to preemption 

under the Energy Policy and Conservation Act 

(EPCA) and its relationship to state and local GHG 

emission standards and ZEV sales mandates. 

6 84 FR 51310. In SAFE 1, NHTSA also finalized 

its action related to preemption under EPCA. 

NHTSA’s action included both regulatory text and 

well as pronouncements within the preamble of 

SAFE 1. In 2020, EPA finalized its amended and 

less stringent carbon dioxide standards for the 

2021–2026 model years in an action titled ‘‘The 

Safer Affordable Fuel-Efficient (SAFE) Vehicles 

Rule for Model Years 2021–2026 Passenger Cars 

and Light Trucks’’ (SAFE 2). 85 FR 24174 (April 30, 

2020). 

7 ‘‘California State Motor Vehicle Pollution 

Control Standards; Advanced Clean Car Program; 

Reconsideration of a Previous Withdrawal of a 

Waiver of Preemption; Opportunity for Public 

Hearing and Public Comment.’’ 86 FR 22421 (April 

28, 2021). 

8 86 FR 74236 (December 29, 2021). 

9 86 FR 74434 (December 30, 2021). 

limited requirements related to heavyduty vehicles). Between 2013 and 2019, 

twelve other States adopted one or both 

of California’s standards as their own. 

But in 2019, EPA partially withdrew 

this waiver as part of a final action 

entitled ‘‘The Safer Affordable FuelEfficient (SAFE) Vehicles Rule Part One: 

One National Program’’ (SAFE 1), 

marking the first time the agency 

withdrew a previously granted waiver.3

In addition, in the context of SAFE 1, 

EPA provided an interpretive view of 

CAA section 177 asserting that other 

states were precluded from adopting 

California’s GHG standards. 

As Administrator of the 

Environmental Protection Agency 

(EPA), I am now rescinding EPA’s 2019 

actions in SAFE 1 that partially 

withdrew the ACC program waiver for 

California’s ACC program. I am 

rescinding these actions because (1) 

EPA’s reconsideration of the waiver 

under the particular facts and 

circumstances of this case was 

improper; (2) EPA’s reconsideration was 

based on a flawed interpretation of CAA 

section 209(b); (3) even under that 

flawed interpretation, EPA misapplied 

the facts and inappropriately withdrew 

the waiver; (4) EPA erred in looking 

beyond the statutory factors in CAA 

209(b) to action taken by another agency 

under another statute to justify 

withdrawing the waiver; (5) that agency 

has also since withdrawn the action 

EPA relied on in any event; and (6) EPA 

inappropriately provided an interpretive 

view of section 177. 

As a result of this action, EPA’s 2013 

waiver for the ACC program, 

specifically the waiver for California’s 

GHG emission standards and ZEV sales 

mandate requirements for model years 

(MYs) 2017 through 2025, comes back 

into force.4 I am also rescinding the 

interpretive view set forth in SAFE 1 

that States may not adopt California’s 

GHG standards pursuant to CAA section 

177 even if EPA has granted California 

a section 209 waiver for such standards. 

Accordingly, States may now adopt and 

enforce California’s GHG standards so 

long as they meet the requirements of 

Section 177, and EPA will evaluate any 

State’s request to include those 

provisions in a SIP through a separate 

notice and comment process. 

Section II of this action contains a 

detailed history of EPA’s waiver 

adjudications leading up to this action. 

In summary, in 2012, CARB submitted 

the ACC waiver request to EPA, which 

included ample evidence of the criteria 

pollution benefits of the GHG standards 

and the ZEV sales mandate. As it had in 

all prior waiver decisions with two 

exceptions (including SAFE 1), in 

considering the request EPA relied on 

its ‘‘traditional’’ interpretation of section 

209(b)(1)(B), which examines whether 

California needs a separate motor 

vehicle program as a whole—not 

specific standards—to address the 

state’s compelling and extraordinary 

conditions. In 2013, EPA granted 

California’s waiver request for its ACC 

program in full. In 2018, however, EPA 

proposed to withdraw portions of its 

waiver granted in 2013 based on a new 

interpretation of section 209(b)(1)(B) 

that looked at whether the specific 

standards (the GHG standards and ZEV 

sales mandate), as opposed to the 

program as a whole, continued to meet 

the second and third waiver prongs 

(found in sections 209(b)(1)(B) and (C)).5

In addition, EPA proposed to look 

beyond the section 209(b) criteria to 

consider the promulgation of a NHTSA 

regulation and pronouncements in 

SAFE 1 that declared state GHG 

emission standards and ZEV sales 

mandates preempted under EPCA. In 

2019, after granting CARB a waiver for 

its ACC program in 2013 and after 12 

states had adopted all or part of the 

California standards under section 177, 

EPA withdrew portions of the waiver for 

CARB’s GHG emission standards and 

ZEV sales mandates. In SAFE 1, EPA 

cited changed circumstances and was 

based on a new interpretation of the 

CAA and the agency’s reliance on an 

action by NHTSA that has now been 

repealed.6

On January 20, 2021, President Biden 

issued Executive Order 13990, directing 

the Federal Agencies to ‘‘immediately 

review’’ SAFE 1 and to consider action 

‘‘suspending, revising, or rescinding’’ 

that action by April 2021. On April 28, 

2021, EPA announced its Notice of 

Reconsideration, including a public 

hearing and an opportunity for public 

comment.7 The Agency stated its belief 

that there were significant issues 

regarding whether SAFE 1 was a valid 

and appropriate exercise of Agency 

authority, including the amount of time 

that had passed since EPA’s ACC 

program waiver decision, the approach 

and legal interpretations used in SAFE 

1, whether EPA took proper account of 

the environmental conditions (e.g., local 

climate and topography, number of 

motor vehicles, and local and regional 

air quality) in California, and the 

environmental consequences from the 

waiver withdrawal in SAFE 1. Further, 

EPA stated it would be addressing 

issues raised in the related petitions for 

reconsideration of EPA’s SAFE 1 action. 

In the meantime, having reconsidered 

its own action, and also in response to 

Executive Order 13990, NHTSA 

repealed its conclusion that state and 

local laws related to fuel economy 

standards, including GHG standards and 

ZEV sales mandates, were preempted 

under EPCA,8 and EPA revised and 

made more stringent the Federal GHG 

emission standards for light-duty 

vehicles for 2023 and later model years, 

under section 202(a).9

Section III of this action outlines the 

principles that govern waiver 

reconsiderations. It sets forth the 

statutory background and context for the 

CAA preemption of new motor vehicle 

emission standards, the criteria for 

granting a waiver of preemption, and 

the ability of other States to adopt and 

enforce California’s new motor vehicle 

emission standards where a waiver has 

been issued if certain CAA criteria are 

met. In brief, CAA section 209(a) 

generally preempts all States or political 

subdivisions from adopting and 

enforcing any standard relating to the 

control of emissions from new motor 

vehicles or new motor vehicle engines. 

But section 209(b) contains an 

important exception that allows only 


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10As explained herein, the requirements in the 

ACC program were designed to work together in 

terms of the technologies that would be used to 

both lower criteria emissions and GHG emissions. 

The standards, including the ZEV sales mandate 

and the GHG emission standards, were designed to 

address the short- and long-term air quality goals in 

California in terms of the criteria emission 

reductions (including upstream reductions) along 

GHG emission reductions. The air quality issues 

and pollutants addressed in the ACC program are 

interconnected in terms of the impacts of climate 

change on such local air quality concerns such as 

ozone exacerbation and climate effects on wildfires 

that affect local air quality. 

11 40 FR 23102, 23104 (May 28, 1975); 58 FR 4166 

(January 13, 1993). 

California to submit a request to waive 

preemption for its standards. 

Importantly, EPA must grant the waiver 

unless the Administrator makes at least 

one of three findings: (1) That 

California’s determination that its 

standards will be, in the aggregate, at 

least as protective of public health and 

welfare as applicable Federal standards, 

is arbitrary and capricious (the ‘‘first 

waiver prong,’’ under section 

209(b)(1)(A)); (2) that California does 

not need such State standards to meet 

compelling and extraordinary 

conditions (the ‘‘second waiver prong,’’ 

under section 209(b)(1)(B)); or (3) that 

California standards are not consistent 

with section 202(a), which contains 

EPA’s authority to regulate motor 

vehicles (the ‘‘third waiver prong,’’ 

under section 209(b)(1)(C)). In the 1977 

amendments to the CAA, section 177 

was added to allow other States that 

may be facing their own air quality 

concerns to adopt and enforce the 

California new motor vehicle emission 

standards for which California has been 

granted a waiver under section 209(b) if 

certain criteria are met. 

Section III also provides more context 

to indicate that Congress intended that, 

when reviewing a request for a waiver, 

EPA treat with deference the policy 

judgments on which California’s vehicle 

emission standards are based. It 

discusses the history of Congress 

allowing states to adopt more stringent 

standards. Ultimately, Congress built a 

structure in section 209(b) that grants 

California authority to address its air 

quality problems, and also 

acknowledges the needs of other states 

to address their air quality problems 

through section 177. Lastly, Section III 

describes the burden and standard of 

proof for waiver decisions. 

Section IV of this action then 

discusses EPA’s first basis for rescinding 

the SAFE 1 waiver withdrawal: That 

EPA did not appropriately exercise its 

limited authority to withdraw a waiver 

once granted. Section 209 does not 

provide EPA with express authority to 

reconsider and withdraw a waiver 

previously granted to California. EPA’s 

authority thus stems from its inherent 

reconsideration authority. In the context 

of reconsidering a waiver grant, that 

authority may only be exercised 

sparingly. EPA believes its inherent 

authority to reconsider a waiver 

decision is constrained by the three 

waiver criteria that must be considered 

before granting or denying a waiver 

request under section 209(b). EPA’s 

reconsideration may not be broader than 

the limits Congress placed on its ability 

to deny a waiver in the first place. EPA 

notes further support for limiting its 

exercise of reconsideration authority, 

relevant in the context of a waiver 

withdrawal, is evidenced by Congress’s 

creation of a state and federal regulatory 

framework to drive motor vehicle 

emissions reduction and technology 

innovation that depends for its success 

on the stable market signal of the waiver 

grant—automobile manufacturers must 

be able to depend reliably on the 

continuing validity of the waiver grant 

in order to justify the necessary 

investments in cleaner vehicle 

technology. Accordingly, EPA now 

believes it may only reconsider a 

previously granted waiver to address a 

clerical or factual error or mistake, or 

where information shows that factual 

circumstances or conditions related to 

the waiver criteria evaluated when the 

waiver was granted have changed so 

significantly that the propriety of the 

waiver grant is called into doubt. Even 

then, as with other adjudicatory actions, 

when choosing to undertake such a 

reconsideration EPA believes it should 

exercise its limited authority within a 

reasonable timeframe and be mindful of 

reliance interests. EPA expects such 

occurrences will be rare. The Agency’s 

waiver withdrawal in SAFE 1 was not 

an appropriate exercise of EPA’s limited 

authority; there was no clerical error or 

factual error in the ACC program 

waiver, and SAFE 1 did not point to any 

factual circumstances or conditions 

related to the three waiver prongs that 

have changed so significantly that the 

propriety of the waiver grant is called 

into doubt. Rather, the 2019 waiver 

withdrawal was based on a change in 

EPA’s statutory interpretation, an 

incomplete assessment of the record, 

and another agency’s action beyond the 

confines of section 209(b). EPA erred in 

reconsidering a previously granted 

waiver on these bases. Accordingly, 

EPA is rescinding its 2019 withdrawal 

of its 2013 ACC program waiver. 

Sections V and VI further explain 

why, even if SAFE 1 were an 

appropriate exercise of EPA’s limited 

authority to reconsider its previouslygranted waiver, the Agency would still 

now rescind its waiver withdrawal. 

As discussed in Section V, the 

Agency’s reinterpretation of the second 

waiver prong in SAFE 1 was flawed. 

While EPA has traditionally interpreted 

the second waiver prong, section 

209(b)(1)(B), to require a waiver unless 

the Agency demonstrates that California 

does not need its own motor vehicle 

emissions program, to meet compelling 

and extraordinary conditions, the SAFE 

1 waiver withdrawal decision was based 

on a statutory interpretation that calls 

for an examination of the need for the 

specific standard at issue. Section V 

explains why EPA believes that its 

traditional interpretation is, at least, the 

better interpretation of the second 

waiver prong because it is most 

consistent with the statutory language 

and supported by the legislative history. 

Accordingly, we reaffirm the traditional 

interpretation—in which EPA reviews 

the need for California’s motor vehicle 

program—in this action. 

Additionally, Section V explains why 

even if the focus is on the specific 

standards, when looking at the record 

before it, EPA erred in SAFE 1 in 

concluding that California does not have 

a compelling need for the specific 

standards at issue—the GHG emission 

standards and ZEV sales mandate. In 

particular, in SAFE 1, the Agency failed 

to take proper account of the nature and 

magnitude of California’s serious air 

quality problems, including the 

interrelationship between criteria and 

GHG pollution.10 Section V further 

discusses EPA’s improper substitution 

in SAFE 1 of its own policy preferences 

for California’s, and discusses the 

importance of deferring to California’s 

judgment on ‘‘ambiguous and 

controversial matters of public policy’’ 

that relate to the health and welfare of 

its citizens.11 Based on a complete 

review of the record in this action, EPA 

now believes that, even under the SAFE 

1 interpretation, California needs the 

ZEV sales mandate and GHG standards 

at issue to address compelling and 

extraordinary air quality conditions in 

the state. EPA’s findings in SAFE 1, 

which were based on the Agency’s 

inaccurate belief that these standards 

were either not intended to or did not 

result in criteria emission reductions to 

address California’s National Ambient 

Air Quality Standard (NAAQS) 

obligations, are withdrawn. 

Section VI discusses SAFE 1’s other 

basis for withdrawing the ACC program 

waiver, EPCA. In SAFE 1, EPA reached 

beyond the waiver criteria in section 

209(b)(1) and considered NHTSA’s 

regulations in SAFE 1 that state or local 

regulation of carbon dioxide emission 

from new motor vehicles (including 


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12 86 FR 74236. 

13 84 FR at 51310, 51350. 

14 2012 Waiver Request, EPA–HQ–OAR–2012– 

0562–0004 (2012 Waiver Request) at 1, 3–6. CARB’s 

LEV III standards include both its criteria emission 

standards and its GHG emission standards. SAFE 1 

did not address the LEV III criteria emission 

standards and as such the ACC program waiver 

remained in place. SAFE 1 did address CARB’s 

GHG emission standards and ZEV sales mandate 

and this action addresses these two standards as 

well. As noted in CARB’s 2012 Waiver Request, 

these three standards are interrelated and 

comprehensive in order to address the State’s 

serious air quality problems including its criteria 

pollutants and climate change challenges. 

15As noted in CARB’s waiver request, ‘‘[a]t the 

December 2009 hearing, the Board adopted 

Resolution 09–66, reaffirming its commitment to 

meeting California’s long term air quality and 

climate change reduction goals through 

commercialization of ZEV technologies. The Board 

further directed staff to consider shifting the focus 

of the ZEV regulation to both GHG and criteria 

pollutant emission reductions, commercializing 

ZEVs and PHEVs in order to meet the 2050 goals, 

and to take into consideration the new LEV fleet 

standards and propose revisions to the ZEV 

regulation accordingly.’’ 2012 Waiver Request at 2 

(emphasis added). EPA stated in SAFE 1 that 

California’s ZEV standard initially targeted only 

criteria pollutants. 84 FR at 51329. See also 78 FR 

at 2118. 

California’s ZEV sales mandate and 

GHG standards) are related to fuel 

economy and as such are preempted 

under EPCA. NHTSA has since issued a 

final rule that repeals all regulatory text 

and additional pronouncements 

regarding preemption under EPCA set 

forth in SAFE 1.12 This action by 

NHTSA effectively removes the 

underpinning and any possible 

reasoned basis for EPA’s withdrawal 

decision based on preemption under 

EPCA in SAFE 1. Additionally, the 

Agency has historically refrained from 

consideration of factors beyond the 

scope of the waiver criteria in section 

209(b)(1) and the 2013 ACC program 

waiver decision was undertaken 

consistent with this practice. EPA 

believes that the consideration of EPCA 

preemption in SAFE 1 led the Agency 

to improperly withdraw the ACC 

program waiver on this non-CAA basis. 

EPA’s explanation that withdrawal on 

this basis was justified because SAFE 1 

was a joint action, and its 

announcement that this would be a 

single occurrence, does not justify the 

ACC waiver withdrawal. Thus, EPA is 

rescinding the withdrawal of those 

aspects of the ACC program waiver that 

were based on NHTSA’s actions in 

SAFE 1. 

Section VII addresses SAFE 1’s 

interpretive view of section 177 that 

States adopting California’s new motor 

vehicle emission standards could not 

adopt California’s GHG standards.13

EPA believes it was both unnecessary 

and inappropriate in a waiver 

proceeding to provide an interpretive 

view of the authority of states to adopt 

California standards when section 177 

does not assign EPA any approval role 

in states’ adoption of the standards. 

Therefore, as more fully explained in 

Section VII, the Agency is rescinding 

the interpretive view on section 177 set 

out in SAFE 1. Section VIII discusses 

certain other considerations, including 

the equal sovereignty doctrine and 

California’s deemed-to-comply 

provision, and concludes that they do 

not disturb EPA’s decision to rescind 

the 2019 waiver withdrawal action. 

Section IX contains the final decision 

to rescind the withdrawal of the 2013 

ACC program waiver. In summary, I 

find that although EPA has inherent 

authority to reconsider its prior waiver 

decisions, that authority to reconsider is 

limited and may be exercised only when 

EPA has made a clerical or factual error 

or mistake, or where information shows 

that factual circumstances or conditions 

related to the waiver criteria evaluated 

when the waiver was granted have 

changed so significantly that the 

propriety of the waiver grant is called 

into doubt. Further, EPA’s 

reconsideration may not be broader than 

the limits Congress placed on its ability 

to deny a waiver in the first place. Even 

where those conditions are met, I 

believe that any waiver withdrawal 

decision should consider other factors 

such as the length of time since the 

initial decision and California and 

others’ reliance on the initial decision. 

Because there were no factual or clerical 

errors or such significantly changed 

factual circumstances or conditions 

necessary to trigger EPA’s authority to 

reconsider its previously granted waiver 

during the SAFE 1 proceeding, I believe 

SAFE 1 was not an appropriate exercise 

of EPA’s authority to reconsider. In 

addition, even if it were an appropriate 

exercise, EPA should not have departed 

from its traditional interpretation of the 

second waiver prong (section 

209(b)(1)(B)), which is properly focused 

on California’s need for a separate motor 

vehicle emission program—not specific 

standards—to meet compelling and 

extraordinary conditions. And even 

under EPA’s SAFE 1 interpretation of 

the second waiver prong, a complete 

review of the factual record 

demonstrates that California does need 

the GHG emission standards and ZEV 

sales mandate to meet compelling and 

extraordinary conditions in the State. 

Therefore, EPA should not have 

withdrawn the ACC program waiver 

based upon the second waiver prong in 

SAFE 1 and recission of the withdrawal 

is warranted. Additionally, I find that 

EPA inappropriately relied on NHTSA’s 

finding of preemption, now withdrawn, 

to support its waiver withdrawal, and 

rescind the waiver withdrawal on that 

basis as well. Finally, independently in 

this action, I am rescinding the 

interpretive views of section 177 that 

were set forth in SAFE 1, because it was 

inappropriate to include those views as 

part of this waiver proceeding. 

For these reasons, I am rescinding 

EPA’s part of SAFE 1 related to the CAA 

preemption of California’s standards. 

This recission has the effect of bringing 

the ACC program waiver back into force. 

II. Background 

This section provides background 

information needed to understand 

EPA’s decision process in SAFE 1, and 

this decision. This context includes: A 

summary of California’s ACC program 

including the record on the criteria 

pollutant benefits of its ZEV sales 

mandate and GHG emission standards; 

a review of the prior GHG emission 

standards waivers in order to explain 

EPA’s historical evaluation of the 

second waiver prong; an overview of the 

SAFE 1 decision; a review of the 

petitions for reconsideration filed 

subsequent to SAFE 1; and a description 

of the bases and scope of EPA’s 

reconsideration of SAFE 1. EPA’s sole 

purpose in soliciting public comment 

on its reconsideration was to determine 

whether SAFE 1 was a valid and 

appropriate exercise of the Agency’s 

authority. In the Notice of 

Reconsideration, EPA therefore noted 

that reconsideration was limited to 

SAFE 1 and that the Agency was not 

reopening the ACC program waiver 

decision. 

A. California’s Advanced Clean Car 

(ACC) Program and EPA’s 2013 Waiver 

On June 27, 2012, CARB notified EPA 

of its adoption of the ACC program 

regulatory package that contained 

amendments to its LEV III and ZEV 

sales mandate, and requested a waiver 

of preemption under section 209(b) to 

enforce regulations pertaining to this 

program.14 The ACC program combined 

the control of smog- and soot-causing 

pollutants and GHG emissions into a 

single coordinated package of 

requirements for passenger cars, lightduty trucks, and medium-duty 

passenger vehicles (as well as limited 

requirements related to heavy-duty 

vehicles for certain model years).15

In its 2012 waiver request, CARB 

noted that the 2012 ZEV amendments 

would also result in additional criteria 

pollutant benefits in California in 

comparison to the earlier ZEV 

regulations and would likely provide 

benefits beyond those achieved by 


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16 2012 Waiver Request at 6. 

17 Id. at 15–16. 

18 77 FR 53119 (August 31, 2012). 

19Set forth in the ACC program waiver decision 

is a summary discussion of EPA’s earlier decision 

to depart from its traditional interpretation of 

section 209(b)(1)(B) (the second waiver prong) in 

the 2008 waiver denial for CARB’s initial GHG 

standards for certain earlier model years along with 

EPA’s return to the traditional interpretation of the 

second prong in the waiver issued in 2009. 78 FR 

at 2125–31. These interpretations are discussed 

more fully in Section III. 

20 Id. at 2128 (‘‘The better interpretation of the 

text and legislative history of this provision is that 

Congress did not intend this criterion to limit 

California’s discretion to a certain category of air 

pollution problems, to the exclusion of others. In 

this context it is important to note that air pollution 

problems, including local or regional air pollution 

problems, do not occur in isolation. Ozone and PM 

air pollution, traditionally seen as local or regional 

air pollution problems, occur in a context that to 

some extent can involve long range transport of this 

air pollution or its precursors. This long range or 

global aspect of ozone and PM can have an impact 

on local or regional levels, as part of the background 

in which the local or regional air pollution problem 

occurs.’’). 

21Because EPA received comment on this issue 

during the ACC program waiver proceeding, as it 

pertained to both CARB’s GHG emission standards 

and ZEV sales mandate, the Agency recounted the 

interpretive history associated with standards for 

both GHG emissions and criteria air pollutants to 

explain EPA’s belief that section 209(b)(1)(B) 

should be interpreted the same way for all air 

pollutants. Id. at 2125–31 (‘‘As discussed above, 

EPA believes that the better interpretation of the 

section 209(b)(1)(B) criterion is the traditional 

approach of evaluating California’s need for a 

separate motor vehicle emission program to meet 

compelling and extraordinary conditions. Applying 

this approach with the reasoning noted above, with 

due deference to California, I cannot deny the 

waiver.’’). 

22 Id. at 2126–29. Within the 2009 GHG waiver, 

and again in the 2013 ACC program waiver, EPA 

explained that the traditional approach does not 

make section 209(b)(1)(B) a nullity, as EPA must 

still determine whether California does not need its 

motor vehicle program to meet compelling and 

extraordinary conditions as discussed in the 

legislative history. Conditions in California may one 

day improve such that it may no longer have a need 

for its motor vehicle program. 

23 Id. at 2131 (‘‘Whether or not the ZEV standards 

achieve additional reductions by themselves above 

and beyond the LEV III GHG and criteria pollutant 

standards, the LEV III program overall does achieve 

such reductions, and EPA defers to California’s 

policy choice of the appropriate technology path to 

pursue to achieve these emissions reductions. The 

ZEV standards are a reasonable pathway to reach 

the LEV III goals, in the context of California’s 

longer-term goals.’’). 

24 Id. at 2130–31. See also 2012 Waiver Request 

at 15–16); CARB Supplemental Comments, EPA– 

HQ–OAR–2012–0562–0373 at 4 (submitted 

November 14, 2012). 25EPA notes that the 1990 amendments to the 

CAA added subsection (e) to section 209. 

Subsection (e) addresses the preemption of State or 

political subdivision regulation of emissions from 

nonroad engines or vehicles. Section 209(e)(2)(A) 

sets forth language similar to section 209(b) in terms 

of the criteria associated with EPA waiving 

preemption, in this instance for California nonroad 

vehicle and engine emission standards. Congress 

directed EPA to implement subsection (e). See 40 

CFR part 1074. EPA review of CARB requests 

submitted under section 209(e)(2)(A)(ii) includes 

consideration of whether CARB needs its nonroad 

vehicle and engine program to meet compelling and 

extraordinary conditions. See 78 FR 58090 

(September 20, 2013). 

complying with the LEV III criteria 

pollutant standard for conventional 

vehicles only. CARB attributed these 

benefits not to vehicle emissions 

reductions specifically, but to increased 

electricity and hydrogen use that would 

be more than offset by decreased 

gasoline production and refinery 

emissions.16 CARB’s waiver request 

attributed the criteria emissions benefits 

to its LEV III criteria pollutant fleet 

standard and did not include similar 

benefits from its ZEV sales mandate. 

According to the request, the fleet 

would become cleaner regardless of the 

ZEV sales mandate because the ZEV 

sales mandate is a way to comply with 

the LEV III standards and, regardless of 

the ZEV sales mandate, manufacturers 

might adjust their compliance response 

to the standard by making less polluting 

conventional vehicles. CARB further 

explained that because upstream criteria 

and PM emissions are not captured in 

the LEV III criteria pollutant standard, 

net upstream emissions are reduced 

through the increased use of electricity 

and concomitant reductions in fuel 

production.17

On August 31, 2012, EPA issued a 

notice of opportunity for public hearing 

and written comment on CARB’s 

request and solicited comment on all 

aspects of a full waiver analysis for such 

request under the criteria of section 

209(b).18 Commenters opposing the 

waiver asked EPA to deny the waiver 

under the second waiver prong, section 

209(b)(1)(B), as it applied to the GHG 

provisions in the ACC Program, calling 

on EPA to adopt an alternative 

interpretation of that provision focusing 

on California’s need for the specific 

standards. Following public notice and 

comment and based on its traditional 

interpretation of section 209(b), on 

January 9, 2013, EPA granted 

California’s request for a waiver of 

preemption to enforce the ACC program 

regulations.19 The traditional 

interpretation, which EPA stated is the 

better interpretation of section 

209(b)(1)(B), calls for evaluating 

California’s need for a separate motor 

vehicle emission program to meet 

compelling and extraordinary 

conditions.20 As explained, EPA must 

grant a waiver to California unless the 

Administrator makes at least one of the 

three statutorily-prescribed findings in 

section 209(b)(1). Concluding that 

opponents of the waiver did not meet 

their burden of proof to demonstrate 

that California does not have such need, 

EPA found that it could not deny the 

waiver under the second waiver 

prong.21

Without adopting the alternative 

interpretation, EPA noted that, to the 

extent that it was appropriate to 

examine the need for CARB’s specific 

GHG standards to meet compelling and 

extraordinary conditions, EPA had 

explained at length in its earlier 2009 

GHG waiver decision that California 

does have compelling and extraordinary 

conditions directly related to regulation 

of GHGs. This conclusion was 

supported by additional evidence 

submitted by CARB in the ACC program 

waiver proceeding, including reports 

that demonstrate record-setting 

wildfires, deadly heat waves, 

destructive storm surges, and loss of 

winter snowpack. Many of these 

extreme weather events and other 

conditions have the potential to 

dramatically affect human health and 

well-being.22 Similarly, to the extent 

that it was appropriate to examine the 

need for CARB’s ZEV sales mandate, 

EPA noted that the ZEV sales mandate 

in the ACC program enables California 

to meet both its air quality and climate 

goals into the future. EPA recognized 

that CARB’s coordinated strategies 

reflected in the ACC program for 

addressing both criteria pollutants and 

GHGs and the magnitude of the 

technology and energy transformation 

needed to meet such goals.23 Therefore, 

EPA determined that, to the extent the 

second waiver prong should be 

interpreted to mean a need for the 

specific standards at issue, CARB’s GHG 

emission standards and ZEV sales 

mandate satisfy such a finding. 

In the context of assessing the need 

for the specific ZEV sales mandate in 

the ACC program waiver, EPA noted 

CARB’s intent in the redesign of the 

ZEV regulation of addressing both 

criteria pollutants and GHG emissions, 

and CARB’s demonstration of ‘‘the 

magnitude of the technology and energy 

transformation needed from the 

transportation sector and associated 

energy production to meet . . . the goals 

set forth by California’s climate change 

requirements’’ and found that the ZEV 

standards would help California achieve 

those ‘‘long term emission benefits as 

well as . . . some [short-term] reduction 

in criteria pollutant emissions.’’ 24

B. Prior Waivers for GHG Standards 

For over fifty years, EPA has 

evaluated California’s requests for 

waivers of preemption under section 

209(b), primarily considering CARB’s 

motor vehicle emission program for 

criteria pollutants.25 More recently, the 

Agency has worked to determine how 


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26EPA notes that, in the history of EPA waiver 

decisions, it has only denied a waiver once (in 

2008) and withdrawn a waiver once (in 2019). Each 

instance was under this second waiver prong in 

section 209(b)(1)(B). 

27 49 FR 18887, 18890 (May 3, 1984). 

28For example, in EPA’s 2009 GHG waiver that 

reconsidered the 2008 GHG waiver denial, the 

Agency noted that ‘‘Given the comments submitted, 

however, EPA has also considered an alternative 

interpretation, which would evaluate whether the 

program or standards has a rational relationship to 

contributing to amelioration of the air pollution 

problems in California. Even under this approach, 

EPA’s inquiry would end there. California’s policy 

judgment that an incremental, directional 

improvement will occur and is worth pursuing is 

entitled, in EPA’s judgment, to great deference. 

EPA’s consistent view is that it should give 

deference to California’s policy judgments, as it has 

in past waiver decisions, on California’s choice of 

mechanism used to address air pollution problems. 

EPA does not second-guess the wisdom or efficacy 

of California’s standards. EPA has also considered 

this approach with respect to the specific GHG 

standards themselves, as well as California’s motor 

vehicle emissions program.’’ 74 FR at 32766 (citing 

to Motor & Equip. Mfrs. Ass’n, Inc. v. EPA, 627 F.2d 

1095, 1110–11 (D.C. Cir. 1979)). 

29 78 FR at 58090. The United States Court of 

Appeals for the Ninth Circuit reviewed EPA’s grant 

of a waiver of preemption under the traditional 

approach, and because of comments seeking an 

alternative interpretation, an assessment of the need 

for the standards contained in California’s request. 

Dalton Trucking v. EPA, No. 13–74019 (9th Cir. 

2021) (finding that EPA was not arbitrary in 

granting the waiver of preemption under either 

approach). The court opinion noted that ‘‘[t]his 

disposition is not appropriate for publication and 

is not precedent except as provided by Ninth 

Circuit Rule 36–3.’’ 

30 74 FR 32743, 32745 (July 8, 2009). 

31 74 FR at 32759–67. For example, EPA noted 

that the analysis of the need for CARB’s GHG 

standards in the 2008 waiver denial failed to 

consider that although the factors that cause ozone 

are primarily local in nature and that ozone is a 

local or regional air pollution problem, the impacts 

of global climate change can nevertheless 

exacerbate this local air pollution problem. EPA 

noted that California had made a case that its 

greenhouse gas standards are linked to amelioration 

of its smog problems. See also 76 FR 34693 (June 

14, 2011). 

32California Code of Regulations, Title 13 

1961(a)(1)(B). Under this provision, automakers 

could comply with the California GHG standards 

for model years 2017–2025 by meeting Federal GHG 

standards for the same model years. 

33 76 FR 34693. EPA’s ‘‘within-the-scope’’ 

decisions are generally performed when CARB has 

amended its regulations that were previously 

waived by EPA under section 209(b)(1) and include 

an analysis of whether EPA’s prior evaluation of the 

waiver criteria has been undermined by CARB’s 

amendments. EPA received comment during the 

Continued 

section 209(b)(1)(B) should be 

interpreted and applied to GHG 

standards, including consideration of 

the relationship of GHG standards to 

California’s historical air quality 

problems, the public health impacts of 

GHG emissions on NAAQS pollutants, 

and the direct impacts of GHG 

emissions and climate change on 

California and its inhabitants. While the 

SAFE 1 withdrawal and revocation of 

the waiver for CARB’s ACC program 

represents a singular snapshot of this 

task, it is important to examine EPA’s 

long-standing and consistent waiver 

practice in general, including EPA’s 

interpretations in prior waiver decisions 

pertaining to CARB’s GHG emission 

standards, in order to determine 

whether EPA properly applied the 

waiver criterion in section 209(b)(1)(B) 

in SAFE 1.26

Historically, EPA has consistently 

interpreted and applied the second 

waiver prong by considering whether 

California needed a separate motor 

vehicle emission program as compared 

to the specific standards at issue to meet 

compelling and extraordinary 

conditions.27 At the same time, in 

response to commenters that have 

argued that EPA is required to examine 

the specific standards at issue in the 

waiver request, EPA’s practice has been 

to nevertheless review the specific 

standards to determine whether 

California needs those individual 

standards to meet compelling and 

extraordinary conditions.28 This does 

not mean that EPA has adopted an 

‘‘alternative approach’’ and required a 

demonstration for the need for specific 

standards; rather, this additional 

Agency review has been afforded to 

address commenters’ concerns and this 

secondary analysis has been done to 

support the Agency’s primary 

assessment. For example, EPA granted 

an authorization for CARB’s In-use Offroad Diesel Standards (Fleet 

Requirements) that included an analysis 

under both approaches.29 The only two 

departures from this traditional 

approach occurred first in 2008 when 

EPA adopted an ‘‘alternative approach’’ 

to the second waiver prong and second 

in 2019 when EPA adopted the ‘‘SAFE 

1 interpretation’’ of the second waiver 

criterion. 

EPA’s task of interpreting and 

applying section 209(b)(1)(B) to 

California’s GHG standards and 

consideration of the State’s historical air 

quality problems that now include the 

public health and welfare challenge of 

climate change began in 2005, with 

CARB’s waiver request for 2009 and 

subsequent model years’ GHG emission 

standards. On March 6, 2008, EPA 

denied the waiver request based on a 

new interpretive finding that section 

209(b) was intended for California to 

enforce new motor vehicle emission 

standards that address local or regional 

air pollution problems, and an Agency 

belief that California could not 

demonstrate a ‘‘need’’ under section 

209(b)(1)(B) for standards intended to 

address global climate change problems. 

EPA also employed this new alternative 

interpretation to state a belief that the 

effects of climate change in California 

are not compelling and extraordinary in 

comparison with the rest of the country. 

Therefore, in the 2008 waiver denial, 

EPA did not evaluate whether California 

had a need for its motor vehicle 

emission program to meet compelling 

and extraordinary conditions (the 

traditional interpretation) but rather 

focused on the specific GHG emission 

standard in isolation and not in 

conjunction with the other motor 

vehicle emission standards for criteria 

pollutants. 

In 2009, EPA initiated a 

reconsideration of the 2008 waiver 

denial. The reconsideration resulted in 

granting CARB a waiver for its GHG 

emission standards commencing in the 

2009 model year.30 In granting the 

waiver, EPA rejected the Agency’s 

alternative interpretation of the second 

waiver prong announced in the 2008 

waiver denial. Instead, EPA returned to 

its traditional approach of evaluating 

California’s need for a separate motor 

vehicle emission program to meet 

compelling and extraordinary 

conditions because the Agency viewed 

it as the better interpretation of the 

second waiver prong. Under the 

traditional interpretation, EPA found 

that the opponents of the waiver had not 

met their burden of proof to 

demonstrate that California did not need 

its motor vehicle emission program to 

meet compelling and extraordinary 

conditions. In responding to comments 

on this issue, EPA also determined that, 

even if the alternative interpretation 

were to be applied, the opponents of the 

waiver had not demonstrated that 

California did not need its GHG 

emissions standards to meet compelling 

and extraordinary conditions.31

Since EPA’s 2009 GHG waiver 

decision and before SAFE 1 the Agency 

applied the traditional interpretation of 

the second waiver prong in its GHGrelated waiver proceedings, including 

the on-going review of California’s GHG 

emission standards for vehicles. In the 

first instance, in 2009, CARB adopted 

amendments to its certification 

requirements that would accept 

demonstration to the Federal GHG 

standards as compliance with CARB’s 

GHG program. This provision is known 

as a ‘‘deemed-to-comply’’ provision.32

In 2011, EPA determined that this 

deemed-to-comply provision was 

within-the-scope of the waiver issued in 

July 2009, relying on the traditional 

interpretation of the second waiver 

prong.33 As such, in the June 14, 2011 


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reconsideration of SAFE 1 that questioned whether 

CARB needed its GHG standards if it was otherwise 

accepting compliance with the Federal GHG 

standards. EPA addressed the issue in its final 

decision (76 FR at 34696–98) and continues to 

believe EPA’s analysis applies. The existence of 

federal emission standards that CARB may choose 

to harmonize with or deem as compliance with its 

own State standards (or that CARB may choose to 

set more stringent standards) does not on its own 

render California’s as not needed. CARB continues 

to administer an integrated and comprehensive 

motor vehicle emission program (including its ZEV 

sales mandate and GHG emission standards and 

other applicable emission standards for light-duty 

vehicles) and this program continues to evolve to 

address California’s serious air quality issues. 

CARB’s decision to select some federal emission 

standards as sufficient to comply with its own State 

emission standards does not negate the overall 

design and purpose of section 209 of the CAA. In 

the within-the-scope decision issued in 2011, EPA 

agreed with Global Automakers comment that the 

deemed-to-comply provision renders emission 

benefits equally protective as between California 

and Federal programs. Id. at 34696. 

34 Id. at 34696–97. 

35The first HD GHG emissions standard waiver 

related to certain new 2011 and subsequent model 

year tractor-trailers. 79 FR 46256 (August 7, 2014). 

In this waiver decision EPA responded to 

comments regarding whether CARB had quantified 

how the GHG regulations would contribute to 

attainment of ozone or particulate matter standards 

by noting that nothing in section 209(b)(1)(B) calls 

for California to quantify specifically how its 

regulations would affect attainment of the NAAQS 

in the State. Rather, EPA noted, the relevant 

question is whether California needs its own motor 

vehicle emission program and not whether there is 

a need for specific standards. The second HD GHG 

emissions standard waiver related to CARB’s 

‘‘Phase I’’ regulation for 2014 and subsequent model 

year tractor-trailers. 81 FR 95982 (December 29, 

2016). 

36Relatedly, California explained the need for 

these standards based on projected ‘‘reductions in 

NOX emissions of 3.1 tons per day in 2014 and one 

ton per day in 2020 due to the HD GHG 

Regulations. California state[d] that these emissions 

reductions will help California in its efforts to attain 

applicable air quality standards. California further 

projects that the HD GHG Regulations will reduce 

GHG emissions in California by approximately 0.7 

million metric tons (MMT) of carbon dioxide 

equivalent emissions (CO2e) by 2020.’’ 79 FR at 

46261. See also 81 FR at 95982. 

37 81 FR at 95987. At the time of CARB’s Board 

adoption of the HD Phase I GHG regulation, CARB 

determined in Resolution 13–50 that California 

continues to need its own motor vehicle program 

to meet serious ongoing air pollution problems. 

CARB asserted that ‘‘[t]he geographical and climatic 

conditions and the tremendous growth in vehicle 

population and use that moved Congress to 

authorize California to establish vehicle standards 

in 1967 still exist today. EPA has long confirmed 

CARB’s judgment, on behalf of the State of 

California, on this matter.’’ See EPA Air Docket at 

regulations.gov at EPA–HQ–OAR–2016–0179– 

0012. In enacting the California Global Warming 

Solutions Act of 2006, the Legislature found and 

declared that ‘‘Global warming poses a serious 

threat to the economic well-being, public health, 

natural resources, and the environment of 

California. The potential adverse impacts of global 

warming include the exacerbation of air quality 

problems, a reduction in the quality and supply of 

water to the state from the Sierra snowpack, a rise 

in sea levels resulting in the displacement of 

thousands of coastal businesses and residences, 

damage to the marine ecosystems and the natural 

environment, and an increase in the incidences of 

infectious diseases, asthma, and other healthrelated problems.’’ 

38The Safer Affordable Fuel-Efficient (SAFE) 

Vehicles Rule for Model Years 2021–2026 Passenger 

Cars and Light Trucks, 83 FR at 42986. 

39As explained below, EPA did not make a 

determination regarding section 209(b)(1)(C) in 

SAFE 1. 

40 ‘‘To the extent that NHTSA has determined that 

these standards are void ab initio because EPCA 

preempts standards that relate to fuel economy, that 

determination presents an independent basis for 

EPA to consider the validity of the initial grant of 

a waiver for these standards, separate and apart 

from EPA’s analysis under the criteria that 

invalidate a waiver request.’’ 84 FR at 51338. 

41States and Cities in Support of EPA Reversing 

Its SAFE 1 Actions (States and Cities), Docket No. 

EPA–HQ–OAR–2021–0257–0132 at 10 (citing 

CARB, Docket No. NHTSA–2018–0067–11873 at 

287–88, 290–91 (upstream emission impacts), 308). 

42States and Cities at 43–47 (citing EPA–HQ– 

OAR–2018–0283–5481, EPA–HQ–OAR–2018– 

0283–5683, and EPA–HQ–OAR–2018–0283–5054). 

43 Id. at 45 (EPA–HQ–OAR–2018–0283–7447— 

U.S. Global Research Program, Impacts, Risks, and 

Adaptation in the United States: Fourth National 

Climate Assessment, Volume II, Chapter 25., 2018). 

(E.g., ‘‘The California coast extends 3,400 miles 

(5,500 km), 8 with 200,000 people living 3 feet (0.9 

m) or less above sea level.9 The seaports of Long 

within-the-scope decision EPA 

determined that CARB’s 2009 

amendments did not affect or 

undermine the Agency’s prior 

determination made in the 2009 GHG 

waiver decision, including the 

technological feasibility findings in 

section 209(b)(1)(C).34 EPA also acted 

on two requests for waivers of 

preemption for CARB’s heavy-duty (HD) 

tractor-trailer GHG emission 

standards.35 Once again, EPA relied 

upon its traditional approach of 

evaluating California’s need for a 

separate motor vehicle emission 

program to meet compelling and 

extraordinary conditions and found that 

no evidence had been submitted to 

demonstrate that California no longer 

needed its motor vehicle emission 

program to meet compelling and 

extraordinary conditions.36 EPA’s 

second waiver for the HD GHG emission 

standards made a similar finding that 

California’s compelling and 

extraordinary conditions continue to 

exist under the traditional approach for 

the interpretation of the second waiver 

criterion.37

C. SAFE 1 Decision 

In 2018, NHTSA issued a proposal for 

new Corporate Average Fuel Economy 

(CAFE) standards that must be achieved 

by each manufacturer for its car and 

light-duty truck fleet while EPA 

revisited its light-duty vehicle GHG 

emissions standards for certain model 

years in the SAFE Proposal.38 EPA also 

proposed to withdraw the waiver for the 

ACC program GHG emission standards 

and ZEV sales mandate, referencing 

both sections 209(b)(1)(B) and (C). EPA 

posited that since the grant of the initial 

waiver a reassessment of California’s 

need for its GHG standards and ZEV 

sales mandate under the second waiver 

prong, section 209(b)(1)(B), was 

appropriate. EPA further posited that its 

own Federal GHG rulemaking in the 

SAFE proposal raised questions about 

the feasibility of CARB’s standards 

under the third waiver prong, section 

209(b)(1)(C).39 In addition, EPA 

reasoned that the SAFE proposal 

presented a unique situation that 

required EPA to consider the 

implications of NHTSA’s proposed 

conclusion that California’s GHG 

emission standards and ZEV sales 

mandate were preempted by EPCA.40

EPA thus also posited that state 

standards preempted under EPCA 

cannot be afforded a valid section 209(b) 

waiver and then proposed that it would 

be necessary to withdraw the waiver 

separate and apart from section 

209(b)(1)(B) and (C) if NHTSA finalized 

its interpretation regarding preemption 

under EPCA. 

During the SAFE 1 proceeding, EPA 

received additional information 

demonstrating that the ZEV sales 

mandate plays a role in reducing criteria 

pollution, including CARB’s comments 

that EPA’s prior findings in the ACC 

program waiver were correct. As noted 

by a number of States and Cities, ‘‘[f]or 

example, CARB modeled the 

consequences of the actions proposed in 

SAFE, which included withdrawing 

California’s waiver for its GHG and ZEV 

standards and freezing the federal GHG 

standards at MY 2020 levels. CARB 

concluded these actions, which would 

eliminate California’s ZEV and GHG 

standards and leave in place only 

federal GHG standards at MY 2020 

levels, would increase NOx emissions in 

the South Coast air basin alone by 1.24 

tons per day.’’ 41 The SAFE 1 record also 

includes information that demonstrates 

that California is ‘‘one of the most 

climate challenged’’ regions of North 

America, and that it is home to some of 

the country’s hottest and driest areas, 

which are particularly threatened by 

record-breaking heatwaves, sustained 

droughts, and wildfire, as a result of 

GHG emissions.42 This record also 

includes information from the United 

States Fourth National Climate 

Assessment that documents the impact 

of climate change in exacerbating 

California’s record-breaking fires 

seasons, multi-year drought, heat waves, 

and flood risk, and notes that California 

faces a particular threat from sea-level 

rise and ocean acidification and that the 

State has ‘‘the most valuable oceanbased economy in the country.’’ 43 EPA 


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Beach and Oakland, several international airports, 

many homes, and high-value infrastructure lie 

along the coast. In addition, much of the 

Sacramento–San Joaquin River Delta is near sea 

level. California has the most valuable ocean-based 

economy in the country, employing over half a 

million people and generating $20 billion in wages 

and $42 billion in economic production in 2014.10 

Coastal wetlands buffer against storms, protect 

water quality, provide habitat for plants and 

wildlife, and supply nutrients to fisheries. Sea level 

rise, storm surges, ocean warming, and ocean 

acidification are altering the coastal shoreline and 

ecosystems.’’ 

44 During the current reconsideration proceeding, 

EPA received additional comment regarding the 

criteria pollution benefits of California’s GHG and 

ZEV standards. The States and Cities at 10–11. 

Likewise, CARB notes this connection in comments 

on the SAFE proposal. Multi-State SAFE 

Comments, EPA–HQ–OAR–2018–0283–5481 at 24. 

The States and Cities provided supplemental 

information in response to the Notice of 

Reconsideration by submitting California’s latest 

analyses of the criteria pollutant benefits of its GHG 

standards. For example, CARB estimated those 

benefits for calendar years by which the South 

Coast air basin must meet increasingly stringent 

NAAQS for ozone: 2023, 2031, and 2037. States and 

Cities app. A at 2–4, app. C at 8–9. 

45 84 FR at 51328–29. Parties subsequently 

brought litigation against EPA on its SAFE 1 

decision. See generally Union of Concerned 

Scientists, et al. v. NHTSA, et al., No. 19–1230 (D.C. 

Cir. filed Oct. 28, 2019) (on February 8, 2021, the 

D.C. Circuit granted the Agencies’ motion to hold 

the case in abeyance in light of the reconsideration 

of the SAFE 1 action). EPA also received three 

petitions for reconsideration of this waiver 

withdrawal. 

46 84 FR at 51338. 

47 Id. 

48 Id. at 51341–42. 

49 Id. at 51337. 

50 Id. at 51330. 

51 In other words, EPA asserted that once it 

determines that California needed its very first set 

of submitted standards to meet extraordinary and 

compelling conditions, EPA would never have the 

discretion to determine that California did not need 

any subsequent standards for which it sought a 

successive waiver. EPA based its reading also on an 

assertion of ambiguity in the meaning of ‘‘such 

State standards’’ in section 209(b)(1)(B). 

52 Id. at 51339–40. 

53 Id. at 51344–45.EPA notes that this SAFE 1 

position was taken despite the Agency previously 

stating in the ACC program waiver that ‘‘Similarly, 

although the Dealers might suggest that EPA only 

be obligated to determine whether each of CARB’s 

ACC regulatory components, in isolation, is 

consistent with section 202(a) we believe the better 

approach is to determine the technological 

feasibility of each standard in the context of the 

entire regulatory program for the particular industry 

category. In this case, we believe CARB has in fact 

recognized the interrelated, integrated approach the 

industry must take in order to address the 

regulatory components of the ACC program. As 

noted above, the House Committee Report 

explained as part of the 1977 amendments to the 

Clean Air Act that California was to be afforded 

flexibility to adopt a complete program of motor 

vehicle emission controls (emphasis added). As 

such, EPA believes that Congress intended EPA to 

afford California the broadest possible discretion in 

selecting the best means to protect the health of its 

citizens and the public welfare.32 EPA believes this 

intent extends to CARB’s flexibility in designing its 

motor vehicle emission program and evaluating the 

aggregate effect of regulations within the program.’’ 

78 FR at 2217. 

received information during the SAFE 1 

public comment period regarding the 

criteria emission benefits of CARB’s 

ZEV sales mandate and GHG emission 

standards.44

On September 27, 2019, EPA and 

NHTSA published the final SAFE 1 

action that promulgated preemption 

regulations which supported NHTSA’s 

conclusion that EPCA preempted 

California’s GHG standards and ZEV 

sales mandate. In the same action, EPA 

withdrew the waiver of preemption for 

California to enforce the ACC program 

GHG and ZEV sales mandate on two 

grounds.45

First, in SAFE 1 the Agency posited 

that standards preempted under EPCA 

could not be afforded a valid waiver of 

preemption under section 209(b). EPA 

explained that Agency pronouncements 

in the ACC program waiver decision on 

the historical practice of disregarding 

the preemptive effect of EPCA in the 

context of evaluating California’s waiver 

applications were ‘‘inappropriately 

broad, to the extent it suggested that 

EPA is categorically forbidden from ever 

determining that a waiver is 

inappropriate due to consideration of 

anything other than the ‘criteria’ or 

‘prongs’ at section 209(b)(1)(B)(A)– 

(C).’’ 46 EPA further explained that those 

pronouncements were made in waiver 

proceedings where the Agency was 

acting solely on its own in contrast to 

a joint action with NHTSA such as 

SAFE 1. Additionally, EPA expressed its 

intention not to consider factors other 

than statutory criteria set out in section 

209(b)(1)(A)–(C) in future waiver 

proceedings, explaining that addressing 

the preemptive effect of EPCA and its 

implications for EPA’s waiver for 

California’s GHG standards and ZEV 

sales mandate was uniquely called for 

in SAFE 1 because EPA and NHTSA 

were coordinating regulatory actions in 

a single notice.47

Second, EPA withdrew the waiver for 

the GHG standards and ZEV sales 

mandate under the second waiver 

prong, section 209(b)(1)(B), on two 

alternative grounds. Specifically, EPA 

determined first that California does not 

need the GHG standards ‘‘to meet 

compelling and extraordinary 

conditions,’’ under section 209(b)(1)(B), 

and second, even if California does have 

compelling and extraordinary 

conditions in the context of global 

climate change, California does not 

‘‘need’’ the specific GHG standards 

under section 209(b)(1)(B) because they 

will not meaningfully address global air 

pollution problems of the type 

associated with GHG emissions.48 EPA 

also reasoned that because CARB had 

characterized the ZEV sales mandate as 

a compliance mechanism for GHG 

standards, both were ‘‘closely 

interrelated’’ given the overlapping 

compliance regimes for the ACC 

program, and as a result the ZEV sales 

mandate was inextricably 

interconnected with CARB’s GHG 

standards.49 In support of its overall 

determination that the ZEV sales 

mandate was not needed to meet 

compelling and extraordinary 

conditions, EPA relied on a single 

statement in the ACC program waiver 

support document where CARB did not 

attribute criteria emission reductions to 

the ZEV sales mandate, but rather noted 

its LEV III criteria pollutant fleet 

standard was responsible for those 

emission reductions.50 Relying on this 

reasoning, EPA also withdrew the 

waiver for the ZEV sales mandate under 

the second waiver prong finding that 

California had no ‘‘need’’ for its own 

ZEV sales mandate. 

In withdrawing the waiver, EPA 

relied on an alternative view of the 

scope of the Agency’s analysis of 

California waiver requests and posited 

that reading ‘‘such State standards’’ as 

requiring EPA to only and always 

consider California’s entire motor 

vehicle program would limit the 

application of this waiver prong in a 

way that EPA did not believe Congress 

intended.51 EPA further noted that the 

Supreme Court had found that CAA 

provisions may apply differently to 

GHGs than they do to traditional 

pollutants in UARG v. EPA, 134 S. Ct. 

2427 (2014) (partially reversing the GHG 

‘‘Tailoring’’ Rule on grounds that the 

CAA section 202(a) endangerment 

finding for GHG emissions from motor 

vehicles did not compel regulation of all 

sources of GHG emissions under the 

Prevention of Significant Deterioration 

and Title V permit programs). EPA then 

interpreted section 209(b)(1)(B) as 

requiring a particularized, local nexus 

between (1) pollutant emissions from 

sources, (2) air pollution, and (3) 

resulting impact on health and 

welfare.52 Interpreting section 

209(b)(1)(C) to be limited to the specific 

standards under the waiver, EPA stated 

that ‘‘such State standards’’ in sections 

209(b)(1)(B) and (C) should be read 

consistently with each other, which 

EPA asserted was a departure from the 

traditional approach where this phrase 

in section 209(b)(1)(B) is read as 

referring back to ‘‘in the aggregate’’ in 

section 209(b)(1).53

In the SAFE proposal, as an 

additional basis for the waiver 

withdrawal, EPA proposed to find that 

CARB’s ZEV sales mandate and GHG 


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54 83 FR at 43240. 

55 84 FR at 51350. EPA explained that it may 

make a determination in connection with a future 

final action with regard to Federal standards. EPA’s 

subsequent regulation to issue Federal standards 

did not address this issue. 85 FR 24174. 

56 84 FR at 51332 (citing S. Rep. No. 90–403, at 

34 (1967)). 

57 Id. at 51333. 

58Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 

837, 863 (1984). 

59The California Petition for Clarification only 

sought reconsideration of SAFE 1 to the extent it 

withdrew the ACC program waiver for model years 

outside those proposed. The other two petitions 

sought reconsideration of the full SAFE 1 action. 

60EPA–OAR–2021–0257–0015. 

61The California Petition for Clarification notes 

that, ‘‘[i]n the Final Actions, EPA makes statements 

that are creating confusion, and, indeed, appear 

contradictory, concerning the temporal scope of its 

action(s)—specifically, which model years are 

covered by the purported withdrawal of California’s 

waiver for its GHG and ZEV standards. In some 

places, EPA’s statements indicate that it has limited 

its action(s) to the model years for which it 

proposed to withdraw and for which it now claims 

to have authority to withdraw—namely model years 

2021 through 2025. In other places, however, EPA’s 

statements suggest action(s) with a broader scope— 

one that would include earlier model years.’’ Id. at 

2. In SAFE 1, EPA withdrew the waiver for 

California’s GHG and ZEV standards for model 

years 2017–2025 on the basis of EPCA preemption 

and for model years 2021–2025 on the basis of the 

second waiver prong. 

62EPA–HQ–OAR–2021–0257–0014. This Petition 

was joined by The Center for Biological Diversity, 

Chesapeake Bay Foundation, Environment America, 

Environmental Defense Fund, Environmental Law & 

Policy Center, Natural Resources Defense Council, 

Public Citizen, Inc., Sierra Club, and the Union of 

Concerned Scientists. 

63These ‘‘late comments’’ can be found in the 

‘‘Appendix of Exhibits’’ attached to the Petition for 

Reconsideration. These comments are considered 

part of EPA’s record for purposes of the 

reconsideration of SAFE 1. 

64See EPA–HQ–OAR–2021–0257–0029. This 

Petition was joined by the States of California, 

Colorado, Connecticut, Delaware, Hawaii, Illinois, 

Maine, Maryland, Minnesota, Nevada, New Jersey, 

New Mexico, New York, North Carolina, Oregon, 

Rhode Island, Vermont, Washington, Wisconsin, 

Michigan, the Commonwealths of Massachusetts, 

Pennsylvania, and Virginia, the District of 

Columbia, and the Cities of Los Angeles, New York, 

San Francisco, and San Jose. 

standards are not consistent with 

section 202(a) of the CAA under the 

third waiver prong, section 

209(b)(1)(C).54 However, in the final 

SAFE 1 action, EPA and NHTSA 

explained they were not finalizing the 

proposed assessment regarding the 

technological feasibility of the Federal 

GHG and CAFE standards for MY 2021 

through 2025 in SAFE 1, and thus EPA 

did not finalize any determination with 

respect to section 209(b)(1)(C).55

In justifying the withdrawal action in 

SAFE 1, EPA opined that the text, 

structure, and context of section 209(b) 

supported EPA’s authority to reconsider 

prior waiver grants. Specifically, EPA 

asserted that the Agency’s authority to 

reconsider the grant of ACC program 

waiver was implicit in section 209(b) 

given that revocation of a waiver is 

implied in the authority to grant a 

waiver. The Agency noted that further 

support for the authority to reconsider 

could be found in a single sentence in 

the 1967 legislative history of provisions 

now codified in sections 209(a) and (b) 

and the judicial principle that agencies 

possess inherent authority to reconsider 

their decisions. According to the Senate 

report from the 1967 CAA amendments, 

the Administrator has ‘‘the right . . . to 

withdraw the waiver at any time [if] 

after notice and an opportunity for 

public hearing he finds that the State of 

California no longer complies with the 

conditions of the waiver.’’ 56 EPA also 

noted that, subject to certain limitations, 

administrative agencies possess 

inherent authority to reconsider their 

decisions in response to changed 

circumstances: ‘‘It is well settled that 

EPA has inherent authority to 

reconsider, revise, or repeal past 

decisions to the extent permitted by law 

so long as the Agency provides a 

reasoned explanation.’’ 57 This authority 

exists in part because EPA’s 

interpretations of the statutes it 

administers ‘‘are not carved in stone.’’ 58

Finally, in SAFE 1, EPA provided an 

interpretive view of section 177 as not 

authorizing other states to adopt 

California’s GHG standards for which 

EPA had granted a waiver of preemption 

under section 209(b). Although section 

177 does not require states that adopt 

California’s emission standards to 

submit such regulations for EPA review 

and provides no statutory role for EPA 

in states’ decision to adopt California’s 

standards, EPA chose to nevertheless 

provide an interpretation that this 

provision is available only to states with 

approved nonattainment plans. EPA 

stated that nonattainment designations 

exist only as to criteria pollutants and 

GHGs are not criteria pollutants; 

therefore, states could not adopt GHG 

standards under section 177. Notably, 

California in previous waiver requests 

addressed the criteria pollutant benefits 

of GHG emissions reductions, 

specifically related to ground level 

ozone. 

D. Petitions for Reconsideration 

After issuing SAFE 1, EPA received 

three petitions for reconsideration 

urging the Agency to reconsider the 

waiver withdrawal of the ACC 

program’s GHG standards and ZEV sales 

mandate and to rescind part or all of the 

SAFE 1 action.59 The first Petition for 

Clarification/Reconsideration was 

submitted by the State of California and 

a number of States and Cities on 

October 9, 2019 (California Petition for 

Clarification).60 These Petitioners 

sought both clarification and 

reconsideration of the scope of SAFE 1. 

Citing somewhat contradictory 

statements in the action, they claimed 

that SAFE 1 created confusion regarding 

which model years of the ACC program 

were affected by the waiver 

withdrawal.61 They based their request 

for reconsideration of the withdrawal on 

the grounds that the SAFE 1 action 

relied on analyses and justifications not 

presented at proposal and, thus, was 

beyond the scope of the proposal. 

A second Petition for Reconsideration 

was submitted by several nongovernmental organizations on 

November 25, 2019 (NGOs’ Petition).62

These Petitioners claimed that EPA’s 

reconsideration of the ACC program 

waiver was not a proper exercise of 

agency authority because the Agency 

failed to consider comments submitted 

after the formal comment period— 

which they charged as inadequate—and 

because the EPA’s rationale was a 

pretextual cover for the 

Administration’s political animosity 

towards California and the oil industry’s 

influence. The late comments 

summarized in the Petition address 

SAFE 1’s EPCA preemption and second 

waiver prong arguments. On EPCA 

preemption, the summarized comments 

asserted that EPCA does not preempt 

GHG standards because GHG emission 

standards are not the ‘‘functional 

equivalent’’ of fuel economy standards, 

as SAFE 1 claimed. On the second 

waiver prong, the summarized 

comments asserted both that GHG and 

ZEV standards do have criteria pollutant 

benefits, and that the threat of climate 

change is compelling and extraordinary 

and will have California-specific 

impacts. In addition to objections to 

SAFE 1’s EPCA preemption and second 

waiver prong arguments, the 

summarized comments asserted that 

ZEV standards play a key role in SIPs, 

which were disrupted by SAFE 1. This 

disruption, Petitioners claimed, violated 

‘‘conformity’’ rules prohibiting federal 

actions from undermining state’s air 

quality plans.63

A third Petition for Reconsideration 

was submitted by several states and 

cities on November 26, 2019 (States and 

Cities’ Petition).64 These Petitioners 

sought reconsideration of the 

withdrawal on the grounds that EPA 

failed to provide an opportunity to 

comment on various rationales and 

determinations, in particular on its 

authority to revoke argument, flawed reinterpretation and application of the 

second waiver prong, its flawed new 


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65The applicable burden of proof for a waiver 

withdrawal is discussed in Section III of this 

decision. 

66 General Motors Corp. v. United States, 496 U.S. 

530, 532 (1990). 

67 ‘‘The regulatory difference [between Titles I 

and II] is explained in part by the difficulty of 

subjecting motor vehicles, which readily move 

across state boundaries, to control by individual 

states.’’ Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 

1079 (D.C. Cir. 1996). Congress also asserted federal 

control in this area to avoid ‘‘the specter of an 

anarchic patchwork of federal and state regulatory 

programs’’ nationwide. See Motor & Equip. Mfrs. 

Ass’n, Inc. v. EPA, 627 F.2d 1095, 1109 (D.C. Cir. 

1979) (MEMA I). 68 42 U.S.C. 7543(a)–(a) Prohibition 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. 

69 42 U.S.C. 7543(b)(1): 

(1) The Administrator shall, after notice and 

opportunity for public hearing, waive application of 

this section to any State which has adopted 

standards (other than crankcase emission standards) 

for the control of emissions from new motor 

vehicles or new motor vehicle engines prior to 

March 30, 1966, 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. No such waiver shall 

be granted if the Administrator finds that— 

(A) the determination of the State is arbitrary and 

capricious, 

(B) such 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 7521(a) of this title. 

70See, e.g., S. Rep. No. 403, 90th Cong., 1st Sess. 

33 (1967) (The waiver of preemption is for 

California’s ‘‘unique problems and pioneering 

efforts.’’); 113 Cong. Rec. 30950, 32478 (‘‘[T]he State 

will act as a testing agent for various types of 

controls and the country as a whole will be the 

beneficiary of this research.’’) (Statement of Sen. 

Murphy); MEMA I, 627 F.2d 1095, 1111 (D.C. Cir. 

1979). 

rationale for considering factors outside 

section 209(b) (namely, EPCA 

preemption), and its determination that 

states cannot adopt California’s GHG 

standards under section 177. For 

example, these Petitioners claimed they 

did not have an adequate opportunity to 

comment on EPA’s use of equal 

sovereignty or the endangerment finding 

as rationales for its new ‘‘particularized 

nexus’’ interpretation of the second 

waiver prong. These Petitioners also 

claimed that EPA’s statements 

concerning the burden of proof 

applicable to a waiver revocation were 

either unclear or inaccurate, particularly 

whether the Agency bears the burden of 

proof in withdrawing a previously 

granted waiver and, if not, how and why 

this burden of proof is different from the 

burden of proof for denying a waiver 

request.65 Finally, these Petitioners 

asserted that the Agency failed to 

consider comments, submitted after the 

formal comment period, that challenged 

EPA’s interpretation of the second 

waiver prong, including new evidence 

of California’s need for its GHG 

emission standards and ZEV sales 

mandate, and alleged that EPA’s 

rationale was pretextual and based on 

the Administration’s political animosity 

towards California and on the oil 

industry’s influence. 

EPA notified the petitioners in the 

above-noted Petitions for 

Reconsideration that the Agency would 

be considering issues raised in their 

petitions as part of the proceeding to 

reconsider SAFE 1. This action 

addresses these petitions in the broader 

context of EPA’s adjudicatory 

reconsideration of SAFE 1 commenced 

in response to a number of significant 

issues with SAFE 1. 

III. Principles Governing This Review 

The CAA has been a paradigmatic 

example of cooperative federalism, 

under which ‘‘States and the Federal 

Government [are] partners in the 

struggle against air pollution.’’ 66 In Title 

II, Congress authorized EPA to 

promulgate emission standards for 

mobile sources and generally preempted 

states from adopting their own 

standards.67 At the same time, Congress 

created an important exception for the 

State of California. 

A. Scope of Preemption and Waiver 

Criteria Under the Clean Air Act 

The legal framework for this decision 

stems from the waiver provision first 

adopted by Congress in 1967, and 

subsequent amendments. In Title II of 

the CAA, Congress established only two 

programs for control of emissions from 

new motor vehicles—EPA emission 

standards adopted under the CAA and 

California emission standards adopted 

under its state law. Congress 

accomplished this by preempting all 

state and local governments from 

adopting or enforcing emission 

standards for new motor vehicles, while 

at the same time providing that 

California could receive a waiver of 

preemption for its emission standards 

and enforcement procedures in keeping 

with its prior experience regulating 

motor vehicles and its serious air 

quality problems. Accordingly, section 

209(a) preempts states or political 

subdivisions from adopting or 

attempting to enforce any standard 

relating to the control of emissions from 

new motor vehicles.68 Under the terms 

of section 209(b)(1), after notice and 

opportunity for public hearing, EPA 

must waive the application of section 

209(a) to California unless the 

Administrator finds at least one of three 

criteria to deny a waiver in section 

209(b)(1)(A)–(C) has been met.69 EPA 

may thus deny a waiver only if it makes 

at least one of these three findings based 

on evidence in the record, including 

arguments that opponents of the waiver 

have provided. This framework struck 

an important balance that protected 

manufacturers from multiple and 

different state emission standards and 

preserved a pivotal role for California in 

the control of emissions from new motor 

vehicles. Congress intentionally 

structured this waiver provision to 

restrict and limit EPA’s ability to deny 

a waiver and did this to ensure that 

California had broad discretion in 

selecting the means it determined best 

to protect the health and welfare of its 

citizens in recognition of both the harsh 

reality of California’s air pollution and 

to allow California to serve as a pioneer 

and a laboratory for the nation in setting 

new motor vehicle emission standards 

and developing control technology.70

Accordingly, section 209(b) specifies 

that EPA must grant California a waiver 

if California determines that its 

standards are, in the aggregate, at least 

as protective of the public health and 

welfare as applicable Federal standards. 

EPA has consistently interpreted the 

waiver provision as placing the burden 

on the opponents of a waiver and EPA 

to demonstrate that one of the criteria 

for a denial has been met. In this 

context, since 1970, EPA has recognized 

its limited discretion in reviewing 

California waiver requests. For over fifty 

years, therefore, EPA’s role upon 

receiving a request for waiver of 

preemption from California has been 

limited and remains only to determine 

whether it is appropriate to make any of 

the three findings specified by the CAA. 

If the Agency cannot make at least one 

of the three findings, then the waiver 

must be granted. The three waiver 

criteria are also properly seen as criteria 

for a denial. This reversal of the normal 

statutory structure embodies and is 

consistent with the congressional intent 

of providing deference to California to 

maintain its own new motor vehicle 

emission program. 

The 1970 CAA Amendments 

strengthened EPA’s authority to regulate 

vehicular ‘‘emission[s] of any air 

pollutant,’’ while reaffirming the 

corresponding breadth of California’s 

entitlement to regulate those emissions 

(amending CAA section 202 and 

recodifying the waiver provision as 

section 209(b), respectively). Congress 

also established the NAAQS program, 


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71 42 U.S.C. 7543(b)(1). 

72H.R. Rep. No. 95–294, at 301 (1977). 

73 78 FR at 2115 (footnote omitted). 

74 MEMA I, 627 F.2d at 1120–21 (‘‘The language 

of the statute and its legislative history indicate that 

California’s regulations, and California’s 

determination that they 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.’’); Motor & Equip. Mfrs. Ass’n, Inc. v. Nichols, 

142 F.3d 449, 462 (D.C. Cir. 1998) (MEMA II) 

(‘‘[S]ection 209(b) sets forth the only waiver 

standards with which California must comply. . . . 

If EPA concludes that California’s standards pass 

this test, it is obligated to approve California’s 

waiver application.’’). 

75This provision was intended to continue the 

balance, carefully drawn in 1967, between states’ 

need to meet increasingly stringent federal air 

pollution limits and the burden of compliance on 

auto-manufacturers. See, e.g., H.R. Rep. No. 294, 

95th Cong., 1st Sess. 309–10 (1977) (‘‘[S]ection 221 

of the bill broadens State authority, so that a State 

other than California . . . is authorized to adopt 

and enforce new motor vehicle emission standards 

which are identical to California’s standards. Here 

again, however, strict limits are applied . . . . This 

new State authority should not place an undue 

burden on vehicle manufacturers . . . .’’); Motor 

Vehicle Mfrs. Ass’n v. NYS Dep’t of Env’t 

Conservation, 17 F.3d 521, 527 (2d Cir. 1994) 

(‘‘Many states, including New York, are in danger 

of not meeting increasingly stringent federal air 

pollution limits . . . . It was in an effort to assist 

those states struggling to meet federal pollution 

standards that Congress, as noted earlier, directed 

in 1977 that other states could promulgate 

regulations requiring vehicles sold in their state to 

be in compliance with California’s emission 

standards or to ‘‘piggyback’’ onto California’s 

preemption exemption. This opt-in authority, set 

forth in § 177 of the Act, 42 U.S.C. 7507, is carefully 

circumscribed to avoid placing an undue burden on 

the automobile manufacturing industry.’’). 

76 In 1990 Congress amended the CAA by adding 

section 209(e) to section 209. Section 209(e) sets 

forth the terms of CAA preemption for nonroad 

engines and vehicles and the ability of States to 

adopt California emissions standards for such 

vehicles and engines if certain criteria are met. 42 

U.S.C. 7543(e)(2)(B) (‘‘Any State other than 

California which has plan provisions approved 

under part D of subchapter I may adopt and enforce, 

after notice to the Administrator, for any period, 

standards relating to control of emissions from 

nonroad vehicles or engines . . . if (i) such 

standards and implementation and enforcement are 

identical, for the period concerned, to the California 

standards . . . .’’). Courts have interpreted these 

amendments as reinforcing the important role 

Congress assigned to California. See Engine Mfrs. 

Ass’n v. EPA, 88 F.3d 1075, 1090 (‘‘Given the 

indications before Congress that California’s 

regulatory proposals for nonroad sources were 

ahead of the EPA’s development of its own 

proposals and the Congressional history of 

permitting California to enjoy coordinated 

regulatory authority over mobile sources with the 

EPA, the decision to identify California as the lead 

state is comprehensible. California has served for 

almost 30 years as a ‘laboratory’ for motor vehicle 

regulation.’’); MEMA I, 627 F.2d 1095, 1110 (D.C. 

Cir. 1979) (‘‘Its severe air pollution problems, 

diverse industrial and agricultural base, and variety 

of climatic and geographical conditions suit it well 

for a similar role with respect to nonroad sources.’’). 

77 40 FR at 23104; see also LEV I waiver at 58 FR 

4166, Decision Document at 64. 

under which EPA issues air quality 

criteria and sets standards for so-called 

‘‘criteria’’ pollutants, and states with 

regions that have not ‘‘attained’’ those 

federal standards must submit SIPs 

indicating how they plan to attain the 

NAAQS (which is often a multi-year, 

comprehensive plan). With the CAA 

Amendments of 1977, Congress allowed 

California to consider the protectiveness 

of its standards ‘‘in the aggregate,’’ 

rather than requiring that each standard 

proposed by the State be as or more 

stringent than its federal counterpart.71

Congress also approved EPA’s 

interpretation of the waiver provision as 

providing appropriate deference to 

California’s policy goals and consistent 

with Congress’s intent ‘‘to permit 

California to proceed with its own 

regulatory program’’ for new motor 

vehicle emissions.72

In previous waiver decisions, EPA has 

noted that the statute specifies 

particular and limited grounds for 

rejecting a waiver and has therefore 

limited its review to those grounds. EPA 

has also noted that the structure 

Congress established for reviewing 

California’s decision-making is 

deliberately narrow, which further 

supports this approach. This has led 

EPA to reject arguments that are not 

specified in the statute as grounds for 

denying a waiver: 

The law makes it clear that the waiver 

requests cannot be denied unless the specific 

findings designated in the statute can 

properly be made. The issue of whether a 

proposed California requirement is likely to 

result in only marginal improvement in air 

quality not commensurate with its cost or is 

otherwise an arguably unwise exercise of 

regulatory power is not legally pertinent to 

my decision under section 209, so long as the 

California requirement is consistent with 

section 202(a) and is more stringent than 

applicable Federal requirements in the sense 

that it may result in some further reduction 

in air pollution in California. Thus, my 

consideration of all the evidence submitted 

concerning a waiver decision is 

circumscribed by its relevance to those 

questions that I may consider under section 

209(b).73

Given the text, legislative history, and 

judicial precedent, EPA has consistently 

interpreted section 209(b) as requiring it 

to grant a waiver unless opponents of a 

waiver can demonstrate that one of the 

criteria for a denial has been met.74

The 1977 CAA Amendments 

additionally demonstrated the 

significance of California’s standards to 

the Nation as a whole with Congress’ 

adoption of a new section 177. Section 

177 permits other states addressing their 

own air pollution problems to adopt and 

enforce California new motor vehicle 

standards ‘‘for which a waiver has been 

granted if certain criteria are met.’’ 75

Also known as the ‘‘opt-in’’ provision, 

section 177 of the Act, 42 U.S.C. 7507, 

provides: 

Notwithstanding section 7543(a) of this 

title, any State which has plan provisions 

approved under this part may adopt and 

enforce for any model year standards relating 

to control of emissions from new motor 

vehicles or new motor vehicle engines and 

take such other actions as are referred to in 

section 7543(a) of this title respecting such 

vehicles if— 

(1) such standards are identical to the 

California standards for which a waiver has 

been granted for such model year, and 

(2) California and such State adopt such 

standards at least two years before 

commencement of such model year (as 

determined by regulations of the 

Administrator). 

Nothing in this section or in Subchapter II 

of this chapter shall be construed as 

authorizing any such State to prohibit or 

limit, directly or indirectly, the manufacture 

or sale of a new motor vehicle or motor 

vehicle engine that is certified in California 

as meeting California standards, or to take 

any action of any kind to create, or have the 

effect of creating, a motor vehicle or motor 

vehicle engine different that a motor vehicle 

or engine certified in California under 

California standards (a ‘‘third vehicle’’) or 

otherwise create such a ‘‘third vehicle.’’ 

Any state with qualifying SIP 

provisions may exercise this option and 

become a ‘‘Section 177 State,’’ without 

first seeking the approval from EPA.76

Thus, over time, Congress has 

recognized the important state role, for 

example, by making it easier (by 

allowing California to consider its 

standards ‘‘in the aggregate’’) and by 

expanding the opportunity (via section 

177) for states to adopt standards 

different from EPA’s standards.77

B. Deference to California 

EPA has consistently noted that the 

text, structure, and history of the 

California waiver provision clearly 

indicate both congressional intent and 

appropriate EPA practice of leaving the 

decision on ‘‘ambiguous and 

controversial matters of public policy’’ 

to California’s judgment. In waiver 

decisions, EPA has thus recognized that 

congressional intent in creating a 

limited review of California waiver 

requests based on the section 209(b)(1) 

criteria was to ensure that the federal 

government did not second-guess the 

wisdom of state policy. In an early 

waiver decision EPA highlighted this 

deference: 

It is worth noting * * * I would feel 

constrained to approve a California approach 

to the problem which I might also feel unable 

to adopt at the federal level in my own 

capacity as a regulator. The whole approach 

of the Clean Air Act is to force the 

development of new types of emission 


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78 40 FR at 23104. 

79 MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 

294, 95th Cong., 1st Sess. 301–02 (1977)). Congress 

amended section 209(b)(1)(A) regarding California’s 

determination that its standards are as at least as 

protective as applicable Federal standards so that 

such determination may be done ‘‘in the aggregate’’ 

looking at the summation of the standards within 

the vehicle program. 

80 84 FR at 51322–33. EPA notes that when 

reviewing California’s standards under the third 

waiver prong, the Agency may grant a waiver to 

California for standards that EPA may choose not 

to adopt at the federal level due to different 

considerations. See 78 FR at 2133. 

81 84 FR at 51339–40. 

82 MEMA I, 627 F.2d at 1122. 

83 Id. 

84 Id. 

85See, e.g., 40 FR at 23102–03. See also MEMA 

I, 627 F.2d at 1109 (‘‘Congress had an opportunity 

to restrict the waiver provision in making the 1977 

amendments, and it instead elected to expand 

California’s flexibility to adopt a complete program 

of motor vehicle emissions control. Under the 1977 

amendments, California need only determine that 

its standards will be ‘in the aggregate, at least as 

protective of public health and welfare than 

applicable Federal standards,’ rather than the ‘‘more 

stringent’’ standard contained in the 1967 Act.’’) 

(citing H.R. Rep. No. 294, 95th Cong., 1st Sess. 301– 

02 (1977), U.S. Code Cong. & Admin. News 1977, 

p. 1380). 

control technology where that is needed by 

compelling the industry to ‘‘catch up’’ to 

some degree with newly promulgated 

standards. Such an approach * * * may be 

attended with costs, in the shape of reduced 

product offering, or price or fuel economy 

penalties, and by risks that a wider number 

of vehicle classes may not be able to 

complete their development work in time. 

Since a balancing of these risks and costs 

against the potential benefits from reduced 

emissions is a central policy decision for any 

regulatory agency under the statutory scheme 

outlined above, I believe I am required to 

give very substantial deference to California’s 

judgments on this score.78

As noted above, Congress amended 

the CAA in 1977. Within these 

amendments, Congress had the 

opportunity to reexamine the waiver 

provision and elected to expand 

California’s flexibility to adopt a 

complete program of motor vehicle 

emission controls. The House 

Committee Report explained that ‘‘[t]he 

amendment is intended to ratify and 

strengthen the California waiver 

provision and to affirm the underlying 

intent of that provision, i.e., to afford 

California the broadest possible 

discretion in selecting the best means to 

protect the health of its citizens and the 

public welfare.’’ 79

SAFE 1 was a departure from 

congressional intent and EPA’s typical 

practice of deference to California on 

matters of state public policy regarding 

how best to address its serious air 

quality problems. In SAFE 1, EPA 

adopted a new interpretation of section 

209(b)(1)(B) more than five years after 

the initial grant of the ACC program 

waiver and applied it to CARB’s GHG 

standards and ZEV sales mandate. 

Specifically, EPA premised its finding 

on a consideration of California’s 

‘‘need’’ for the specific standards, 

instead of the ‘‘need’’ for a separate 

motor vehicle emission program to meet 

compelling and extraordinary 

conditions, stating that ‘‘such State 

standards’’ in section 209(b)(1)(B) was 

ambiguous with respect to the scope of 

the Agency’s analysis. EPA further 

determined that California did not need 

the ZEV sales mandate to meet 

compelling and extraordinary 

conditions by relying on a single 

statement in the ACC program waiver 

support document taken out of context, 

where it noted that the ZEV sales 

mandate had no criteria emissions 

benefits in terms of vehicle emissions 

and its LEV III criteria pollutant fleet 

standard was responsible for those 

emission reductions. In response to the 

SAFE 1 proposal, California had 

provided further context and additional 

data on net upstream emissions benefits 

of the ZEV sales mandate, but EPA did 

not consider them in arriving at the 

findings and conclusions in SAFE 1. 

The final decision in SAFE 1 was not 

based on the third waiver prong.80 EPA 

also explained in SAFE 1 that the task 

of interpreting section 209(b)(1)(B) 

required no deference to California.81

C. Standard and Burden of Proof 

In Motor and Equipment 

Manufacturers’ Association v. EPA, 627 

F.2d 1095 (D.C. Cir. 1979) (MEMA I), the 

U.S. Court of Appeals for the District of 

Columbia stated, with regard to the 

standard and burden of proof, 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.’’ 82 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 CAA section 202(a) 

findings. 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.’’ 83

The court upheld the Administrator’s 

position that to deny a waiver, there 

must be clear and compelling evidence 

to show that the proposed procedures 

undermine the protectiveness of 

California’s standards. 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.84 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. 

Although MEMA I did not explicitly 

consider the standards of proof under 

section 209 concerning a waiver request 

for ‘‘standards,’’ as compared to 

accompanying enforcement procedures, 

there is nothing in the opinion to 

suggest that the court’s analysis would 

not apply with equal force to such 

determinations. 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 

standard of EPA review of the State 

decision to be a narrow one.’’ 85

Although EPA evaluates whether there 

are compelling and extraordinary 

conditions in California, the Agency 

nevertheless accords deference to 

California on its choices for how best to 

address such conditions in light of the 

legislative history of section 209(b). 

As noted earlier, the burden of proof 

in a waiver proceeding is on EPA and 

the opponents of the waiver. This is 

clear from the statutory language stating 

that EPA ‘‘shall . . . waive’’ preemption 

unless one of three statutory factors is 

met. This reading was upheld by the 

D.C. Circuit in MEMA I, which 

concluded that this obligation rests 

firmly with opponents of the waiver in 

a section 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. California must 

present its regulations and findings at 


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86 MEMA I, 627 F.2d at 1121. 

87 Id. at 1126. 

88 Id. 

89 In EPA’s 2009 evaluation of the 2008 GHG 

waiver denial the Agency applied a similar test. See 

74 FR at 32745 (‘‘After a thorough evaluation of the 

record, I am withdrawing EPA’s March 6, 2008 

Denial and have determined that the most 

appropriate action in response to California’s 

greenhouse gas waiver request is to grant that 

request. I have determined that the waiver 

opponents have not met their burden of proof in 

order for me to deny the waiver under any of the 

three criteria in section 209(b)(1).’’). In the context 

of 2009 GHG waiver that reconsidered the Agency’s 

2008 GHG waiver denial, EPA determined it was 

appropriate to apply the same burden of proof 

during the reconsideration as would apply at the 

time of the initial waiver evaluation. EPA received 

comment suggesting that the entire burden of proof 

shifts to California in order for the prior 2008 denial 

to be reversed. EPA, in response, stated that ‘‘. . . 

regardless of the previous waiver denial, once 

California makes its protectiveness determination 

the burden of proof falls on the opponents of the 

waiver . . . . This is consistent with the legislative 

history, which indicates that Congress intended a 

narrow review by EPA and to preserve the broadest 

possible discretion for California.’’ Id. at 32749. 

EPA acknowledges that in SAFE 1 the Agency not 

only adopted an interpretation of the second waiver 

prong which was similar to the previously rejected 

interpretation, but that in doing so also questioned 

its previous position that the burden of proof in 

evaluating the need for standards at issue resides 

with those that oppose the waiver, including EPA. 

See 84 FR at 51344 n.268. In this action, however, 

EPA now finds that the historical deference 

provided to California regarding its policy choices 

on how best to address its serious air quality 

conditions also requires that the burden of proof 

should reside in those seeking to demonstrate that 

standards are not needed under the second waiver 

prong regardless of whether the rationale is 

characterized as a new interpretation or not. The 

language of section 209(b)(1) requires California to 

make a protectiveness finding under the first waiver 

prong. Moreover, nothing in section 209(b) could be 

read as support for drawing a distinction between 

the burden of proof when the Agency considers an 

initial waiver request and one where the Agency 

reconsiders a waiver decision based on a new 

interpretation of the statutory criteria. That burden 

properly resides with opponents of the waiver. 

90Urban Air Initiative (Urban Air), Docket No. 

EPA–HQ–OAR–2021–0257–0223 at 22 (quoting S. 

Rep. 90–403, at 34 (1967)). 

the hearing and thereafter the parties 

opposing the waiver request bear the 

burden of persuading the Administrator 

that the waiver request should be 

denied.’’ 86

The Administrator’s burden, on the 

other hand, is to make a reasonable 

evaluation of the information in the 

record in coming to the waiver 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.’ ’’ 87 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 88

In this instance, EPA has withdrawn 

a previously granted waiver and is now 

reconsidering whether that withdrawal 

was an appropriate exercise of 

authority, whether the reinterpretation 

of the second waiver prong was 

appropriate, and whether EPA’s 

evaluation and findings of fact under 

the second waiver prong meet the 

applicable burden of proof in the 

context of deference to California’s 

policy choices. EPA believes that the 

same burden that is applicable to those 

opposed to an initial waiver request 

from CARB (this applies to any party 

including the Administrator as 

explained in MEMA I) is also applicable 

to EPA’s actions in SAFE 1 (e.g., the 

burden of proof of whether California 

does not need its standards to meet 

compelling and extraordinary 

conditions rests on those opposing a 

waiver for California).89

IV. EPA Did Not Appropriately Exercise 

Its Limited Authority To Reconsider the 

ACC Program Waiver in SAFE 1 

The first question this final action 

tackles is whether the agency properly 

exercised its reconsideration authority 

to withdraw its previously-granted 

waiver in SAFE 1. EPA concludes that 

it did not, and on that independent 

basis rescinds SAFE 1’s waiver 

withdrawal. 

Section 209 does not provide EPA 

with express authority to reconsider and 

withdraw a waiver previously granted to 

California. EPA’s authority thus stems 

from its inherent reconsideration 

authority. For several reasons, in the 

context of reconsidering a waiver grant, 

that authority may only be exercised 

sparingly. First, EPA believes its 

inherent authority to reconsider a 

waiver decision is constrained by the 

three waiver criteria that must be 

considered before granting or denying a 

waiver request under section 209(b). A 

contrary approach, which treats 

reconsiderations as more broadly 

appropriate, would undermine 

Congress’ intent that California be able 

to exercise its policy judgments and 

develop motor vehicle controls 

programs to address California’s air 

pollution problems, and make advances 

which could be built on by EPA or 

adopted by other states. Second, EPA 

believes it may only reconsider a 

previously granted waiver to address a 

clerical or factual error or mistake, or 

where information shows that factual 

circumstances or conditions related to 

the waiver criteria evaluated when the 

waiver was granted have changed so 

significantly that the propriety of the 

waiver grant is called into doubt. Even 

when EPA is acting within the 

appropriate bounds of its authority to 

reconsider, during that reconsideration 

EPA should exercise its limited 

authority within a reasonable timeframe 

and be mindful of reliance interests. 

The Agency’s reconsideration in 

SAFE 1 was not an appropriate exercise 

of authority; there was no clerical error 

or factual error in the ACC program 

waiver, and SAFE 1 did not point to any 

factual circumstances or conditions 

related to the three waiver prongs that 

had changed so significantly that the 

propriety of the waiver grant is called 

into doubt. Rather, the 2019 waiver 

withdrawal was based on a change in 

EPA’s statutory interpretation, an 

incomplete and inaccurate assessment 

of the record, and another agency’s 

action beyond the confines of section 

209(b). EPA erred in reconsidering a 

previously granted waiver on these 

bases. Moreover, in considering the 

passage of time between the initial 

waiver and the SAFE 1 action, and the 

development of reliance interests based 

on the waiver, EPA finds those factors 

do not support the reconsideration of 

the ACC program waiver that occurred 

in SAFE 1. Accordingly, as explained in 

detail below, EPA is rescinding SAFE 

1’s withdrawal of its 2013 ACC program 

waiver because it was an inappropriate 

exercise of reconsideration authority. 

A. Comments Received 

EPA received several comments in the 

reconsideration proceeding on the 

Agency’s authority to reconsider 

waivers. Comments on explicit 

authority focused on whether any 

language in section 209(b)(1), on its 

face, permits EPA to reconsider a 

previously granted waiver. Some of 

these commenters also distinguished 

between the denial of the 2008 waiver 

and the reconsideration and grant of the 

GHG waiver in 2009, and EPA’s grant of 

the ACC program waiver in 2013 and 

the reconsideration and withdrawal of 

the ACC program waiver in 2019. 

EPA received comments in support of 

and against the view that EPA has 

inherent authority to reconsider 

waivers. As support for EPA’s implied 

authority to reconsider, one commenter 

cited relevant language from the Senate 

Committee Report from 1967 that stated, 

‘‘implicit in [§ 209] is the right of [EPA] 

to withdraw the waiver [if] at any time 

after notice and an opportunity for 

public hearing he finds that the State of 

California no longer complies with the 

conditions of that waiver.’’ 90 According 

to the commenter because ‘‘the waiver 

authorizes future regulation, which 

always remains open to change,’’ EPA 

must have the authority to reconsider a 


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91 Id. at 21 (‘‘A determination that California’s 

state standards are technologically feasible and 

appropriate requires complex technical projections 

at the frontiers of science, which must be 

continually updated ‘if the actual future course of 

technology diverges from expectation.’ ’’ (quoting 

NRDC Inc. v. EPA, 655 F.2d 318, 329 (D.C. Cir. 

1981))). 

92Urban Air at 20 (citing Ivy Sports Med., LLC v. 

Burwell, 767 F.3d 81, 86, 93 (D.C. Cir. 2014)). This 

commenter also notes that, in EPA’s 2009 action to 

reconsider its prior denial of a GHG waiver in 2008, 

CARB submitted a letter to EPA stating that 

‘‘California believes EPA has inherent authority to 

reconsider the denial and should do so in order to 

restore the interpretations and applications of the 

Clean Air Act to continue California’s longstanding 

leadership role in setting emission standards.’’ Id. 

93 Id. at 21. 

94 Institute for Policy Integrity Amicus Brief at 4 

(‘‘Lacking textual support, EPA invokes so-called 

‘inherent authority’—‘more accurate[ly] label[ed] 

. . . ‘statutorily implicit’ authority,’ HTH Corp. v. 

NLRB, 823 F.3d 668, 679 (D.C. Cir. 2016)—to justify 

its action. 84 FR at 51,331. But this Court is 

‘unwilling[ ] to wrest a standardless and openended revocation authority from a silent statute,’ 

Am. Methyl, 749 F.2d 826, 837 (D.C. Cir. 1984), and 

EPA fails to justify the implicit authority it 

claims.’’); Twelve Public Interest Organizations app 

1 at 32 (citing Am. Methyl for ‘‘rejecting ‘implied 

power’ as ‘contrary to the intention of Congress and 

the design of’ the Act and quoting HTH Corp.’s 

statement that agencies, as creatures of statute, lack 

inherent authority); States and Cities at 16 (also 

citing Am. Methyl). 

95 Institute for Policy Integrity at 1 (citing Am. 

Methyl). 

96States and Cities at 15 (citing HTH Corp. v. 

NLRB, 823 F.3d 668, 679 (D.C. Cir. 2016)); Twelve 

Public Interest Organizations, Docket No. EPA–HQ– 

OAR–2021–0257–0277 app. 1 at 28 (‘‘The Clean Air 

Act preserves state authority to regulate emissions 

unless expressly ‘provided’ otherwise. 42 U.S.C. 

7416. In statutes like this where preemption is the 

exception, only Congress’s ‘precise terms’ can 

produce preemption. CTS Corp. v. Waldburger, 573 

U.S. 1, 12–13 (2014).’’); National Coalition for 

Advanced Transportation (NCAT), Docket No. 

EPA–HQ–OAR–2021–0257–0131 at 7–8 ; Institute 

for Policy Integrity at New York University School 

of Law (Institute for Policy Integrity), Docket No. 

EPA–HQ–OAR–2021–0257–0115 at 2, citing its 

Final Brief of the Institute for Policy Integrity at 

New York University School of Law as Amicus 

Curiae in Support of Petitioners (Institute for Policy 

Integrity Amicus Brief) at 4, Union of Concerned 

Scientists, et al. v. NHTSA, et al., No. 19–1230 (D.C. 

Cir. filed Oct. 28, 2019), reprinted in the Institute’s 

comments on the 2021 Notice of Reconsideration. 

97 Institute for Policy Integrity at 2, citing its 

Amicus Brief at 6–11. 98 Id. at 7. See also Twelve Public Interest 

Organizations app. 1 at 28–29 (‘‘Section 209(b)(1)’s 

precise terms mandate that EPA ‘‘shall’’ grant 

California a waiver unless EPA finds one of the 

three specified bases for denial. This language 

charges EPA ‘‘with undertaking a single review in 

which [the Administrator] applies the deferential 

standards set forth in Section 209(b) to California 

and either grants or denies a waiver.’’ Ford Motor 

Co. v. EPA, 606 F.2d 1293, 1302 (D.C. Cir. 1979). 

It evinces no intent to provide EPA with the 

different and greater authority to withdraw a 

previously granted waiver, thereby arresting the 

State’s ongoing implementation of its own laws.’’) 

99See South Coast Air Quality Management 

District (SCAQMD), Docket No. EPA–HQ–OAR– 

2021–0257–0228 at 3. This commenter argued that 

section 116 of the CAA (which explicitly references 

section 209) provides that there needs to be a 

textual basis for any exercise of authority to deny 

California the right (which it achieved via the 2013 

waiver) to enforce its emission standards. Thus, the 

commenter continued, because there is no language 

in section 209 that gives any authority nor specifies 

any process for EPA to revoke the rights/waiver 

previously granted then EPA may not do so by the 

terms of section 116. 

100States and Cities at 16. See also Twelve Public 

Interest Organizations app. 1 at 33–34. 

101States and Cities at 16; See also Twelve Public 

Interest Organizations app. 1 at 33–34. 

102Twelve Public Interest Organizations app. 1 at 

34. See also States and Cities at 16 (arguing that, 

although EPA proposed to withdraw the waiver on 

multiple grounds, such as the third waiver prong, 

‘‘EPA’s final action was based entirely on its own 

changed policy positions, namely its interpretation 

of Section 209(b)(1) to create a categorical bar 

against state regulation of vehicular GHG emissions 

and its decision to rely on another agency’s newly 

articulated views of a different statute [EPCA].’’). 

103 84 FR at 51332. 

104 Institute for Policy Integrity at 2. 

waiver. Otherwise, EPA would be 

unable to monitor CARB’s continued 

compliance with the waiver conditions 

in light of updated information.91 The 

same commenter also argued that an 

agency generally retains the authority to 

reconsider and correct any earlier 

decision unless Congress acts to 

displace the authority with a process to 

rectify the Agency’s mistakes and that 

explicit statutory authority to withdraw 

a waiver is therefore not necessary, 

because ‘‘the power to reconsider is 

inherent in the power to decide.’’ 92 The 

commenter claimed that, under 

Chevron, ‘‘[a]n agency has a ‘continuing’ 

statutory obligation to consider the 

‘wisdom of its policy.’ ’’ 93

In contrast, several commenters 

maintained that section 209(b) strongly 

indicates that EPA’s authority to 

withdraw a previously issued waiver is, 

at most, limited. Several commenters 

argued that, absent language in a statute, 

administrative agencies lack inherent 

authority to reconsider adjudicatory 

decisions.94 These commenters noted 

that courts highly scrutinize 

administrative revocations and are 

‘‘unwilling[ ] to wrest a standardless and 

open-ended revocation authority from a 

silent statute.’’ 95 Instead, these 

commenters argued, EPA may act only 

with the authorities conferred upon it 

by Congress, and thus the Agency may 

only act if the CAA explicitly or 

implicitly grants it power to do so.96

According to these commenters, section 

209(b) is silent on waiver withdrawal, 

its text indicates that EPA may only 

consider 209(b)’s three factors before 

either granting or denying a waiver, and 

its purpose and structure affords broad 

deference to California’s standards. 

‘‘Taken together, these factors indicate 

that EPA may not withdraw a 

previously-issued waiver based solely 

upon a reconsideration of its initial 

judgment.’’ 97 Commenters suggested 

that Congress, by listing the three 

waiver criteria and directing that EPA 

evaluate such criteria prior to granting 

the waiver, only authorized EPA to 

perform the evaluation once and that it 

‘‘cannot later second-guess the wisdom 

of legal and policy judgments made as 

part of that evaluation.’’ 98 Similarly, 

commenters noted that section 209 does 

not textually ‘‘provide’’ EPA any 

authority nor specify any process by 

which EPA might revoke the rights 

given by an earlier-granted waiver.99 In 

response to SAFE 1’s claim of inherent 

reconsideration authority and the other 

commenters’ reliance on the relevant 

excerpt from the 1967 Senate Report, 

these commenters argued that this 

‘‘single sentence . . . does not establish 

any withdrawal authority,’’ either 

generally or for the SAFE 1 withdrawal 

specifically.100 That statement, 

commenters argued, ‘‘predate[s] the 

creation of the NAAQS program and 

Congress’s invitations to development of 

numerous state reliance interests.’’ 101

Moreover, according to these 

commenters, the statement only 

discusses authority in the case that 

‘‘California no longer complies with the 

conditions of the waiver,’’ which 

commenters believe means California’s 

‘‘compliance with waiver conditions 

and, specifically, its cooperation with 

EPA concerning enforcement and 

certification procedures,’’ not 

‘‘redefined waiver criteria.’’ 102

In response to the argument made by 

EPA in SAFE 1 that, given the 

‘‘considerable degree of future 

prediction’’ required by the third waiver 

prong, ‘‘where circumstances arise that 

suggest that such predictions may have 

been inaccurate, it necessarily follows 

that EPA has authority to revisit those 

predictions,’’ 103 some commenters 

claimed that California’s standards do 

not become inconsistent with federal 

standards simply because they become 

more stringent than federal standards 

(in other words, a weakening of the 

federal standards does not necessarily 

create an inconsistency). The 

commenters noted also that EPA did not 

in fact revise its section 202(a) standards 

between issuing and withdrawing the 

waiver at issue, nor did EPA in fact 

make any final findings under the third 

waiver prong.104

Many commenters stated that in order 

to exercise any implied or inherent 

authority, an agency must provide a 

‘‘detailed justification’’ when departing 

from a policy that has ‘‘engendered 

serious reliance interests’’ and should 

not ‘‘rest on mere ‘policy changes’ ’’ 


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105States and Cities at 21–22 (quoting FCC v. Fox, 

556 U.S. 502, 515 (2009)). 106 Id.at 17 (citing Am. Methyl, 749 F.2d at 835; 

Chapman v. El Paso Nat. Gas Co., 204 F.2d 46, 53– 

54 (D.C. Cir. 1953); DHS v. Regents of the Univ. of 

California, 140 S. Ct. 1891, 1914 (2020); United 

States v. Seatrain Lines Inc., 329 U.S. 424, 429 

(1947)). 

107Urban Air at 21 (arguing that agencies need 

only provide a ‘‘detailed justification’’ to overcome 

reliance interests); Competitive Enterprise Institute 

(CEI), Docket No. EPA–HQ–OAR–2021–0257–0398 

(correction to an earlier comment by the same 

commenter, which can be found at Docket No. 

EPA–HQ–OAR–2021–0257–0140) at 9 (‘‘As for 

reliance interests, all costly wasteful, or otherwise 

defective government programs create reliance 

interests. Usurpations of power do as well. If the 

creation of reliance interests is enough to legitimize 

bad or unlawful policies, anything goes.’’). Compare 

to States and Cities at 17–18 (citing their comments 

on SAFE 1 at 130–31 and citing Ctr. for Sustainable 

Econ. v. Jewell, 779 F.3d 588, 595 (D.C. Cir. 2015)) 

(describing reliance interests as ‘‘weighty,’’ stating 

that ‘‘[t]he Clean Air Act and long-standing 

Executive branch policy both place substantial 

importance on States’ interests in implementing the 

plans and laws they have determined best meet the 

needs of their States’’—plans and laws such as SIPs, 

which can and do include California standards). 

108Twelve Public Interest Organizations app. 1 at 

29. 

109Bay Area Air Quality Management District 

(BAAQMD), Docket No. EPA–HQ–OAR–2021– 

0257–0278 at 2. 

110Twelve Public Interest Organizations app. 1 at 

29. 

111States and Cities at 17. With these state 

adoptions, auto-manufacturers would then need to 

meet program requirements in these states. 

112See, e.g., Delaware Department of Natural 

Resources and Environmental Control (Delaware), 

Docket No. EPA–HQ–OAR–2021–0257–0109 at 1 

(‘‘The GHG program allowed by the waiver is vitally 

important, as it enables long-term plans and yields 

critical emission reductions that will contribute 

significantly to Delaware’s ability to attain and 

maintain the health-based National Ambient Air 

Quality Standards (NAAQS) for criteria 

pollutants.’’); Connecticut Department of 

Transportation and Connecticut Department of 

Energy and Environmental Protection 

(Connecticut), Docket No. EPA–HQ–OAR–2021– 

0257–0104 at 2 (‘‘These programs enable long-term 

planning and yield critical emission reductions that 

are critical to meeting Connecticut’s climate goals 

as well as our statutory obligations to reach 

attainment with the ozone NAAQS.’’); Minnesota 

Pollution Control Agency and Minnesota 

Department of Transportation (Minnesota), Docket 

No. EPA–HQ–OAR–2021–0257–0113 at 2 (‘‘The 

MPCA is in the process of adopting the LEV and 

ZEV standards in Minnesota as allowed under 

section 177 of the CAA. These rules are vitally 

important in helping our state achieve our GHG 

emission reduction goals and reduce other harmful 

air pollutants. . . .’’); Maine Department of 

Environmental Protection (Maine), Docket No. 

EPA–HQ–OAR–2021–0257–0130 at 1, 3 (‘‘While the 

LEV program was initially created to help attain 

and maintain the health-based [NAAQS] for criteria 

pollutants, the California GHG and ZEV standards 

will contribute significantly to states’ abilities to 

meet their emission reduction goals. . . . [T]he 

transportation sector is the largest source of ozone 

forming pollution in Maine . . . and California’s 

ability to set ZEV standards under the [CAA] is an 

essential tool for addressing both criteria pollutants 

and GHGs.’’); Virginia Department of 

Environmental Quality (Virginia), Docket No. EPA– 

HQ–OAR–2021–0257–0112 at 2 (‘‘These standards 

provide important and necessary reductions in both 

GHG and criteria pollutant emissions needed to 

meet state and local air quality goals and address 

federal CAA requirements.’’) 

113Twelve Public Interest Organizations app. 1 at 

30; Delaware at 3 (explaining that, without the 

California standards, adopted into Delaware’s SIP, 

the State will not be able to meet air quality goals). 

These reliance interests, one commenter argued, are 

another reason to doubt the implicit authority of 

EPA to reconsider an already granted waiver: ‘‘It 

would be quite surprising, then, for EPA to have 

implicit authority to upend this multi-actor, multistep scheme by pulling the rug out from under it 

after the fact.’’ States and Cities at 16 (citing Am. 

Methyl, 749 F.2d at 840). 

114Twelve Public Interest Organizations app. 1 at 

30–31 (citing 42 U.S.C. 7410(c)(1) (establishing 

triggers for imposition of federal plan), 7509 

(outlining sanctions for state planning failures)). 

115See Ford Motor Company (Ford), Docket No. 

EPA–HQ–OAR–2021–0257–0028 at 1 (‘‘Ford 

supports EPA’s rescission of its SAFE I action, 

which withdrew California’s waiver for zero 

emission vehicle (ZEV) mandate and greenhouse 

gas (GHG) emission standards within California’s 

Advanced Clean Car (ACC) program. Ford does not 

believe this previous action was appropriate. Ford 

firmly supports recognition of California’s authority 

to implement ZEV and GHG standards in support 

of its air quality targets pursuant to its 2012 waiver 

application. We have relied on California’s actions 

pursuant to the waiver and California’s related 

pronouncements in negotiating and agreeing to the 

California Framework Agreement, and in the 

development of our own product and compliance 

plans. Ultimately, Ford considered EPA’s and 

NHTSA’s rationales and California’s statements 

regarding SAFE I and took action in the best 

interests of the company and of the environment.’’). 

See also Tesla, Docket No. EPA–HQ–OAR–2021– 

0257–0136 at 4 (‘‘Because of the sizeable 

investments required to develop alternative fuel 

and advanced technology vehicles, regulatory 

stability is vital for ensuring the level of 

manufacturer and investor confidence necessary to 

facilitate innovation.’’) and at n.5 (quoting 

comments from several automakers and auto 

industry groups about reliance interests on the 

waiver from the MTE). See also Toyota, Docket No. 

EPA–HQ–OAR–2021–0381 (‘‘Should EPA reinstate 

California’s waiver, we request it be reinstated as 

it was originally granted, including the ‘‘deemed-tocomply’’ provision that was so important in 

establishing One National Program (ONP) over a 

decade ago. . . . Reinstatement of California’s 

waiver for model years 2021 and 2022 poses 

significant lead time challenges considering that 

2021 model year is well underway, and 2022 model 

year vehicles are generally already designed, 

sourced, certified to various regulatory 

requirements, and ready to begin production. Some 

manufacturers may have already begun production 

of 2022 model year vehicles. As a result, a 

reinstatement of California’s waiver by EPA should 

apply prospectively to model years 2023 and 

later.’’). 

alone.105 Thus, supporters and 

opponents of SAFE 1 also provided 

comments on whether, assuming EPA 

did have authority to reconsider the 

ACC program waiver—either because of 

language in the CAA or because of its 

inherent authority to reevaluate 

decisions because of changed 

conditions—it was appropriate to 

exercise that authority in SAFE 1. Some 

commenters summarized precedent as 

requiring that the Agency consider 

reliance interests that have attached to 

its original decision, that reversals of 

informal adjudications occur within a 

reasonable time after the original 

decision, and that the reversal is not for 

the sole purpose of applying some 

change in administrative policy.106

Opponents and supporters of SAFE 1 

did, however, disagree on the 

significance of each of these factors.107

Commenters who argued that reliance 

interests were relevant to EPA’s 

authority to reconsider also offered 

evidence of reliance interests that had 

accrued over the five years the ACC 

program waiver had been in effect, with 

several commenters providing specific 

details regarding their reliance on the 

GHG and ZEV standards. As 

commenters noted, California’s 

standards are incorporated into plans 

and regulations aimed at achieving state 

and federal air pollution goals. These 

plans can be complex and cannot 

‘‘change on a dime.’’ 108 According to 

one commenter ‘‘[w]ithout the full 

Waiver, past decision-making was 

blighted and planned-for reductions to 

meet Air District goals need to be 

reassessed. The emission reductions are 

key to combatting climate change, 

curbing ozone formation, preventing 

additional wildlife impacts, and 

attaining California [air quality goals] 

and [NAAQS].’’ 109 Revoking a waiver 

and disrupting existing air quality 

plans, they argue, also has ‘‘far-reaching 

ripple effects’’ because ‘‘businesses 

operating in California base their own 

long-term plans on the State’s policies’’ 

and, if California cannot reduce 

emissions from the automobile sector, it 

will have to ‘‘consider requiring further 

reductions from other sectors of the 

economy.’’ 110 Additionally, they said 

that by the time of the SAFE proposal, 

twelve states had already adopted at 

least one or both of the California 

standards under section 177.111 Several 

of these states submitted comments 

attesting to their need for these 

standards to achieve both greenhouse 

gas and criteria emission reductions.112

Like the reliance interests of Californian 

air districts, several of these section 177 

states and other opponents of SAFE 1 

claim that ‘‘reliance interests in State 

Implementation Plans are particularly 

acute’’ because ‘‘they set expectations 

for extended periods of time and for 

many sectors of the economy, making it 

challenging (if not impossible) to change 

them quickly.’’ 113 These commenters 

note that ‘‘planning failures can carry 

significant consequences, including the 

imposition of federal plans that limit 

local flexibility and control, as well as 

penalties such as loss of highway 

funds.’’ 114 Some automakers and 

industry groups also discussed their 

reliance interests.115 For example, the 

National Coalition for Advanced 


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116NCAT at 13; Rivian as a member of NCAT 

(Rivian), Docket No. EPA–HQ–OAR–2021–0135. 117States and Cities at 55–57, including app. D 

and app. E. 118 Id. at 17 (citing Mazaleski v. Treusdell, 562 

F.2d 701, 720 (D.C. Cir. 1977)). Twelve Public 

Interest Organizations app. 1 at 73. In addition, this 

commenter notes that the time period for seeking 

judicial review of the ACC program waiver had run 

long ago and that no one had sought that review 

(citing Am. Methyl Corp., 749 F.2d at 835); NCAT 

at 14–15. 

119Twelve Public Interest Organizations app. 1 at 

58. 

120America Fuel & Petrochemical Manufacturers, 

EPA–HQ–OAR–2021–0257–0139 (AFPM) at 26 

(‘‘And no reliance interests derive from this 

decision because one could not reasonably expect 

that the standards approved in that waiver would 

remain untouched. As part of the 2013 waiver 

decision, EPA and CARB committed to a 2018 midterm evaluation of the federal standards for MYs 

2022–2025.’’); Urban Air at 22; NADA at 6 (‘‘as 

discussed at length repeatedly in EPA’s 2013 CAA 

preemption waiver rule, a coordinated mid-term 

evaluation (MTE) involving EPA and NHTSA’s MY 

2022–2025 rules was expected to be conducted.’’). 

121AFPM at 26 (‘‘Because California’s deemed-tocomply provision linked those standards to 

compliance with its own state program, any change 

in federal standards from the mid-term review 

would have required an equal overhaul of 

California’s emissions program for those future 

MYs.’’); Urban Air at 22–23 (‘‘The 2018-reevaluation is relevant because California’s deemedto-comply provision allowed a manufacturer to 

satisfy state GHG standards simply by complying 

with federal standards.’’); NADA at 6 (‘‘[A]s noted 

above, CA’s GHG mandates included both a ‘‘deemto-comply’’ rule enabling vehicle manufacturers to 

meet those mandates by complying with applicable 

federal rules, and a commitment on the part of the 

state to conduct a mid-term evaluation of its own 

GHG standards.’’). 

122AFPM at 26–27; Urban Air at 22; NADA at 6. 

123Urban Air at 23. 

124CEI at 9. 

125AFPM at 27. See also Urban Air at 20–21 

(‘‘And under the presumption that ‘an agency 

retains authority to reconsider and correct an earlier 

decision,’ the grant of a waiver is as liable to change 

as the denial of a waiver. No greater reliance 

interests attach to the grant of a waiver authorizing 

regulation than to the denial of a waiver preventing 

regulation, so reliance interests provide no support 

for California’s ratchet argument.’’). 

126Urban Air at 23–24. 

127 Id. at 24. Another commenter disagreed with 

this accounting of time, stating that ‘‘timeliness for 

reconsidering an adjudication is measured from the 

date of the agency’s decision, not from the date of 

activity resulting from that decision. E.g., Am. 

Methyl, 749 F.2d at 835 (tethering timeliness to 

period for appeal of agency decision).’’ Twelve 

Public Interest Organizations app. 1 at 38. 

128Urban Air at 23–24. 

129CEI at 8 (calling ‘‘time elapsed’’ a ‘‘frivolous 

objection.’’). 

130 Id. 

131States and Cities at 17 (quoting Chapman v. 

El Paso Nat. Gas Co., 204 F.2d 46, 53–54 (D.C. Cir. 

1953)). 

Transportation, an industry coalition 

group, stated ‘‘NCAT members have 

invested billions of dollars with the 

well-founded expectation that increased 

demand for electric vehicles would be 

propelled by California and the section 

177 States’ continued ability to drive 

technology innovation and emission 

reductions.’’ 116 EPA also received 

comment from CARB, by and through 

the comments of the States and Cities, 

that provided data on manufacturer 

compliance.117

According to commenters, these 

reliance interests were compounded by 

the considerable passage of time 

between the granting of the ACC 

program waiver in 2013 and SAFE 1’s 

withdrawal in 2019. Commenters also 

remarked that the more than five years 

that had passed was too long a delay 

and well beyond the ‘‘weeks, not years’’ 

sometimes referenced as guidance for 

reasonableness.118 SAFE 1, they noted 

‘‘comes years after the waiver was 

granted, years after multiple sovereign 

States adopted California’s standards, 

and years into long-term plans States 

developed in reliance on anticipated 

emission reductions from those 

standards—including, but not limited 

to, multiple EPA approved State 

Implementation Plans.’’ 119

Other commenters argued that SAFE 

1 did not upend reliance interests and 

was not untimely. They agreed with the 

SAFE 1 decision that the 2018 MidTerm Evaluation (MTE), which was 

agreed to in 2013, prevented any 

reliance interests from accruing.120

Although this MTE was for the federal 

GHG standards for MYs 2022–2025, not 

the California GHG standards approved 

under the ACC program waiver, these 

commenters argued that the two were 

linked through the ‘‘deemed to comply’’ 

provision approved in the ACC program 

waiver, which allowed manufacturers to 

comply with the California standards by 

meeting the federal standards.121 They 

also noted that California separately 

agreed to a 2016 mid-term evaluation of 

its own state standards for the same 

model years.122 Therefore, they argued, 

because the initial grant of the waiver 

was contingent on two subsequent midterm evaluations, no one could have 

reasonably believed the ACC program 

waiver was ‘‘set in stone.’’ Additionally, 

at least one commenter argued that 

California and other states’ purported 

reliance interests were further 

undermined because they ‘‘have known 

for years that NHTSA’s longstanding 

position is that state carbon dioxide 

regulations and zero-emissions vehicle 

mandates are related to average fuel 

economy standards and therefore 

preempted by CAFE’’ and ‘‘could not 

have reasonably believed that EPA 

would continue to ignore NHTSA’s 

view of the law in perpetuity.123

Some commenters also argued that 

even if reliance interests are relevant, 

automakers and industry groups have 

reliance interests of their own affected 

by CARB’s 2018 deemed to comply 

amendments and the SAFE 1 action 

itself. One commenter wrote that 

‘‘CARB tossed automakers’ reliance 

interests out the window when it 

refused to be bound by the results of the 

EPA and NHTSA’s Mid-Term 

Evaluation (MTE) . . . and refused to 

honor its ‘deemed to comply’ pledge to 

automakers unless they complied with 

the standards set by the EPA in 2012 

and 2017.’’ 124 Another commenter 

noted that ‘‘[w]hatever ‘reliance 

interests’ are disturbed when EPA 

reverses a waiver grant are no more real, 

and no more serious for the parties 

involved, than the reliance interests 

upended by reversal of a waiver 

denial.’’ 125

Some commenters also argued that 

SAFE 1 was timely, disputing 

opponents’ claims that a ‘‘reasonable’’ 

amount of time is measured in ‘‘weeks, 

not years.’’ Commenters noted that 

‘‘courts have not reached consensus on 

the amount of time that is 

reasonable.’’ 126 Moreover, one 

commenter argued that ‘‘timeliness 

depends on reliance interests’’ and, 

because those could not have accrued 

prior to the MTE, the time period at 

issue is only four months (between the 

conclusion of the MTE and the 

reconsideration of the ACC program 

waiver, starting in 2018).127 This ‘‘short 

time,’’ the commenter claimed, ‘‘lies in 

the acceptable range given the 

intervening events.’’ 128 Another 

commenter argued that, if ‘‘time 

elapsed’’ is a factor to be considered in 

the appropriateness of an action, it cuts 

in favor of SAFE 1, as thirty years 

passed between EPCA’s enactment in 

1975 and California’s first request for a 

‘‘waiver implicitly authorizing the State 

to regulate fuel economy.’’ 129 Even if 

the time period at issue was nearly six 

years between the grant of the ACC 

program and the final SAFE 1 action, 

that commenter wrote, such a length of 

time is not unreasonable, since ‘‘[i]f six 

years locks a policy in place and puts 

it beyond revision or repeal by the next 

administration, elections no longer 

matter.’’ 130

In addition to reliance interests and 

timeliness, some commenters claimed 

that EPA’s authority to revoke, if it 

existed, requires the Agency to have a 

purpose other than ‘‘applying some . . . 

change in administrative policy.’’ 131

SAFE 1, they argued, did not meet this 

requirement. Instead, in SAFE 1, EPA 

‘‘chose to sua sponte reconsider its 2013 

Waiver Grant for the sole purpose of 

applying new policy determinations,’’ 

specifically ‘‘NHTSA’s views of EPCA 

preemption’’ and ‘‘new interpretations 


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132 Id. at 8, 19 (‘‘No statute compelled EPA to 

reconsider the 2013 waiver at all, let alone to apply 

new policies to that long-settled decision rather 

than to new waiver requests.’’); Twelve Public 

Interest Organizations app. 1 at 35 (‘‘EPA relied 

exclusively on its purported discretion to 

reinterpret Section 209(b)(1)(B) of the Clean Air Act 

. . . and its purported discretion to consider factors 

not enumerated in Section 209(b)(1).’’). See also 

SCAQMD at 3 (‘‘Because the 2013 waiver decision 

was not pending judicial review in 2019 and was 

a long-closed matter, the EPA could not rightfully 

reopen its adjudication.’’). 

133Urban Air at 24 (citing Civil Aeronautics Bd. 

v. Delta Air Lines, 367 US 316, 321 (1961)). 

134States and Cities at 8–9, 12. 

135 Id. at 22. 

136See, e.g., CEI at 11. 

137States and Cities at 16–17. 

138 Id. at 20. See also Twelve Public Interest 

Organizations app. 1 64–65. 

139Northeast States for Coordinated Air Use 

Management (NESCAUM), Docket No. EPA–HQ– 

OAR–2021–0257–0126 at 3; Twelve Public Interest 

Organizations app. 1 64–65; States and Cities at 20. 

140SCAQMD at 7 (citing 86 FR at 22439 n.40). 

141See also Am. Methyl, 749 F.2d 826, 835 (D.C. 

Cir. 1984) (‘‘We have held that agencies have an 

inherent power to correct their mistakes by 

reconsidering their decisions within the period 

available for taking an appeal.’’); Mazaleski v. 

Treusdell, 562 F.2d 701, 720 (D.C. Cir. 1977) (‘‘We 

have many times held that an agency has the 

inherent power to reconsider and change a decision 

if it does so within a reasonable period of time.’’) 

(quoting Gratehouse v. United States, 512 F.2d 

1104, 1109 (Ct. Cl. 1975)); Albertson v. FCC, 182 

F.2d 397, 399 (D.C. Cir. 1950) (‘‘in the absence of 

any specific limitation,’’ reconsideration available 

‘‘within the period for taking an appeal’’). See 

generally Daniel Bress, Note, Administrative 

Reconsideration, 91 VA. L. REV. 1737 (2005). 

142S. Rep. No. 90–403, at 34 (1967). 

143See supra Section III.B. 

[of section 209(b)(1)(B)] that served only 

to categorically bar state standards that 

reduce vehicular GHG emissions.’’ 132

Still, another commenter disagreed, 

arguing that EPA’s reconsideration was 

an appropriate reevaluation of the legal 

interpretation and facts upon which the 

initial waiver determination was based 

because—‘‘reconsideration 

determinations do not become ‘policy’ 

decisions simply because they address 

substantive errors.’’ 133

EPA also received comment on 

whether EPA’s actions were 

inappropriate because the Agency failed 

to satisfy the ‘‘requirements of reasoned 

decision-making.’’ Some commenters 

noted that EPA had taken the position 

in SAFE 1 that ‘‘reducing criteria 

pollution is of overriding importance’’ 

yet failed to ‘‘consider[ ] the criteriapollution and SIP consequences of its 

Waiver Withdrawal and Section 177 

Determination.’’ 134 Similarly, EPA 

received comments claiming that the 

decision to apply a new approach to the 

ACC program waiver section 

209(b)(1)(B) was both unnecessary and 

unjustified because, as EPA 

acknowledged in SAFE 1, the Agency 

has consistently posited that section 

209(b)(1)(B) calls for determining 

whether the State needs its own 

regulatory program, separate from that 

of the federal government, not whether 

the State needs each specific standard or 

package of standards for which it seeks 

a waiver.135 One of these commenters 

pointed out that EPA also acknowledged 

that the phrase ‘‘such State standards’’ 

could reasonably remain the programlevel interpretation (EPA’s traditional 

interpretation) yet the Agency chose to 

adopt a new interpretation and apply it 

to the more than five-year old ACC 

program waiver, impacting expectations 

and reliance interests. 

The Agency also received comments 

on whether NHTSA’s finding of 

preemption under EPCA in the joint 

action granted EPA authority to 

reconsider the ACC program waiver. 

Commenters argued that NHTSA is 

charged with interpreting and 

implementing EPCA and that its finding 

‘‘that Congress prohibited California’s 

standards’’ in the same action cannot be 

ignored.136 Still other commenters 

pointed to the language of section 

209(b)(1) itself, where only three criteria 

are provided by which EPA can deny a 

waiver. As such, they argued, EPA 

cannot have broad, implicit authority to 

revoke a waiver on entirely different 

grounds than by which it may deny a 

waiver.137 The commenters also argued 

that the joint context of the action did 

not grant the Agency special authority 

to reconsider, explaining that ‘‘[w]hat 

Congress directed EPA to consider when 

it wrote Section 209(b)(1) does not 

change depending on whether EPA acts 

alone or with another agency.’’ 138 Some 

commenters also pointedly noted that 

SAFE 1’s distinction between singleagency and joint actions is arbitrary and 

capricious and therefore not a valid 

basis for reconsideration because EPA 

stated it ‘‘does not intend in future 

waiver proceedings concerning 

submissions of California programs in 

other subject areas to consider factors 

outside the statutory criteria in section 

209(b)(1)(A)–(C),’’ 139 and because 

NHTSA and EPA now consider SAFE 1 

as ‘‘two severable actions.’’ 140

B. Analysis: EPA Inappropriately 

Exercised Its Limited Authority To 

Reconsider 

EPA finds it does have authority to 

reconsider waivers, although its 

reconsideration of previously-granted 

waivers is limited and circumscribed. In 

the context of adjudicatory decisions (as 

contrasted to rulemakings), 

administrative law principles and case 

law support limited reconsideration 

authority for waiver proceedings. For 

example, in Ivy Sports Med., LLC v. 

Burwell, 767 F.3d 81, 86, 93 (D.C. Cir. 

2014), the D.C. Circuit noted that where 

a statute ‘‘does not contain an express 

provision granting [the agency] 

authority to reconsider,’’ 

‘‘administrative agencies are assumed to 

possess at least some inherent authority 

to revisit prior decisions, at least if done 

in a timely fashion,’’ noting the baseline 

limitations of such inherent authority. 

And in Chapman v. El Paso Nat. Gas 

Co., 204 F.2d 46, 53–54 (D.C. Cir. 1953), 

the D.C. Circuit made clear that once 

concluded, an adjudicatory decision 

granting a right ‘‘may not be repudiated 

for the sole purpose of applying some 

quirk or change in administrative 

policy.’’ 141 These precedents suggest 

that, while agencies do generally 

possess some inherent authority to 

reconsider previous adjudicatory 

decisions, that authority is limited in 

scope. 

Section 209 does not provide EPA 

with express authority to reconsider and 

withdraw a waiver previously granted to 

California. EPA’s authority thus stems 

from its inherent reconsideration 

authority. The 1967 legislative history 

provides some indication of 

congressional intent to preserve some 

implied authority for EPA to reconsider 

previous waiver decisions, but also to 

place limitations on it. This legislative 

history explains: ‘‘[i]mplicit in this 

provision is the right of the 

[Administrator] to withdraw the waiver 

at any time [if] after notice and an 

opportunity for public hearing he finds 

that the State of California no longer 

complies with the conditions of the 

waiver.’’ 142 Thus, from the earliest days 

of the program it has been understood 

that any withdrawal of a waiver should 

be tied to the statutory criteria and 

California’s compliance with them. This 

legislative history must be taken into 

account along with Congress’s intent 

expressed in the 1977 legislative 

history, which, as discussed previously, 

sought to ensure deference to California 

and to strengthen that state’s role in 

driving emissions-reducing 

technological innovation. Congress was 

also mindful to ensure the ability of 

other states to adopt California’s 

standards.143 Ultimately, EPA concludes 

it has authority to reconsider 

previously-granted waivers, but that this 

authority may only be exercised 

sparingly. As discussed below, there are 

several considerations that support 

narrow authority to reconsider waiver 

grants. 

First and most important, EPA 

believes its inherent authority to 

reconsider a waiver decision is 


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144See MEMA I, 627 F.2d at 1115 (noting that 

section 209(b) creates ‘‘a narrowly circumscribed 

proceeding requiring no broad policy judgments’’). 

145EPA initiated reconsideration of certain motorcycle standards, under the third waiver prong, 

section 209(b)(1)(C), in order to ‘‘vacate that portion 

of the waiver previously granted under section 

209(b).’’ 47 FR 7306, 7309 (February 18, 1982). EPA 

affirmed the grant of the waiver in the absence of 

‘‘findings necessary to revoke California’s waiver of 

Federal preemption for its motorcycle fill-pipe and 

fuel tank opening regulations.’’ Id. at 7310. 

146See MEMA I, 627 F.2d at 1124–25 (describing 

Congress’s intent to defer to California’s judgments 

regarding its motor vehicle program). 

147H.R. Rep. No 90–728 (‘‘Are we now to tell 

California that we don’t quite trust her to run her 

own program, that big government should do it 

instead?’’). 

148 40 FR 23104; 58 FR 4166. 

149 84 FR at 51344 n.268. 

150Motor vehicles are ‘‘either ‘federal cars’ 

designed to meet the EPA’s standards or ‘California 

cars’ designed to meet California’s standards.’’ 

Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1079–80, 

1088 (D.C. Cir. 1996) (‘‘Rather than being faced with 

51 different standards, as they had feared, or with 

only one, as they had sought, manufacturers must 

cope with two regulatory standards.’’). 

151See, e.g., S. Rep. No. 403, 90th Cong., 1st Sess. 

33 (1967) (The waiver of preemption is for 

California’s ‘‘unique problems and pioneering 

efforts.’’); 113 Cong. Rec. 30950, 32478 (‘‘[T]he State 

will act as a testing agent for various types of 

controls and the country as a whole will be the 

beneficiary of this research.’’) (Statement of Sen. 

Murphy). 

152H.R. Rep. No. 95–294, at 301–02 (1977). 

153H.R. Rep. No. 95–294, at 302 (1977), reprinted 

in 1977 U.S.C.C.A.N. at 1381)). 

154 Ford Motor Co. v. EPA, 606 F.3d 1293, 1297, 

1300 (D.C. Cir. 1979). 

155 Id. at 1302. 

156 40 FR at 23104. 

157 MEMA I, 627 F.2d at 110–11. 

158S. Rep. No. 90–403, at 34 (1967). 

constrained by the three waiver criteria 

that must be considered before granting 

or denying a waiver request under 

section 209(b). It would be 

inappropriate and inconsistent with 

congressional intent for EPA to 

reconsider and withdraw a waiver on a 

ground outside the limited scope of 

those which Congress specified for EPA 

to consider when reviewing a waiver in 

the first place.144 In the few instances 

where the Agency reconsidered prior 

waiver decisions prior to SAFE 1, EPA 

focused its review on the section 209(b) 

statutory waiver criteria.145

A circumscribed approach to 

reconsideration of waivers is consistent 

with the deference to California’s policy 

judgment that Congress built into the 

waiver process.146 Congress explicitly 

required that EPA ‘‘shall’’ grant the 

waiver unless one of three limited 

criteria are met. The use of the word 

‘‘shall’’ (versus ‘‘may’’) was heavily 

debated by the enacting Congress, with 

the successful proponents of ‘‘shall’’ 

explaining that such language would 

‘‘guarantee’’ that California could 

regulate with the burden placed on EPA 

to demonstrate why California should 

not be allowed to go beyond federal 

limitations.147 Congress’s legislative 

enactments since its creation of the 

waiver program—including adding 

section 177 to allow other states to 

adopt California’s standards in 1977 and 

section 209(e)(2)(A) to create parallel 

deference for nonroad engines and 

vehicles in 1990—reinforce the 

important role it envisioned for, and 

deference it afforded to, California.148

In SAFE 1, EPA argued instead that 

deference to California was not merited 

where the Agency was interpreting its 

‘‘own statute.’’ 149 But in Title II of the 

Clean Air Act, Congress envisioned two 

standards—California and Federal.150

Congress recognized California’s early 

attempts to address motor vehicle 

emissions intended to address its 

extraordinary environmental conditions 

as well as being a laboratory for motor 

vehicle emissions control.151 Congress 

called for EPA deference to California in 

implementing section 209(b) by not only 

limiting EPA review of California 

waiver requests to three specific criteria 

but also instructing that EPA is ‘‘to 

afford California the broadest possible 

discretion in selecting the best means to 

protect the health of its citizens and the 

public welfare.’’ 152 Similarly, ‘‘[t]he 

Administrator, . . . is not to overturn 

California’s judgment lightly. Nor is he 

to substitute his judgment for that of the 

State.’’ 153 Additionally, the D.C. Circuit 

has explained that ‘‘Congress 

consciously chose to permit California 

to blaze its own trail with a minimum 

of federal oversight’’ and ‘‘[t]he statute 

does not provide for any probing 

substantive review of the California 

standards by federal officials.’’ 154

Further, ‘‘[t]here is no indication in 

either the statute or the legislative 

history that . . . the Administrator is 

supposed to determine whether 

California’s standards are in fact 

sagacious and beneficial.’’ 155 Thus, 

early in the waiver program’s history, 

EPA explained the deference that 

Congress intended for the Agency’s 

review of waiver requests by noting that 

it would feel constrained to approve a 

California approach to a problem that 

the EPA Administrator might not feel 

able to adopt at the federal level as a 

regulator. EPA explained that the 

balancing of risks and costs against 

potential benefits from reduced 

emissions is a central policy decision 

for any regulatory agency and 

substantial deference should be 

provided to California’s judgement on 

such matters.156

In addition, limiting reconsideration 

of waivers undergirds Congress’ intent 

that California would be a laboratory for 

the country driving emissions-reducing 

technological innovation when it 

created the program in the first place. 

As the D.C. Circuit explained in MEMA 

I: ‘‘The history of congressional 

consideration of the California waiver 

provision, from its original enactment 

up through 1977, indicates that 

Congress intended the State to continue 

and expand its pioneering efforts at 

adopting and enforcing motor vehicle 

emission standards different from and 

in large measure more advanced than 

the corresponding federal program; in 

short, to act as a kind of laboratory for 

innovation.’’ 157 Indeed, broad authority 

to reconsider waiver grants could 

undermine the very structure that 

Congress built in Title II. Specifically, 

while EPA does not consider section 

177 when reviewing waiver requests 

under section 209, Congress built a 

structure wherein EPA must grant 

California a waiver under section 209 

unless one of the three statutory criteria 

are met, and then other states may adopt 

California’s standards under section 177 

as part of their overall air quality 

programs. Limited inherent authority to 

reconsider previously-granted waivers 

as described in this action is important 

to the success of Congress’s structure. 

Finally, even the sentence in the 

legislative history that suggests EPA has 

inherent reconsideration authority in 

the first place, and which SAFE 1 relied 

on for its assertion of inherent 

reconsideration authority, lends weight 

to the view that this authority is limited. 

According to the Senate report from the 

1967 CAA amendments, the 

Administrator has ‘‘the right . . . to 

withdraw the waiver at any time [if] 

after notice and an opportunity for 

public hearing he finds that the State of 

California no longer complies with the 

conditions of the waiver.’’ 158 That 

specific circumstance—where California 

does not comply with the conditions of 

a waiver—should not be expanded to 

include a gaping hole for discretionary 

administrative policy changes. 

Given all of the above considerations, 

several principles emerge. EPA’s 

authority to reconsider a grant of a 

waiver, which is an adjudicatory action 

by the Administrator, is not openended. Any reconsideration is 

constrained to the criteria that Congress 

set out in section 209(b). Even within 

those statutory criteria, considering all 

of the factors that weigh in favor of a 

narrow interpretation of the Agency’s 

authority and the importance of not 

disrupting Congress’s scheme, EPA 

believes reconsideration is limited to 

situations where the Agency has made 


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159States and Cities at 17–18. 

160 Id. at 17. 

161 Id. at 10; Wisconsin Department of Natural 

Resources (Wisconsin), Docket No. EPA–HQ–OAR– 

2021–0257–0095 at 1 (‘‘These standards provide 

important and necessary reductions in both GHG 

and criteria pollutant emissions needed to meet 

state and local air quality goals and address federal 

CAA requirements.’’); Connecticut at 2 (‘‘These 

programs enable long-term planning and yield 

critical emission reductions that are critical to 

meeting Connecticut’s climate goals as well as our 

statutory obligations to reach attainment with the 

ozone NAAQs.’’); Delaware 2 (‘‘Delaware adopted 

the California LEV regulation and incorporated the 

LEV and GHG standards into the State 

Implementation Plan. . . . Delaware will not meet 

air quality goals without more protective vehicle 

emission standards.’’); Maine at 1 (‘‘[T]he LEV 

program was initially created to help attain and 

maintain the health-based National Ambient Air 

Quality Standards (NAAQS) . . . The California 

ZEV and GHG programs enable long-term planning 

for both the states and the regulated community and 

have been drivers of technological change across 

the industry.’’). 

162E.g., Ford at 1; Tesla at n.5, 4; Rivian (as a 

member of NCAT) at 13–14. 

163EPA acknowledges that, in the SAFE 1 

proceedings, it had noted that at the time of 

proposal that CARB had given notice that it was 

considering amending its ‘‘deemed to comply’’ 

provision and that by the time of SAFE 1, California 

had entered into agreements with several 

automobile manufacturers to accept less stringent 

standards than the California program or the 

Federal standards as promulgated in 2012. As noted 

in SAFE 1, EPA believed that neither of these 

matters were necessary for EPA’s action in SAFE 1, 

but that they provided further support for the 

action. 84 FR at 51334 n.230. By this action, EPA 

finds that neither of these matters amounted to a 

change in circumstances or conditions associated 

with the three waiver criteria and EPA’s evaluation 

of the criteria in the ACC program waiver. EPA did 

not predicate its ACC program waiver on CARB’s 

deemed-to-comply provision or any changes to the 

deemed-to-comply provision. (EPA does not take a 

position as to whether that provision has changed 

in its purpose as a result of CARB’s 2018 

amendment). Further, to the extent CARB utilized 

a deemed-to-comply provision or uses nonregulatory mechanisms to achieve its air quality 

objectives, this had no bearing on EPA’s assessment 

of whether CARB has a need for its standards under 

the second waiver prong at the time of SAFE 1 or 

now. 

164 ‘‘California’s approach in its ACC program 

waiver request differed from the state’s approach in 

its waiver request for MY 2011 and subsequent 

heavy-duty tractor-trailer GHG standards, where 

California quantified NOX emissions reductions 

attributed to GHG standards and explained that 

they would contribute to PM and ozone NAAQS 

attainment.’’ 84 FR at 51337 n.252 (citing 79 FR at 

46256, 46257 n.15, 46261, 46262 n.75). 

165The first HD GHG emissions standard waiver 

related to certain new 2011 and subsequent model 

year tractor-trailers. 79 FR 46256 (August 7, 2014). 

CARB projected, for example, ‘‘reductions in NOX

emissions of 3.1 tons per day in 2014 and one ton 

per day in 2020’’ in California. Id. at 46261. The 

second HD GHG emissions standard waiver related 

to CARB’s ‘‘Phase I’’ regulation for 2014 and 

subsequent model year tractor-trailers. 81 FR 95982 

(December 29, 2016). 

CARB also noted the scientific findings since 

EPA’s 2009 GHG waiver including the report titled 

‘‘Our Changing Climate 2012 Vulnerability 

&Adaptation to the Increasing Risks from Climate 

Change in California.’’ The summary report 

highlights new insights for the energy, water, 

agriculture, public health, coastal, transportation, 

and ecological resource sectors that are vital to 

California residents and businesses. The study also 

predicts that peak concentrations of dangerous 

airborne particles will increase in the San Joaquin 

Valley because of climate change on wind patterns. 

This study provides further evidence of what is 

known as the ‘‘climate penalty,’’ where rising 

temperatures increase ground-level ozone and 

health-damaging particles, despite the reductions 

achieved by successful programs targeting smogforming emissions from cars, trucks, and industrial 

sources. Id. at 8–9. See also ‘‘The Impacts of 

Climate Change on Human Health in the United 

States: A Scientific Assessment’’ Chapter 3 Air 

Quality Impacts—Key Finding (‘‘Climate change 

will make it harder for any given regulatory 

approach to reduce ground-level ozone pollution in 

the future as meteorological conditions become 

increasingly conducive to forming ozone over most 

of the United States. Unless offset by additional 

emissions reductions, these climate-driven 

increases in ozone will cause premature deaths, 

hospital visits, lost school days, and acute 

respiratory symptoms.’’) at https://

health2016.globalchange.gov/air-quality-impacts; 

Chapter 13: Air Quality, Fourth National Climate 

Assessment at https://nca2018.globalchange.gov/ 

chapter/13/. 

a clerical or factual error or mistake, or 

where information shows that factual 

circumstances or conditions related to 

the waiver criteria evaluated when the 

waiver was granted have changed so 

significantly that the propriety of the 

waiver grant is called into doubt. 

Even if the bases for EPA’s 

reconsideration did satisfy one of the 

foregoing conditions such that 

reconsideration may be appropriate, 

during that reconsideration EPA 

believes it should consider the passage 

of time and reliance interests. In the 

context of CAA waiver grants in general, 

and the 2013 ACC program waiver grant 

in particular, California is relying on its 

standards to meet short- and long-term 

emission reduction goals.159 In addition, 

by the time the SAFE proposal was 

published, twelve states had already 

adopted at least one or both of the GHG 

and ZEV standards.160 Several of these 

states incorporated these adopted 

standards into their SIPs.161 Several 

automakers and industry groups have 

also indicated reliance on these 

standards.162

Reconsideration thus must carefully 

consider the factors noted and should 

not be undertaken where immense 

degrees of uncertainty are introduced in 

settled expectations of California, other 

states, and regulated industry or to 

allow for the continual questioning of 

EPA’s decisions, thus impairing needed 

finality. Such reconsideration could 

frustrate congressional intent in 

designing the waiver program and 

ultimately discourage reliance by the 

recipient of EPA’s waiver decision 

(CARB), states that may have adopted 

CARB’s regulations under the terms of 

section 177 (and are permitted to 

enforce the regulations once EPA grants 

a waiver to California) as well as the 

regulated industry. 

We now turn to whether the 

reconsideration in SAFE 1 was a proper 

exercise of EPA’s inherent 

reconsideration authority. As an initial 

matter, SAFE 1 did not assert that any 

clerical or factual error or mistake was 

made in the 2013 ACC program waiver. 

Nor did SAFE 1 point to any evidence 

showing that factual circumstances or 

conditions related to the waiver criteria 

evaluated when the waiver was granted 

have changed so significantly that the 

propriety of the waiver grant is called 

into doubt. For example, SAFE 1 did not 

assert that California was not complying 

with the terms of the waiver. Instead, 

SAFE 1’s reconsideration was premised 

on retroactive application of 

discretionary policy changes. Therefore, 

EPA believes it did not appropriately 

exercise its inherent authority in SAFE 

1 to reconsider the prior ACC program 

waiver. Upon reconsideration, and as 

further shown in Sections V and VI, 

EPA now believes that SAFE 1 

amounted to an improper exercise of the 

Agency’s limited inherent authority to 

reconsider.163

SAFE 1 gave two primary reasons for 

withdrawing the 2013 ACC program 

waiver. Neither was an appropriate 

basis for reconsideration. First, SAFE 1 

premised the revocation on its 

interpretation of the second waiver 

prong, section 209(b)(1)(B), that called 

for the Agency’s scrutiny of specific 

standards under the waiver rather than 

California’s program as a whole. As 

explained in detail in Section V of this 

final action, that statutory interpretation 

is flawed, and EPA does not believe a 

new statutory interpretation should be 

the basis of reconsidering the grant of a 

waiver. 

SAFE 1 premised the withdrawal of 

the ACC program waiver under section 

209(b)(1)(B) on the perceived lack of 

record support on the causal link 

between GHG emission standards and 

air quality conditions in California.164

Yet, the underlying record from the ACC 

program waiver, and the record of SAFE 

1, have shown that CARB’s ZEV sales 

mandate and GHG emission standards 

are designed to address California’s 

serious air quality problems, including 

both its NAAQS pollutants and a variety 

of climate impacts from GHG emissions. 

As discussed in greater detail in Section 

V, EPA has since at least 2009 

recognized that greenhouse gas 

pollution exacerbates criteria pollution, 

and climate change impacts on 

California’s air quality conditions (e.g., 

heat exacerbation of ozone).165 The ACC 

program was especially designed to 


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166 2012 Waiver Request at 1, 9–11, 15–17 (‘‘[A]s 

detailed below, the ACC program will result in 

reductions of both criteria pollutants and GHG 

emissions that, in the aggregate, are more protective 

than the federal standards that exist.’’). 78 FR at 

2122 ([T]he ACC program will result in reductions 

of both criteria pollutants and GHG emissions.’’). 

167 84 FR at 51337 (quoting CARB’s statement that 

‘‘[t]here is no criteria emissions benefit from 

including the ZEV proposal in terms of vehicle 

(tank-to-wheel or TTW) emissions.’’). As explained 

in more detail below, this statement merely 

reflected how CARB attributed pollution reductions 

between its different standards and compliance 

mandates, not the reality of how those standards 

and mandates actually drive pollution reductions. 

168 58 FR 4156. 71 FR 78190 (December 28, 2006); 

75 FR 11878 (March 12, 2010) and 76 FR 61095 

(October 3, 2011). 

169States and Cities at 10. 

170E.g., Ford at 1; Tesla at n.5, 4; Rivian (as a 

member of NCAT) at 13–14. EPA notes that it 

received limited comment on whether reliance 

interests had formed since the issuance of SAFE 1 

but nothing to demonstrate error in the findings 

regarding section 209(b)(1)(C) made within the ACC 

program waiver. See Toyota, Docket No. EPA–HQ– 

OAR–2021–0381 (‘‘Reinstatement of California’s 

waiver for model years 2021 and 2022 poses 

significant lead time challenges considering that 

2021 model year is well underway, and 2022 model 

year vehicles are generally already designed, 

sourced, certified to various regulatory 

requirements, and ready to begin production.’’). 

Further, as discussed elsewhere, the short passage 

of time since the promulgation of SAFE 1 and 

ongoing litigation over that action has, as 

automakers have noted in that briefing, prevented 

automakers from relying on the waiver revocation. 

See also Twelve Public Interest Organizations at 11 

(noting filings by automakers suggesting lack of 

reliance on the waiver withdrawal). 

171E.g., States and Cities at 17 (the length 

between the waiver grant and reconsideration was 

too long ‘‘by any measure.’’); Twelve Public Interest 

Organizations at app. 36. EPA acknowledges the 

commenter who argued that ‘‘timeliness depends 

on reliance interests’’ and, because the standards 

were not final before the MTE, the time period at 

issue is the four months between the MTE and the 

SAFE 1 proposal. Urban Air at 24. EPA also 

received comment that disagreed with this 

accounting of time stating that timeliness for 

reconsidering an adjudication is measured from the 

date of the agency’s decision, not from the date of 

activity resulting from that decision. E.g., Am. 

Methyl, 749 F.2d at 835 (tethering timeliness to 

period for appeal of agency decision).’’ Twelve 

Public Interest Organizations app. 1 at 38. EPA 

believes it is not necessary to resolve the 

permissible amount of time, or the existence or lack 

of a bright line, that may pass before 

reconsideration of its prior adjudication is no longer 

appropriate. However, EPA did not ‘‘condition’’ its 

ACC program waiver on any subsequent actions, 

including the MTE, which explicitly applied to the 

federal standards. See 78 FR at 2137. EPA expects 

its waiver adjudications to be final and that 

appropriate reliance may flow to affected parties. 

Moreover, in this instance EPA did not make any 

final determination regarding the third waiver 

prong at section 209(b)(1)(C). EPA notes that it has 

administered the California waiver program for a 

number of decades and acknowledges that emission 

standards continue to evolve at the California and 

the federal levels. This evolution in the standards 

has rested on regulatory certainty and the 

enforceability of CARB’s emission standards once a 

waiver has been issued by EPA under section 209(b) 

of the CAA. As for the inclusion of the deemed-tocomply provision in the California standards, 

California provided documentation demonstrating 

that the deemed-to-comply provision was reliant 

upon the federal standards having a certain level of 

stringency, a fact that EPA had recognized. See 

States and Cities at 18–19 n. 14, 57–60. EPA found 

that the California standards were feasible even 

without the deemed-to-comply provision, 78 FR at 

2138, making it irrelevant to the waiver grant. 

California’s own actions with respect to its 

standards, such as its independent review of the 

ACC program, cannot disturb California’s or other 

state’s reliance on the federal waiver. 

172States and Cities at 17–18. 

173 Id. at 17. 

174 Id. at 10; Wisconsin Department of Natural 

Resources (Wisconsin), Docket No. EPA–HQ–OAR– 

2021–0257–0095 at 1 (‘‘These standards provide 

important and necessary reductions in both GHG 

and criteria pollutant emissions needed to meet 

state and local air quality goals and address federal 

CAA requirements.’’); Connecticut at 2 (‘‘These 

programs enable long-term planning and yield 

critical emission reductions that are critical to 

meeting Connecticut’s climate goals as well as our 

statutory obligations to reach attainment with the 

ozone NAAQs.’’); Delaware 2 (‘‘Delaware adopted 

the California LEV regulation and incorporated the 

LEV and GHG standards into the State 

Implementation Plan. . . . Delaware will not meet 

air quality goals without more protective vehicle 

emission standards.’’); Maine at 1 (‘‘[T]he LEV 

program was initially created to help attain and 

maintain the health-based National Ambient Air 

Quality Standards (NAAQS) . . . The California 

ZEV and GHG programs enable long-term planning 

for both the states and the regulated community and 

have been drivers of technological change across 

the industry.’’). 

175 Id. at 51324 n.167. 

address both criteria and GHG 

pollution, including the effects of GHG 

pollution on criteria pollution in 

California.166 As also further discussed 

in Section V, in SAFE 1 the Agency 

dismissed the criteria pollutant benefits 

of California’s ZEV sales mandate 

requirements based on a snippet from 

the 2012 waiver request, taken out of 

context.167 This was also remarkable 

considering EPA’s prior waivers for ZEV 

sales mandate requirements that 

demonstrated criteria pollutant 

emissions reduction benefits.168 The 

record also includes information that 

demonstrates that a withdrawal of the 

waiver for the GHG emission standards 

and ZEV sales mandate (and leaving the 

Federal GHG standards at the 2020 

levels as proposed in SAFE) would 

increase NOx emissions in the South 

Coast air basin alone by 1.24 tons per 

day.169 In sum, EPA opted to elide the 

available ample technical support from 

the ACC program waiver proceedings. 

EPA’s factual predicates in SAFE 1— 

that there was no criteria pollutant 

benefit of the GHG standards and ZEV 

sales mandate—for reconsideration 

based on the second waiver prong were 

simply inaccurate and inappropriate. 

Reconsideration was thus improper on 

this basis because there were no factual 

errors in the ACC program waiver and 

EPA should not be exercising authority 

to reconsider prior valid waivers that 

present no factual errors based on 

different statutory interpretations. 

Second, SAFE 1 premised its 

revocation on NHTSA’s finding of 

preemption under EPCA. This, too, was 

an inappropriate ground for 

reconsideration. As earlier noted, EPA 

believes its inherent authority to 

reconsider a waiver decision is 

constrained by the three waiver criteria 

that must be considered before granting 

or denying a waiver request under 

section 209(b). Preemption under EPCA 

is not one of these criteria and was not 

considered in CARB’s ACC program 

waiver request or in EPA’s granting of 

that waiver. In fact, in its waiver grant, 

the Agency expressly found that 

consideration of preemption under 

EPCA would be inappropriate and 

unnecessary. In SAFE 1, the Agency did 

not premise its consideration of 

preemption under EPCA on any of the 

three statutory criteria. Therefore, EPA 

believes that SAFE 1 was not a proper 

exercise of the authority to reconsider 

on this basis, and any subsequent action 

in SAFE 1 to withdraw the ACC 

program waiver was inappropriate. 

Although SAFE 1 was an 

inappropriate exercise of inherent 

authority given that the Agency did not 

correct a factual error and there was no 

change in factual circumstances so 

significant that the propriety of the 

waiver would be called into doubt, it is 

nevertheless relevant to note that SAFE 

1 did not give appropriate consideration 

to the passage of time and the reliance 

interests that had developed between 

the granting and the revocation of the 

ACC program waiver. Several 

automakers and industry groups have 

also indicated reliance on these 

standards, as previously discussed.170

California and section 177 states were, 

by the time of the reconsideration, into 

the long-term plans they had developed 

relying on the ACC program waiver 

standards.171 California and other states 

rely on waivers that EPA has approved 

to meet short- and long-term emission 

reduction goals.172 In addition, by the 

time the SAFE proposal was published, 

twelve states had already adopted at 

least one or both of the GHG and ZEV 

standards.173 Several of these states 

incorporated these adopted standards 

into their SIPs.174

SAFE 1 barely mentioned these 

reliance interests, explaining only that 

the Agency ‘‘will consider whether and 

how to address SIP implications of this 

action, to the extent that they exist, in 

separate actions; EPA believes that it is 

not necessary to resolve those 

implications in the course of this 

action.’’ 175 EPA now believes that, 


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176EPA is responsible for approving SIPs and SIP 

amendments, which span years. See, e.g., 82 FR 

42233 (September 7, 2017) (approval of Maine’s SIP 

revision including updates to be consistent with 

California’s updated LEV program); 80 FR 13768 

(March 17, 2015) (approval of Connecticut’s SIP 

revision, including the adoption of elements of 

California’s LEV program). For example, states with 

areas that achieve attainment for any air pollutant 

must submit for EPA approval a revised SIP that 

sets out the State’s plan for maintaining attainment 

for at least ten years after the redesignation. At the 

end of that ten-year period, the State must submit 

another ten-year maintenance plan to EPA for 

approval. 42 U.S.C. 7505a. 

177Twelve Public Interest Organizations app. 1 at 

29, 30. Several states also commented, during this 

reconsideration, that they rely on the California 

GHG standards and ZEV sales mandate to reach 

their own state emission reduction goals. E.g., 

Connecticut at 2 (‘‘Reducing GHG emissions from 

the transportation sector is required to achieve 

Connecticut’s economy-wide targets of at least 45 

percent below 2001 levels by 2030 and 80 percent 

below 2001 levels by 2050, as required by the 2008 

Global Warming Solutions Act (GWSA) and the 

2018 Act Concerning Climate Change Planning and 

Resiliency.’’); Minnesota at 2 (‘‘[California’s 

standards] are vitally important in helping our state 

achieve our GHG emission reduction goals and 

reduce other harmful air pollutants, especially in 

communities of color and lower-income 

communities, which are disproportionately 

impacted by vehicle pollution. The MPCA found 

that these rules are needed to address GHG 

emissions in our state and take steps towards 

achieving Minnesota’s statutory Next Generation 

Energy Act GHG reduction goals. On May 7, 2021, 

an independent Administrative Law Judge affirmed 

the MPCA findings.’’); Maine at 1 n.3 (‘‘Maine 

statute at 38 M.R.S 576–A establishes tiered GHG 

emission reduction requirements culminating in 

gross annual reductions of at least 80% from 1990 

baseline levels.’’). 

178See 78 FR at 2137. 179See, e.g., 43 FR at 7310 (affirming the grant of 

the waiver in the absence of ‘‘findings necessary to 

revoke California’s waiver of Federal preemption 

for its motorcycle fill-pipe and fuel tank opening 

regulations.’’). 

when exercising its inherent authority 

to reconsider the 2013 waiver decision, 

it was inappropriate to ignore these 

possible reliance interests and to 

‘‘resolve’’ any potential implications at 

a later time. In the SAFE 1 context, 

while it was not necessary to resolve the 

status of every SIP, it was inappropriate 

to not even consider the reliance 

interests raised by the adoption of 

California standards by section 177 

states (including, but not limited to, 

their adoption into SIPs). EPA has 

consistently recognized the importance 

of long-term planning in the attainment 

and maintenance of NAAQS.176 Given 

the long-term nature of these plans, it is 

‘‘challenging (if not impossible) to 

change them quickly,’’ and any changes 

in one part of a SIP can affect multiple 

sectors of the economy.177

As noted above, EPA also received 

other comments regarding reliance 

interests, including those noting that the 

midterm evaluation (MTE) was an 

indication that the technological 

feasibility of the GHG emission 

standards was not a settled matter and 

hence no certainty or reliance could 

accrue. EPA, however, did not 

‘‘condition’’ its ACC program waiver on 

any subsequent actions, including the 

MTE.178 EPA expects its waiver 

adjudications to be final and that 

appropriate reliance may flow to 

affected parties. Moreover, in this 

instance EPA did not make any final 

determination regarding the third 

waiver prong at section 209(b)(1)(C). 

EPA notes that it has administered the 

California waiver program for a number 

of decades and acknowledges that 

emission standards continue to evolve 

at the California and the federal levels. 

This evolution in the standards has 

rested on regulatory certainty and the 

enforceability of CARB’s emission 

standards once a waiver has been issued 

by EPA under section 209(b) of the 

CAA. 

EPA’s historic practice of properly 

affording broad discretion to California 

has meant that in almost fifty years of 

administering the California waiver 

program the Agency had never 

withdrawn any waiver prior to SAFE 1. 

And while SAFE 1 cited prior 

reconsideration actions as support for 

the Agency’s authority to reconsider 

prior waiver decisions, as previously 

noted, EPA has historically limited 

reconsideration of prior waived 

standards to statutory criteria and most 

important, none of these prior 

reconsideration actions resulted in a 

revocation.179 As further shown in 

Sections V and VI, SAFE 1 was the 

result of a ‘‘probing substantive review 

of the California standards,’’ with the 

Agency substituting its own judgment 

for California’s contrary to both 

congressional exhortation of deference 

to California and the Agency’s review 

practice. 

This present reconsideration is an 

appropriate exercise of the Agency’s 

reconsideration authority. It is not at all 

clear that the reasons for limiting 

reconsideration of waiver grants apply 

to the same degree to reconsideration of 

waiver denials and withdrawals. 

However, EPA need not resolve the 

question in this action, because this 

action falls well within the bounds of 

even the limited authority this action 

concludes the Agency possesses for 

reconsideration of waiver grants. First, 

this action corrects factual errors made 

in the SAFE 1 waiver withdrawal. 

Specifically, even under SAFE 1’s 

flawed interpretation of section 

209(b)(1)(B), SAFE 1 ignored facts 

demonstrating that California does need 

the specific standards at issue to meet 

compelling and extraordinary 

conditions. Second, in this 

reconsideration EPA properly constrains 

its analysis to whether SAFE 1 made 

one of the three statutory findings 

necessary to deny a waiver. Third, this 

reconsideration is timely with respect to 

the finalization of SAFE 1 and limited, 

if any, reliance interests have developed 

as a result of SAFE 1 (which has been 

subject to judicial review since its 

promulgation). 

C. Conclusion 

In SAFE 1, EPA inappropriately 

exercised its limited inherent authority 

to reconsider the ACC program waiver 

for several reasons. EPA believes its 

exercise of reconsideration authority to 

reinterpret the language of section 

209(b)(1)(B) was not taken to correct any 

factual or clerical error or based upon 

factual circumstances or conditions 

related to the waiver criteria evaluated 

when the waiver was granted that have 

changed so significantly that the 

propriety of the waiver grant is called 

into doubt. Rather, as discussed in 

detail in Section V, it was based upon 

a flawed statutory interpretation and a 

misapplication of the facts under that 

interpretation. Likewise, EPA’s decision 

to reconsider the ACC program waiver 

based on NHTSA’s rulemaking within 

SAFE 1, which raised issues beyond the 

statutory waiver criteria, was 

inappropriate. For these reasons EPA 

now believes it is appropriate to rescind 

its actions within SAFE 1. 

V. The SAFE 1 Interpretation of Section 

209(b)(1)(B) was Inappropriate and, in 

any Event, California met its 

Requirements 

Even if SAFE 1’s reconsideration of 

the 2013 program waiver grant was 

appropriate, EPA concludes for two 

independent reasons that its waiver 

withdrawal in SAFE 1 based upon its 

new statutory interpretation was flawed. 

First, EPA concludes that the SAFE 1 

interpretation of the second waiver 

prong was not an appropriate reading of 

that second waiver prong, section 

209(b)(1)(B). It bears noting that the 

traditional interpretation is, at least, the 

better interpretation. Informed by but 

separate from the factual analysis 

discussed next, the Agency finds that 

the new interpretation set out in SAFE 

1 was inconsistent with congressional 

intent and contrary to the purpose of 

section 209(b). Under the traditional 

interpretation of the second waiver 

prong, California’s need for its own 

motor vehicle program, including its 

GHG emission standards and ZEV sales 

mandate, to meet compelling and 

extraordinary conditions is clear and the 


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180EPA notes that it reviewed the factual record 

within the ACC program waiver proceeding and 

finds there was no factual error in its evaluation of 

whether CARB’s standards satisfied the second 

waiver prong. EPA also notes, merely as confirming 

the finding it made at the time of the ACC program 

waiver but not for purposes of making a new factual 

finding from that made at the time of the ACC 

program waiver decision, that the record and 

information contained in the SAFE 1 proceeding as 

well as the record and information contained in the 

Agency’s reconsideration of SAFE 1 (including late 

comments submitted during the SAFE 1 proceeding 

and, in some cases, resubmitted during the 

Agency’s reconsideration of SAFE 1) at each point 

in time clearly demonstrates the need of California’s 

standards (whether evaluated as a program or as 

specific standards) to meet compelling and 

extraordinary conditions within California. 

181 ‘‘The interpretation that my inquiry under 

(b)(1)(B) goes to California’s need for its own mobile 

source program is borne out not only by the 

legislative history, but by the plain meaning of the 

statue as well.’’ 49 FR at 18890. 

182 74 FR at 32751 n. 44;.32761 n.104. EPA cited 

Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 

(2009) (‘‘That view governs if it is a reasonable 

interpretation of the statute—not necessarily the 

only possible interpretation, nor even the 

interpretation deemed most reasonable by the 

courts’’), and Chevron U.S.A. Inc. v. Natural 

Resources Defense Council, Inc., 467 U.S. 837, 843– 

844 (1984).) (‘‘It seems to us, therefore, that the 

phrase ‘‘best available,’’’ even with the added 

specification ‘‘for minimizing adverse 

environmental impact,’’’ does not unambiguously 

preclude cost-benefit analysis.’’). See also 78 FR at 

2126–2127 n. 78. 

183Am. Trucking Ass’n v. EPA, 600 F.3d 624, 627 

(D.C. Cir. 2010) (ATA v. EPA). See also Dalton 

Trucking v. EPA, No. 13–74019 (9th Cir. 2021) 

(‘‘The EPA was not arbitrary and capricious in 

declining to find that ‘California does not need such 

California standards to meet compelling and 

extraordinary conditions,’ § 7543(e)(2)(A)(ii), under 

the alternative version of the needs test, which 

requires ‘a review of whether the Fleet 

Requirements are per se needed to meet compelling 

and extraordinary conditions,’ 78 FR at 58,103. The 

EPA considered ‘the relevant factors,’ Motor Vehicle 

Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. 

Co., Inc., 463 U.S. 29, 42–43 (1983), including 

statewide air quality, 78 FR 58,104, the state’s 

compliance with federal National Ambient Air 

Quality standards for ozone and PM2.5 on a 

statewide basis, id. at 58,103–04, the statewide 

public health benefits, id. at 58,104, and the utility 

of the Fleet Requirements in assisting California to 

meet its goals, id. at 58,110. Contrary to Dalton’s 

argument, the EPA did not limit its review to two 

of California’s fourteen air quality regions. The EPA 

examined the relevant data provided by CARB, and 

it articulated a ‘satisfactory explanation for its 

action including a rational connection between the 

facts found and the choice made.’ See Motor 

Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43, 103 

S.Ct. 2856 (cleaned up).’’). 

184 58 FR 4166, LEV Waiver Decision Document 

at 50–51. 

waiver should not have been 

withdrawn. 

Second, even if the interpretation in 

SAFE 1 were appropriate, EPA 

concludes that SAFE 1 incorrectly 

found that California did not have a 

need for its specific standards. EPA has 

evaluated California’s need for both 

requirements by applying both the 

traditional and the SAFE 1 

interpretations of section 209(b)(1)(B). 

In doing so, EPA reviewed the record 

from the ACC program waiver 

proceedings, including CARB’s ACC 

program waiver request and supporting 

documents, as well as the comments 

received as part of the SAFE 1 

proceeding and the comments received 

under the present reconsideration of 

SAFE 1.180 The record review focused 

on salient pronouncements and findings 

in the ACC program waiver decision, 

such as the relationship of both criteria 

and GHG pollutants and the impacts of 

climate change on California’s serious 

air quality conditions. For example, the 

effects of climate change and the heat 

exacerbation of tropospheric ozone is 

well established. California’s ACC 

program is established, in part, to 

address this. California’s program, 

including its GHG emission standards, 

is also designed to address upstream 

criteria emission pollutants. The review 

did so primarily because SAFE 1 

premised the withdrawal of the GHG 

standards at issue on the lack of a causal 

link between GHG standards and air 

quality conditions in California. The 

review included EPA’s prior findings 

regarding heat exacerbation of ozone, a 

serious air quality issue recognized by 

EPA as presenting compelling and 

extraordinary conditions under the 

second waiver prong. 

On completion of this review, EPA 

finds no basis for discounting the ample 

record support on California’s need for 

both the GHG standards and the ZEV 

sales mandate to address compelling 

and extraordinary conditions in 

California when using both the 

traditional and SAFE 1 interpretation to 

the second waiver prong. Additionally, 

because of the way CARB’s motor 

vehicle emission standards operate in 

tandem and are designed to reduce both 

criteria and GHG pollution and the ways 

in which GHG pollution exacerbates 

California’s serious air quality problems, 

including the heat exacerbation of 

ozone, the Agency in SAFE 1 should not 

have evaluated California’s specific 

‘‘need’’ for GHG standards. In sum, in 

reconsidering SAFE 1, and after having 

now reviewed and evaluated the 

complete factual record, EPA reaffirms 

that California needs the GHG standards 

and ZEV sales mandate at issue to ‘‘meet 

compelling and extraordinary 

conditions.’’ 

A. Historical Practice 

Under section 209(b)(1)(B), EPA shall 

not grant a waiver if California ‘‘does 

not need such State standards to meet 

compelling and extraordinary 

conditions.’’ For nearly the entire 

history of the waiver program, EPA has 

read the phrase ‘‘such State standards’’ 

in section 209(b)(1)(B) as referring back 

to standards ‘‘in the aggregate,’’ in the 

root paragraph of section 209(b)(1), 

which calls for California to make a 

protectiveness finding for its standards. 

EPA has interpreted the phrase ‘‘in the 

aggregate’’ as referring to California’s 

program as a whole, rather than each 

State standard, and as such not calling 

for the Agency’s standard-by-standard 

analysis of California’s waiver 

request.181 EPA has thus reasoned that 

both statutory provisions must be read 

together so that the Agency reviews the 

same standards that California considers 

in making its protectiveness 

determination and to afford California 

discretion.182 The D.C. Circuit has also 

stated that ‘‘[t]he expansive statutory 

language gives California (and in turn 

EPA) a good deal of flexibility in 

assessing California’s regulatory needs. 

We therefore find no basis to disturb 

EPA’s reasonable interpretation of the 

second criterion.’’ 183

In addressing the Agency’s reading of 

section 209(b)(1)(B), for example, in the 

1983 LEV waiver request EPA explained 

that: 

This approach to the ‘‘need’’ criterion is 

also consistent with the fact that because 

California standards must be as protective as 

Federal standards in the aggregate, it is 

permissible for a particular California 

standard or standards to be less protective 

than the corresponding Federal standard. For 

example, for many years, California chose to 

allow a carbon monoxide standard for 

passenger cars that was less stringent than 

the corresponding Federal standard as a 

‘‘trade-off’’ for California’s stringent nitrogen 

oxide standard. Under a standard of review 

like that proposed by MVMA/AIAM, EPA 

could not approve a waiver request for only 

a less stringent California standard because 

such a standard, in isolation, necessarily 

could be found to be contributing to rather 

than helping, California’s air pollution 

problems.184

In 1994, EPA again had cause to 

explain the Agency’s reading of section 

209(b)(1)(B) in the context of 

California’s particulate matter standards 

waiver request: 

[T]o find that the ‘compelling and 

extraordinary conditions’ test should apply 

to each pollutant would conflict with the 

amendment to section 209 in 1977 allowing 

California to select standards ‘in the 

aggregate’ at least as protective as federal 

standards. In enacting that change, Congress 

explicitly recognized that California’s mix of 

standards could ‘include some less stringent 

than the corresponding federal standards.’ 

See H.R. Rep. No. 294, 95th Cong., 1st Sess. 

302 (1977). Congress could not have given 

this flexibility to California and 

simultaneously assigned to the state the 


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185 49 FR at 18887, 18890. 

186See, e.g., S. Rep. No. 403, 90th Cong., 1st Sess. 

33 (1967) (The waiver of preemption is for 

California’s ‘‘unique problems and pioneering 

efforts.’’); 113 Cong. Rec. 30950, 32478 (‘‘[T]he State 

will act as a testing agent for various types of 

controls and the country as a whole will be the 

beneficiary of this research.’’) (Statement of Sen. 

Murphy). 

187 Ford Motor Co., v. EPA, 606 F.2d 1293, 1300 

(D.C. Cir. 1979). 

188 74 FR at 32763–65; 76 FR 34693; 79 FR 46256; 

81 FR 95982. 

189 73 FR at 12160–64. 190 74 FR at 32744, 32746, 32763 (‘‘The text of 

section 209(b) and the legislative history, when 

viewed together, lead me to reject the interpretation 

adopted in the March 6, 2008 Denial, and to apply 

the traditional interpretation to the evaluation of 

California’s greenhouse gas standards for motor 

vehicles. If California needs a separate motor 

vehicle program to address the kinds of compelling 

and extraordinary conditions discussed in the 

traditional interpretation, then Congress intended 

that California could have such a program. Congress 

also intentionally provided California the broadest 

possible discretion in adopting the kind of 

standards in its motor vehicle program that 

California determines are appropriate to address air 

pollution problems and protect the health and 

welfare of its citizens. The better interpretation of 

the text and legislative history of this provision is 

that Congress did not use this criterion to limit 

California’s discretion to a certain category of air 

pollution problems, to the exclusion of others. EPA 

concluded that even under this alternative 

approach California GHG standards were intended 

at least in part to address a local or regional 

problem because of the ‘logical link between the 

local air pollution problem of ozone and GHG.’’’). 

191 78 FR at 2129 (‘‘CARB has repeatedly 

demonstrated the need for its motor vehicle 

program to address compelling and extraordinary 

conditions in California. As discussed above, 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. California still faces such 

conditions.’’). 

192 Id. at 2129–30. 

193 Id. at 2129 (‘‘[A]s EPA discussed at length in 

its 2009 GHG waiver decision, California does have 

compelling and extraordinary conditions directly 

related to regulations of GHG. EPA’s prior GHG 

waiver contained extensive discussion regarding 

the impacts of climate change in California. In 

addition, CARB has submitted additional evidence 

in comment on the ACC waiver request that 

evidences sufficiently different circumstances in 

California. CARB notes that ‘‘Record-setting fires, 

deadly heat waves, destructive storm surges, loss of 

winter snowpack—California has experienced all of 

these in the past decade and will experience more 

in the coming decades. California’s climate—much 

of what makes the state so unique and prosperous— 

is already changing, and those changes will only 

accelerate and intensify in the future. Extreme 

weather will be increasingly common as a result of 

climate change. In California, extreme events such 

as floods, heat waves, droughts and severe storms 

will increase in frequency and intensity. Many of 

these extreme events have the potential to 

dramatically affect human health and well-being, 

critical infrastructure and natural systems.’’ 

(footnotes omitted)). 

194 Id. at 2130–31 (‘‘As CARB notes in its waiver 

request, the goal of the CARB Board in directing 

CARB staff to redesign the ZEV regulation was to 

focus primarily on zero emission drive—that is 

BEV, FCV, and PHEVs in order to move advanced, 

low GHG vehicles from demonstration phase to 

commercialization. CARB also analyzed pathways 

to meeting California’s long term 2050 GHG 

reduction targets in the light-duty vehicle sector 

and determined that ZEVs would need to reach 

nearly 100 percent of new vehicle sales between 

2040 and 2050. CARB also notes that the ‘‘critical 

nature of the LEV III regulation is also highlighted 

in the recent effort to take a coordinated look at 

strategies to meet California’s multiple air quality 

and climate goals well into the future. This 

coordinated planning effort, Vision for Clean Air: A 

Framework for Air Quality and Climate Planning 

(Vision for Clean Air) demonstrates the magnitude 

of the technology and energy transformation needed 

from the transportation sector and associated energy 

production to meet federal standards and the goals 

set forth by California’s climate change 

requirements. . . . The Vision for Clean Air effort 

illustrates that in addition to the cleanup of 

passenger vehicles (at issue here) as soon as 

possible as required in the LEV III regulation, 

transition to zero- and near-zero emission 

technologies in all on- and off-road engine 

categories is necessary to achieve the coordinated 

goals. Therefore, EPA believes that CARB’s 2018 

and later MY ZEV standards represent a reasonable 

pathway to reach these longer term goals. Under 

EPA’s traditional practice of affording CARB the 

broadest discretion possible, and deferring to CARB 

on its policy choices, we believe there is a rational 

connection between California ZEV standards and 

its attainment of long term air quality goals. 

Whether or not the ZEV standards achieve 

additional reductions by themselves above and 

beyond the LEV III GHG and criteria pollutant 

standards, the LEV III program overall does achieve 

seemingly impossible task of establishing 

that ‘extraordinary and compelling 

conditions’ exist for each standard.185

Congress has also not disturbed this 

reading of section 209(b)(1)(B) as calling 

for EPA review of California’s whole 

program. With two noted exceptions 

described below, EPA has consistently 

interpreted this provision as requiring 

the Agency to consider whether 

California needs a separate motor 

vehicle emission program as compared 

to the specific standards in the waiver 

request at issue to meet compelling and 

extraordinary conditions. 

Congress intended to allow California 

to address its extraordinary 

environmental conditions and foster its 

role as a laboratory for motor vehicle 

emissions control. The Agency’s longstanding practice therefore has been to 

evaluate CARB’s waiver requests with 

the broadest possible discretion to allow 

California to select the means it 

determines best to protect the health 

and welfare of its citizens in recognition 

of both the harsh reality of California’s 

air pollution and to serve as a pioneer 

and a laboratory for the nation in setting 

new motor vehicle emission standards 

and developing control technology.186

EPA notes that ‘‘the statute does not 

provide for any probing substantive 

review of the California standards by 

federal officials.’’ 187

As a general matter, EPA has applied 

the traditional interpretation in the 

same way for all air pollutants, criteria 

and GHG pollutants alike.188 As 

discussed in Section II, there have only 

been two exceptions to this practice: 

one in 2008 and one in 2019. In 2008, 

EPA for the first time analyzed 

California’s waiver request under an 

alternative approach and denied CARB’s 

waiver request. EPA concluded that 

section 209(b) was intended to allow 

California to promulgate state standards 

applicable to emissions from new motor 

vehicles to address air pollution 

problems that are local or regional, but 

that section 209(b)(1)(B) was not 

intended to allow California to 

promulgate state standards for 

emissions from new motor vehicles 

designed to address global climate 

change problems. Or, in the alternative, 

EPA concluded that effects of climate 

change in California were not 

compelling and extraordinary compared 

to the effects in the rest of the 

country.189 EPA rejected this view a 

little over a year later in 2009 by 

applying the traditional interpretation 

in granting California’s waiver request 

for the same GHG standard, finding no 

support in the statute or congressional 

intent for the alternative application of 

the statute.190

In evaluating the ACC program waiver 

in 2013, EPA applied the traditional 

interpretation to the ACC program 

waiver request and found that the 

Agency could not deny the waiver 

request under the second waiver 

prong.191 Further, without adopting the 

alternative interpretation that had been 

applied in the 2008 GHG waiver denial, 

EPA assessed California’s need for the 

GHG standards at issue and found that 

the Agency could not deny the ACC 

program waiver request, even applying 

the alternative interpretation. EPA noted 

that to the extent that it was appropriate 

to examine the CARB’s need for the 

GHG standards at issue to meet 

compelling and extraordinary 

conditions, the Agency had discussed at 

length in the 2009 GHG waiver decision 

that California has compelling and 

extraordinary conditions directly related 

to regulations of GHGs.192 Similarly, 

EPA explained that to the extent it was 

appropriate to examine California’s 

need for the ZEV sales mandate, these 

requirements would enable California to 

meet both air quality and climate goals 

into the future.193 Additionally, EPA 

recognized CARB’s coordinated 

strategies reflected in the technologies 

envisioned to meet the ACC program 

requirements and in turn addressing 

both criteria pollutants and GHGs and 

the magnitude of the technology and 

energy transformation needed to meet 

such goals.194


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such reductions, and EPA defers to California’s 

policy choice of the appropriate technology path to 

pursue to achieve these emissions reductions.’’ 

(footnote omitted)). 

195 84 FR at 51339. 

196 Id. at 51339–40. 

197 Id. at 51342 (quoting S. Rep. No. 403, 90th 

Cong. 1st Sess., at 32 (1967)) (‘‘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. As explained at proposal, 

Congress focus was on California’s ozone 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). In sum and as explained 

at proposal, conditions that are similar on a global 

scale are not ‘extraordinary,’ especially where 

‘extraordinary’ conditions are a predicate for a local 

deviation from national standards, under section 

209(b). 83 FR 43247.’’). 

198 Id. 

199 Id. at 51345. 

200 Id. at 51340. 

201 Id. at 51349. 

202 Id. 

203 Id. at 51330 (‘‘Regarding the ACC program 

ZEV mandate requirements, CARB’s waiver request 

noted that there was no criteria emissions benefit 

in terms of vehicle (tank-to-wheel—TTW) emissions 

because its LEV III criteria pollutant fleet standard 

was responsible for those emission reductions.’’). 

204CEI at 13–14. 

The only other exception to the 

application of the traditional 

interpretation was in SAFE 1, when 

EPA again used a standard-specific level 

of review and focused on California’s 

need for GHG standards at issue under 

the waiver. There, EPA posited that 

section 209(b)(1)(B) called for a 

‘‘particularized nexus’’ for California’s 

motor vehicle standards: ‘‘Congress 

enacted the waiver authority for 

California under section 209(b) against 

the backdrop of traditional, criteria 

pollutant environmental problems, 

under which all three links in this chain 

bear a particularized nexus to specific 

local California features: (1) Criteria 

pollutants are emitted from the tailpipes 

of the California motor vehicle fleet; (2) 

those emissions of criteria pollutants 

contribute to air pollution by 

concentrating locally in elevated 

ambient levels, which concentration, in 

turn; (3) results in health and welfare 

effects (e.g., from ozone) that are 

extraordinarily aggravated in California 

as compared to other parts of the 

country, with this extraordinary 

situation being attributable to a 

confluence of California’s peculiar 

characteristics, e.g., population density, 

transportation patterns, wind and ocean 

currents, temperature inversions, and 

topography.’’ 195 As support for the 

nexus test, EPA, for the first time in 

waiver decisions, relied on section 

202(a) and its own terms of authority to 

inform interpretation of the second 

waiver prong.196 In addition, EPA relied 

on legislative history to interpret 

‘‘compelling and extraordinary’’ 

conditions as a reference to ‘‘peculiar 

local conditions’’ and ‘‘unique 

problems’’ in California.197

Accordingly, EPA reasoned that 

California must demonstrate 

‘‘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.’’ 198

In SAFE 1, EPA then posited that the 

nexus test should be applied to 

California’s GHG standards specifically, 

rather than California’s program ‘‘as a 

whole’’ under the traditional 

‘‘aggregate’’ approach, ‘‘to ensure that 

such standard is linked to local 

conditions that giv[e] rise to the air 

pollution problem, that the air pollution 

problem is serious and of a local nature, 

and that the State standards at issue will 

meaningfully redress that local 

problem.’’ 199 As support for the GHGspecific scrutiny, EPA reasoned that 

‘‘[t]he Supreme Court’s opinion in 

UARG v. EPA, 134 S. Ct. 2427 (2014), 

instructs that Clean Air Act provisions 

cannot necessarily rationally be applied 

identically to GHG as they are to 

traditional pollutants.’’ 200

Applying the nexus test, EPA 

concluded that California did not need 

its GHG standards to meet ‘‘compelling 

and extraordinary conditions’’ because 

they were missing a particularized 

nexus to specific local features. EPA in 

the alternative posited that ‘‘even if 

California does have compelling and 

extraordinary conditions in the context 

of global climate change, California does 

not ‘need’ these standards under section 

209(b)(1)(B) because they will not 

meaningfully address global air 

pollution problem of the sort associated 

with GHG emissions.’’ 201 EPA also 

dismissed the 2009 GHG waiver 

conclusion on deleterious effects of 

GHG emissions on ozone (e.g., how 

increases in ambient temperature are 

conducive to ground-level ozone 

formation), stating that such a 

relationship ‘‘does not satisfy this 

requirement for a particularized nexus, 

because to allow such attenuated effects 

to fill in the gaps would eliminate the 

function of requiring such a nexus in 

the first place.’’ 202

B. Notice of Reconsideration of SAFE 1 

and Request for Comment 

In the Notice of Reconsideration of 

SAFE 1, EPA noted its interest in any 

new or additional information or 

comments regarding whether it 

appropriately interpreted and applied 

section 209(b)(1)(B) in SAFE 1. The 

Agency noted that EPA’s finding in 

SAFE 1, that such standards were only 

designed to address climate change and 

a global air pollution problem, led EPA 

to a new interpretation of section 

209(b)(1)(B). EPA solicited views on 

whether it was permissible to construe 

section 209(b)(1)(B) as calling for a 

consideration of California’s need for a 

separate motor vehicle program where 

criteria pollutants are at issue as well as 

California’s specific standards where 

GHG standards are at issue. 

The Notice of Reconsideration also set 

forth that EPA’s decision to withdraw 

the ACC program waiver as it relates to 

California’s ZEV sales mandate was 

based on the same new interpretation 

and application of the second waiver 

prong and rested heavily on the 

conclusion that California only adopted 

the ZEV sales mandate requirement for 

purposes of achieving GHG emission 

reductions. EPA recognized that this 

conclusion in turn rested solely on a 

specific reading of a single sentence in 

CARB’s ACC program waiver request.203

EPA requested comment on these 

specific conclusions and readings as 

well as whether the withdrawal of the 

ACC program waiver, within the context 

of California’s environmental conditions 

and as applied to the GHG standards 

and ZEV sales mandate requirement, 

was permissible and appropriate. 

C. Comments Received 

EPA received multiple comments on 

its decision to evaluate California’s need 

for its GHG standards separate from its 

need for a separate motor vehicle 

emission program as a whole. Some 

commenters agreed that EPA could 

evaluate waiver requests for the specific 

GHG standards under the waiver along 

the lines of the Agency’s 

pronouncements in SAFE 1. 

Additionally, commenters pointed to 

the method of EPA’s review in SAFE 

1—evaluating the standards 

individually, as they are received, rather 

than in the aggregate—as evidence of 

the flaw in the traditional 

interpretation.204 Some commenters 

also echoed SAFE 1’s concern that 

‘‘once EPA had determined that 

California needed its very first set of 

submitted standards to meet 

extraordinary and compelling 

conditions, EPA would never have the 


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205 84 FR at 51341. See, e.g., NADA at 5; Urban 

Air at 25, 29–33; AFPM at 22–23. 

206AFPM at 12; Urban Air at 4. 

207CEI at 14–16 (‘‘The resulting ‘‘global pool’’ of 

GHG emissions is not any more concentrated in 

California than anywhere else . . . [E]ven if one 

assumes ‘‘compelling and extraordinary 

conditions’’ can refer to climate change impacts, 

such as heat waves, drought, and coastal flooding, 

California’s vulnerability is not ‘‘sufficiently 

different’’ from the rest of the nation to merit 

waiving federal preemption of state emission 

standards. Thus, California is not ‘‘extraordinary’’ 

in regard to either the ‘‘causes’’ of the ‘‘effects’’ of 

global climate change.’’); NADA at 5 (‘‘while 

vehicle GHG emissions also were, by definition, 

local, their impact on serious local air quality 

concerns could not be shown.’’); AFPM at 11–14 

(‘‘Neither the causes nor effects of GHG emissions 

are compelling and extraordinary conditions, as 

they are global rather than local conditions, and 

California’s GHG standards and ZEV mandate will 

not meaningfully address the causes or effects of 

these GHG emissions.’’). 

208NADA at 4–5; Urban Air at 33. 

209States and Cities at 22 n.16. 

210Twelve Public Interest Organizations at 7 

(‘‘The Trump EPA in turn acknowledged that this 

longstanding interpretation of Section 209(b)(1)(B) 

was a reasonable one, 84 FR at 51,341 .... ’’). 

211States and Cities at 22 (citing 84 FR at 51341); 

Tesla at 11 (‘‘The plural reference to ‘such State 

standards’ requires that the standards be considered 

in the aggregate as a group. This language stands in 

stark contrast to alternate phrasing that was 

available to Congress and that would have 

permitted a non-aggregate determination, such as: 

‘such State does not need a State standard to meet 

compelling and extraordinary conditions.’ Indeed, 

alternative language referencing individual 

standards is present in subsection (b)(2), which 

references ‘each State standard.’ ’’). 

212States and Cities at 25–26; Twelve Public 

Interest Organizations at 8 (‘‘An aggregate approach 

to the consistency inquiry also makes sense under 

Section 209(b)(1)(C) because technological 

feasibility is effectively evaluated on a program 

basis. The feasibility of a new standard cannot be 

evaluated on its own if there are interactions with 

pre-existing standards. Such interactions between 

standards are what prompted Congress to add the 

‘‘in the aggregate’’ phrase to section 209 in the first 

place.’’). 

213States and Cities at 26–27; Ozone Transport 

Commission (OTC), Docket No. EPA–HQ–OAR– 

2021–0257–0283 at 4. 

214States and Cities at 27–28. 

215 86 FR at 22429. 

216States and Cities at 24 (quoting Clark v. 

Martinez, 543 U.S. 371, 382 (2005) and citing U.S. 

v. Santos, 553 U.S. 507, 522 (2008); U.S. Dep’t of 

the Treasury v. FLRA, 739 F.3d 13,21 (D.C. Cir. 

2014)). The commenter notes that in the SAFE 1 

brief, EPA claimed that its new approach to section 

209(b)(1)(B) would apply ‘‘for all types of air 

pollutants’’ but EPA could point to nowhere in 

SAFE 1 decision where this was said. Id. at 25. And 

‘‘only two sentences later,’’ EPA acknowledged that 

its review under this second prong would change 

‘‘depending upon which ‘air quality concerns’ were 

implicated.’’ Id. 

217States and Cities at 34 (noting the lack of the 

words ‘‘nexus,’’ ‘‘particularized,’’ ‘‘peculiar,’’ and 

‘‘local’’ anywhere in sections 209(b) or 202(a)(1)). 

218 Id. at 35. 

219 Id. at 41–43; Twelve Public Interest 

Organizations at 4–6. 

220States and Cities at 42 (quoting Shelby Cnty. 

v. Holder, 570 U.S. 529, 535, 545 (2013)). 

221 Id. at 43; Twelve Public Interest Organizations 

at 5 (‘‘Clean Air Act Section 209(b) places no 

extraordinary burden or disadvantage on one or 

more States. Rather, the statute benefits California 

by allowing the exercise of its police power 

authority to address its particular pollution control 

needs’’). 

discretion to determine that California 

did not need any subsequent 

standards.’’ 205

Under this analysis of the specific 

standards at issue under the waiver, 

these commenters continued, California 

could not demonstrate that its GHG and 

ZEV standards were, on their own, 

compelling and extraordinary. These 

commenters agreed with SAFE 1’s 

‘‘particularized nexus’’ interpretation of 

‘‘compelling and extraordinary,’’ 

arguing that the words required unique 

consequences in order to give adequate 

meaning to the words themselves and in 

order to overcome equal sovereignty 

implications.206 Using this 

interpretation, these commenters 

concluded that, because ‘‘GHG 

concentrations are essentially uniform 

throughout the globe, and are not 

affected by California’s topography and 

meteorology,’’ and because the entire 

nation would be affected by climate 

change, neither the effects of the 

regulations on climate change, nor the 

impacts of climate change on California 

could be considered ‘‘compelling and 

extraordinary.’’ 207 Some commenters 

also argued that these standards were 

unnecessary given California’s ‘‘deemed 

to comply’’ provision, which would 

theoretically allow all automobile 

manufacturers to comply with 

California’s standards by meeting the 

less stringent Federal GHG standards.208

In contrast, other commenters asked 

that EPA reverse its SAFE 1 section 

209(b)(1)(B) determination by reverting 

to EPA’s long-standing ‘‘program-level’’ 

approach to the ‘‘need’’ inquiry, where 

‘‘EPA considers California’s need for its 

own mobile-source-emissions program 

as a whole, not whether California 

needs a particular standard for which it 

has requested a waiver.’’ 209 These 

commenters noted the long tradition of 

interpreting California’s need in the 

aggregate, an interpretation that SAFE 1 

acknowledged was reasonable.210 This 

interpretation, they argued, best aligned 

with the text, legislative history, and 

purpose of the waiver program.211 For 

example, some commenters argued that, 

because feasibility was evaluated under 

an aggregate approach, it would be 

unreasonable for California’s need for 

the program to be evaluated under a 

more restrictive approach.212 These 

commenters also argued that Congress 

had expressed approval of this aggregate 

approach, citing legislative history from 

1977 and 1990.213 This approach, they 

continued, aligns with the Waiver 

Program’s broad deference to California 

to create an entire regulatory program, 

which is comprised of regulations that 

interact with and affect each other.214

One commenter also responded directly 

to the question EPA posed in its Notice 

of Reconsideration, whether it was 

‘‘permissible for EPA to construe section 

209(b)(1)(B) as calling for consideration 

of California’s need for a separate motor 

vehicle program where criteria 

pollutants are at issue and consideration 

of California’s individual standards 

where GHG standards are at issue.’’ 215

According to the commenter, ‘‘The 

Supreme Court has rejected this ‘novel 

interpretive approach’ of assigning 

different meanings to the same statutory 

text in the same provision, depending 

on the application, because it ‘would 

render every statute a chameleon.’ ’’ 216

These commenters also asked EPA to 

revert to the traditional interpretation of 

‘‘compelling and extraordinary’’ instead 

of SAFE 1’s ‘‘particularized nexus’’ 

formulation. Commenters noted the 

SAFE 1 requirement appears nowhere in 

the text of the statute.217 Because of this 

absence, they continued, EPA’s 

references to the legislative history from 

1967 have no ‘‘tether’’ to the statutory 

text and cannot justify the nexus 

requirement.218 Further, commenters 

argued that EPA’s reliance on the equal 

sovereignty doctrine improperly 

informed how EPA should interpret the 

phrase ‘‘compelling and extraordinary 

conditions’’ in the second waiver prong, 

and therefore requiring such conditions 

to be sufficiently different or unique 

among states, was inappropriate.219

Commenters argued that the equal 

sovereignty doctrine was inapplicable to 

the second waiver prong. They 

explained that the Supreme Court has 

only applied the ‘‘rarely invoked’’ 

doctrine of equal sovereignty in the 

‘‘rare instance where Congress 

undertook ‘a drastic departure from 

basic principles of federalism’ by 

authorizing ‘federal intrusion into 

sensitive areas of state and local 

policymaking.’ ’’ 220 Congress’s exercise 

of its Commerce Clause power in 

regulating air pollution from new motor 

vehicles, commenters continued, is not 

such an ‘‘intrusion.’’ Moreover, they 

wrote, applying the equal sovereignty 

doctrine in this instance would actually 

‘‘diminish most States’ sovereignty’’ 

because it would ‘‘reduce the regulatory 

options available to California and to 

other [section 177] States.’’ This 

diminished sovereignty, they argued, 

would not ‘‘enhance[e] the sovereignty 

of any State’’ or ‘‘alleviate’’ any 

unjustified burden because ‘‘Section 

209(b)(1) imposes no such burden.’’ 221


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222States and Cities at 38–39 (explaining that the 

existence of those words in the legislative history 

‘‘simply highlight that Congress did not codify 

[them] in Section 209(b)(1)(B)’’ and that plain 

meaning of ‘‘extraordinary’’ is ‘‘out of the 

ordinary’’); Twelve Public Interest Organizations 

app. 1 at 49 (‘‘Congress understood, even in 1967, 

that ‘[o]ther regions of the Nation may develop air 

pollution situations related to automobile emissions 

which will require standards different from those 

applicable nationally.’ S. Rep. No. 90–403, at 33.’’). 

223Tesla at 9. 

224 Id. (quoting 49 FR at 18887, 18891) (stating 

that EPA explained that ‘‘there is no indication in 

the language of section 209 or the legislative history 

that California’s pollution problem must be the 

worst in the country, for a waiver to be granted.’’)). 

225Twelve Public Interest Organizations app. 1 at 

49; States and Cities at 38–39. 

226States and Cities at 9–14, 30–31; Center for 

Biological Diversity, Docket No. EPA–HQ–OAR– 

2021–0257–0358 at 2 (‘‘The Trump EPA improperly 

separated California’s need for greenhouse gas 

regulations from its need for criteria pollutant 

standards. In reality, these two goals are tightly 

linked, and both are critical to the Clean Air Act’s 

goals of safeguarding public health and welfare.’’); 

San Joaquin Valley Air Pollution Control District 

(SJVAPCD), Docket No. EPA–HQ–OAR–2021–0257– 

0105 at 3 (‘‘The District’s 2016 Plan for the 2009 

9-Hour Ozone Standard adopted June 16, 2016, and 

2018 Plan for the 1997, 2006, and 2012 PM 2.5 

Standards, adopted November 15, 2018, both rely 

on emission reductions from California’s Advanced 

Clean Cars regulation and other mobile source 

measures to support the Valley’s attainment of the 

federal health-based NAAQS.’’); NCAT at 11 (‘‘In 

addition, California’s ZEV standards are intended to 

and do achieve significant incremental reductions 

of NOx and other non-GHG emissions.’’); Tesla at 

10–11 (‘‘In comments submitted to the EPA in 2009 

regarding a preemption waiver, [California] 

explained that it ‘specifically designed its GHG 

standards for criteria pollutants.’ It also emphasized 

that it has ‘frequently referenced the science to 

support GHG standards as a necessary method for 

controlling ozone and particulate matter pollution’ 

and has ‘consistently recognized that the State’s 

ability to reduce nonattainment days for ozone and 

wildfire-caused particulate matter depends on its 

ability to reduce GHG emissions. . . . EPA also has 

repeatedly expressed its own understanding that 

GHG standards should be viewed as a strategy to 

help control criteria pollutants to address National 

Ambient Air Quality Standards nonattainment.’’’); 

Twelve Public Interest Organizations at 5 (‘‘For 

example, atmospheric heating due to global 

warming can increase the production of groundlevel ozone in California, which suffers from 

extraordinary amounts of locally reacting nitrogen 

oxides and volatile organic compounds.’’). 

227Center for Biological Diversity at 2–3. In 

contrast, some commenters, echoing SAFE 1, 

argued that these upstream emission benefits 

should not be considered in determining the criteria 

pollutant benefits of these standards. CEI at 16 

(‘‘Although NHTSA and EPA are required to 

consider all relevant factors when determining 

CAFE and tailpipe CO2 standards, it is 

inappropriate to elevate stationary source criteria 

pollutant emissions into a make-or-break factor in 

waivers for mobile source programs. The Clean Air 

Act already provides the EPA with ample 

authorities to regulate stationary sources, including 

the NAAQS program, New Source Performance 

Standards program, Prevention of Significant 

Deterioration of Air Quality program, Acid Rain 

program, and Regional Haze program. If Congress 

wanted NHTSA’s CAFE program and EPA’s mobile 

source program to prioritize reductions of indirect 

stationary source emissions, it could easily have 

said so. The indirect effects on stationary source 

emissions are not even mentioned.’’). 

228Center for Biological Diversity at 3. 

229States and Cities at 28 (citing 84 FR at 51339 

(emphasis added)) (limiting section 209(b)(1)(B) 

consideration to ‘‘the case of GHG emissions.’’). 

230States and Cities at 29. The commenter notes 

that EPA never considered whether California 

needed those criteria emission reductions from its 

ZEV and GHG standards because it refused to 

consider those criteria reductions at all: ‘‘EPA 

attempted to justify disregarding record evidence 

and its own prior findings concerning the criteria 

emission benefits of these California standards by 

mischaracterizing CARB’s 2012 waiver request. . . . 

But, having chosen to sua sponte reopen the 

question whether California continues to need 

standards it has been implementing for six years, 

. . . ., EPA could not limit its consideration to what 

the standards were intended to achieve when they 

were originally designed or presented. . . . . CARB 

(and others) asserted clearly in SAFE 1 comments 

that both the GHG and ZEV standards produce 

criteria pollution benefits upon which California 

and other States rely to improve air quality.’’ Id. at 

29–30. 

231Twelve Public Interest Organizations at 9–10. 

232 Id. (citing MEMA I, 627 F.2d 1095, 1111–14 

(D.C. Cir. 1979)). 

233States and Cities at 40, 49–50; NCAT at 11 

(‘‘EPA’s argument that California does not ‘need’ 

vehicle standards that reduce GHG emissions 

because such standards alone cannot meaningfully 

reduce the impacts of climate change in California 

lacks merit. 84 FR at 51,346–47. EPA’s approach in 

SAFE 1 read requirements into the statute that 

Congress did not choose to impose: That a single 

standard be sufficient to resolve an environmental 

problem caused by multiple and diverse sources. 

Instead, need should be defined by reference to the 

underlying problem, and California’s standards are 

Continued 

Similarly, commenters rebutted SAFE 

1’s use of words like ‘‘peculiar’’ and 

‘‘unique’’ to further define ‘‘compelling 

and extraordinary.’’ These words, they 

noted, appear nowhere in the text of 

section 209(b)(1)(B) and do not align 

with the plain meaning of the word 

‘‘extraordinary.’’ 222 Further, they 

argued, this narrow interpretation 

‘‘would render the waiver provision 

unworkable’’ as, ‘‘for any given air 

pollutant, it is possible to identify other 

areas of the country that suffer from a 

similar pollution problem.’’ 223 In fact, 

they continued, this argument was 

rejected in the 1967 legislative history 

and in 1984, ‘‘when EPA thoroughly 

rebutted the assertion that California 

could not receive a waiver if individual 

pollutant levels were ‘no worse than 

some other areas of the country.’ ’’ 224

Moreover, they argued, the existence of 

section 177 necessarily acknowledges 

that other states may have the same or 

similar air pollution problems as 

California.225

Other commenters argued that 

California needed GHG standards to 

address ‘‘compelling and extraordinary’’ 

conditions in California even under the 

SAFE 1 interpretation of the second 

waiver prong. These commenters argued 

that GHG and ZEV standards produce 

both GHG and criteria pollution 

benefits, pointing to language in the 

ACC program waiver that acknowledged 

these dual benefits and to subsequent 

SIP approvals that incorporated the 

California standards in order to achieve 

criteria emission reductions.226 In 

particular, commenters explained that 

the 2012 California waiver request 

established that the ZEV standard 

would reduce criteria pollution both 

‘‘by reducing emissions associated with 

the production, transportation, and 

distribution of gasoline’’ and ‘‘by 

driving the commercialization of zeroemission-vehicle technologies necessary 

to reduce future emissions and achieve 

California’s long-term air quality 

goals.’’ 227 As for the GHG standards, 

commenters noted that, as 

acknowledged in the ACC program 

waiver, ‘‘global warming exacerbates 

criteria pollution and makes it harder to 

meet air pollution standards.’’ 228 Thus, 

they argue, ‘‘EPA expressly and 

improperly limited its Determination to 

consideration of the ‘application of 

section 209(b)(1)(B) to California’s need 

for a GHG climate program.’’ 229 Given 

EPA’s consistent acceptance that 

‘‘California’s criteria pollution 

‘conditions’ are ‘extraordinary and 

compelling’ and that the record 

demonstrates that California’s GHG and 

ZEV standards reduce criteria emissions 

in California,’’ EPA should ‘‘reverse its 

SAFE 1 section 209(b)(1)(B) 

determination and the waiver 

withdrawal that rested on it—regardless 

of whether EPA reverts to its traditional, 

program-level approach.’’ 230

Regardless of the emissions benefits of 

the standards, some commenters argued 

that California’s plan to address both 

long-term and short-term climate and 

criteria pollutant reduction goals is 

entitled to deference. Thus, even if ‘‘the 

mandate truly added nothing to the 

emission benefits of California’s 

standards for vehicular emissions of 

criteria and greenhouse gas pollutants,’’ 

commenters claimed, ‘‘the mandate 

would simply constitute the State’s 

choice of means for automakers to 

comply with its standards.’’ 231 These 

commenters further argued that section 

209(b)(1)(B) ‘‘does not authorize EPA to 

inquire into whether the means to 

comply with California emission 

standards, as opposed to the actual 

standards themselves, are needed to 

meet compelling and extraordinary 

conditions.’’ 232 Commenters also 

claimed that EPA’s argument, that 

California cannot need the GHG and 

ZEV standards because those standards 

alone would not ‘‘meaningfully address 

global air pollution problems’’ posed by 

climate change, ‘‘lacks merit’’ and ‘‘is 

illogical.’’ 233 Such an approach, they 


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one important element of the broader response.’’); 

Tesla at 8–9 (citing Massachusetts v. EPA, 549 U.S. 

497, 525–26 (2007)) (‘‘ ‘Nor is it dispositive that 

developing countries such as China and India are 

poised to increase greenhouse gas emissions 

substantially over the next century: A reduction in 

domestic emissions would slow the pace of global 

emissions increases, no matter what happens 

elsewhere.’ ’’). 

234Tesla at 8–9 (‘‘Indeed, the Supreme Court 

rejected this logic in Massachusetts v. EPA, 549 

U.S. 497 (2007), explaining: ‘‘Because of the 

enormity of the potential consequences associated 

with man-made climate change, the fact that the 

effectiveness of a remedy might be delayed during 

the (relatively short) time it takes for a new motorvehicle fleet to replace an older one is essentially 

irrelevant.’’); States and Cities at 41. 

235NESCAUM at 7. 

236 Id. 

237States and Cities at 43–48; Twelve Public 

Interest Organizations at 5; Center for Biological 

Diversity at 3; Tesla at 8–9. States and Cities at 43– 

48; Twelve Public Interest Organizations at 5–6; 

Center for Biological Diversity at 3 (‘‘California also 

experiences uniquely dangerous effects from 

increases in greenhouse gases. For example, the 

California legislature has found that global warming 

will cause adverse health impacts from increased 

air pollution and a projected doubling of 

catastrophic wildfires. Many of the state’s most 

extreme weather events have occurred in the last 

decade, including a severe drought from 2012– 

2016, an almost non-existent Sierra Nevada winter 

snowpack in 2014–2015, three of the five deadliest 

wildfires in state history, and back-to-back years of 

the warmest average temperatures on record. These 

ongoing disasters demonstrate California’s status as 

‘one of the most ‘climate-challenged’ regions of 

North America.’ ’’). 

238 Motor Vehicle Mfrs. Ass’n v. NYS Dep’t of 

Env’t Conservation, 17 F.3d 521, 525 (2d Cir. 1994). 239 49 FR at 18890. 

240 Id. at 18890 n.24. 

explained ‘‘amounts to a conclusion that 

California is forbidden from acting 

precisely because climate change is a 

global threat—when in fact the global 

aspect of this problem demonstrates the 

need for California to take action,’’ a 

conclusion, they noted, that was 

rejected by the Supreme Court in 

Massachusetts v. EPA.234 Even if there 

was some merit to the argument, one 

commenter argued, SAFE 1’s assertion 

that the regulations ‘‘would have only a 

de minimis effect on climate change 

understates the impact that collective 

action by California and the Section 177 

states can have on GHG emissions.’’ 235

The commenter noted that ‘‘[w]ith a 

total population of over 140 million 

people, these 19 jurisdictions 

collectively account for more than 42 

percent of the U.S. population . . . and 

more than 40 percent of the U.S. new 

car market.’’ 236

Finally, these commenters also argued 

that climate change and its impacts are, 

themselves, ‘‘extraordinary and 

compelling’’ conditions. They provided 

evidence of increased weather events, 

agricultural effects, and wildfires, 

amongst other impacts of climate 

change, which have already begun to 

severely affect California.237

D. Analysis: California Needs the ACC 

Program GHG Standards and ZEV Sales 

Mandate To Address Compelling and 

Extraordinary Conditions Under Section 

209(b)(1)(B) 

In this action, EPA first finds that the 

Agency should not have reinterpreted 

section 209(b)(1)(B) in evaluating 

California’s ‘‘need’’ for GHG standards 

and ZEV sales mandate requirements at 

issue. The analysis below walks through 

the statutory language and history 

associated with this provision. As part 

of this discussion, the relationship of 

this provision and California’s authority 

and deference is highlighted. The two 

interpretations of the waiver prong are 

then reviewed, presenting the Agency’s 

rationale for its findings of the 

inappropriate SAFE 1 interpretation and 

support for its conclusion about the 

better interpretation. Second, as shown 

below, the factual record before the 

Agency at the time of SAFE 1 supports 

the GHG standards and ZEV sales 

mandate requirements at issue under 

either the traditional or SAFE 1 

interpretation of section 209(b)(1)(B). 

1. EPA Is Withdrawing the SAFE 1 

Section 209(b)(1)(B) Interpretation 

Except for two short-lived exceptions 

in the context of the 2008 waiver denial 

and SAFE 1, EPA has consistently 

recognized that reading the ‘‘needs’’ test 

of the second waiver prong as calling for 

a standard-specific evaluation would be 

inconsistent with congressional intent 

given the text of section 209(b)(1) 

legislative history, as well as the way 

the different standards in the ACC 

program work together to reduce criteria 

and GHG pollution and spur innovation. 

As further explained below, all of these 

aspects lend support to the Agency 

practice of not subjecting California’s 

waiver requests to review of the specific 

standards under the second waiver 

prong, and we agree that the traditional 

interpretation of section 209(b) is, at 

least, the better interpretation. 

Under section 209(b)(1)(B), EPA must 

grant a waiver request unless the 

Agency finds that California ‘‘does not 

need such State standards to meet 

compelling and extraordinary 

conditions.’’ EPA has historically read 

the phrase ‘‘such State standards’’ in 

section 209(b)(1)(B) as referring back to 

standards ‘‘in the aggregate’’ in section 

209(b)(1), which addresses the 

protectiveness finding that California 

must make for its waiver requests. In 

addition, as EPA has explained in the 

past, reading the provision otherwise 

would conflict with Congress’s 1977 

amendment to the waiver provision to 

allow California’s standards to be ‘‘at 

least as protective’’ as the federal 

standards ‘‘in the aggregate.’’ This 

amendment must mean that some of 

California’s standards may be weaker 

than federal standards counterbalanced 

by others that are stronger. If, however, 

a waiver can only be granted if each 

standard on its own meets a compelling 

need, then California could never have 

a standard that is weaker than the 

federal standard, rendering Congress’s 

1977 amendment inoperative. Congress 

would not have created the option for 

California’s individual standards to be 

at least as protective ‘‘in the aggregate’’ 

and then taken that option away in the 

second waiver prong’s ‘‘compelling 

need’’ inquiry. 

In addition, EPA has reasoned that 

giving effect to section 209(b)(1) means 

that both subparagraph (b)(1)(B) and 

paragraph (b)(1) must be read together 

such that the Agency reviews the same 

standards that California considers in 

making its protectiveness 

determination. ‘‘§ 209 (formerly § 208) 

was amended to require the U.S. 

Environmental Protection Agency (EPA) 

to consider California’s standards as a 

package, so that California could seek a 

waiver of preemption if its standards ‘in 

the aggregate’ protected public health at 

least as well as federal standards.’’ 238

EPA has thus explained the reasoning 

for the reading of ‘‘such State 

standards’’ for instance, as follows: 

[I]f Congress had intended a review of the 

need for each individual standard under 

(b)(1)(B), it is unlikely that it would have 

used the phrase ‘‘. . . does not need such 

state standards,’’ which apparently refers 

back to the phrase ‘‘State standards . . . in 

the aggregate,’’ as used in the first sentence 

of section 209(b)(1), rather than to the 

particular standard being considered. The 

use of the plural, i.e., ‘‘standards,’’ further 

confirms that Congress did not intend EPA to 

review the need for each individual standard 

in isolation.239

EPA has also explained that ‘‘to find 

that the ‘compelling and extraordinary 

conditions’ test should apply to each 

pollutant would conflict with the 

amendment to section 209 made in 1977 

allowing California to select standards 

‘in the aggregate’ at least as protective as 

federal standards. In enacting that 

change, Congress explicitly recognized 

that California’s mix of standards could 

include some less stringent than the 

corresponding federal standards.’’ 240

This is in accord with MEMA I, where 

the D.C. Circuit explained that: 

The intent of the 1977 amendment was to 

accommodate California’s particular concern 


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241 MEMA I, 627 F.2d 1095, 1110 n.32 (D.C. Cir. 

1979). 

242 74 FR at 32761 (‘‘Congress decided in 1977 to 

allow California to promulgate individual standards 

that are not as stringent as comparable federal 

standards, as long as the standards are ‘in the 

aggregate, at least as protective of public health and 

welfare as applicable federal standards.’’’); ‘‘[T]he 

1977 amendments significantly altered the 

California waiver provision.’’ Ford Motor Co., 606 

F.2d 1293, 1302 (D.C. Cir. 1979). 

243 43 FR at 25735. 

244 It bears note that these are the same kinds of 

comments that EPA received in the context of the 

ACC program waiver proceedings on California’s 

need for GHG standards. 

245 49 FR at 18891. 

246 Id. 

247 Id. at 18890 n.25 (citing H.R. Rep. No. 95–294, 

95th Cong., 1st Sess. 302 (1977)). 

248 MEMA I, 627 F.2d at 1110 (citing H.R. Rep. 

No. 294, 95th Cong., 1st Sess. 301–02 (1977)) 

(emphasis added). Congress amended section 

209(b)(1)(A) so that California’s determination that 

its standards are as at least as protective as 

applicable Federal standards so that such 

determination may be done ‘‘in the aggregate’’ 

looking at the summation of the standards within 

the vehicle program. 

249The CAA has been a paradigmatic example of 

cooperative federalism, under which ‘‘States and 

the Federal Government [are] partners in the 

struggle against air pollution.’’ General Motors 

Corp. v. United States, 496 U.S. 530, 532 (1990). 

Motor vehicles ‘‘must be either ‘federal cars’ 

designed to meet the EPA’s standards or ‘California 

cars’ designed to meet California’s standards.’’ 

Engine Mfrs., 88 F.3d at 1079–80, 1088 (‘‘Rather 

than being faced with 51 different standards, as 

they had feared, or with only one, as they had 

sought, manufacturers must cope with two 

regulatory standards.’’). See also MEMA II, 142 F.3d 

at 463. 

250 ‘‘§ 177 . . . permitted other states to 

‘piggyback’ onto California ’s standards, if the 

state’s standards ‘are identical to the California 

standards for which a waiver has been granted for 

such model year.’’’ Motor Vehicle Mfrs. Ass’n v. 

New York State Dep’t of Envtl. Conservation, 17 

F.3d 521, 525 (2d Cir. 1994). 

251EPA believes that, to the extent the SAFE 1 

interpretation has the practical effect of defining or 

implementing the scope of section 209(b) 

differently depending on the pollutants involved, 

the interpretation is contrary to legislative intent 

and the Agency’s historic practice given the criteria 

emission benefits of CARB’s GHG emission 

Continued 

with oxides of nitrogen, which the State 

regards as a more serious threat to public 

health and welfare than carbon monoxide. 

California was eager to establish oxides of 

nitrogen standards considerably higher than 

applicable federal standards, but 

technological developments posed the 

possibility that emission control devices 

could not be constructed to meet both the 

high California oxides of nitrogen standard 

and the high federal carbon monoxide 

standard.241

EPA has further explained that the 

crucial consequence of the 1977 

Amendment was to require waiver 

grants for California’s specific standards 

that are part of the State’s overall 

approach to reducing vehicle emissions 

to address air pollution even if those 

specific standards might not be needed 

to address compelling and extraordinary 

conditions.242 For instance, EPA has 

previously granted a waiver for what 

was then described as ‘‘harmless 

emissions constituents such as 

methane’’ while reminding objectors of 

‘‘EPA’s practice to leave the decisions 

on controversial matters of public 

policy, such as whether to regulate 

methane emissions, to California.’’ 243

Similarly, in the 1984 p.m. standards 

waiver decision, EPA also discussed 

California’s ‘‘need’’ for its own 

standards at length in response to 

comments that California must have 

worse air quality problems than the rest 

of the country to qualify for a waiver.244

There, EPA explained that California 

need not ‘‘have a ‘unique’ particulate 

problem, i.e., one that is demonstrably 

worse than in the rest of the country 

[because], there is no indication in the 

language of section 209 or the legislative 

history that California’s pollution 

problem must be the worst in the 

country, for a waiver to be granted.’’ 245

Indeed, the word ‘‘unique’’ is not 

contained in the statutory provision. 

EPA further explained that ‘‘even if it 

were true that California’s total 

suspended particulate problem is, as 

certain manufacturers argue, no worse 

than some other areas of the country, 

this does not mean that diesel 

particulates do not pose a special 

problem in California.’’ 246

As explained at length earlier, EPA 

believes Congress intended the Agency 

to grant substantial deference to 

California on its choice of standards that 

are appropriate to meet its needs. EPA 

has explained that ‘‘Congress has made 

it abundantly clear that the 

manufacturers would face a heavy 

burden in attempting to show 

‘compelling and extraordinary 

conditions’ no longer exist: The 

Administrator, thus, is not to overturn 

California’s judgment lightly. Nor is he 

to substitute his judgment for that of the 

State. There must be ‘‘clear and 

compelling evidence that the State acted 

unreasonably in evaluating the relative 

risks of various pollutants in light of the 

air quality, topography, photochemistry, 

and climate in that State, before EPA 

may deny a waiver.’’ 247 Likewise, the 

House Committee Report explained for 

instance that ‘‘[t]he [1977] amendment 

is intended to ratify and strengthen the 

California waiver provision and to 

affirm the underlying intent of that 

provision, i.e., to afford California the 

broadest possible discretion in selecting 

the best means to protect the health of 

its citizens and the public welfare.’’ 248

EPA’s past practice prior to SAFE 1, 

except for one instance, was consistent 

with this deferential stance. 

In enacting section 209(b)(1), 

Congress struck a deliberate balance 

first in 1967 when it acknowledged 

California’s serious air quality problems 

as well as its role as a laboratory for 

emissions control technology for the 

country,249 and again, in the 1977 

Amendments that allowed for California 

to seek and obtain waivers for standards 

that are less stringent than the federal 

standards (by amending section 

209(b)(1)(A)) and also added section 177 

to acknowledge that states may have air 

quality problems similar to California’s 

by allowing states, subject to certain 

conditions, to adopt California’s new 

motor vehicle standards once waived by 

EPA.250 These provisions struck a 

balance between having only one 

national standard and having 51 

different state standards by settling on 

two standards—a federal one and a 

California one that other states may also 

adopt. Since 1967, in various 

amendments to section 209, Congress 

has also not disturbed this reading of 

section 209(b)(1)(B) as calling for the 

review of the standards as a whole 

program. Likewise, Congress has also 

not placed any additional constraints on 

California’s ability to obtain waivers 

beyond those now contained in section 

209(b)(1). The Agency has thus viewed 

the text, legislative history, and 

structure of section 209(b)(1) as support 

for the program-level review of waiver 

requests as well for the conclusion that 

California’s air quality need not be 

worse than the rest of the country for 

EPA to grant a waiver of preemption. In 

addition, to the extent that SAFE 1 was 

intended to preclude California’s 

regulation of all greenhouse gases from 

light-duty vehicles, the SAFE 1 

interpretation creates a structural 

conflict within the relevant CAA 

provisions and could also create an 

inability for California to address GHG 

emissions and its contribution to the 

serious air quality problems within the 

State. There is a fundamental 

relationship between sections 209(a) 

and 209(b). Section 209(a) preempts 

states from adopting or enforcing new 

motor vehicle emission standards, and 

section 209(b) calls for EPA to waive 

that preemption for California vehicular 

emission standards unless EPA finds 

that one or more of the waiver criteria 

set out therein are not met. Nothing on 

the face of the CAA or applicable 

legislative history indicates that the 

scope of section 209(b)—the pollutants 

for which California may obtain a 

waiver—is more limited than the scope 

of section 209(a).251 The D.C. Circuit has 


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standards and ZEV sales requirements as well as the 

impacts of climate change on California’s local and 

regional air quality. 

252 MEMA I, 627 F.2d 1095, 1106–08 (D.C. Cir. 

1979). 

253 42 U.S.C. 13212(f)(3). 

254 Id. 

255 42 U.S.C. 7586(f)(4). 

256 78 FR at 2145. 

257 84 FR 51340, 51347. 

258Shelby County v. Holder, 570 U.S. 529, 535, 

545 (2013). 

259 Id. 

260 In the 2009 GHG waiver, and again in the 2013 

ACC program waiver, EPA explained that the 

traditional approach does not make section 

209(b)(1)(B) a nullity, as EPA must still determine 

whether California does not need its motor vehicle 

program to meet compelling and extraordinary 

conditions as discussed in the legislative history. 

Conditions in California may one day improve such 

that it may no longer have a need for its motor 

vehicle program, or a program designed for a 

particular type of air pollution problem, if the 

underlying specific air pollutant is no longer at 

issue. 

261EPA had applied the traditional interpretation 

of the second waiver prong prior to the 1977 

Amendments. 

262See H.R. Rep. No. 294, 95th Cong., 1st Sess. 

302 (1977); ‘‘In further amendments to the Act in 

1977, § 209 (formerly § 208) was amended to require 

the U.S. Environmental Protection Agency (EPA) to 

consider California’s standards as a package, so that 

California could seek a waiver from preemption if 

its standards ‘in the aggregate’ protected public 

health at least as well as federal standards.’’ Motor 

Vehicle Mfrs. Ass’n v. NYS Dep’t of Env’t 

Conservation, 17 F.3d at 525. 

263 49 FR at 18890 n.24. 

already held as much as to section 

209(a): ‘‘whatever is preempted [by 

section 209(a)] is subject to waiver 

under subsection (b).’’ 252 As 

demonstrated by EPA’s review of the 

record in this decision, California’s GHG 

emission standards at issue meet the 

SAFE 1 interpretation of the second 

waiver prong. Nevertheless, to the 

extent that SAFE 1 was intended to 

preclude all California regulation of 

greenhouse gases, EPA believes it 

improper to exclude entirely a pollutant 

from a waiver under section 209(b) that 

is otherwise preempted by section 

209(a). 

In addition, Congress has cited 

California’s GHG standards and ZEV 

sales mandate in subsequent legislation. 

Federal procurement regulations direct 

the EPA to issue guidance identifying 

the makes and models numbers of 

vehicles that are low GHG emitting 

vehicles.253 In a clear reference to 

California’s motor vehicle GHG 

standards, Congress has required EPA 

when identifying those vehicles to ‘‘take 

into account the most stringent 

standards for vehicle greenhouse gas 

emissions applicable to and enforceable 

against motor vehicle manufacturers for 

vehicles sold anywhere in the United 

States.’’ 254 And in its State 

Implementation Plan provision 

regarding fleet programs required for 

certain non-attainment areas relating to 

issuing credits for cleaner vehicles, 

Congress stated that the ‘‘standards 

established by the Administrator under 

this paragraph . . . shall conform as 

closely as possible to standards which 

are established for the State of California 

for ULEV and ZEV vehicles in the same 

class.255 Congress would not likely have 

adopted California’s standards into its 

own legislation if it believed those 

standards to be preempted. 

EPA also disagrees with SAFE 1’s 

related argument that the statutory 

criteria must be interpreted in the 

context of the constitutional doctrine of 

‘‘equal sovereignty.’’ As explained in 

detail in Section VIII, waiver requests 

should be reviewed based solely on the 

criteria in section 209(b)(1) and the 

Agency should not consider 

constitutional issues in evaluating 

waiver requests.256 The constitutionality 

of section 209 is not one of the three 

statutory criteria for reviewing waiver 

requests. However, because the Agency 

asserted in SAFE 1 that the equal 

sovereignty doctrine formed a gloss on 

its statutory interpretation of the three 

criteria, EPA addresses that argument 

here briefly. In short, in SAFE 1, EPA 

stated that because section 209(b)(1) 

provides ‘‘extraordinary treatment’’ to 

California, the second waiver prong 

should be interpreted to require a ‘‘statespecific’’ and ‘‘particularized’’ pollution 

problem.257 But section 177’s grant of 

authority to other states to adopt 

California’s standards undermines the 

notion that the regulatory scheme treats 

California in an extraordinary manner. 

Indeed, if section 209(b) is interpreted 

to limit the types of air pollution that 

California may regulate, it would 

diminish the sovereignty of California 

and the states that adopt California’s 

standards pursuant to section 177 

without enhancing any other state’s 

sovereignty. Nor does section 209(b) 

impose any burden on any state. For 

these reasons, EPA agrees with 

commenters who argued that the 

Supreme Court’s decision in Shelby 

County is inapposite. In section 209(b), 

Congress did not authorize ‘‘federal 

intrusion into sensitive areas of state 

and local policymaking.’’ 258 Rather, it 

underscored a foundational principle of 

federalism—allowing California to be a 

laboratory for innovation. Nor is section 

209(b) an ‘‘extraordinary departure from 

the traditional course of relations 

between the States and the Federal 

Government.’’ 259 To the contrary, it is 

just one of many laws Congress passes 

that treat States differently, and where, 

as discussed more fully below, Congress 

struck a reasonable balance between 

authorizing one standard and 

authorizing 51 standards in deciding to 

authorize two. SAFE 1’s invocation of 

the rarely used equal sovereignty 

principle as an aid in interpreting the 

second waiver prong simply does not fit 

section 209. 

SAFE 1 dismissed the Agency’s 

traditional interpretation of the second 

waiver prong under which EPA reviews 

the same standards that California 

considers in making its protectiveness 

determination, asserting that the 

practical implications of reviewing 

standards in the ‘‘aggregate’’ compared 

to specific standards presented in a 

waiver request meant that the Agency 

would never have the discretion to 

determine that California did not need 

any subsequent standards. But nothing 

in section 209(b)(1)(B) can be read as 

calling for scrutinizing the specific 

California standards under the 

waiver.260 Under section 209(b)(1)(B), 

EPA is to grant a waiver unless 

California does not need ‘‘such State 

standards’’ (plural). EPA interprets 

section 209(b)(1)(B) to refer back to the 

phrase ‘‘in the aggregate’’ in section 

209(b)(1), which was added in the 1977 

CAA Amendments when Congress 

removed the stringency requirements for 

waiver of California standards allowing 

instead for standards that are not as 

stringent as comparable federal 

standards, so long as the standards were 

‘‘in the aggregate, at least as protective 

of public health and welfare as 

applicable Federal standards.’’ EPA 

believes that referring back to section 

209(b)(1) is appropriate given that it 

precedes the language prior to section 

209(b)(1)(B) and is in accord with the 

deference Congress intended by the 

1977 Amendments.261 Conversely, EPA 

believes that under the SAFE 1 

interpretation California would, of 

necessity, be required to make a 

protectiveness finding for each of the 

specific standards, and the Agency 

believes this would be an inappropriate 

outcome from SAFE 1. Under the 1977 

Amendments, California can ‘‘include 

some less stringent [standards] than the 

corresponding federal standards.’’ 262 As 

previously explained, ‘‘Congress could 

not have given this flexibility to 

California and simultaneously assigned 

to the state the seemingly impossible 

task of establishing that ‘extraordinary 

and compelling conditions’ exist for 

each standard.’’ 263

SAFE 1 further argued that its 

interpretation read the use of ‘‘such 

standards’’ consistently between the 

second and third waiver prongs, 


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264Section 209(b)(1)(C) provides that no such 

waiver shall be granted if the Administrator finds 

that ‘‘such State standards and accompanying 

enforcement procedures are not consistent with 

section 7521(a) [202(a)] of this title.’’ 

265For example, in the 2013 ACC waiver that 

contains CARB’s LEV III criteria pollutant standards 

and GHG emission standards, as well as the ZEV 

sales mandate, EPA assessed information submitted 

by CARB regarding the technological feasibility, 

lead time available to meet the requirements, and 

the cost of compliance and the technical and 

resource challenges manufacturers face in 

complying with the requirements to simultaneously 

reduce criteria and GHG emissions. 78 FR at 2131. 

266 84 FR at 51345. EPA notes that in SAFE 1 the 

following rationale was used to interpret both 

209(b)(1)(C) and then connect it with 209(b)(1)(B): 

‘‘[B]ecause both sections 209(b)(1)(B) and (C) 

employ the term ‘such state standards,’ it is 

appropriate for EPA to read the term consistently 

between prongs (B) and (C). Under section 

209(b)(1)(C), EPA conducts review of standards 

California has submitted to EPA for the grant of a 

waiver to determine if they are consistent with 

section 202(a). It follows then that EPA must read 

‘such state standards’ in section 209(b)(1)(B) as a 

reference to the same standards in subsection (C).’’ 

Although the Agency has not pointed to 

209(b)(1)(C) as a basis of statutory construction to 

support the traditional interpretation of 

209(b)(1)(B), EPA nevertheless believes it is 

supportive. EPA notes that the term ‘‘such state 

standards’’ in 209(b)(1)(C) allows the Agency, in 

appropriate circumstances, to review the 

consistency of CARB’s suite of standards, for a 

particular vehicle category, with section 202(a). For 

example, EPA evaluated all of the standards (LEV 

III criteria pollutant, ZEV sales mandate, and GHG 

standards) of the ACC program in recognition of the 

aggregate costs and lead time associated with 

CARB’s standards as well as technologies that may 

be employed to meet more than one standard. 78 

FR 2131–45. EPA’s assessment under 209(b)(1)(C) is 

not in practice a standard-by-standard review. EPA 

believes it appropriate to read the entirety of 209 

together, along with its purposes, in order to 

properly interpret its components such as 

209(b)(1)(B). 

267 74 FR at 32763–65; 76 FR at 34693; 79 FR at 

46256; 81 FR at 95982. 

268SAFE 1 also relied on UARG v. EPA, 134 S. 

Ct. 2427 (2014), where the Supreme Court disagreed 

with the Agency’s decision to regulate all sources 

of GHG under Titles I and V as the consequence of 

the Agency’s section 202(a) endangerment finding 

for motor vehicle GHG emissions. In EPA’s view 

upon reconsideration of SAFE 1, UARG is 

distinguishable because here the Agency is acting 

under a specific exemption to section 202(a) that 

allows for California to set its own standards for 

motor vehicle GHG standards under California state 

law, and thus, regulate major sources of GHG 

emissions within the State. California’s authority to 

promulgate standards is neither contingent nor 

dependent on the Agency’s section 202(a) 

endangerment finding for GHG. See 74 FR at 

32778–80; 79 FR at 46262. Moreover, as discussed 

above, EPA’s waiver authority under section 209(b) 

is coextensive with preemption under section 

209(a). See MEMA I, 627 F.2d at 1107. UARG is 

inapplicable to the scope of preemption under 

section 209(a). 

269 84 FR at 51341. 

270 Id. at 51337. 

271The first HD GHG emissions standard waiver 

related to certain new 2011 and subsequent model 

year tractor-trailers. 79 FR 46256 (August 7, 2014). 

The second HD GHG emissions standard waiver 

related to CARB’s ‘‘Phase I’’ regulation for 2014 and 

subsequent model year tractor-trailers. 81 FR 95982 

(December 29, 2016). 

272See States and Cities at 24 (quoting Clark v. 

Martinez, 543 U.S. 371, 382 (2005) and citing U.S. 

v. Santos, 553 U.S. 507, 522 (2008); U.S. Dep’t of 

the Treasury v. FLRA, 739 F.3d 13, 21 (D.C. Cir. 

2014)). The commenter notes that in the SAFE 1 

brief, EPA claimed that its new approach to section 

209(b)(1)(B) would apply ‘‘for all types of air 

pollutants’’ but EPA could point to nowhere in 

SAFE 1 decision where this was said. Id. at 25. And 

‘‘only two sentences later,’’ EPA acknowledged that 

its review under this second prong would change 

‘‘depending upon which ‘air quality concerns’ were 

implicated.’’ Id. 

273H.R. Rep. No. 294, 95th Cong., 1st Sess. 302 

(1977); 49 FR at 18890 n.24. 

274CAA section 209(b)(1)(B) (emphasis added). 

275Section 211(c)(4)(C) allows EPA to waive 

preemption of a state fuel program respecting a fuel 

characteristic or component that EPA regulates 

through a demonstration that the state fuel program 

is necessary to achieve a NAAQS. 

276 49 FR at 18890. 

277 Id. at 18890 n.24. 

sections 209(b)(1)(B) and (C).264 It is 

true that section 209(b)(1)(C) employs 

the same phrase ‘‘such State standards’’ 

as employed in section 209(b)(1)(B), and 

it similarly uses that phrase to refer to 

standards in the aggregate. Indeed, 

section 209(b)(1)(C) involves an analysis 

of feasibility that can take more than the 

feasibility and impacts of the new 

standards into account. The feasibility 

assessment conducted for a new waiver 

request focuses on the standards in that 

request but builds on the previous 

feasibility assessments made for the 

standards already in the program and 

assesses any new feasibility risks 

created by the interaction between the 

standards in the petition and the 

existing standards.265

In sum, EPA now views as 

inconsistent with congressional intent 

the SAFE 1 interpretation, which was a 

flawed interpretation and also a 

significant departure from the 

traditional interpretation under which 

the Agency reviews California’s need for 

the same standards as those that the 

State determines are ‘‘in the aggregate’’ 

as protective of public health and 

welfare, under section 209(b)(1).266 EPA 

believes the traditional interpretation is, 

at least, the better reading of the statute. 

As previously explained, in reviewing 

waiver requests EPA has applied the 

traditional interpretation in the same 

way for all air pollutants, criteria and 

GHG pollutants alike.267 In SAFE 1, 

however, EPA reinterpreted section 

209(b)(1)(B) and further set out a 

particularized nexus test and applied 

this test separately to GHG standards at 

issue. SAFE 1 then concluded that no 

nexus exists for GHG emissions in 

California.268 SAFE 1 further posited 

that California must demonstrate 

‘‘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.’’ 269 This has resulted in 

potentially different practical results 

depending on whether GHG standards 

or criteria emission pollutants are at 

issue, a distinction neither found in nor 

supported by the text of section 

209(b)(1)(B) and legislative history. 

Specifically, SAFE 1 would have the 

ACC program MYs 2017–2025 criteria 

pollutants standards subject to review 

under the traditional interpretation 

while GHG standards at issue would be 

subject to review under the SAFE 1 

particularized nexus test or 

individualized scrutiny.270 This uneven 

application is even more irreconcilable 

given that California’s motor vehicle 

emission program includes two GHG 

standards for highway heavy-duty 

vehicles that EPA previously reviewed 

under the traditional approach.271 EPA 

acknowledges that ascribing different 

meanings to the same statutory text in 

the same provision here, depending on 

its application, ‘‘would render every 

statute a chameleon.’’ 272 Nothing in 

either section 209 or the relevant 

legislative history can be read as calling 

for a distinction between criteria 

pollutants and GHG standards and thus, 

the individualized scrutiny under the 

SAFE 1 particularized nexus test.273

Nothing in section 209(b) can be read as 

calling for EPA to waive preemption 

only if California seeks to enforce 

criteria pollutant standards. The 

Administrator is required to waive the 

preemption in section 209(a) unless 

California ‘‘does not need such State 

standards to meet compelling and 

extraordinary conditions.’’ 274 This is in 

stark contrast to, for example, section 

211(c)(4)(C), which calls for a waiver of 

preemption only if a state demonstrates 

that a fuel program is ‘‘necessary’’ to 

achieve the NAAQS.275 Moreover, as 

previously noted, ‘‘[I]f Congress had 

intended a review of the need for each 

individual standard under (b)(1)(B), it is 

unlikely that it would have used the 

phrase ‘‘. . . does not need such state 

standards’’ (emphasis in original), 

which apparently refers back to the 

phrase ‘‘State standards . . . in the 

aggregate as used in the first sentence of 

section 209(b)(1), rather than the 

particular standard being 

considered.’’ 276 EPA has also explained 

that an individualized review of 

standards would mean that Congress 

‘‘g[ave] flexibility to California and 

simultaneously assigned to the state the 

seemingly impossible tasks of 

establishing that ‘extraordinary and 

compelling conditions’ exist for each 

less stringent standard.’’ 277


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278 Id. at 18891. 

279 Ford Motor Co., v. EPA, 606 F.2d 1293, 1302 

(D.C. Cir. 1979). 

280 74 FR at 32761 (‘‘Congress decided in 1977 to 

allow California to promulgate individual standards 

that are not as stringent as comparable federal 

standards, as long as the standards are ‘in the 

aggregate, at least as protective of public health and 

welfare as applicable federal standards.’ ’’); ‘‘[T]he 

1977 amendments significantly altered the 

California waiver provision.’’ Ford Motor Co., 606 

F.2d 1293, 1302 (D.C. Cir. 1979). 

281 49 FR at 18891. 

282 43 FR at 25735. 

283 Motor Vehicle Mfrs. Ass’n v. NYS Dep’t of 

Env’t Conservation, 17 F.3d 521, 526, 528 (2d Cir. 

1994). 

284 79 FR 46256 (August 7, 2014); 81 FR 95982 

(December 29, 2016). 285 84 FR at 51341 n.263. ‘‘EPA determines in this 

document that GHG emissions, with regard to the 

lack of a nexus between their State-specific sources 

and their State specific impacts, and California’s 

GHG standard program, are sufficiently distinct 

from criteria pollutants and traditional, criteria 

pollutant standards, that it is appropriate for EPA 

to consider whether California needs its own GHG 

vehicle emissions program. EPA does not determine 

in this document and does not need to determine 

today how this determination may affect 

subsequent reviews of waiver applications with 

regard to criteria pollutant control programs.’’ 

(Emphasis added). See also id. at 51344 n.268 

(‘‘EPA is adopting an interpretation of CAA section 

209(b)(1)(B), specifically its provision that no 

waiver is appropriate if California does not need 

standards ‘‘to meet compelling and extraordinary 

conditions,’’ similar to the interpretation that it 

adopted in the 2008 waiver denial but abandoned 

in the 2009 and 2013 waiver grants, and applying 

that interpretation to determine to withdraw the 

January 2013 waiver for California’s GHG and ZEV 

program for model years 2021 through 2025’’), and 

at 51346 (‘‘EPA therefore views this interpretation 

and application of CAA section 209(b)(1)(B) set 

forth here as, at minimum, a reasonable one that 

gives appropriate meaning and effect to this 

provision.’’). 

286As noted previously, in the context of 

evaluating the ‘‘need’’ for California’s motor vehicle 

emission standards the Agency is informed by the 

legislative history from 1967 and 1977, whereby 

California is properly viewed as a laboratory for the 

country and that its policy decisions on how best 

to address its serious air quality issues, and that 

deference on the question of ‘‘need’’ is in order. 

Therefore, EPA believes it misapplied the concept 

of deference in the context of the second waiver 

prong application in SAFE 1. See e.g., 84 FR at 

51344 n.268. While EPA believes it appropriate to 

not defer when it is interpreting its own statute, the 

Agency nevertheless determines that California’s 

policy choices in term of its ‘‘need’’ in how best to 

address compelling and extraordinary conditions in 

California requires deference by the Agency. This 

is consistent with EPA’s longstanding waiver 

practice and its integration of the legislative history 

behind section 209. In any event, EPA would reach 

the same conclusions regarding the second waiver 

prong even if it did not defer to California regarding 

the nature of its air quality problems. 86 FR at 

74489 (‘‘The 2009 Endangerment Finding further 

explained that compared with a future without 

climate change, climate change is expected to 

increase tropospheric ozone pollution over broad 

areas of the U.S., including in the largest 

metropolitan areas with the worst tropospheric 

ozone problems, and thereby increase the risk of 

adverse effects on public health (74 FR 66525).’’). 

See also 86 FR at 74492. 

287 ‘‘The interpretation that my inquiry under 

(b)(1)(B) goes to California’s need for its own mobile 

source program is borne out not only by the 

legislative history, but by the plain meaning of the 

statue as well.’’ 49 FR at 18890. 

288EPA notes that by this action it is rescinding 

the interpretation of section 209(b)(1)(B) as set forth 

in SAFE 1. Nevertheless, EPA believes it 

appropriate to address comments received that 

suggest the SAFE 1 interpretation was not only 

Similarly, nothing in either section 

209 or legislative history can be read as 

requiring EPA to grant GHG standards 

waiver requests only if California’s GHG 

pollution problem is the worst in the 

country.278 ‘‘There is no indication in 

either the statute or the legislative 

history that . . . the Administrator is 

supposed to determine whether 

California’s standards are in fact 

sagacious and beneficial.’’ 279 And most 

certainly, nothing in either section 209 

or the legislative history can be read as 

calling for EPA to draw a comparison 

between California’s GHG pollution 

problem and the rest of the country (or 

world) when reviewing California’s 

need for GHG standards. Instead, the 

crucial consequence of the 1977 

Amendment was to require waiver 

grants for California’s specific standards 

that are part of the State’s overall 

approach to reducing vehicle emissions 

to address air pollution even if those 

specific standards might not be needed 

to address compelling and extraordinary 

conditions.280 Thus, ‘‘even if it were 

true that California’s [GHG] problem is, 

. . . no worse than some other areas of 

the country, this does not mean that 

[GHG] do not pose a special problem in 

California.’’ 281 Rather, ‘‘EPA’s practice 

[is] to leave the decisions on 

controversial matters of public policy, 

such as whether to regulate [GHG] 

emissions, to California.’’ 282

In addition, in Title II, Congress 

established only two programs for 

control of emissions from new motor 

vehicles: EPA emission standards 

adopted under the Clean Air Act and 

California emission standards adopted 

under its state law. And states other 

than California may not ‘‘tak[e] any 

action that has the effect of creating a 

car different from those produced to 

meet either federal or California 

emission standards, a so-called ‘third 

vehicle.’ ’’ 283

As previously explained, and noted in 

the Notice of Reconsideration, since the 

grant of the initial GHG waiver request 

in 2009, the Agency has applied the 

traditional interpretation in granting 

two additional waivers for CARB’s 

Heavy-Duty Vehicle GHG emission 

standards and these GHG standards are 

now part of California’s motor vehicle 

program, but EPA did not address these 

waivers in SAFE 1.284 It also bears note 

that, given the limited analysis and 

application of the SAFE 1 interpretation 

of the second waiver prong, it is 

uncertain whether the traditional 

interpretation remains otherwise 

applicable to earlier model year GHG 

standards under prior waivers. 

Ambiguity also applies to SAFE 1’s 

interpretation of this prong in respect to 

all criteria pollutant standards in the 

ACC program. While SAFE 1 stated it 

was only applicable to the GHG 

standards at issue, in at least one 

instance the Agency indicated that the 

SAFE 1 interpretation could also be 

applicable to future evaluation of waiver 

requests for criteria pollutant 

standards.285 This uncertainty between 

these statements in SAFE 1 further 

highlights the inappropriateness of the 

new interpretation of the second prong. 

In sum, for the reasons noted above, 

EPA is withdrawing the SAFE 1 

interpretation and reinstating certain 

aspects of the ACC program waiver that 

were earlier granted under the 

traditional interpretation and approach. 

EPA concludes it erred by not properly 

evaluating the statutory interpretation of 

section 209, the associated legislative 

history including the policy deference 

that should be afforded to California to 

address its serious air quality problems 

and to serve as a laboratory for the 

country, and because the ‘‘need’’ for a 

motor vehicle emission program and 

related standards within the program 

are necessarily better viewed as a 

comprehensive and interrelated effort to 

address the range of air quality 

problems facing California.286 At the 

same time, EPA notes that the 

traditional interpretation is reasonable 

and consistent with the text, structure 

and congressional intent and purpose of 

section 209(b) and EPA is thus 

confirming that the traditional 

interpretation of section 209(b)(1)(B) 

was appropriate and is, at least, the 

better interpretation.287

2. California Needs the GHG Standards 

and ZEV Sales Mandate Even Under the 

SAFE 1 Interpretation 

Even if the SAFE 1 interpretation of 

section 209(b)(1)(B) was appropriate, the 

record of both the ACC program waiver 

and SAFE 1 proceeding demonstrate 

that California has a need for the GHG 

standards and ZEV sales mandate at 

issue under the SAFE 1 interpretation as 

well. The opponents of the waiver 

(including EPA in SAFE 1) did not met 

their burden of proof to demonstrate 

that California does not need its GHG 

emission standards and ZEV sales 

mandate, whether individually or as 

part of California’s motor vehicle 

emission program, to meet compelling 

and extraordinary conditions.288


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correct, but that the factual record supported the 

SAFE 1 withdrawal of the ACC waiver based on this 

interpretation. 

289See Ford Motor Co., v. EPA, 606 F.2d 1293, 

1296–97 (D.C. Cir. 1979); See H.R. Rep. No. 294, 

95th Cong., 1st Sess. 302 (1977). 

290 43 FR 25729, 25735 (June 14, 1978). See Ford 

Motor Co., 606 F.2d at 1296–97. 

291 40 FR at 23104. See also LEV I (58 FR 4166 

(January 13, 1993)) Decision Document at 64. 

292 78 FR at 2128–29. See ‘‘Our Changing Climate 

2012 Vulnerability & Adaptation to the Increasing 

Risks from Climate Change in California.’’ 

Publication # CEC–500–2012– 007. Posted: July 31, 

2012; available at https://ucanr.edu/sites/Jackson_

Lab/files/155618.pdf at 4 (‘‘Higher temperatures 

also increase ground-level ozone levels. 

Furthermore, wildfires can increase particulate air 

pollution in the major air basins of California. 

Together, these consequences of climate change 

could offset air quality improvements that have 

successfully reduced dangerous ozone 

concentrations. Given this ‘‘climate penalty,’’ as it 

is commonly called, air quality improvement efforts 

in many of California’s air basins will need to be 

strengthened as temperatures increase in order to 

reach existing air quality goals.’’). 

293CAA section 209(b)(1)(B) (emphasis added). 

294 In SAFE 1, EPA found that California’s criteria 

pollution conditions remain ‘‘compelling and 

extraordinary and that California needs standards to 

produce any and all reductions in criteria pollutant 

emissions.’’ 84 FR at 51344, 51346. 

295When California originally adopted a ZEV 

sales mandate into its regulations, a significant 

factor in support of its action was addressing 

criteria pollutant emissions. In SAFE 1 EPA 

acknowledged that California’s ZEV mandate 

initially targeted only criteria pollution. 84 FR at 

51329. EPA’s 2013 waiver grant recognized that 

with California’s ACC program California had 

shifted to relying on the ZEV requirements to 

reduce both criteria and GHG pollution. 78 FR at 

2114. 

296 In response to comments arguing that 

upstream emission benefits should not be 

considered in determining the criteria pollutant 

benefits of CARB’ standards or that it is 

inappropriate to elevate stationary source criteria 

pollutant emissions into a make-or-break factor in 

waivers for motor vehicle emission programs, EPA 

believes it appropriate to reiterate the air quality 

problems facing California, as evidenced by 

NAAQS attainment challenges. Waiver practice and 

applicable case law, as previously noted, afford 

California wide deference in its policy and 

regulatory approaches in addressing these 

challenges. Therefore, EPA believes that to the 

degree a nexus between CARB’s standards and 

addressing its serious air quality problems is 

required, that it is reasonable to base the need on 

related criteria emission impacts. EPA notes that, in 

setting its federal light-duty vehicle GHG standards, 

it is afforded discretion under the CAA to consider 

upstream emission impacts and does include such 

consideration in its own rulemakings. 77 FR 62624, 

62819 (October 15, 2012) (taking fuel related 

upstream GHG emissions into account in setting 

compliance values for vehicle GHG emissions 

standards). 

As previously explained, the 1977 

CAA Amendments allow California to 

promulgate standards that might not be 

considered needed to meet compelling 

and extraordinary circumstances but 

would nevertheless be part of 

California’s overall approach of 

reducing vehicle emissions to address 

air pollution in California.289 Thus, 

CARB may now design motor vehicle 

emission standards, individually, that 

might sometimes not be as stringent as 

federal standards but collectively with 

other standards would be best suited for 

California air quality problems because 

under the 1977 Amendments, California 

can ‘‘include some less stringent 

[standards] than the corresponding 

federal standards.’’ 290 And EPA is 

‘‘required to give very substantial 

deference to California’s judgments on 

this score.’’ 291

Indeed, as EPA noted in the ACC 

program waiver, Congress intentionally 

provided California the broadest 

possible discretion in adopting the kind 

of standards in its motor vehicle 

program that California determines are 

appropriate to address air pollution 

problems that exist in California, 

whether or not those problems are only 

local or regional in nature, and to 

protect the health and welfare of its 

citizens: 

Congress did not intend this criterion to 

limit California’s discretion to a certain 

category of air pollution problems, to the 

exclusion of others. In this context it is 

important to note that air pollution problems, 

including local or regional air pollution 

problems, do not occur in isolation. Ozone 

and PM air pollution, traditionally seen as 

local or regional air pollution problems, 

occur in a context that to some extent can 

involve long range transport of this air 

pollution or its precursors. This long range or 

global aspect of ozone and PM can have an 

impact on local or regional levels, as part of 

the background in which the local or regional 

air pollution problem occurs.292

In the context of implementing 

section 209(b)(1)(B) and assessing the 

‘‘need’’ for California’s standards even 

under the SAFE 1 interpretation, EPA 

sees no reason to distinguish between 

‘‘local or regional’’ air pollutants versus 

other pollutants that may be more 

globally mixed. Rather, it is appropriate 

to acknowledge that all pollutants and 

their effects may play a role in creating 

air pollution problems in California and 

that EPA should provide deference to 

California in its comprehensive policy 

choices for addressing them. Again, 

even if a new interpretation of section 

209(b)(1)(B) were appropriate in SAFE 

1, and EPA believes it is not, it is 

important to note that historically, 

criteria pollutant reductions have been 

relevant to section 209(b)(1)(B). As 

previously noted, nothing in section 

209(b) can be read as calling for EPA to 

waive preemption only if California 

seeks to enforce criteria pollutant 

standards. The Administrator is 

required to waive the preemption in 

section 209(a) unless California ‘‘does 

not need such State standards to meet 

compelling and extraordinary 

conditions.’’ 293 As also previously 

noted this is in stark contrast to, for 

example, section 211(c)(4)(C), which 

calls for a waiver of preemption only if 

a state demonstrates that a fuel program 

will result in criteria pollutant 

reductions that will enable achievement 

of applicable NAAQS. 

The first section below focuses on 

criteria pollution reduction, which has 

long been relevant to section 

209(b)(1)(B). EPA has never put in doubt 

that California’s serious criteria air 

pollution problems (such as NAAQS 

nonattainment and the factors that give 

rise to those conditions, including the 

geographic and climate conditions in 

the State, the number of motor vehicles 

in California, and local and regional air 

quality) are ‘‘compelling and 

extraordinary,’’ or that California 

‘‘needs’’ regulations that address such 

emissions in order to achieve every 

fraction of criteria pollutant emissions it 

can achieve.294 The factual record 

before the Agency in 2013 and again in 

2019 includes ample documentation of 

criteria emission reductions from 

California’s GHG standards and ZEV 

sales mandate.295 Nothing in the record 

is sufficient to demonstrate that 

California does not need the ACC 

program (or the motor vehicle emission 

program) or, in the context of the SAFE 

1 interpretation, the specific GHG 

emission standards and the ZEV sales 

mandate to meet compelling needs 

related to criteria pollution. These 

benefits have a clear connection to 

California’s ‘‘need’’ for its specific GHG 

standards and ZEV sales mandate, at 

issue under the waiver. The second 

section below focuses on the GHG 

reduction benefits of California’s GHG 

standards and ZEV sales mandate. EPA 

acknowledges that California is 

particularly impacted by climate 

change, including increasing risks from 

record-setting fires, heat waves, storm 

surges, sea-level rise, water supply 

shortages and extreme heat, and that 

climate-change impacts in California are 

therefore ‘‘compelling and extraordinary 

conditions’’ for which California needs 

the GHG standards and ZEV sales 

mandate. 

a. GHG Standards and ZEV Sales 

Mandates Have Criteria Emission 

Benefits 

As shown below, criteria pollutant 

reductions are demonstrably connected 

to California’s ‘‘need’’ for its GHG 

standards and ZEV sales mandate at 

issue under the waiver.296 EPA first 

concluded that there is a ‘‘logical link 

between the local air pollution problem 


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297 74 FR at 32763. According to California, 

‘‘California’s high ozone levels–clearly a condition 

Congress considered–will be exacerbated by higher 

temperatures from global warming . . . [T]here is 

general consensus that temperature increases from 

climate change will exacerbate the historic climate, 

topography, and population factors conducive to 

smog formation in California, which were the 

driving forces behind Congress’s inclusion of the 

waiver provision in the Clean Air Act.’’ Id. (quoting 

comments submitted by CARB during the 2009 

reconsideration). CARB also explained that ‘‘the 

factors that cause ozone are primarily local in 

nature and [ ] ozone is a local or regional air 

pollution problem, the impacts of global climate 

change can nevertheless exacerbate this local air 

pollution problem. Whether or not local conditions 

are the primary cause of elevated concentrations of 

greenhouse gases and climate change, California has 

made a case that its greenhouse gas standards are 

linked to amelioration of California’s smog 

problems . . . . There is a logical link between the 

local air pollution problem of ozone and 

California’s desire to reduce GHGs as one way to 

address the adverse impact that climate change may 

have on local ozone conditions.’’ Id. 

298 79 FR at 46261. See also 81 FR at 95985–86 

n.27 (referencing Resolution 13–50’s statements 

supporting California’s continued need for its own 

motor vehicle program in order to meet serious 

ongoing pollution problems). 

299 84 FR at 51337 n.252 (citing 79 FR at 46256, 

46257 n.15, 46261, 46262 n.75). 

300ZEV ISOR, EPA–HQ–OAR–2012–0562–0008 

at 72; CARB Supplemental Comments, EPA–HQ– 

OAR–2012–0562–0373 at 3. 

301 74 FR at 2122. 

302 Id. at 2125. 

303 84 FR at 51337. 

304 Id. at 51337, 51330, 51337, 51353–54, 51356, 

51358. 

305 2012 Waiver Request at 15–16. CARB also 

noted that criteria and PM emission benefits will 

vary by region throughout the State depending on 

the location of emission sources. Refinery emission 

reductions will occur primarily in the east Bay Area 

and South Coast region where existing refinery 

facilities operate. As refinery operations reduce 

production and emissions, the input and output 

activities, such as truck and ship deliveries, will 

also decline. This includes crude oil imported 

through the Los Angeles and Oakland ports, as well 

as pipeline and local gasoline truck distribution 

statewide. EPA again notes that in its light-duty 

vehicle GHG rulemaking in 2012 it also noted the 

upstream emission impacts. 77 FR at 62819. 

306 ‘‘The establishment of greenhouse gas 

emission standards will result in a reduction in 

upstream emissions (emission due to the 

production and transportation of the fuel used by 

the vehicle) of greenhouse gas, criteria and toxic 

pollutants due to reduced fuel usage.’’ EPA–HQ– 

OAR–2006–0173–0010.107 at 8. 

307CARB, EPA–HQ–OAR–2012–0562–0371. 

CARB estimated benefits of the ZEV and GHG 

standards for calendar years by which the South 

Coast air basin must meeting increasingly stringent 

NAAQS for ozone: 2023, 2031, and 2037. States and 

Cities app. A at 2–4, app. C at 8–9. 

of ozone and GHGs’’ in the 2009 

California GHG waiver by explaining, 

for instance, that ‘‘the impacts of global 

climate change can nevertheless 

exacerbate this local air pollution 

problem.’’ 297 Moreover, as previously 

explained, in two additional GHG 

waiver requests and associated EPA 

waiver decisions since the 2009 GHG 

waiver, EPA acknowledged that CARB 

had demonstrated the need for GHG 

standards to address criteria pollutant 

concentrations in California. In the 2014 

HD GHG waiver request, CARB 

projected, for example, ‘‘reductions in 

NOX emissions of 3.1 tons per day in 

2014 and one ton per day in 2020’’ in 

California.298

In SAFE 1, EPA distinguished prior 

GHG waivers from the ACC program 

GHG waiver solely on grounds of how 

CARB attributed the pollution benefits 

in its waiver request. EPA explained 

that CARB had linked those prior 

waived GHG standards to criteria 

pollutant benefits but had not done so 

in the ACC program waiver request: 

‘‘California’s approach in its ACC 

program waiver request differed from 

the state’s approach in its waiver 

request for MY 2011 and subsequent 

heavy-duty tractor-trailer GHG 

standards, where California quantified 

NOX emissions reductions attributed to 

GHG standards and explained that they 

would contribute to PM and ozone 

NAAQS attainment.’’ 299 Moreover, how 

CARB attributes the pollution 

reductions for accounting purposes from 

its various standards does not reflect the 

reality of how the standards deliver 

emissions reductions and should not 

drive whether or not a waiver can be 

withdrawn. EPA believes, based on its 

historical deference to CARB in waiver 

proceedings, that CARB is entitled to 

this discretion. 

EPA also believes that prior waiver 

decisions indicate that the ‘‘approach’’ 

taken by California in its waiver 

requests needs to be carefully assessed 

and understood by the Agency before 

discounting the benefits of its mobile 

source emission standards. The 

characterization of CARB’s ‘‘approach,’’ 

as not calling out criteria emissions 

benefits (such as upstream criteria 

emission benefits) of GHG standards, 

was incorrect and should not have 

undermined EPA’s findings and grant of 

the initial ACC program waiver request 

for the following reasons: (1) As 

previously noted, the ACC program 

standards are interrelated and all serve 

to reduce both criteria and GHG 

pollution; (2) CARB conducted a 

combined emissions analysis of the 

elements of the ACC program because 

the program was designed to work as an 

integrated whole; and (3) EPA has 

always considered California’s 

standards as a whole or ‘‘in the 

aggregate’’ under the traditional 

interpretation of section 209(b)(1)(B).300

EPA noted the associated criteria 

pollutant and GHG emissions benefits 

for the whole ACC program: ‘‘the ACC 

program will result in reductions of 

both criteria pollutants and GHG 

emissions that, in the aggregate, are 

more protective than the pre-existing 

federal standards.’’ 301 EPA also made 

the requisite finding that California’s 

protectiveness finding for the ACC 

program was not arbitrary and 

capricious, under section 209(b)(1)(A), 

by explaining that ‘‘California’s ZEV 

and GHG emission standards are an 

addition to its LEV program.’’ 302

In SAFE 1, EPA further asserted that 

‘‘California’s responses to the SAFE 

proposal do not rebut the Agency’s 

views that the ZEV standards for MY 

2021–2025 are inextricably 

interconnected with the design and 

purpose of California’s overall GHG 

reduction strategy.’’ 303 For the 

following reasons, however, EPA was 

also incorrect in the assessment of 

criteria emission benefits of CARB’s 

ZEV sales mandate. EPA focused on 

only the following snippet from one 

salient paragraph in CARB’s 2012 

waiver request as support for the lack of 

criteria emissions benefits: ‘‘There is no 

criteria emissions benefit from 

including the ZEV proposal in terms of 

vehicle (tank-to-wheel or TTW) 

emissions. The LEV III criteria pollutant 

fleet standard is responsible for those 

emission reductions in the fleet; the 

fleet would become cleaner regardless of 

the ZEV regulation because 

manufacturers would adjust their 

compliance response to the standard by 

making less polluting conventional 

vehicles.’’ 304 But, as discussed above, 

that was merely an attribution of 

benefits and did not reflect the practical 

reality of how California’s standards 

work. Moreover, the paragraph in its 

entirety goes on to explain that CARB’s 

ZEV sales mandate would achieve 

criteria emission reductions: ‘‘However, 

since upstream criteria and PM 

emissions are not captured in the LEV 

III criteria pollutant standard, net 

upstream emissions are reduced through 

the increased use of electricity and 

concomitant reductions in fuel 

production.’’ 305

It bears note that this attribution of 

criteria pollutant reductions was similar 

to the one that CARB made almost a 

decade ago for the 2009 GHG waiver 

request.306 For example, CARB provided 

‘‘extensive evidence of its current and 

serious air quality problems and the 

increasingly stringent health-based air 

quality standards and federally required 

state planning efforts to meet those 

standards firmly.’’ 307 The States and 

Cities also commented that ‘‘the 

attribution CARB made as part of its 

waiver request was never intended to, 

and did not, establish the absence of any 


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308States and Cities at 31 (original emphasis). 

309 74 FR at 32748. See also 78 FR at 2115. 

310 71 FR 78190 (December 28, 2006); 75 FR 

11878 (March 12, 2010) and 76 FR 61095 (October 

3, 2011). 

311See 2012 Waiver Request at 2. At the 

December 2009 hearing, the Board adopted 

Resolution 09–66, reaffirming its commitment to 

meeting California’s long term air quality and 

climate change reduction goals through 

commercialization of ZEV technologies. The Board 

further directed staff to consider shifting the focus 

of the ZEV regulation to both GHG and criteria 

pollutant emission reductions, commercializing 

ZEVs and PHEVs in order to meet the 2050 goals, 

and to take into consideration the new LEV fleet 

standards and propose revisions to the ZEV 

regulation accordingly. 

312 49 FR at 18890 (citing legislative history). 

313 2012 Waiver Request at 1. 

314CARB supplemental comment at EPA–HQ– 

OAR–2012–0562–0371. CARB notes that EPA’s 

reasoning that the ‘‘compelling and extraordinary 

conditions’’ criteria should be viewed as a 

‘‘program as a whole’’ was upheld as ‘‘eminently 

reasonable’’ in ATA v. EPA, 600 F.3d 624, 627–29 

(D.C. Cir. 2010), and that the ACC program 

appropriately integrates the passenger vehicle 

program to address multiple pollutant types, which 

also reflects the intent of Congress in 1977 to 

broaden California’s discretion to adjust its program 

as needed (Ford Motor Co. v. EPA, 606 F.2d at 

1294). This comment extensively lays out the 

compelling and extraordinary conditions associated 

with California’s air quality challenges and the need 

to reduce criteria emissions and greenhouse gas 

emissions associated with CARB’s ZEV sale 

mandate and GHG standards. Id. at 5 (‘‘The critical 

nature of the LEV III regulation is also highlighted 

in the recent effort to take a coordinated look at 

strategies to meet California’s multiple air quality 

and climate goals well into the future. This 

coordinated planning effort, Vision for Clean Air: A 

Framework for Air Quality and Climate Planning 

(Vision for Clean Air) demonstrates the magnitude 

of the technology and energy transformation needed 

from the transportation sector and associated energy 

production to meet federal standards and the goals 

set forth by California’s climate change 

requirements.’’). 

315 78 FR at 2129 (‘‘To the extent that it is 

appropriate to examine the need for CARB’s GHG 

standards to meet compelling and extraordinary 

conditions, as EPA discussed at length in its 2009 

GHG waiver decision, California does have 

compelling and extraordinary conditions directly 

related to regulations of GHG. EPA’s prior GHG 

waiver contained extensive discussion regarding 

the impacts of climate change in California. In 

addition, CARB has submitted additional evidence 

in comment on the ACC waiver request that 

evidences sufficiently different circumstances in 

California. CARB notes that ‘Record-setting fires, 

deadly heat waves, destructive storm surges, loss of 

winter snowpack—California has experienced all of 

these in the past decade and will experience more 

in the coming decades. California’s climate—much 

of what makes the state so unique and prosperous— 

is already changing, and those changes will only 

accelerate and intensify in the future. Extreme 

weather will be increasingly common as a result of 

climate change. In California, extreme events such 

as floods, heat waves, droughts and severe storms 

will increase in frequency and intensity. Many of 

these extreme events have the potential to 

dramatically affect human health and well-being, 

critical infrastructure and natural systems.’’) (‘‘Our 

Changing Climate 2012 Vulnerability & Adaptation 

to the Increasing Risks from Climate Change in 

California. Publication # CEC–500–2012– 007. 

Posted: July 31, 2012; available at http://

www.climatechange.ca.gov/adaptation/thirdassessment’’). EPA also noted that ‘‘the better 

interpretation of the text and legislative history of 

this provision is that Congress did not intend this 

criterion to limit California’s discretion to a certain 

category of air pollution problems, to the exclusion 

of others. In this context it is important to note that 

air pollution problems, including local or regional 

air pollution problems, do not occur in isolation. 

Ozone and PM air pollution, traditionally seen as 

local or regional air pollution problems, occur in a 

context that to some extent can involve long range 

transport of this air pollution or its precursors. This 

long-range or global aspect of ozone and PM can 

have an impact on local or regional levels, as part 

of the background in which the local or regional air 

pollution problem occurs.’’ 78 FR at 2128. 

vehicular emission benefits from the 

ZEV standard.’’ EPA believes that 

CARB’s statement was merely a 

‘‘simplification that distinguished the 

standards based on the primary 

objectives of the two, complementary 

standards.’’ 308 EPA agrees that the 

record from 2013, and 2019, 

demonstrates that CARB’s attribution of 

short-term emissions benefits did not 

undercut the long-term vehicular 

emission benefits of the ZEV standards. 

Thus, regardless of how the emissions 

reductions are attributed, the GHG 

standards and ZEV sales mandate drive 

reductions in criteria pollution. 

EPA has also consistently explained 

that ‘‘consideration of all the evidence 

submitted concerning a waiver decision 

is circumscribed by its relevance to 

those questions . . . consider[ed] under 

section 209(b).’’ 309 And so, as earlier 

noted, any reconsideration of a prior 

waiver decision must comport with 

criteria in section 209(b)(1) as well as 

have record support. Moreover, in prior 

waiver requests for ZEV sales mandate 

requirements, CARB has discussed 

criteria pollutant emissions reductions 

because of the mandate for sale of 

vehicles that have zero emissions.310

CARB’s 2012 waiver request also 

indicated the clear intent regarding the 

evolution of the ZEV program and 

California’s decision to focus both on 

criteria pollutant and GHG 

reductions.311 EPA’s reading of and 

reliance on the snippet from CARB’s 

waiver request describing the ZEV sales 

mandate requirements in the ACC 

program was both incorrect and 

improper, as well as contrary to 

congressional intent and EPA’s historic 

practice of affording broad discretion to 

California in selecting the best means 

for addressing the health and welfare of 

its citizens. 

b. California Needs Its Standards To 

Address the Impacts of Climate Change 

in California 

Under section 209(b)(1)(B), EPA is to 

grant a waiver request unless California 

does not need the standards at issue to 

address ‘‘compelling and extraordinary 

conditions.’’ In applying the traditional 

approach, EPA has consistently 

reasoned that ‘‘compelling and 

extraordinary conditions’’ refers 

primarily to the factors that tend to 

produce higher levels of pollution in 

California—geographical and climatic 

conditions (like thermal inversions) 

that, when combined with large 

numbers and high concentrations of 

automobiles, create serious air pollution 

problems.312 These conditions continue 

to exist in California and CARB, since 

the initial 2009 GHG waiver, has 

consistently drawn attention to the 

existential crisis that California faces 

from climate change and maintained 

that air quality issues associated with 

GHG emissions have exacerbated this 

crisis and have yet to attenuate.313

EPA now recognizes that CARB, as 

part of its original waiver request and in 

comments in response to SAFE 1, 

submitted ample evidence of multiple 

ways California is particularly impacted 

by climate change, including increasing 

risks from record-setting fires, heat 

waves, storm surges, sea-level rise, 

water supply shortages and extreme 

heat; in other words that GHG emissions 

contribute to local air pollution, and 

that climate-change impacts in 

California are ‘‘compelling and 

extraordinary conditions.’’ For example, 

CARB noted that ‘‘[r]ecord-setting fires, 

deadly heat waves, destructive storm 

surges, loss of winter snowpack— 

California has experienced all of these 

in the past decade and will experience 

more in the coming decades. 

California’s climate—much of what 

makes the State so unique and 

prosperous—is already changing, and 

those changes will only accelerate and 

intensify in the future. Extreme weather 

will be increasingly common as a result 

of climate change. In California, extreme 

events such as floods, heat waves, 

droughts and severe storms will 

increase in frequency and intensity. 

Many of these extreme events have the 

potential to dramatically affect human 

health and well-being, critical 

infrastructure and natural systems.’’ 314

Within the ACC waiver request, CARB 

provided a summary report on the third 

assessment from the California Climate 

Change Center (2012), which described 

dramatic sea level rises and increases in 

temperatures in California and 

associated impacts on local air quality 

and other conditions in California.315

To the extent that SAFE 1 relied on 

the premise that GHG emissions from 

motor vehicles located in California 

become globally-mixed as part of global 

climate change, and therefore do not 

pose a local air quality issue (placing 

aside the impacts of heat on ozone as 


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316CARB comment at EPA–HQ–OAR–2018– 

0283–5054 at 305–06 (California’s Fourth Climate 

Assessment; https://www.energy.ca.gov/sites/ 

default/files/2019-12/Governance_External_

Ekstrom_ada.pdf). 

317See, for example, reports from California’s 

Fourth Climate Change Assessment, ‘‘California 

Mussels as Bio-indicators of Ocean Acidification,’’ 

available at https://www.energy.ca.gov/sites/ 

default/files/2019-12/Oceans_CCCA4-CNRA-2018- 

003_ada.pdf (‘‘Because of the coupling between 

natural (upwelling-driven) and anthropogenic (CO2 

emission-driven) processes, California waters are 

already experiencing declines in pH that are not 

expected in other areas of the world’s oceans for 

decades (Feely et al. 2008; Chan et al. 2017). These 

perturbations to seawater chemistry join others 

associated with changing seawater temperatures 

(Garcı ́a-Reyes and Largier 2010) and reductions in 

ocean oxygenation (Bograd et al. 2008; Chan et al. 

2008). Therefore, marine communities along the 

coast of California are increasingly subjected to a 

suite of concurrent environmental stressors. 

Substantial impetus exists to understand, quantify, 

and project biological and ecological consequences 

of these stressors, which current work suggests may 

be pervasive and diverse (Kroeker et al. 2010, 2013; 

Gaylord et al. 2015).’’). Further, evidence in the 

record from a 2019 study demonstrated that locally 

enhanced carbon dioxide concentrations above 

Monterey Bay, California, fluctuate by time of day 

likely because of the magnitude of nearby urban 

carbon dioxide pollution and the effects of 

topography on offshore winds, and that this 

fluctuation increases the expected rate of 

acidification of the Bay. See Northcott, et al., 

Impacts of urban carbon dioxide emissions on seaair flux and ocean acidification in nearshore 

waters, PLoS ONE (2019). For decades, the monthly 

average carbon dioxide concentrations off 

California’s coast have been consistently higher and 

more variable than those at Mauna Loa (which are 

commonly used as the global measurements). In 

fact, another more recent study shows that the 

waters of the California Current Ecosystem, off the 

coast of Southern California, have already acidified 

more than twice as much as the global average. E.g., 

Cal. Office of Environmental Health Hazard 

Assessment, Atmospheric Greenhouse Gas 

Concentrations (Feb. 11, 2019). 

318 78 FR at 2139. 

319 Id. at 2135. 

320 Id. at 2122. 

321 84 FR at 51349. 

322See, e.g., 74 FR at 32766 (‘‘As noted by the 

Supreme Court in Massachusetts v. EPA, while it 

is true that regulating motor vehicle GHG emissions 

will not by itself reverse global warming, a 

reduction in domestic automobile emissions would 

slow the pace of global emissions increase no 

matter what happens with regard to other 

emissions.’’). 

323See Alabama Power Co. v. Costle, 636 F.2d 

323, 360–66, n.89 (D.C. Cir. 1979). 

324 74 FR at 32766 (‘‘Under this approach, there 

is no need to delve into the extent to which the 

GHG standards at issue here would address climate 

change or ozone problems. That is an issue 

appropriately left to California’s judgment. . . . 

Given the comments submitted, however, EPA has 

also considered an alternative interpretation, which 

would evaluate whether the program or standards 

has a rational relationship to contributing to 

amelioration of the air pollution problems in 

California. Even under this approach, EPA’s inquiry 

would end there. California’s policy judgment that 

an incremental, directional improvement will occur 

and is worth pursuing is entitled, in EPA’s 

judgment, to great deference.’’). 

325 Massachusetts v. EPA, 549 U.S. 497, 524 

(2007). 

326 78 FR at 2134. 

327 49 FR at 18891. 

328 78 FR at 2122 (citing EPA–HQ–OAR–2012– 

0562–0374 at 3). CARB also noted that ‘‘to the 

extent a manufacturer chooses not to exercise their 

National Program compliance option in California 

this would actually provide additional GHG 

benefits in California, so compliance in California 

can never yield fewer cumulative greenhouse gas 

reductions from the industry wide fleet certified in 

California.’’ Id. at 2122 n.61. 

well as air quality impacts from the 

dramatic increase in wildfires), EPA 

notes that in addition to the record from 

the ACC waiver proceeding noted 

above, the SAFE 1 record contains 

sufficient and unrefuted evidence that 

there can be locally elevated carbon 

dioxide concentrations resulting from 

nearby carbon dioxide emissions.316

This can have local impacts on, for 

instance, the extent of ocean 

acidification.317 Thus, like criteria 

pollution, emissions of GHGs can lead 

to locally elevated concentrations with 

local impacts, in addition to the longerterm global impacts resulting from 

global increases in GHG concentrations. 

Finally, in demonstrating the need for 

GHG standards at issue, CARB 

attributed GHG emissions reductions to 

vehicles in California. For instance, 

‘‘CARB project[ed] that the standards 

will reduce car CO2 emissions by 

approximately 4.9%/year, reduce truck 

CO2 emissions by approximately 4.1%/ 

year (the truck CO2 standard target 

curves move downward at 

approximately 3.5%/year through the 

2016–2021 period and about 5%/year 

from 2021–2025), and reduce combined 

light-duty CO2 emissions by 

approximately 4.5%/year from 2016 

through 2025.’’ 318 CARB also projected 

that its GHG emissions standards for 

MYs 2017–2025 will reduce fleet 

average CO2 levels by about 34 percent 

from MY 2016 levels of 251 g/mile 

down to about 166 g/mile, based on the 

projected mix of vehicles sold in 

California.’’ 319 CARB further noted that 

there might be a GHG emission deficit 

if only the Federal GHG standards were 

implemented in California.320 The GHG 

emissions from California cars, 

therefore, are particularly relevant to 

both California’s air pollution problems 

and GHG standards at issue. 

In SAFE 1, EPA dismissed California’s 

‘‘need’’ for the GHG standards at issue 

because their impact on GHG emissions 

would be too small to ‘‘meaningfully 

address global air pollution problems of 

the sort associated with GHG 

emissions’’: ‘‘[T]he most stringent 

regulatory alternative considered in the 

2012 final rule and [Final Regulatory 

Impact Analysis] . . . , which would 

have required a seven percent average 

annual fleetwide increase in fuel 

economy for MYs 2017–2025 compared 

to MY 2016 standards, was forecast to 

decrease global temperatures by only 

0.02 °C in 2100.’’ 321 EPA also received 

similar comments in response to the 

Notice of Reconsideration. But since the 

inception of the waiver program, EPA 

has never applied a test to determine 

whether a California waiver request 

under 209(b)(1) would independently 

solve a pollution problem. EPA has 

never applied a de minimis exemption 

authority to California waiver request 

under section 209(b)(1).322 EPA believes 

there is no basis for exercise of such a 

test under section 209(b), considering 

that CARB continues to maintain that 

emissions reductions in California are 

essential for meeting the NAAQS.323

EPA has reiterated that ‘‘California’s 

policy judgment that an incremental, 

directional improvement will occur and 

is worth pursuing is entitled, in EPA’s 

judgment, to great deference.’’ 324 As the 

Supreme Court has recognized, 

‘‘[a]gencies, like legislatures, do not 

generally resolve massive problems in 

one fell regulatory swoop. . . They 

instead whittle away at them over time, 

refining their preferred approach as 

circumstances change and as they 

develop a more nuanced understanding 

of how best to proceed.’’ 325 And so, in 

the ACC program waiver decision, EPA 

also explained that ‘‘[t]he issue of 

whether a proposed California 

requirement is likely to result in only 

marginal improvement in air quality not 

commensurate with its cost or is 

otherwise an arguably unwise exercise 

of regulatory power is not legally 

pertinent to my decision under section 

209.’’ 326

Further, nothing in either section 209 

or the legislative history could be read 

as requiring EPA to grant GHG 

standards waiver requests only if 

California’s GHG pollution problem is 

the worst in the country.327 CARB 

further demonstrated a ‘‘need’’ for its 

GHG standards by projecting GHG 

emissions reductions deficits from 

implementation of only the Federal 

GHG program in California. ‘‘[I]f a 

National Program standard was 

theoretically applied only to California 

new vehicle sales alone, it might create 

a GHG deficit of roughly two million 

tons compared to the California 

standards.’’ 328

3. California’s ZEV Sales Mandate as 

Motor Vehicle Control Technology 

Development 

Congress also envisioned that 

California’s other role under section 

209(b) would be an innovative 

laboratory for motor vehicle emission 


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329 MEMA I, 627 F.2d 1095, 1111 (D.C. Cir. 1979). 

330 Ford Motor Co., v. EPA, 606 F.2d 1293, 1297 

(D.C. Cir. 1979). 

331S. Rep. No. 90–403, at 33 (1967). 

332 Id. 

333 74 FR at 32763. 

334 78 FR at 2123, 2130–31. 

335 84 FR at 51343 (‘‘[I]n a statute designed to 

address public health and welfare, it certainly 

cannot mean standards that allow a state to be ‘‘a 

laboratory for innovation’’ in the abstract, without 

any connection to a need to address pollution 

problems.’’). 

336The Agency again notes that, unlike 

provisions of the CAA such as section 211(c)(4)(C) 

which allows EPA to waive preemption of a state 

fuel program respecting a fuel characteristic or 

component that EPA regulates through a 

demonstration that the state fuel program is 

necessary to achieve a NAAQS, section 209(b) 

makes no mention of NAAQS pollutants or 

otherwise indicates that air pollutants should be 

treated differently. 

337For example, CARB’s ISOR for its ZEV 

standards identifies at Table 6.2 the well to wheel 

emission benefits of the ZEV program compared to 

the LEV III program. ZEV ISOR, EPA–HQ–OAR– 

2012–0562–0008 at 78. See also 2012 Waiver 

Request at 16. CARB noted in its comments on the 

SAFE proposal that ‘‘Rising temperatures 

exacerbate California’s ozone problem by increasing 

ground-level ozone concentrations.’’ CARB, EPA– 

HQ–OAR–2018–0283–5054 at 371–72 (citing the 

2012 Waiver Request). In addition, ‘‘Several studies 

indicate that a warming climate is expected to 

exacerbate surface ozone in California’s two major 

air basins: South Coast Air Basin and San Joaquin 

Valley. Id. at 372 (citing Jacob & Winner. Effect of 

Climate Change on Air Quality, 43:1 ATMOS. 

ENVIRON. 51 (Jan. 2009); Wu, et al., Effects of 

2000–2050 Global Change on Ozone Air Quality in 

the United States, 113, D06302, J. GEOPHYS. RES.- 

ATMOS. (Mar. 19, 2008), available at https://

doi.org/10.1029/2007JD008917; Rasmussen, et al., 

The Ozone-climate Penalty: Past, Present, and 

Future, 47:24 ENVTL. SCI. & TECH. 14258 (Dec. 17, 

2013), available at https://www.ncbi.nlm.nih.gov/ 

pmc/articles/PMC3990462/). 

338 84 FR at 51339–40. 

339 Ford Motor Co. v. EPA, 606 F.2d 1293, 1300 

(D.C. Cir. 1979). 

340 MEMA II, 142 F.3d 449, 453 (D.C. Cir. 1998). 

341See 84 FR at 51344 n.269. 

standards and control technology. 

California is to serve as ‘‘a kind of 

laboratory for innovation’’ 329 and to 

‘‘blaze its own trail with a minimum of 

federal oversight.330 California’s 

‘‘unique [air pollution] problems and 

[its] pioneering efforts justif[ied] a 

waiver of the preemption section.’’ 331

Congress stressed that California should 

serve the Nation as a ‘‘testing area’’ for 

more protective standards.’’ 332 In the 

2009 GHG waiver, for example, EPA 

explained that ‘‘the basic nature of the 

compromise established by Congress [is 

that] California could act as the 

laboratory for the nation with respect to 

motor vehicle emission control, and 

manufacturers would continue to face 

just two sets of emissions standards— 

California’s and EPA’s.’’ 333 California’s 

ZEV sales mandates have so far 

supported development of technologies 

such as battery electric and fuel cell 

vehicles that embody the pioneering 

efforts Congress envisaged. EPA 

acknowledged this important role in the 

ACC program waiver by explaining that 

California needs the ZEV sales mandate 

requirement to ensure the development 

and commercialization of technology 

required for the future, deeper vehicular 

emission reductions California will have 

to attain to meet its NAAQS obligations 

as well as achieve other long-term 

emission goals of new vehicle sales 

between 2040 and 2050.334 In SAFE 1, 

however, EPA did not consider this 

additional role carved out in section 

209(b)(1) for California as a proven 

ground for motor vehicle control 

emissions technology.335

In sum, while nothing in section 209 

or the legislative history limits EPA’s 

waiver authority to standards that 

reduce criteria pollution,336 analyses in 

this section again recognize the way the 

different requirements in the ACC 

program work together to reduce criteria 

and GHG pollution and spur 

technological innovation. These 

analyses conclude that GHG pollution 

exacerbates tropospheric ozone 

pollution, worsening California’s air 

quality problems, and the manner in 

which GHG and criteria pollutant 

standards work together to reduce both 

forms of pollution. Ample record 

support exists on California’s need for 

both GHG standards and ZEV sales 

mandate at issue to address compelling 

and extraordinary conditions in 

California. As noted above, in SAFE 1 

EPA, however, relied on an excerpt of 

the ACC program waiver record to 

determine the lack of criteria emission 

benefits of GHG emission standards and 

ZEV sales mandate at issue. In doing so, 

EPA did not evaluate the complete 

record from the ACC waiver proceeding 

and the nature of California’s air quality 

problem, including the relationship of 

climate change to California’s ability to 

achieve the ozone NAAQS in the 

assessment of California’s need for these 

requirements.337

As noted above, in SAFE 1, EPA 

established a new test under section 

209, requiring a particularized, local 

nexus between (1) pollutant emissions 

from sources, (2) air pollution, and (3) 

resulting impact on health and welfare, 

a test that would exclude GHG pollution 

from the scope of the waiver.338 But this 

test is found nowhere in the text of 

section 209— the statute does not 

contain this requirement, or even use 

these terms. 

EPA’s review of the complete record 

confirms the Agency’s conclusions in 

the ACC program waiver that California 

needs the GHG standards at issue to 

meet a compelling and extraordinary 

conditions regardless of whether the 

Agency focuses on criteria or 

greenhouse gas pollution reduction. 

This review also indicates that 

opponents of the waiver (including EPA 

in SAFE 1) did not meet the burden of 

proof necessary to demonstrate that 

California did not have a need for the 

GHG standards, including under the 

nexus test applied in SAFE 1. It also 

bears note that EPA’s longstanding 

practice, based on the statutory text, 

legislative history, and precedent calls 

for deference to California in its 

approach to addressing the 

interconnected nature of air pollution 

within the state and is not limited to 

criteria pollutant problems. Critically, 

EPA is not to engage in ‘‘probing 

substantive review’’ of waiver 

requests,339 but rather ‘‘afford California 

the broadest possible discretion in 

selecting the best means to protect the 

health of its citizens and the public 

welfare.’’ 340

E. Conclusion 

Considering the text, legislative 

history, and precedent that support the 

Agency’s historical practice of 

interpreting section 209(b)(1)(B) as 

calling for a program-level evaluation of 

waiver requests, as well as the 

uncertainty in settled expectations 

created by the SAFE 1 interpretation, 

EPA rescinds its actions in SAFE 1 

regarding both the interpretation of 

section 209(b)(1)(B) and the findings 

regarding California’s need for the GHG 

standards and ZEV sales mandate. EPA 

believes that the burden of proof had 

not been met in SAFE 1, based on the 

complete factual record, to demonstrate 

that California did not have a need for 

the GHG standards and ZEV sales 

mandate under the SAFE 1 

interpretation of the second waiver 

prong nor had the burden been met to 

support a finding that the ample 

evidence in the record at the time of the 

ACC waiver decision did not 

demonstrate that California had a need 

for its standards to meet compelling and 

extraordinary conditions. As noted 

above, the result of the recission of the 

SAFE 1 action is the reinstatement of 

the ACC program waiver. EPA confirms 

the traditional interpretation of section 

209(b)(1)(B) was appropriate and 

continues to be, at least, a better 

interpretation regardless of the recission 

of the SAFE 1 interpretation of this 

criterion.341


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342 49 U.S.C. 32919(a) (‘‘When an average fuel 

economy standard prescribed under this chapter is 

in effect, a State or a political subdivision of a State 

may not adopt or enforce a law or regulation related 

to fuel economy standards or average fuel economy 

standards for automobiles covered by an average 

fuel economy standard under this chapter.’’). 

NHTSA noted that a law or regulation having the 

direct or substantial effect of regulating or 

prohibiting tailpipe carbon dioxide emissions from 

automobiles or automobile fuel economy is a law 

or regulation related to fuel economy standards and 

expressly preempted under 49 U.S.C. 32919(a). 84 

FR at 51317–18. NHTSA’s rule was codified at 49 

CFR 531.7 (‘‘Preemption’’) and 533.7 

(‘‘Preemption’’), as well as each Appendix B in 49 

CFR part 531 (‘‘APPENDIX B TO PART 531— 

PREEMPTION’’) and Part 533 (‘‘APPENDIX B TO 

PART 533—PREEMPTION’’). 

343 84 FR at 51338. 

344See, e.g., 43 FR at 32184 (rejecting objections 

to the procedures at state level, objections that 

section 207(c)(3)(A) establishes field protection, and 

constitutional objections all as beyond the 

‘‘narrow’’ scope of the Administrator’s review); 74 

FR at 32783 (rejecting comments asking for the 

consideration of EPCA because it is not one of the 

three statutorily prescribed criteria); 78 FR at 2145 

(again rejecting comments asking for the 

consideration of EPCA because it is outside the 

statutory criteria); 79 FR at 46265 (rejecting the 

argument that the HD GHG Regulations 

‘‘impermissibly regulate fuel economy’’ because, 

like the commerce clause and Federal Aviation 

Administration Authorization Act of 1994 (FAAAA) 

issues, this issue is ‘‘outside the proper scope of 

review since it is not among the criteria listed under 

section 209(b).’’). 

345 78 FR at 2112, 2115; 40 FR at 23103–04; 58 

FR 4166. 

346H.R. Rep. No. 90–728, 90th Cong., 1st Sess. 21 

(1967); S. Rep. No. 403, 90th Cong., 1st Sess. 33 

(1967) (‘‘The waiver of preemption is for 

California’s ‘unique problems and pioneering 

efforts.’ ’’). 

347 MEMA I, 627 F.2d 1095, 1111 (D.C. Cir. 1979); 

113 Cong. Rec. 30950, 32478 (Statement of Sen. 

Murphy) (‘‘The United States as a whole will 

benefit by allowing California to continue setting its 

own more advanced standards for control of motor 

vehicle emissions. . . [The] State will act as a 

testing agent for various types of controls and the 

country as a whole will be the beneficiary of this 

research.’’). 

VI. EPA Inappropriately Considered 

Preemption Under the Energy Policy 

and Conservation Act (EPCA) in Its 

Waiver Decision 

SAFE 1’s other justification for 

withdrawing the ACC program waiver 

was that California’s GHG standards and 

ZEV sales mandate were preempted 

under EPCA. As explained in detail in 

Section IV, EPA believes this basis for 

reconsideration was outside the 

appropriate bounds of EPA’s authority 

to reconsider previously granted 

waivers. In particular, if EPA could 

reconsider and withdraw a waiver based 

on a factor not contained in the 

specified criteria for denial in section 

209(b)(1), EPA could circumvent the 

specified criteria for denial via 

reconsideration of previously granted 

waiver. 

Even if it were appropriate for EPA to 

reconsider a previously granted waiver 

based on non-statutory factors, in this 

action, EPA concludes that it was 

inappropriate to rely on preemption 

under EPCA as a basis for withdrawing 

certain aspects of the ACC program 

waiver. In SAFE 1, a joint action 

between NHTSA and EPA, NHTSA 

concluded that state or local regulations 

of tailpipe carbon dioxide emissions are 

‘‘related to fuel economy standards’’ and 

are therefore preempted under EPCA.342

As a direct result of NHTSA’s codified 

text and pronouncements on 

preemption set forth in SAFE 1, EPA 

withdrew the ACC program waiver for 

California’s GHG standards and ZEV 

sales mandate on grounds that they 

were preempted under EPCA. In SAFE 

1, EPA believed it was appropriate to 

consider the effect of NHTSA’s actions, 

including the view that California 

cannot enforce standards that are void 

ab initio, and thus EPA stated that ‘‘to 

the extent that administrative action is 

necessary on EPA’s part to reflect that 

state of affairs, EPA hereby withdraws 

that prior grant of a waiver on this 

basis.’’ 343 NHTSA has since issued a 

new final rule that formally repeals the 

codified text and pronouncements 

regarding preemption under EPCA 

found in SAFE 1. Upon reconsideration, 

EPA now believes that, given NHTSA’s 

repeal of its regulation and 

pronouncements in SAFE 1, preemption 

under EPCA cannot serve as a basis for 

the withdrawal of the ACC program 

waiver as it did in SAFE 1—if it could 

ever legitimately serve as such basis. 

EPA thus believes it is appropriate to 

rescind the portion of the waiver 

withdrawal that was based on 

preemption under EPCA. 

In addition, given the unique 

consideration of preemption under 

EPCA in SAFE 1 and its effect on an 

otherwise validly issued waiver under 

the CAA, EPA believes it is helpful to 

provide additional information 

regarding the Agency’s historical 

practice and views to demonstrate why 

consideration of preemption under 

EPCA was inappropriate. Consideration 

of preemption under EPCA is beyond 

the statutorily prescribed criteria for 

EPA in section 209(b)(1). Preemption 

under EPCA was not a factor that 

California addressed under the 

applicable waiver criteria in its initial 

request nor was it a factor that EPA 

considered in granting the ACC program 

waiver. Until SAFE 1, the Agency 

consistently refrained from reviewing 

waiver requests against factors beyond 

the statutorily listed criteria under 

section 209(b)(1). Thus, EPA also 

believes that in the reconsideration of a 

waiver where EPA had previously 

declined to consider preemption under 

EPCA, SAFE 1 was contrary to 

congressional intent and the Agency’s 

historic practice of hewing to section 

209(b)(1) statutory criteria in reviewing 

waiver requests. Given this backdrop, 

EPA believes that the joint rulemaking 

context of SAFE 1 was an improper 

basis to deviate from EPA’s long held 

belief to not consider factors outside the 

scope of section 209(b)(1), especially 

given that the Agency indicated it 

would only be a singular occurrence. 

EPA continues to view the text and 

congressional intent of the statute, as 

well as subsequent case law, as best 

supporting a limited scope of review for 

waiver requests under section 

209(b)(1)—irrespective of whether a 

waiver proceeding is undertaken either 

solely by EPA or in unison with another 

agency. Therefore, based on EPA’s 

historical practice of not considering 

factors outside of the section 209(b)(1) 

criteria and because EPA believes the 

‘‘joint-action’’ premise was improper, 

the Agency is rescinding its withdrawal 

of the ACC program waiver based on 

preemption under EPCA. 

A. Historical Practice and Legislative 

History 

Historically, in reviewing California’s 

waiver requests, EPA has refrained from 

the consideration of factors beyond 

those criteria set out in section 

209(b)(1).344 EPA has generally 

explained that the text, structure, and 

purpose of the California waiver 

provision indicate congressional intent 

for EPA to provide significant deference 

to California’s judgment, especially on 

‘‘ambiguous and controversial matters of 

public policy.’’ 345 In section 209(a), 

Congress generally preempted state 

standards relating to the control of 

emissions from new motor vehicles and 

engines, but, in section 209(b), Congress 

carved out an exception for California, 

directing EPA to grant California a 

waiver of section 209(a) unless the 

Agency can make a finding under 

section 209(b). Congress recognized that 

California’s ‘‘compelling and 

extraordinary circumstances,’’ and its 

historical practice of regulating in the 

area, were sufficient ‘‘to justify 

standards on automobile emissions 

which may, from time to time, need be 

more stringent than national 

standards.’’ 346 In creating the waiver 

program, Congress intended not only for 

California to be able to meet its own 

emission reduction needs, but also for 

California to act as ‘‘a kind of laboratory 

for innovation’’ for motor vehicle 

standards and control technology.’’ 347


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348 Ford Motor Co. v. EPA, 606 F.2d 1293, 1297 

(D.C. Cir. 1979). 

349 MEMA I, 627 F.2d at 1121–22 (citing, for 

example, S. Rep. No. 403, 90th Cong., 1st Sess. 33 

(1967)). 

350 MEMA II, 142 F.3d 449, 453 (D.C. Cir. 1998) 

(quoting H.R. Rep. No. 95–294, at 301–02 (1977)). 

351H.R. Rep. No. 95–294, at 302 (1977), reprinted 

in 1977 U.S.C.C.A.N. at 1381. 

352See, e.g., 74 FR at 32783; 78 FR at 2145. 

353 MEMA II, 142 F.3d at 463. 

354 MEMA 1, 627 F.2d at 1119 (internal citations 

omitted). 

355 Id. at 1116–17. 

356 Ford Motor Co. v. EPA, 606 F.2d 1293, 1300 

(D.C. Cir. 1979), and ATA v. EPA, 600 F.3d 624, 628 

(2010), respectively. 

357 MEMA I, 627 F.2d at 1115 (declining to 

consider whether California standards are 

constitutional). 

358 Id. at 1117 (‘‘[N]othing in section 209 or 

elsewhere in the Clean Air Act can fairly be read 

to imply a duty on the Administrator to deny a 

waiver on the basis of the antitrust implications of 

California regulations.’’). 

359ATA v. EPA, 600 F.3d at 628. 

360 73 FR at 12159. 

361 Id.; 74 FR at 32783. 

362 74 FR at 32783. 

363 Id. (citing MEMA I, 627 F.2d at 1111, 1114– 

20, and MEMA II, 142 F.3d 449, 466–67 (D.C. Cir. 

1998)). 

364 78 FR at 2145. 

365HD GHG Regulations for certain model year 

sleeper-cab tractors and dry-van and refrigeratedvan trailers. 79 FR at 46256, 46264. 

366 Id. In rejecting the commerce clause objection, 

the decision cited MEMA I’s statement that ‘‘[t]he 

waiver proceeding produces a forum ill-suited to 

the resolution of constitutional claims.’’ Id. (citing 

MEMA I, 627 F.2d at 1114–20). Thus, the decision 

concluded, ‘‘Constitutional challenges to the HD 

GHG Regulations [were] more appropriately 

addressed by a legal challenge directly against the 

state.’’ Id. 

Thus ‘‘Congress consciously chose to 

permit California to blaze its own trail 

with a minimum of federal 

oversight.’’ 348

Legislative history makes clear that 

the Administrator must ‘‘presume’’ that 

the California standards ‘‘satisfy the 

waiver requirements’’ and that the 

burden of proving otherwise rests on the 

Administrator or other parties favoring 

denial of the waiver.349 Further, 

according to the House Committee 

Report for the 1977 amendments that 

strengthened California’s waiver 

provisions, EPA is ‘‘to afford California 

the broadest possible discretion in 

selecting the best means to protect the 

health of its citizens and the public 

welfare.’’ 350 According to the House 

Report, ‘‘The Administrator, thus, is not 

to overturn California’s judgment 

lightly. Nor is he to substitute his 

judgment for that of the State. There 

must be ‘‘clear and compelling evidence 

that the State acted unreasonably in 

evaluating the relative risks of various 

pollutants in light of the air quality, 

topography, photochemistry, and 

climate in that State, before EPA may 

deny a waiver.’’ 351 EPA’s historic 

practice of considering only listed 

criteria is thus in keeping with the 

highly deferential review of waiver 

requests that Congress intended in 

carving out the exception from 

preemption of new motor vehicle and 

engine standards in section 209(a).352

Courts have generally agreed with the 

Agency’s consideration of only listed 

CAA criteria in reviewing waiver 

requests, also pointing to the statute’s 

lack of any indication of the ability to 

consider non-statutory criteria as well as 

the waiver program’s significant 

deference to California. The D.C. Circuit 

has stated that, under the text of the 

statute, the section 209(b) criteria are 

‘‘the only waiver standards with which 

California must comply’’ and that, 

therefore, ‘‘[i]f EPA concludes that 

California’s standards [meet section 

209(b)], it is obligated to approve 

California’s waiver application.’’ 353 The 

D.C. Circuit has repeatedly described 

EPA’s waiver approval role as ‘‘limited’’ 

and ‘‘narrow.’’ In MEMA I, for example, 

the court explained that ‘‘the 

Administrator has consistently held 

since first vested with the waiver 

authority, [that] his inquiry under 

section 209 is modest in scope. He has 

no ‘broad and impressive’ authority to 

modify California regulations.’’ 354 The 

court further noted that ‘‘there is no 

such thing as a ‘general duty’ on an 

administrative agency to make decisions 

based on factors other than those 

Congress expressly or impliedly 

intended the agency to consider.’’ 355

Similarly, the court has stated that 

‘‘[t]he statute does not provide for any 

probing substantive review of the 

California standards by federal officials’’ 

and that ‘‘EPA’s only role is to review 

California’s proposed rules under a 

narrowly defined set of statutory 

criteria.’’ 356 Thus, the court has 

consistently rejected arguments 

requiring EPA to consider factors 

outside of the statutory criteria. In 

MEMA I, the court rejected a 

constitutional objection to a waiver, 

explaining that, because ‘‘the 

Administrator operates in a narrowly 

circumscribed proceeding requiring no 

broad policy judgments on 

constitutionally sensitive matters,’’ 

‘‘[n]othing in section 209 requires him 

to consider the constitutional 

ramifications of the regulations for 

which California requests a waiver . . . 

although nothing in section 209 

categorically forbids’’ it.357 In the same 

case, the court also rejected an antitrust 

objection as outside the scope of the 

Administrator’s review.358 The court 

again upheld EPA’s decision to not 

consider constitutional objections in 

American Trucking Association (ATA) 

v. EPA, stating, ‘‘We agree with EPA that 

ATA is seeking ‘improperly to engraft a 

type of constitutional Commerce Clause 

analysis onto EPA’s [s]ection 7543(e) 

waiver decisions that is neither present 

in nor authorized by the statute.’’ 359

It is against this backdrop that EPA 

has reviewed waiver requests by 

evaluating them solely under the criteria 

of section 209(b). For instance, prior to 

SAFE 1, EPA had solicited comment, in 

the context of the 2008 and 2009 GHG 

notices for comment on CARB’s first 

waiver request for GHG emission 

standards, as to whether the EPCA fuel 

economy preemption provisions were 

relevant to EPA’s consideration of 

CARB’s authority to implement its 

motor vehicle GHG regulations.360 In 

both instances, EPA declined to 

consider preemption under EPCA.361 In 

the 2009 waiver, EPA explained that 

‘‘section 209(b) of the Clean Air Act 

limits our authority to deny California’s 

requests for waivers to the three criteria 

therein.’’ 362 EPA further pointed to its 

historic practice of ‘‘refrain[ing] from 

denying California’s requests for 

waivers based on any other criteria,’’ 

which had been reviewed and upheld 

by the Court of Appeals for the District 

of Columbia Circuit.363 In the 2013 

review of the ACC program waiver 

request, the Agency again declined to 

consider factors outside the statutory 

criteria, explaining that ‘‘EPA may only 

deny waiver requests based on the 

criteria in section 209(b), and 

inconsistency with EPCA is not one of 

those criteria.’’ 364 A year later, EPA yet 

again declined to consider 

constitutionality claims, preemption 

under EPCA, and the implications of the 

Federal Aviation Administration 

Authorization Act of 1994 (FAAAA).365

EPA explained that section 209(b) limits 

the Agency’s authority to deny 

California’s requests for waivers to the 

three criteria therein and that the 

Agency has consistently refrained from 

denying California’s requests for 

waivers based on any other criteria.366

In SAFE 1, EPA changed course, 

reasoning instead that the Agency 

pronouncement in the ACC program 

waiver decision on factors EPA could 

consider in denying a waiver request 

‘‘was inappropriately broad, to the 

extent it suggested that EPA is 

categorically forbidden from ever 

determining that a waiver is 

inappropriate due to consideration of 

anything other than the ‘criteria’ or 

‘prongs’ at section 209(b)(1)(B)(A)– 


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367A complete discussion of preemption under 

EPCA in SAFE 1 can be found at 84 FR at 51337– 

38. 

368 Id. 

369 Id. Citing Massachusetts v. EPA, the Agency 

also asserted that the consideration of EPCA was 

supported by the Supreme Court’s holding because 

it ensured consistency between NHTSA and EPA’s 

programs. Id. 

370 84 FR at 51338. 

371 Id. 

372 86 FR at 22429. 

373 Id. 

374See, e.g., CEI at 11–12; AFPM at 2, 6. 

375CEI at 11. 

376States and Cities at 20. See also Twelve Public 

Interest Organizations app. 1 64–65. 

377NESCAUM at 3; Twelve Public Interest 

Organizations at app. 1 64–65; States and Cities at 

20. 

378SCAQMD at 7 (quoting 86 FR at 22439, n.40). 

379CEI at 10 (original emphasis). 

380AFPM at 5–6. 

381 Id. at 6 (quoting MEMA I, 627 F.2d 1095, 

1114–15 (DC Cir. 1979)). 

382 Id. 

383CEI at 11. 

384NADA at 3–4; See also AFPM at 3 (‘‘Since 

California’s GHG tailpipe standards and ZEV 

mandate are related to fuel economy, they are not 

lawfully adopted and void ab initio—and there is 

nothing for EPA to reinstate.’’); Urban Air at 47–48; 

CEI at 2 (‘‘But EPCA preemption is the proverbial 

elephant in the room. If SAFE 1’s EPCA preemption 

argument is correct, the EPA could not grant a valid 

CAA preemption waiver for California’s tailpipe 

(C).’’ 367 EPA explained that this 

statement and EPA’s historical practice 

of not considering preemption under 

EPCA ‘‘were made in the context of EPA 

acting on its own to administer section 

209(b) in considering such 

applications.’’ 368 Further, EPA 

distinguished these previous singleagency actions from its SAFE 1 joint 

action context by explaining that 

ignoring NHTSA’s determination of 

preemption in the same action, ‘‘would 

place the United States Government in 

the untenable position of arguing that 

one federal agency can resurrect a State 

provision that, as another federal agency 

has concluded and codified, Congress 

has expressly preempted and therefore 

rendered void ab initio.’’ 369 At the same 

time, EPA expressed intentions not to 

consider factors outside the statutory 

criteria in future waiver proceedings.370

EPA then concluded that NHTSA’s 

determination of preemption in the 

same action ‘‘renders EPA’s prior grant 

of a waiver for those aspects of 

California’s regulations that EPCA 

preempts invalid, null, and void’’ 

because ‘‘California cannot enforce 

standards that are void ab initio.’’ 371

B. Notice of Reconsideration of SAFE 1 

and Request for Comment 

In its April 28, 2021, Notice of 

Reconsideration, EPA acknowledged 

that SAFE 1’s consideration of NHTSA’s 

finding of preemption under EPCA 

deviated from its historic practice of 

‘‘declin[ing] to look beyond the waiver 

criteria in section 209(b) when deciding 

the merits of a waiver request from 

CARB.’’ 372 EPA sought comment on 

whether ‘‘EPA properly considered and 

withdrew portions of the ACC program 

waiver pertaining to GHG standards and 

the ZEV sales mandate based on 

NHTSA’s EPCA preemption action, 

including whether EPA had the 

authority to withdraw an existing 

waiver based on a new action beyond 

the scope of section 209.’’ 373 Given 

EPA’s reliance on NHTSA’s preemption 

findings as a basis of waiver withdrawal 

in SAFE 1, EPA also sought comment on 

how the repeal of SAFE 1, should 

NHTSA take final action to do so, would 

affect its own reconsideration of SAFE 

1. 

C. Comments Received 

EPA received comments in support of 

and against the consideration of 

preemption under EPCA in reviewing 

requests for waivers by California. 

Multiple comments related to the 

Agency’s use of the joint action with 

NHTSA as a justification for deviating 

from the Agency’s practice of reviewing 

waiver requests under the specific 

statutory criteria. Some commenters 

agreed that the context of a joint action 

necessitated consideration of 

preemption under EPCA because 

NHTSA was the agency charged with 

interpreting and implementing EPCA 

and so EPA must consider its findings 

in the same action.374 One commenter 

also argued that the joint rulemaking of 

SAFE 1 would be consistent with 

pronouncements in Massachusetts v. 

EPA (2007) on the agencies’ respective 

statutory obligations and the need to 

avoid inconsistency and so, ‘‘[o]nce 

NHTSA proposed to finalize a 

determination that EPCA preempts 

California’s GHG motor vehicle 

standards, it would be unreasonable for 

the EPA to refuse to take NHTSA’s 

action into account.’’ 375

Other commenters argued that the 

context of the rulemaking, whether joint 

or not, was irrelevant. One commenter 

stated emphatically that ‘‘what Congress 

directed EPA to consider when it wrote 

Section 209(b)(1) does not change 

depending on whether EPA acts alone 

or with another agency.’’ 376 Some 

commenters also argued that the context 

of the rulemaking was a particularly 

insufficient justification for revoking the 

waiver given language in SAFE 1 that 

allowed for inconsistent consideration 

of EPCA preemption. Several 

commenters noted that EPA constrained 

the future applicability of SAFE 1 by 

explaining that the Agency would not 

consider factors outside statutory 

criteria in future waiver reviews in other 

subject areas.377 Another commenter 

also noted that ‘‘the action purported to 

be ‘joint,’ and yet as now acknowledged, 

SAFE Part 1 ‘is properly considered as 

two severable actions, a rulemaking by 

NHTSA and a final informal 

adjudication by EPA.’ ’’ 378 These 

inconsistencies, they argued, made 

SAFE 1’s distinction between singleagency and joint actions arbitrary and 

capricious. 

Commenters also argued for and 

against consideration of factors outside 

the statutory criteria—including, but not 

limited to, preemption under EPCA— 

regardless of the kind of agency action, 

although EPA did not make this 

argument in SAFE 1. Commenters 

argued that EPA’s authority to look 

outside the statutory criteria at EPCA 

was at least permissive, if not 

mandatory. According to one 

commenter, ‘‘EPA exaggerates the 

Court’s position’’ in MEMA I in its 

Reconsideration notice: ‘‘[T]he court did 

not say that the EPA is forbidden to take 

constitutional ramifications into 

consideration, only that it is not 

required to do so.’’ 379 Another 

commenter agreed that MEMA I and 

MEMA II ‘‘do not preclude EPA from 

considering’’ preemption under EPCA 

but then went further, saying that ‘‘EPA 

is required to consider EPCA 

preemption.’’ 380 The commenter argued 

that MEMA I rejected petitioners’ 

constitutional objections to a waiver 

under an institutional competence line 

of reasoning, concluding that ‘‘[t]he 

waiver proceeding produces a forum illsuited to the resolution of constitutional 

claims.’’ 381 In contrast, they continued, 

the waiver proceeding is an appropriate 

forum for determining whether emission 

standards ‘‘relate to’’ fuel economy 

because this issue is ‘‘within the 

agency’s competence, as this 

relationship is mathematical and based 

in science rather than understandings of 

Constitutional law and precedent.’’ 382

However, the other commenter, who 

agreed that EPA is not ‘‘forbidden’’ from 

considering preemption under EPCA, 

also noted that EPA ‘‘has no special 

competence to interpret EPCA.’’ 383

Several commenters also argued that 

EPA could not reinstate the waiver 

because NHTSA concluded that EPCA 

preempts the standards, such standards 

were void ab initio, and therefore ‘‘the 

state mandates referenced in CA’s 

petition for reconsideration are not even 

eligible to be considered for a CAA 

waiver of preemption.’’ 384 To ignore 


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CO2 standards and ZEV mandates, because EPCA 

had already turned those policies into legal 

phantoms—mere proposals without legal force or 

effect.’’). 385CEI at 11. 386See, e.g., States and Cities at 20 (‘‘EPA’s 

traditional understanding of its limited role is 

entirely consistent with the text of Section 209(b)(1) 

and precedent interpreting it.’’); NCAT at 12 (‘‘As 

EPA has stated in several prior waiver decisions, 

there is no reference in Section 209(b) to EPCA 

preemption nor anything that could be construed to 

address this issue. Section 209(b) is unambiguous 

in this regard, and EPA has no grounds to read 

EPCA preemption considerations into the statute.’’). 

387NCAT at 12. 

388NESCAUM at 7 (‘‘As the D.C. Circuit has 

explained in the context of Section 209(b), ‘there is 

no such thing as a general duty’ on an 

administrative agency to make decisions based on 

factors other than those Congress expressly or 

impliedly intended the agency to consider.’ It is a 

basic principle of administrative law that an agency 

action is ‘arbitrary and capricious if the agency has 

relied on factors which Congress has not intended 

it to consider.’ ’’). 

389States and Cities at 20 (‘‘It is likewise entirely 

consistent with precedent respecting separation of 

powers and federalism principles and holding that 

‘a federal agency may pre-empt state law only when 

and if it is acting within the scope of its 

congressionally delegated authority.’ Louisiana Pub. 

Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986).’’). 

390SCAQMD at 7. 

391 86 FR at 22428. 

392 86 FR 74236. 

393 86 FR at 22429. 

394 86 FR 74236. NHTSA notes in this rulemaking 

that ‘‘the Agency is repealing all regulatory text and 

appendices promulgated in the SAFE I Rule. In 

doing so, the Agency underscores that any positions 

announced in preambulatory statements of prior 

NHTSA rulemakings, including in the SAFE I Rule, 

which purported to define the scope of preemption 

under the Energy Policy and Conservation Act 

(EPCA), do not reflect the Agency’s reconsidered 

understanding of its proper role in matters of EPCA 

preemption.’’ 

395EPA distinguished these previous singleagency actions from its joint action context by 

explaining that ignoring NHTSA’s determination of 

preemption in the same action, ‘‘would place the 

United States Government in the untenable position 

of arguing that one federal agency can resurrect a 

State provision that, as another federal agency has 

concluded and codified, Congress has expressly 

preempted and therefore rendered void ab initio.’’ 

84 FR at 51338. 

this, they claimed, would violate the 

Supremacy Clause of the Constitution. 

EPA, therefore, must look outside the 

statutory criteria to consider preemption 

under EPCA because it cannot 

‘‘reasonably claim that the lawfulness 

and constitutionality of state actions 

over which it has supervision are issues 

outside the scope of its 

responsibility[.]’’ 385

In contrast, other commenters pointed 

to EPA’s historical practice of evaluating 

waiver requests under the section 209 

statutory criteria, the text of the statute, 

and the policy implications of looking 

outside the statutory criteria, to support 

a return to EPA’s traditional narrow 

approach. Most commenters argued that 

EPA’s traditional interpretation was 

consistent with the text of section 

209(b), which has no reference to 

preemption under EPCA or any other 

factors outside the three statutory 

criteria.386 Not only does EPA have ‘‘no 

grounds to read EPCA preemption 

considerations into the statute,’’ 387

these commenters argued, but to 

consider non-statutory criteria would 

actually be ‘‘arbitrary and 

capricious’’ 388 and contrary to 

‘‘precedent respecting separation of 

powers and federalism principles.’’ 389

Yet another commenter stated that the 

narrow interpretation ‘‘provides a 

safeguard from the capricious injection 

of outside-the-scope argumentation’’ 

because ‘‘[w]hen the adjudication is 

permitted to stray from the statutory 

criteria, prospects for a fair hearing can 

be derailed, and the EPA Administrator 

may be more prone to overstep and 

exert policy preferences that are 

impermissible.’’ 390

Additionally, in their petitions for 

reconsideration of SAFE 1, several states 

and cities asserted that EPA unlawfully 

changed course in SAFE 1 by 

considering (and relying on) the 

purported preemptive effect of EPCA, 

which is outside the confines of section 

209(b) and argued that this rationale for 

withdrawing the waiver was flawed.391

D. Analysis: EPA Is Rescinding Its SAFE 

1 Actions Related to Preemption Under 

EPCA 

Since SAFE 1, NHTSA has formally 

withdrawn its conclusions (and 

associated regulatory text) that state or 

local regulations of tailpipe carbon 

dioxide emissions are related to fuel 

economy standards and therefore 

preempted under EPCA.392 Thus the 

predicate for EPA’s decision to 

withdraw the ACC waiver on that basis 

no longer exists. Furthermore, given the 

context of EPA’s reconsideration of the 

ACC program waiver at the time of 

SAFE 1, the Agency believes it was 

inappropriate to reconsider the validity 

of the waiver against criteria such as 

preemption under EPCA. In this action, 

based on the two independent grounds 

noted above, the Agency is rescinding 

the portion of SAFE 1 that withdrew the 

ACC program waiver based on 

preemption under EPCA. 

1. NHTSA Has Since Repealed Its 

Findings of Preemption Made in SAFE 

1 

In the Notice of Reconsideration, EPA 

sought comment on the Agency’s 

reliance on NHTSA’s preemption 

findings as a basis for its withdrawal of 

the ACC program waiver in SAFE 1. 

EPA also sought comment on how the 

repeal of SAFE 1, should NHTSA take 

final action to do so, would affect its 

own reconsideration of SAFE 1.393

NHTSA has since withdrawn its 

findings of preemption and the 

preemption basis of withdrawal is no 

longer applicable. Specifically, NHTSA 

has issued a new final rule that formally 

repeals the codified text and additional 

pronouncements regarding preemption 

under EPCA found in SAFE 1.394 In 

SAFE 1, EPA stated that it was 

appropriate to consider the effect of 

NHTSA’s actions, including the view 

that California cannot enforce standards 

that are void ab initio and thus EPA 

stated that ‘‘to the extent that 

administrative action is necessary on 

EPA’s part to reflect that state of affairs, 

EPA hereby withdraws that prior grant 

of a waiver on this basis.’’ 395 Since this 

condition no longer exists, EPA believes 

it is appropriate to rescind the waiver 

withdrawal that was based on 

preemption under EPCA. EPA believes 

that, to the extent it was ever 

appropriate for the Agency to base its 

action on NHTSA’s finding of 

preemption under EPCA in SAFE 1, the 

repeal of the preemption rule makes it 

likewise appropriate to rescind the 

Agency’s action in SAFE 1. This would 

also act to minimize regulatory 

uncertainty as to do otherwise would 

create further confusion that resulted 

from the joint action in SAFE 1 and 

would not appropriately reflect the 

current state of affairs under the 

circumstances of a unique federal 

regulation that had otherwise motivated 

EPA’s actions in SAFE 1. NHTSA’s 

recent action also supports EPA’s belief 

that its practice of limiting its review of 

section 209(b) criteria, as explained 

below, remains appropriate in the 

context of preemption under EPCA. 

2. EPA Improperly Deviated From Its 

Historical Practice of Limiting Its 

Review to Section 209(b) Criteria 

Section 209(b)(1) of the Act limits the 

Agency’s authority to deny California’s 

requests for waivers to the three criteria 

contained therein and the Agency has 

consistently refrained from reviewing 

California’s requests for waivers based 

on any other criteria. EPA acknowledges 

that California adopts its standards as a 

matter of law under its state police 

powers, that the Agency’s task in 

reviewing waiver requests is limited to 

evaluating California’s request 

according to the criteria in section 

209(b), and that it is appropriate to defer 

to litigation brought by third parties in 

other courts, such as state or federal 

district court, for the resolution of any 

constitutionality claims and assertions 

of inconsistency with other statutes. 


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396CAA section 209(b)(1)(A)–(C). 

397 2012 Waiver Request at 15–17. 

398For example, ‘‘California is not required to 

comply with section 207 to get a waiver.’’ MEMA 

II, 142 F.3d 449, 467 (D.C. Cir. 1989). 

399 78 FR at 2125. 400 Id. at 2145. 401Section 209(b)(2) provides that if each State 

[California] standard is at least as stringent as 

comparable applicable Federal standards then such 

standard shall be deemed to be as protective of 

public health and welfare as such federal standards 

for purposes of section 209(b)(1)(A). EPA 

acknowledges that in 1977 Congress amended the 

waiver provision to allow for California to address 

its unique combination of air quality problems and 

that California only be required to demonstrate 

stringency in the aggregate and that therefore some 

pollutant standards may not be as stringent. 

402 84 FR at 51338 (‘‘EPA agrees with commenters 

that EPA is not the agency that Congress has tasked 

with administering and interpreting EPCA. This is 

especially so because ‘[t]he waiver proceeding 

produces a forum ill-suited to the resolution of 

constitutional claims.’ MEMA I, 627 F.2d at 1115.’’). 

403 MEMA II, 142 F.3d at 463. 

404 Massachusetts v. EPA, 549 U.S. 497, 532 

(2007). 

405 In its most recent rulemaking addressing GHG 

emissions from light-duty vehicles, EPA extensively 

coordinated with NHTSA on details of the program 

but did not conduct it as a joint rulemaking. See 

86 FR 74434, 74436 (December 30, 2021). 

406 Massachusetts, 549 U.S. at 497, 532. 

407 ‘‘EPA does not intend in future waiver 

proceedings concerning submissions of California 

programs in other subject areas to consider factors 

outside the statutory criteria in section 

209(b)(1)(A)–(C).’’ 84 FR at 51338. 

408EPA takes no position on any role NHTSA 

might play under 42 U.S.C. 32919(a) and 

acknowledges that NHTSA discusses this in its 

recent final rulemaking. See generally 86 FR 74236. 

409See, e.g., Cent. Valley Chrysler-Jeep, Inc. v. 

Goldstene, 529 F. Supp. 2d 1151, 1153–54 (E.D. Cal. 

2007), as corrected Mar. 26, 2008; Green Mountain 

Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. 

Supp. 2d 295, 300–01 (D. Vt. 2007). 

Considering the lack of statutory and 

precedential support as shown below, 

even if EPA were to have discretion to 

consider criteria outside section 209(b), 

EPA now views the joint-action context 

of SAFE 1 as an insufficient justification 

for deviating from its statutory authority 

and the Agency’s historical practice and 

therefore the Agency rescinds its actions 

regarding preemption under EPCA in 

SAFE 1. 

Withdrawal of the waiver was 

premised on NHTSA’s preemption 

regulations in what EPA explained was 

a joint rulemaking action. But nothing 

in section 209(b) can be read as calling 

for consideration of preemption under 

EPCA in evaluating waiver requests 

regardless of whether EPA engaged in 

joint rulemaking with another agency or 

acted alone. Specifically, under section 

209(b), EPA must grant California a 

waiver of the preemption contained in 

section 209(a) unless the Administrator 

makes a finding under any one of the 

listed criteria: ‘‘The Administrator shall 

. . . waive application of the 

preemption in section 209(a) if the 

Administrator finds any of the 

following: ‘(A) [California’s] 

determination [that its standards in the 

aggregate will be at least as protective] 

is arbitrary and capricious, (B) 

[California] 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)].’ ’’ 396

Evaluation of preemption under EPCA 

is not a listed criterion. 

Nor did SAFE 1 premise preemption 

under EPCA on any of the three 

statutory criteria. In the ACC program 

waiver request, CARB made a 

protectiveness finding that, as a 

quantitative matter, its standards, in the 

aggregate, were as protective as the 

Federal standards and did not address 

preemption under EPCA.397 In fact, 

while California might opt to respond to 

comments on preemption under EPCA, 

California would not be expected to take 

it into account in any protectiveness 

finding made for a waiver request. It 

bears note that California’s practice is 

not unusual because there are other 

factors and provisions of the CAA that 

California does not account for in 

making its protectiveness finding under 

section 209(b)(1).398 In granting the ACC 

program waiver request, EPA found that 

California’s protectiveness finding was 

neither arbitrary nor capricious.399 EPA 

also responded to comments on the 

consideration of preemption under 

EPCA in granting the waiver but 

dismissed such objections as outside the 

scope of its review.400 Historically, EPA 

draws a comparison between the 

numerical stringency of California and 

federal standards in making the 

requisite finding as to whether 

California’s protectiveness 

determination is arbitrary and 

capricious.401 Thus, neither California’s 

initial request, nor EPA’s waiver grant, 

considered preemption under EPCA and 

as previously explained in the ACC 

program waiver, EPA declined to 

consider preemption under EPCA 

viewing it as outside the scope of 

Agency review. 

SAFE 1 made clear that consideration 

of and reliance on preemption under 

EPCA was the consequence of 

regulations promulgated by NHTSA. As 

SAFE 1 also acknowledged, however, 

EPA does not ‘‘administer’’ EPCA; that 

task falls to NHTSA.402 Instead, ‘‘[i]f 

EPA concludes that California’s 

standards [meet section 209(b)], it is 

obligated to approve California’s waiver 

application.’’ 403 EPA therefore disagrees 

with the comment that Massachusetts 

provides the Agency special duty to 

consider preemption under EPCA in a 

joint rulemaking action in reviewing 

waiver requests. In Massachusetts, the 

Supreme Court recognized the potential 

overlap between NHTSA’s and EPA’s 

statutory obligations and concluded that 

‘‘there is no reason to think the two 

agencies cannot both administer their 

obligations yet avoid 

inconsistency.’’ 404As one commenter 

noted, EPA and NHTSA have previously 

engaged in joint actions that addressed 

fuel economy and GHG emissions. In 

those actions, NHTSA’s role has been to 

set national fuel economy standards and 

EPA’s role has been to set national GHG 

standards.405 These roles are 

complementary, but distinct. The Court 

acknowledged the independence of 

these roles in Massachusetts: ‘‘EPA has 

been charged with protecting the 

public’s ‘health’ and ‘welfare,’ 42 U.S.C. 

7521(a)(1), a statutory obligation wholly 

independent of DOT’s mandate to 

promote energy efficiency. See Energy 

Policy and Conservation Act, § 2(5), 89 

Stat. 874, 42 U.S.C. 6201(5).’’ 406

Regarding the Agency’s simultaneous 

pronouncement that reliance on 

preemption under EPCA would be a 

singular exercise that would not be 

repeated, statutory support or past 

precedent for this singular consideration 

was also lacking.407 In fact, this singular 

exercise would allow for EPA to 

evaluate the same waiver request 

differently and depending on EPA’s 

own choice—the choice to act with 

another agency or not—rather than on 

the merits of the waiver request itself 

within specified criteria in section 

209(b). Again, the result of this unique 

application of EPA’s authority is 

unsupported under section 209(b)(1). 

As previously noted, EPCA is 

generally administered by NHTSA and 

consideration of preemption under 

EPCA in reviewing waiver requests 

would for instance call for EPA to 

resolve the much debated and differing 

views as to what is a ‘‘law or regulation 

related to fuel economy,’’ as 

contemplated by 39 U.S.C. 32919(a).408

Relevant judicial precedent would also 

appear to call into question whether 

California’s GHG standards and ZEV 

sales mandates are indeed preempted 

under EPCA.409 But as previously 

explained, EPA does not implement 

EPCA, and the Agency’s review of 

waiver requests is highly deferential. 

EPA also disagrees with comments 

that the Agency must generally consider 

factors outside the criteria listed in 

section 209(b), including preemption 

under EPCA, regardless of the joint- or 

single-agency nature of the action. EPA 


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410 MEMA I, 627 F.2d 1095, 1119 (D.C. Cir. 1979). 

411See, e.g., 43 FR at 32184 (rejecting objections 

to the procedures at state level, objections that 

section 207(c)(3)(A) establishes field protection, and 

constitutional objections all as beyond the 

‘‘narrow’’ scope of the Administrator’s review); 74 

FR at 32783 (declining to consider EPCA 

preemption, stating that ‘‘section 209(b) of the 

Clean Air Act limits our authority to deny 

California’s requests for waivers to the three criteria 

therein.’’); 79 FR at 46264 (reiterating that EPA can 

only deny a waiver request based on the 209(b) 

statutory criteria, dismissing comments on 

preemption under EPCA, as well as the Constitution 

and the implications of the FAAAA). 

412 627 F.2d at 1116. 

413 142 F.3d at 464. 

414NADA at 3. 

415 MEMA I, 627 F.2d at 1114–15. 

416 Id. at 1115. 417 ‘‘The manufacture of automobiles is a complex 

matter, requiring decisions to be made far in 

advance of their actual execution. The ability of 

those engaged in the manufacture of automobiles to 

obtain clear and consistent answers concerning 

emission controls and standards is of considerable 

importance so as to permit economies in 

production.’’ S. Rep. No. 403, 90th Cong., at 730 1st 

Sess. (1967). 

418See 86 FR 74236. 

419CEI at 11. 

420 MEMA I, 627 F.2d 1095, 1115 (D.C. Cir. 1979). 

421 MEMA II, 142 F.3d 449, 467 (D.C. Cir. 1998). 

422ATA v. EPA, 600 F.3d 624, 628 (D.C. Cir. 

2010) (‘‘EPA’s only role is to review California’s 

proposed rules under a narrowly defined set of 

statutory criteria.’’); OOIDA v. EPA, 622 Fed. Appx. 

4, 5 (D.C. Cir. 2015) (rejecting a challenge for lack 

of jurisdiction because challengers objected to 

California’s regulations themselves, not EPA’s 

approval of them in a waiver under 209(b)). 

423 MEMA I, 627 F.2d at 1115. 

424 Id.at 1105. In ATA v. EPA,the D.C. Circuit 

rejected a constitutional challenge to a California 

waiver, concluding that Congress made the decision 

to give California ‘‘the primary role in regulating 

certain mobile pollution sources’’ so the 

challenger’s argument was best directed to 

Congress. 600 F.3d 624, 628 (D.C. Cir. 2010). 

has never claimed that it has such broad 

authority to consider factors outside 

section 209(b) and the decades of waiver 

practice, as well as judicial precedent, 

are indicative of the Agency’s narrow 

scope of review for California waiver 

requests: ‘‘[T]he Administrator has 

consistently held since first vested with 

the waiver authority, [that] his inquiry 

under section 209 is modest in scope. 

He has no ‘broad and impressive’ 

authority to modify California 

regulations.’’ 410 Instead, EPA has 

consistently declined to consider factors 

outside the three statutory criteria listed 

in section 209(b).411 This limited scope 

of review has been repeatedly upheld by 

the courts. For example, in MEMA I, the 

D.C. Circuit stated that ‘‘there is no such 

thing as a ‘‘general duty’’ on an 

administrative agency to make decisions 

based on factors other than those 

Congress expressly or impliedly 

intended the agency to consider.’’ 412 In 

MEMA II, the D.C. Circuit again rejected 

consideration of a factor outside the 

209(b) statutory criteria because doing 

so would restrict California’s ability to 

‘‘exercise broad discretion.’’ 413

Commenters also claim that ignoring 

NHTSA’s finding of preemption would 

violate the Supremacy Clause of the 

Constitution because the necessary 

consequence of NHTSA’s conclusion in 

SAFE 1 is that certain standards were 

void ab initio as preempted under EPCA 

and as such that ‘‘the state mandates 

referenced in [California’s] petition for 

reconsideration are not even eligible to 

be considered for a CAA waiver of 

preemption.’’ 414 EPA disagrees. As the 

D.C. Circuit has held, ‘‘[t]hat [the 

Administrator] like every other 

administrative officer owes allegiance to 

the Constitution does not mean that he 

is required to issue rulings of 

constitutional dimension.’’ 415 Thus, 

‘‘[n]othing in section 209 requires [the 

Administrator] to consider the 

constitutional ramifications of the 

regulations for which California 

requests a waiver.’’ 416

Moreover, consideration of factors 

beyond those set out in section 209(b)(1) 

would subject California and vehicle 

and engine manufacturers to changes in 

regulatory schemes by other federal 

agencies not acting under the authority 

of the CAA.417 SAFE 1 and subsequent 

events perfectly encapsulate this 

problem. For instance, NHTSA has 

since finalized the repeal of the 

regulatory provisions and 

pronouncements it made in SAFE 1 that 

were the underpinnings for EPA 

withdrawing certain aspects of the ACC 

program waiver and with that action the 

Agency’s basis for revocation of the 

waiver under EPCA has now 

evanesced.418 Additionally, this is 

affirmation of EPA’s long held view that 

waiver proceedings are not the 

appropriate venue for resolving these 

issues, and the joint-rulemaking context 

is not and should never have been 

justification for deviating from statutory 

authority and the Agency’s historical 

practice. 

It also bears note that consideration of 

factors beyond the criteria contained in 

section 209(b) would not be limited to 

preemption under EPCA. Commenters 

suggested, for instance, that EPA would 

not be able to ‘‘ignore the First 

Amendment,’’ in the hypothetical 

situation where California impos[ed] 

standards on some manufacturers in 

retaliation for their voiced opposition to 

California’s authority as well as 

criminality such as ‘‘bribery and 

extortion had been instrumental in 

assembling the legislative 

majorities.’’ 419 In short, under the 

commenter’s view, factors for 

consideration in waiver proceedings 

would be innumerable. And yet these 

factors bear little or no relation to 

specific criteria in section 209(b) that 

would otherwise warrant the denial of 

a waiver request. The D.C. Circuit has 

already, several times, held that EPA is 

not required to consider factors outside 

of and unconnected to these statutory 

criteria, especially constitutional 

objections. In fact, regarding the 

commenter’s example, the court has 

already specifically rejected 

consideration of the First Amendment 

in waiver evaluations. In MEMA I, the 

court considered and upheld EPA’s 

decision declining to consider a First 

Amendment objection to a waiver as 

beyond the scope of agency review.420

Courts have also rejected objections 

based on the applicability of CAA 

section 207 to California waiver 

requests 421 and the Commerce 

Clause.422 EPA is therefore not 

persuaded by these arguments. 

Additionally, courts have long held that 

administrative proceedings for 

California waiver requests are ill-suited 

for consideration of constitutional 

issues. Nothing precludes commenters 

from challenging California’s standards 

themselves—whether under EPCA, 

another statute, or the Constitution—in 

other, better-suited fora. According to 

the D.C. Circuit, for instance, [w]hile 

nothing in section 209 categorically 

forbids the Administrator from listening 

to constitutionality-based challenges, 

petitioners are assured through a 

petition of review . . . that their 

contentions will get a hearing.’’ 423 The 

D.C. Circuit has also repeatedly stated 

that challenges which go to the legality 

of California’s standards themselves, are 

better addressed directly by either 

courts or Congress.424 Challenges based 

on preemption under EPCA similarly go 

to the legality of California’s standards 

themselves and are thus more 

appropriate in court or addressed to 

Congress. 

E. Conclusion 

Because the landscape of federal law 

has changed since SAFE 1 due to 

NHTSA’s repeal of its regulatory text, 

appendix, and pronouncements 

regarding EPCA preemption in SAFE 1, 

EPA believes that it is appropriate to 

rescind its waiver withdrawal actions in 

SAFE 1 that were predicated on the 

federal law context created by NHTSA’s 

SAFE 1 action. On separate grounds, 

EPA also believes that, based on the 

foregoing, EPA should not have 

deviated from its practice of limiting its 

waiver review to the criteria in section 


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425 84 FR at 51310, 51350. 

426EPA is aware of instances of States adopting 

California new motor vehicle emission standards 

and not subsequently including such standards in 

their SIP. In these circumstances EPA has not 

played and would not play an approval role. 

427 83 FR at 43240. 

428 Id. 

429 Id. 

430 84 FR at 51350. 

431 Id. 

432 Id. 

433 In particular, EPA cited legislative history on 

section 172(b), which set forth the ‘‘requisite 

provisions’’ for state plans for nonattainment areas. 

Id. at 51350 n.286. According to the legislative 

history, one of the many factors that must be 

considered by a state plan is ‘‘actual emissions of 

such pollutant resulting from in-use motor 

vehicles.’’ Id. (quoting H.R. Rep. No. 294, 95th 

Cong., 1st Sess. 212 (1977), 1977 U.S.C.C.A.N. 1077, 

1291, 1997 WL 16034). Therefore, EPA claimed, 

this legislative history ‘‘identifies section 177 as a 

means of addressing the NAAQS attainment 

planning requirements of CAA section 172, 

including the specific SIP content and approvals 

criteria for EPA.’’ Id. at 51351. 

434 86 FR at 22429. 

435 Id. 

436 Id. 

437See States and Cities’ Petition at 27. 

438 Id. (quoting 84 FR at 51351). 

439 Id. 

440CEI at 17–18; NADA at 6; AFPM at 12–13. 

441CEI at 18 (quoting heavily from the SAFE 

proposal and SAFE final action). 

209(b)(1). Thus, for the reasons stated 

above, EPA is rescinding those portions 

of SAFE 1 that withdrew the waiver of 

the ACC program on the basis of 

preemption under EPCA. 

VII. EPA Inappropriately Set Forth an 

Interpretive View of Section 177 in 

SAFE 1 

In SAFE 1, EPA provided an 

interpretive view of section 177 of the 

CAA, stating that states adopting 

California’s new motor vehicle emission 

standards (section 177 states) could not 

adopt California’s GHG standards.425 In 

this action, EPA determines that it was 

both inappropriate and unnecessary 

within a waiver proceeding to provide 

an interpretive view of the authority of 

section 177 states to adopt California 

standards, as EPA plays no statutory 

approval role in connection with states’ 

adoption of standards identical to those 

standards for which a waiver has been 

granted to California.426 Rather, if a state 

chooses to submit such standards for 

inclusion in an SIP, EPA’s role with 

regard to approval of these standards is 

to review them in the same way that 

EPA reviews all SIP revisions a state 

submits, via a notice and comment 

process, to ensure that the submission 

meets all statutory and regulatory 

requirements as part of the Agency’s 

decision whether to approve or 

disapprove the submission. Therefore, 

the Agency is rescinding the 

interpretive views on section 177 set out 

in SAFE 1. 

A. SAFE 1 Interpretation 

In the SAFE proposal, EPA proposed 

to conclude that ‘‘States may not adopt 

California’s GHG standards pursuant to 

section 177 because the text, context, 

and purpose of section 177 support the 

conclusion that this provision is limited 

to providing States the ability, under 

certain circumstances and with certain 

conditions, to adopt and enforce 

standards designed to control criteria 

pollutants to address NAAQS 

nonattainment.’’ 427 Additionally, the 

proposal noted the title of section 177 

(‘‘New motor vehicle emission 

standards in nonattainment areas’’) 

indicates a limited scope of 

application.428 The proposal also 

suggested that, because ‘‘[a]reas are only 

designated nonattainment with respect 

to criteria pollutants,’’ it would be 

‘‘illogical’’ if states could use their 177 

authority ‘‘to adopt California standards 

that addressed environmental problems 

other than nonattainment of criteria 

pollutant standards.’’ 429

In the SAFE 1 decision, EPA finalized 

its proposed interpretive view, 

reiterating that ‘‘the text (including both 

the title and main text), structural 

location, and purpose of the provision 

confirm that it does not apply to GHG 

standards.’’ 430 Because section 177’s 

title references nonattainment areas, and 

because nonattainment designations 

only exist for criteria pollutants, EPA 

claimed, states could not adopt 

standards for purposes of GHG control 

under section 177.431

As evidence for this interpretive view, 

EPA again pointed to the text and 

location of the section, which had been 

the basis for the Agency’s interpretation 

in the SAFE proposal. EPA 

acknowledged commenters who argued 

that ‘‘CAA section 177 does not contain 

any text that could be read as limiting 

its applicability to certain pollutants 

only’’ and that EPA had 

‘‘inappropriately relied on the heading 

for CAA section 177 to construe a 

statutory provision as well as arrogated 

authority to implement an otherwise 

self-implementing provision,’’ but 

disagreed with these commenters.432 In 

addition to the evidence relied on in the 

proposal, EPA provided examples of 

legislative history from the 1977 

amendments to support its interpretive 

view.433

B. Notice of Reconsideration of SAFE 1 

and Request for Comment 

Acknowledging that ‘‘section 177 

does not require States that adopt 

California emission standards to submit 

such regulations for EPA review’’ and 

that ‘‘California in previous waiver 

requests has addressed the benefits of 

GHG emissions reductions as it relates 

to ozone,’’ EPA sought comment in the 

2021 Notice of Reconsideration on 

whether EPA had the authority in the 

SAFE 1 context to interpret section 177 

of the CAA and whether the interpretive 

view was appropriate.434 Specifically, 

EPA sought comment on whether it was 

appropriate for EPA to provide an 

interpretive view of section 177 within 

the SAFE 1 proceeding.435 To the extent 

it was appropriate to provide an 

interpretation, EPA sought comment on 

whether section 177 was properly 

interpreted and whether California’s 

motor vehicle emission standards 

adopted by states pursuant to section 

177 may have both criteria emission and 

GHG emission benefits and purposes.436

C. Comments Received 

In response to SAFE 1, EPA received 

multiple petitions for reconsideration. 

One petition submitted by several states 

and cities asserted that, in adopting its 

interpretation of section 177, EPA 

‘‘relie[d] on information and reasoning 

not presented in the SAFE Proposal,’’ 

particularly the ‘‘superseded version of 

Section 172 . . . and legislative history 

for that outdated provision.’’ 437 The 

petition noted that the use of this 

information and reasoning was used in 

the SAFE 1 to conclude that ‘‘section 

177 is in fact intended for NAAQS 

attainment planning and not to address 

global air pollution.’’ 438 Petitioners 

argued that because this information 

and reasoning was not presented in the 

proposal, ‘‘EPA should withdraw and 

reconsider its finalization of the Section 

177 interpretation and allow for full and 

fair public comment before proceeding 

further.’’ 439

EPA also received many comments in 

response to the Notice of 

Reconsideration of SAFE 1, both 

supporting and opposing EPA’s 

statements regarding section 177 in 

SAFE 1. Supporters of SAFE 1 reiterated 

the reasoning from the proposal and 

final action.440 For example, one 

commenter wrote, ‘‘In short, ‘the text, 

context, and purpose of Section 177 

suggest’ that the provision is limited to 

motor vehicle standards ‘designed to 

control criteria pollutants to address 

NAAQS nonattainment.’ ’’ 441 Like the 

SAFE proposal and final action, the 

commenter stated that in addition to the 

text and context of the section, there is 

‘‘substantial legislative history showing 

that Congress’s purpose in creating the 

Section 177 program was to address 


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442 Id. 

443States and Cities at 50–55; Institute for Policy 

Integrity Amicus Brief at 22–26 (‘‘[T]he fact that 

California and many other states have detrimentally 

relied on this waiver to meet federal and state airpollution mandates resolves any lingering doubt 

about the lawfulness of EPA’s Action. . . . 

Revoking the preemption waiver . . . jeopardizes 

the state’s ability to meet federal standards for other 

harmful air pollutants, since the standards covered 

by the waiver would have reduced—directly and 

indirectly—nitrogen-oxide, ozone, and particulatematter pollution. See 78 FR 2122, 2129, and 

2134.’’); Tesla at 11–13; National Association of 

Clean Air Agencies (NACAA), Docket No. EPA– 

HQ–OAR–2021–0257–0096 at 3. Many of the 177 

states had also provided comments, during the 

SAFE 1 comment period, explaining that they have 

adopted the ACC program standards to meet their 

public health goals. See, e.g., Maryland Department 

of the Environment, Docket No. EPA–HQ–OAR– 

2018–0283–5831 at 2–3; Delaware Department of 

Natural Resources and Environment Control, 

Docket No. EPA–HQ–OAR–2018–0283–5066 at 3–5; 

Massachusetts Department of Environmental 

Protection, Docket No. EPA–HQ–OAR–2018–0283– 

5476; State of California et al., Docket No. EPA– 

HQ–OAR–2018–0283–5481 at 130–31 (California 

was joined by the States of Connecticut, Delaware, 

Hawaii, Iowa, Illinois, Maine, Maryland, Minnesota, 

New Jersey, New Mexico, New York, North 

Carolina, Oregon, Rhode Island, Vermont, 

Washington, the Commonwealths of Massachusetts, 

Pennsylvania, and Virginia, the District of 

Columbia, and the Cities of Los Angeles, New York, 

Oakland, San Francisco, and San Jose). 

444See, e.g., States and Cities at 50–55; Tesla at 

11–13. 

445States and Cities at 51. See also Tesla at 11– 

13; Twelve Public Interest Organizations app. 1 at 

2; NESCAUM at 8–9; Southern Environmental Law 

Center (SELC), Docket No. EPA–HQ–OAR–2021– 

0257–0125 at 2–3; NCAT at 12; Class of ’85, Docket 

No. EPA–HQ–OAR–2021–0257–0454 (correction to 

an earlier comment by the same commenter, which 

can be found at Docket No. EPA–HQ–OAR–2021– 

0257–0388) at 5–6; Maine at 2; OTC at 2. Ironically, 

one supporter of SAFE 1, while arguing that EPA 

cannot consider GHG reductions from section 177 

states in its second prong analysis, acknowledged 

EPA’s lack of an oversight role under section 177: 

‘‘EPA cannot consider GHG reductions, if any, 

attributable to ‘opt-in’ states under Section 177, as 

these are out of the scope of a waiver application. 

Indeed, EPA has no legal role in reviewing opt-in 

states, as the statute grants the agency no role in 

reviewing opt-in by other states.’’ AFPM at 15. 

446See, e.g., States and Cities at 53; NESCAUM 

at 9; NCAT at 12. 

447See, e.g., States and Cities at 53 (‘‘[T]he 

reference in the title to ‘nonattainment areas’ is not 

a limitation to ‘nonattainment (i.e., criteria) 

pollutants’ or standards that target them’’ but rather 

a limitation on the states that can adopt California’s 

standards); NESCAUM at 9; SELC at 2; NCAT at 12. 

448Commenters feared that EPA’s interpretation, 

which ‘‘prevents Section 177 States from adopting 

California’s GHG standards, but not any other 

California standards,’’ could require states to 

‘‘extract just the GHG portion of the Advanced 

Clean Cars rules from their programs, thus 

potentially creating type of ‘‘third vehicle’’ 

forbidden by Section 177 (i.e., a vehicle subject to 

a hybrid combination of the other California 

standards and the (now weakened) federal GHG 

standards.’’ States and Cities at 54. See also 

NESCAUM at 11–12; SELC at 5. 

449States and Cities at 31–32, 50–55; NESCAUM 

at 12–13; SELC at 5; NCAT at 12; Class of ’85 at 

4–5. 

450EPA is aware of instances of States adopting 

California new motor vehicle emission standards 

and not subsequently including such standards in 

their SIP. In these circumstances EPA has not 

played and would not play an approval role. 

451EPA notes that although section 177 states that 

‘‘. . . any State which has plan provisions 

approved under this part may adopt and enforce for 

any model year standards relating to control of 

emissions from new motor vehicles . . .’’ the 

language in section 177 does not require a state to 

submit its adopted motor vehicle emissions 

standards for SIP approval. 

452 84 FR at 51338 n.256 (‘‘EPA acknowledges 

that its actions in this document may have 

implications for certain prior and potential future 

EPA reviews of and actions on state SIPs. . . . EPA 

will consider whether and how to address those 

implications, to the that they exist, is separate 

actions.’’). EPA action on a state plan (including 

application of Section 177) is subject to judicial 

review. 42 U.S.C. 7607(b)(1). 

453 42 U.S.C. 7507. 

454 Id. 

non-attainment with NAAQS for criteria 

pollutants, not to address any global 

atmospheric phenomenon.’’ 442

Opponents of SAFE 1 argued both 

that EPA had no authority to issue its 

177 statement and that the merits of 

EPA’s argument were wrong. On the 

issue of authority, opponents of SAFE 1 

claimed that SAFE 1 failed to consider 

the reliance interests of the 

stakeholders, particularly section 177 

states.443 SAFE 1, they argued, upset 

this reliance and created uncertainty.444

A substantial number of commentors 

also argued that EPA had no authority 

to make its statements on section 177 

because ‘‘Congress gave EPA no role in 

implementing Section 177 and no 

authority to constrain States’ decisions 

regarding adoption of California 

emissions standards.’’ 445

On the merits of EPA’s SAFE 1 

argument, opponents of the action 

commented that EPA misinterpreted 

section 177 and that, even if EPA’s 

interpretive view were correct, EPA 

misapplied it. Multiple commenters 

wrote that the text of section 177 does 

not limit the types of pollutants for 

which motor vehicle emission standards 

can be authorized.446 Commenters also 

noted that the title of section 177 refers 

to geographic areas, not pollutants, and 

argued that the restriction was therefore 

on which states could adopt California 

standards (states with plan provisions 

approved under Part D) not on the 

pollutants for which those states could 

adopt standards.447 A few commenters 

also argued that EPA’s section 177 

interpretive view would create a ‘‘third 

vehicle’’ scenario, in contradiction of 

section 177’s identicality 

requirement.448 Even if EPA’s 

interpretation were correct, opponents 

continued, California’s standards have 

both criteria emission and GHG 

emission benefits and purposes.449

Commenters cited the factual record as 

well as EPA’s own past findings as 

evidence of the connection between 

GHG standards and NAAQS attainment. 

D. Analysis: EPA Is Rescinding SAFE 1’s 

Interpretive Views of Section 177 

EPA is withdrawing its non-regulatory 

and non-binding interpretation of 

section 177 set forth in SAFE 1. EPA 

plays no statutory approval role in 

connection with states’ adoption of 

standards identical to those standards 

for which the Agency has granted a 

waiver to California.450 Rather, if a state 

chooses to submit such standards for 

inclusion in a SIP, EPA’s role with 

regard to approval of these standards is 

to review them in the same way that 

EPA reviews all SIP revisions a state 

submits, via a notice and comment 

process, to ensure that the submission 

meets all statutory and regulatory 

requirements as part of the Agency’s 

decision whether to approve or 

disapprove the submission.451

In reconsidering SAFE 1, EPA now 

believes that it was inappropriate to 

offer an interpretive view of section 177 

in the context of that action. EPA 

believes it acted inappropriately in 

providing an interpretive view in SAFE 

1 and that such action was based on an 

inaccurate assessment of the factual 

record. EPA’s interpretive view was not 

compelled by any petition, request, or 

legislative or judicial mandate and was 

otherwise not final agency action.452

EPA is therefore rescinding the 

interpretive views contained in SAFE 1. 

As commenters have noted, section 

177 does not describe a direct approval 

role for EPA. Section 177 says that ‘‘any 

State which has plan provisions 

approved under this part may adopt and 

enforce’’ identical California standards 

and delineates three specific criteria for 

adoption.453 Nothing in this language or 

in the text of the rest of the section 

requires or allows EPA to approve such 

adoption and enforcement or directs 

EPA to implement the section through 

regulation; EPA plays no statutory 

approval role in the adoption of 

California standards by other states 

other than action on a SIP revision, 

should those states include the 

standards in their plans. In fact, there 

are only three prerequisites to adoption 

and enforcement by a state: That the 

state has a federally approved SIP, that 

the standards are identical (thus the 

state standards must not create or have 

the effect of creating a ‘‘third vehicle’’) 

to California standards for which 

California has received a waiver, and 

that California and the state adopt the 

standards with at least two years lead 

time.454 This limited role has been 


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455 In 1979, for example, only two years after the 

adoption of section 177, the D.C. Circuit stated that 

the Act only requires the three listed prerequisites, 

‘‘not . . . that the EPA administrator conduct a 

separate waiver proceeding for each state that 

chooses [to adopt California standards].’’ Ford 

Motor Co. v. EPA, 606 F.2d 1293, 1298 (D.C. Cir. 

1979). Similarly, in 1994, while enacting rules 

implementing section 209(e)(2)(B), the parallel 

provision for the nonroad vehicle section of the 

California Waiver program, EPA noted that section 

177 states had not ‘‘ask[ed] for EPA authorization 

before they adopted the California standards, nor 

did EPA or the automobile industry suggest that 

they needed such authorization.’’ 56 FR 36969, 

36983 (1994). See also 77 FR 62637 n.54 (‘‘States 

are not required to seek EPA approval under the 

terms of section 177.’’). 

456EPA also notes that there are ample judicial 

avenues to directly challenge state adoption of 

California standards. For example, the First and 

Second Circuits have already addressed objections 

to the adoption of California standards under 

section 177. In both Am. Auto. Mfrs. Ass’n v. Mass. 

DEP and Motor Vehicle Mfrs. Ass’n v. NYSDEC, 

petitioners argued that the States’ adoption of 

California’s low emission vehicles standards 

without the associated clean fuels plan violated 

section 177. 31 F.3d 18 (1st Cir. 1994); 17 F.3d 521 

(2d Cir. 1994). 

457Several commenters on the Notice of 

Reconsideration argued that SAFE 1 violated 

conformity rules by interfering with already 

approved SIPs. However, as EPA explained in the 

litigation over SAFE 1, the action had no actual 

effect on ‘‘either existing approvals of state plans or 

the plans themselves for criteria pollutants.’’ Final 

Brief for Respondents at 106, Union of Concerned 

Scientists v. NHTSA, No. 19–1230 (D.C. Cir. Oct. 

27, 2020). See also 84 FR 51338, n.256. 

458Wisconsin at 1 (‘‘These standards provide 

important and necessary reductions in both GHG 

and criteria pollutant emissions needed to meet 

state and local air quality goals and address federal 

CAA requirements.’’); Connecticut at 2 (‘‘These 

programs enable long-term planning and yield 

critical emission reductions that are critical to 

meeting Connecticut’s climate goals as well as our 

statutory obligations to reach attainment with the 

ozone NAAQS.’’); Delaware at 2 (‘‘Delaware 

adopted the California LEV regulation and 

incorporated the LEV and GHG standards into the 

State Implementation Plan. . . . Delaware will not 

meet air quality goals without more protective 

vehicle emission standards. ’’); Maine at 1 (‘‘[T]he 

LEV program was initially created to help attain 

and maintain the health-based National Ambient 

Air Quality Standards (NAAQS) . . . The California 

ZEV and GHG programs enable long-term planning 

for both the states and the regulated community and 

have been drivers of technological change across 

the industry.’’). 459The Agency has considered whether there may 

be any reliance interests on EPA’s previous 

interpretive view of section 177 described in the 

SAFE 1 action. EPA is unaware of any such 

interests, and none were raised in comments. 460To the extent that EPA’s reasoning in its SAFE 

1 section 177 determination lacked fair notice, as 

the States and Cities’ Petition claimed, such a 

contention is rendered moot by this action. 461EPA has declined to consider constitutional 

challenges to California Waivers since at least 1976. 

41 FR 44212 (Oct. 7, 1976) (‘‘An additional 

argument against granting the waiver was raised by 

the Motorcycle Industry Council and Yamaha, who 

contended that the CARB had violated due process 

when adopting their standards, by not allowing the 

manufacturers a fair and full opportunity to present 

their views at a State hearing. If this argument has 

any validity, the EPA waiver hearing is not the 

proper forum in which to raise it. Section 209(b) 

does not require that EPA insist on any particular 

procedures at the State level. Furthermore, a 

complete opportunity was provided at the EPA 

waiver hearing for the presentation of views.’’). See 

also, e.g., 43 FR at 32184 (July 25, 1978) (rejecting 

objections to the procedures at state level, 

objections that section 207(c)(3)(A) establishes field 

protection, and constitutional objections all as 

beyond the ‘‘narrow’’ scope of the Administrator’s 

review). 

462Central Valley Chrysler-Jeep, Inc. v. Goldstene, 

529 F.Supp.2d 1151, 1174 (‘‘The waiver provision 

of the Clean Air Act recognizes that California has 

exercised its police power to regulate pollution 

emissions from motor vehicles since before March 

30, 1966; a date that predates both the Clean Air 

Act and EPCA.’’). 

463 MEMA I, 627 F.2d 1095, 1111, 1114–14 (D.C. 

Cir. 1979). 

464 74 FR 3030 (January 16, 2009). 

465 Decision Document, EPA–HQ–OAR–2005– 

0123–0049 at 67. 

466ATA v. EPA, 600 F.3d 624, 628 (D.C. Cir. 

2010) (quoting the U.S. brief). In a footnote to this 

statement, the Court said ATA could attempt to 

bring a constitutional challenge directly (which 

would argue that the waiver unconstitutionally 

burdens interstate commerce) but ‘‘express[ed] no 

view on that possibility.’’ Id. at n.1. See also OOIDA 

v. EPA, 622 Fed. Appx. 4, 5 (D.C. Cir. 2015) 

acknowledged by courts and EPA 

alike.455 Thus, it is well established that 

states have broad discretion to adopt 

California standards without being 

subject to EPA’s approval.456

States with approved SIPs that have 

adopted the waived California standard 

into state law may submit a SIP revision 

that includes that adopted standard. In 

that proceeding, EPA could determine 

whether the statutory criteria for 

adoption are met for purposes of 

approving a SIP revision. Indeed, in the 

litigation following SAFE 1, EPA 

acknowledged that its interpretive view 

of section 177 would have no actual 

effect until applied in a future SIP 

context.457 SIPs are a crucial planning 

tool in helping states reach attainment 

for NAAQS and California’s standards 

are key components of many of these 

SIPs.458 In a SIP proceeding, these states 

and other stakeholders are better able to 

provide specific and comprehensive 

comments about the intent and effect of 

adopting California standards.459

For these reasons, EPA believes that it 

was inappropriate to provide an 

interpretive view of section 177 in SAFE 

1.460 Therefore, EPA is withdrawing its 

SAFE 1 interpretive view of section 177. 

E. Conclusion 

EPA determines that it was both 

inappropriate and unnecessary, within 

the SAFE 1 waiver proceeding, to 

provide an interpretive view of the 

authority of section 177 states to adopt 

California standards. Therefore, EPA 

withdraws its interpretive views that 

had been set forth in SAFE 1. 

VIII. Other Issues 

A. Equal Sovereignty 

As explained in Section VI, EPA must 

grant California’s waiver request unless 

the Agency makes one of the specified 

findings in section 209(b)(1). In this 

instance, Congress has made multiple 

determinations through its adoption of 

section 209 and subsequent 

amendments, dating from 1967 through 

the 1990 CAA Amendments, regarding 

California’s role and its relation to 

federal standard setting for mobile 

sources. EPA’s longstanding waiver 

practice, consistent with case law, has 

been to refrain from considering factors 

beyond section 209(b)(1) criteria as well 

as constitutional claims in the review of 

California waiver requests.461 EPA 

acknowledges that California adopts its 

standards as a matter of law under its 

police powers,462 that the Agency’s task 

in reviewing waiver requests is properly 

limited to evaluating California’s 

request according to the criteria in 

section 209(b), and that it is appropriate 

to defer to litigation brought by third 

parties in other courts, such as state or 

federal court, for the resolution of 

constitutionality claims and 

inconsistency, if any, with other 

statutes. As further explained this 

practice flows from the statute and 

legislative history, which reflect a broad 

policy deference that is afforded to 

California to address its serious air 

quality problems (which are on-going) 

as well as to drive emission control 

innovation. And so, EPA has 

historically declined to consider 

constitutional issues in evaluating and 

granting section 209 waivers. In MEMA 

I, the D.C. Circuit rejected a First 

Amendment challenge to a waiver as 

outside the scope of review.463 In 2009, 

EPA approved a waiver (and 

authorization) under section 209(e), 

granting California authority to enforce 

its Airborne Toxic Control Measure, 

which established in-use emission 

performance standards for engines in 

transport refrigeration units (TRUs) and 

TRU generator sets.464 Responding to 

comments that the waiver reached 

beyond California’s borders in violation 

of the Dormant Commerce Clause, EPA 

stated that such considerations are not 

factors that EPA must consider under 

section 209(e) because ‘‘EPA’s review of 

California’s regulations is limited to the 

criteria that Congress directed EPA to 

review.’’ 465 This interpretation was 

upheld by the D.C. Circuit Court of 

Appeals. The Court agreed with EPA 

that the commenters had sought to 

‘‘improperly . . . engraft a type of 

constitutional Commerce Clause 

analysis onto EPA’s Section 7543(e) 

waiver decisions that is neither present 

in nor authorized by the statute.’’ 466


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(rejecting a challenge for lack of jurisdiction 

because challengers objected to the state regulations 

themselves, not EPA’s approval of them in a waiver 

under 209(b)) (‘‘To the extent there is any tension 

in our case law surrounding whether we might 

decide a constitutional claim brought within a 

broader challenge to an EPA waiver decision, 

OOIDA does not present us with such a challenge, 

and we have no occasion to resolve that question 

here.’’). 

467 78 FR at 2145. 

468Ohio and 15 States, Docket No. EPA–HQ– 

OAR–2021–0257–0124 at 1. This commenter also 

stated that ‘‘The waiver at issue here, allowing only 

California to regulate carbon emissions, is not 

sufficiently related to the problem that Section 

209(a) targets, Congress enacted that section to 

permit California to address local air pollution. But 

California seeks special treatment for its proposed 

greenhouse gas targets . . . designed to mitigate 

climate change—an inherently global interest.’’ Id. 

at 8–9. EPA notes that this characterization of 

CARB’s standards is addressed in Section V. 

469Twelve Public Interest Organizations at 5 

(‘‘Shelby County does not govern here. See Amicus 

Br. of Prof. Leah Litman 12–17, Union of Concerned 

Scientists v. NHTSA, No. 19–1230 (July 6, 2020) 

(A–0384). First, Clean Air Act Section 209(b) places 

no extraordinary burden or disadvantage on one or 

more States. Rather, the statute benefits California 

by allowing the exercise of its police power 

authority to address its particular pollution control 

needs. Second, the foundation for reserving 

California’s authority has not waned over time. 

California had in 1967, and continues to have, the 

Nation’s absolute worst air quality. For example, 

the South Coast air basin, home to 17 million 

people, typically leads the Nation in ozone (smog) 

pollution. The American Lung Association’s 2021 

‘State of the Air’ report on national air pollution 

shows that seven of the ten worst areas for ozone 

pollution in the country are in California, as are six 

of the worst ten for small particulate matter. Am. 

Lung Ass’n, Most Polluted Cities, https://

www.lung.org/research/sota/city-rankings/mostpolluted-cities (last visited July 2, 2021) (A– 

0422).’’). 

470States and Cities at 41–42. 

471 78 FR at 2145. 

472 MEMA I, 627 F.2d 1095, 1114–15 (D.C. Cir. 

1979) (holding that EPA did not need to consider 

whether California’s standards ‘‘unconstitutionally 

burden[ed] [petitioners’] right to communicate with 

vehicle purchasers.’’). See also Twelve Public 

Interest Organizations at 7 (‘‘As regulatory agencies 

are not free to declare an act of Congress 

unconstitutional,’ Springsteen-Abbott v. SEC, 989 

F.3d 4, 8 (D.C. Cir. 2021), EPA cannot determine 

whether a statute Congress directed it to implement 

contravenes the equal-sovereignty principle. Thus, 

EPA should proceed to rescind the Waiver 

Withdrawal and leave Ohio’s argument for review 

by an appropriate court.’’). 

473See, e.g., Johnson v. Robison, 415 U.S. 361, 

368, (1974) (‘‘Adjudication of the constitutionality 

of congressional enactments has generally been 

thought beyond the jurisdiction of administrative 

agencies’’); Springsteen-Abbott, 989 F.3d at 8; 

Meredith Corp. v. FCC, 809 F.2d 863, 872 (D.C. Cir. 

1987). 

474 ‘‘§ 177 . . . permitted other states to 

‘piggyback’ onto California ’s standards, if the 

state’s standards ‘are identical to the California 

standards for which a waiver has been granted for 

such model year.’ ’’ Motor Vehicle Mfrs. Ass’n v. 

New York State Dep’t of Envtl. Conservation, 17 

F.3d 521, 525 (2d Cir. 1994). 

475AFPM at 7; Urban Air at 2, 18–19; NADA at 

6. 

Consistent with the Agency’s long 

standing practice, the decision on 

whether to grant the ACC program 

waiver was based solely on criteria in 

section 209(b) and the Agency did not 

either interpret or apply the Equal 

Sovereignty Doctrine or any other 

constitutional or statutory provision in 

that waiver decision.467

Although EPA specified issues that it 

was seeking comment on within the 

Notice of Reconsideration, commenters 

nevertheless argued that the Equal 

Sovereignty Doctrine, which was not 

one of the identified aspects in that 

notice, preempts reinstitution of the 

relevant aspects of the ACC program 

waiver. According to these commenters, 

‘‘Section 209, by allowing California 

and only California to retain a portion 

of its sovereign authority that the Clean 

Air Act takes from other States, is 

unconstitutional and thus 

unenforceable.’’ 468 Other commenters 

argued that the Equal Sovereignty 

doctrine does not apply to the California 

waiver program. One comment 

maintained that the holding in Shelby 

County v. Holder is distinguishable from 

the CAA.469 California disagreed with 

EPA’s characterization of the relevance 

of the doctrine, commenting that the 

Supreme Court has only applied the 

‘‘rarely invoked’’ doctrine of Equal 

Sovereignty in the ‘‘rare instance where 

Congress undertook ‘a drastic departure 

from basic principles of federalism’ by 

authorizing ‘federal intrusion into 

sensitive areas of state and local 

policymaking.’ ’’ 470

As explained in the 2013 ACC 

program waiver decision, EPA 

continues to believe that waiver 

requests should be reviewed based 

solely on the criteria in section 209(b)(1) 

and specifically, that the Agency should 

not consider constitutional issues in 

evaluating waiver requests.471 As 

previously noted in Section VI, the 

constitutionality of section 209 is not 

one of the three statutory criteria for 

reviewing waiver requests, and such 

objections are better directed to either 

the courts or Congress. As the D.C. 

Circuit reasoned in MEMA I, ‘‘it is 

generally considered that the 

constitutionality of Congressional 

enactments is beyond the jurisdiction of 

administrative agencies.’’ 472 Although 

commenters here raise a new 

constitutional argument—that of Equal 

Sovereignty rather than the First 

Amendment or the Dormant Commerce 

Clause—EPA is no more well-suited to 

resolve this constitutional objection 

than it is to resolve previous 

constitutional objections.473

EPA notes that Congress struck a 

deliberate balance in 1967 when it 

acknowledged California’s serious air 

quality problems as well as it being a 

laboratory for the country, and once 

again in 1977 when Congress continued 

to acknowledge California’s air quality 

problems as well as problems in other 

states and decided that California’s new 

motor vehicle standards, once waived 

by EPA and subject to certain 

conditions, would be optionally 

available for all states under section 177 

under specified criteria.474 In striking a 

balance between one national standard 

and 51 different state standards, 

Congress chose to authorize two 

standards—the federal standard, and 

California’s standards (which other 

states may adopt). EPA believes this 

balance reflected Congress’s desire for 

California to serve as a laboratory of 

innovation and Congress’s 

understanding of California’s 

extraordinary pollution problems on the 

one hand, and its desire to ensure that 

automakers were not subject to too 

many different standards on the other. 

In reconsidering the SAFE 1 action 

and the appropriateness of reinstating 

the 2013 ACC program waiver, EPA has 

not considered whether section 209(a) 

and section 209(b) are unconstitutional 

under the Equal Sovereignty Doctrine. 

As in the 2013 ACC program waiver, the 

decision on whether to grant the waiver 

and the consequence of a reinstated 

waiver is based solely on the criteria in 

section 209(b) and this decision does 

not attempt to interpret or apply the 

Equal Sovereignty Doctrine or any other 

constitutional or statutory provision. 

B. CARB’s Deemed-To-Comply 

Provision 

EPA received comments arguing that 

California’s 2018 clarification to its 

deemed-to-comply provision ‘‘changed 

important underlying requirements of 

the original 2012 waiver application’’ 

and ‘‘EPA cannot reinstate a Clean Air 

Act waiver for a program that no longer 

exists.’’ 475 These commenters maintain 

that California has never sought a 

waiver for the 2018 amendments or a 

determination that the change is within 

the scope of the prior waiver. As such, 

commenters maintain that EPA lacks a 

necessary predicate to permit 

California’s enforcement of its amended 

GHG standards. 

Other commenters argued that the 

‘‘deemed to comply’’ provision was 

always conditioned on the federal 

standards providing GHG reductions 

that were at least equal to or as 

protective as California’s program and 

so the 2018 amendments did not 

substantively change the provision or 

affect any related reliance interests and 

instead were designed to clarify the 


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476States and Cities at 58–61. (‘‘California always 

intended its standards would ‘remain an important 

backstop in the event the national program is 

weakened or terminated.’ 78 FR at 2,128.’’). 

477 Id. at 60. ‘‘Final Determination on the 

Appropriateness of the Model Year 2022–2025 

Light-Duty Vehicle Greenhouse Gas Emissions 

Standards under the Midterm Evaluation’’ (2017 

Final Determination) at https://nepis.epa.gov/Exe/ 

ZyPDF.cgi?Dockey=P100QQ91.pdf. 

478 82 FR 14671 (March 22, 2017) and 83 FR 

16077 (April 13, 2018). 

479States and Cities at 60–62. 

480 78 FR at 2124. 

481EPA declined to ‘‘take any position at this 

point on what effect California’s December 2018 

amendment to its ‘‘deemed to comply’ provision 

. . . [may] have on the continued validity of the 

January 2013 waiver.’’ 84 FR at 51329, n.208, 

51334, n.230. Although EPA claimed in SAFE 1 that 

the deemed to comply clarification confirmed and 

provided further support for the SAFE 1 action, 

EPA no longer makes this claim to the extent it is 

relevant in its reconsideration and rescission of 

SAFE 1. The consequence of this action is the 

reinstatement of the ACC program waiver issued in 

2013 and does not extend to other regulatory 

developments in California or by EPA that occurred 

subsequent to that waiver decision. 

482 86 FR at 22423. In addition to declining to 

take a position on the effect of California’s 2018 

amendments to its ‘‘deemed to comply’’ provision, 

SAFE 1 did not finalize the withdrawal of the 

waiver under the first or third waiver prongs. EPA 

also notes that it has previously responded twice to 

the comments suggesting that CARB’s deemed-tocomply provision demonstrates that California does 

not have a need for its own standards. See 78 FR 

at 2124–25. 

483EPA acknowledges that motor vehicle 

emission standards in California as well as federally 

are periodically clarified, amended, or revised. For 

example, after California issued its first deemed-tocomply regulation, EPA determined that the state’s 

GHG standards were within the scope of the 2009 

waiver. While EPA believes that Congress intended 

regulatory certainty to be attached to the Agency’s 

waivers issued under section 209, EPA 

acknowledges that conditions may change over time 

so significantly that it could merit a review of 

California’s motor vehicle emission program and 

applicable standards therein or that would prompt 

California to submit a related waiver request to 

EPA. As explained in this decision, the conditions 

associated with the analysis of the three waiver 

criteria performed in the ACC waiver decision did 

not change so as to merit the SAFE 1 action. EPA 

recognizes that federal light-duty vehicle GHG 

emission standards have been modified twice since 

SAFE 1 was issued; the current standards do not 

change EPA’s conclusion that SAFE 1 should be 

rescinded. 

provision.476 Commenters maintain that 

CARB adopted ‘‘non-substantive 

amendments for its LEV III regulations 

to further clarify that the deemed-tocomply provision would only apply if 

the federal GHG standards remained 

substantially as they were as of the date 

of the 2017 Final Determination.’’ 477

According to these commenters, 

California adopted these amendments 

after EPA’s withdrawal of its 2017 Final 

Determination that had determined that 

its Federal GHG standards for model 

years 2022–2025 remained appropriate 

and instead concluded that the federal 

standards for model years 2022–2025 

may be too stringent and should be 

revised. EPA notes that after the January 

2017 MTE CARB subsequently found 

that compliance with those federal 

standards would result in equivalent or 

greater GHG benefits than originally 

projected for California.478 These 

commenters further maintain that the 

clarification of the deemed-to-comply 

provision is immaterial to the reversal of 

the waiver withdrawal in SAFE 1 

because the SAFE 1 action was 

expressly based on EPA’s decision to 

rely on NHTSA’s preemption findings 

and section 209(b)(1)(B) determination, 

neither of which was based on CARB’s 

2018 clarification rulemaking. As such, 

the commenters maintain that the 

clarification of the deemed-to-comply 

provision has no bearing on and does 

not preclude EPA’s SAFE 1 waiver 

withdrawal.479

As previously explained, under 

section 209(b)(1) EPA is to grant a 

waiver of preemption for California to 

enforce its own standards that would 

otherwise be preempted under section 

209(a). This preemption does not extend 

to federal standards that are adopted 

under section 202(a). EPA explained 

this in responding to comments on the 

deemed-to-comply provision in the ACC 

program waiver decision. ‘‘[T]he waiver 

decision affects only California’s 

emission standards, not the federal 

standards that exist regardless of EPA’s 

decision.’’ 480 This preemptive effect of 

section 209(a) does not change even 

when California chooses to allow for 

compliance with its standards through 

federal standards as envisaged by the 

deemed-to-comply provision. 

It also bears note that in SAFE 1, EPA 

made clear that the 2018 amendment 

was not a ‘‘necessary part of the basis 

for the waiver withdrawal and other 

actions that EPA finalizes in this 

[SAFE1] document.481 In the Notice of 

Reconsideration, EPA neither reopened 

nor reconsidered elements of the 2013 

waiver that were not part of EPA’s 

findings in SAFE 1.482 As noted in this 

decision, EPA has evaluated the factual 

and legal errors that occurred in SAFE 

1. As part of this evaluation, EPA 

believes it has considered all 

appropriate and relevant information 

necessary to its review of issues 

associated with the second waiver prong 

or consideration of preemption under 

EPCA. The Agency also recognizes that 

it received comments from parties that 

raised non-germane issues to EPA’s 

Notice of Reconsideration. EPA did not 

conduct an analysis of such comments 

in the context of reconsidering the 

specific actions taken in SAFE 1. EPA 

also makes clear that the result of 

rescinding its part of SAFE 1 is the 

automatic reinstatement of the waiver 

granted to California in 2013 for its ACC 

program. That is the result of the action 

taken herein.483

IX. Decision 

After review of the information 

submitted by CARB and other public 

commenters, the SAFE 1 action, and the 

record pertaining to EPA’s 2013 ACC 

program waiver, I find that EPA did not 

appropriately exercise its limited 

inherent authority to reconsider waiver 

grants in SAFE 1. SAFE 1 did not 

correct a clerical or factual error, nor did 

the factual circumstances and 

conditions related to the three statutory 

criteria change prior to SAFE 1, much 

less change so significantly as to cast the 

propriety of the waiver grant into doubt. 

On this basis, I am rescinding the SAFE 

1 action. 

Furthermore, after review of both the 

2013 ACC program waiver record as 

well as the SAFE 1 record, to the extent 

that EPA did have authority to 

reconsider the ACC program waiver, I 

have determined that the asserted bases 

were in error and did not justify the 

waiver withdrawal. With respect to the 

Agency’s first purported basis—its 

discretionary decision to undertake a 

reinterpretation of the second waiver 

prong—I find that the statutory 

interpretation adopted in SAFE 1 is a 

flawed reading of the statute, and I 

hereby return to the traditional 

interpretation of the second waiver 

prong, which is, at least, the better 

interpretation. Under the traditional 

interpretation, which looks at the 

program as a whole, California clearly 

had a compelling need for the ACC 

program. Even if SAFE 1’s statutory 

reinterpretation, which focuses on 

California’s compelling need for the 

specific standards, were an appropriate 

reading, EPA did not perform a 

reasonable, accurate, and complete 

review of the factual record in its 

findings regarding the criteria emission 

benefits of CARB’s ZEV sales mandate 

and GHG emission regulations. Upon 

review, I find that SAFE 1’s predicate 

for concluding that California did not 

have a compelling need for these 

specific standards was not reasonable 

given the record at the time of the ACC 

program waiver and once again during 

the SAFE 1 proceeding. A reasonable, 

accurate, and complete review of the 

record supports the need for California’s 

specific GHG emission standards and 

ZEV sales mandate to meet compelling 

and extraordinary conditions in 

California. This is true whether I look at 

how these standards reduce criteria 

pollution, GHG pollution, or both. In 


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484 In deciding whether to invoke the exception 

by making and publishing a finding that this final 

action is based on a determination of nationwide 

scope or effect, the Administrator has also taken 

into account a number of policy considerations, 

including his judgment balancing the benefit of 

obtaining the D.C. Circuit’s authoritative centralized 

review versus allowing development of the issue in 

other contexts and the best use of agency resources. 

485The same states have adopted California’s ZEV 

sales mandate regulation with the exception of 

Pennsylvania, Washington, and Delaware. 

486 In the report on the 1977 Amendments that 

revised CAA section 307(b)(1), Congress noted that 

the Administrator’s determination that the 

‘‘nationwide scope or effect’’ exception applies 

would be appropriate for any action that has a 

scope or effect beyond a single judicial circuit. See 

H.R. Rep. No. 95–294 at 323–24, reprinted in 1977 

U.S.C.C.A.N. 1402–03. 

sum, although I am not adopting the 

interpretation of the second waiver 

prong set forth in SAFE 1, I find that the 

burden of proof necessary to 

demonstrate that CARB’s ZEV sales 

mandate and GHG emission standards 

are not needed to meet compelling and 

extraordinary conditions has not been 

met under either interpretation of the 

second waiver prong. Therefore, I 

rescind the Agency’s part of the SAFE 

1 action to the extent it relied upon the 

second waiver prong to withdraw the 

ACC program waiver. 

With regard to the applicability of 

preemption under EPCA, I find that, to 

the extent EPA’s authority to reconsider 

the ACC program waiver rested upon 

NHTSA’s joint action at the time as well 

as the applicability of its EPCA 

interpretation to EPA’s review, this 

statute falls clearly outside the confines 

of section 209(b) where EPA’s authority 

to grant, deny, and reconsider waivers 

resides. In any event, the grounds for 

such action under SAFE 1 no longer 

exist given NHTSA’s recent final action 

withdrawing its EPCA preemption rule 

in its entirety. 

Each of the decisions and 

justifications contained in this final 

action is severable. 

This decision rescinds EPA’s SAFE 1 

action and therefore, as a result, the 

waiver of preemption EPA granted to 

California for its ACC program ZEV 

sales mandates and GHG emission 

standards issued in 2013, including for 

the 2017 through 2025 model years, 

comes back into force. 

Judicial Review 

Section 307(b)(1) of the CAA governs 

judicial review of final actions by EPA. 

This section provides, in part, that 

petitions for review must be filed in the 

Court of Appeals for the District of 

Columbia Circuit: (i) When the agency 

action consists of ‘‘nationally applicable 

regulations promulgated, or final actions 

taken, by the Administrator,’’ or (ii) 

when such action is locally or regionally 

applicable, but ‘‘such action is based on 

a determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ For locally or regionally 

applicable final actions, the CAA 

reserves to EPA complete discretion 

whether to invoke the exception in (ii). 

This final action is ‘‘nationally 

applicable’’ within the meaning of 

section 307(b)(1). In the alternative, to 

the extent a court finds this action to be 

locally or regionally applicable, the 

Administrator is exercising the 

complete discretion afforded to him 

under the CAA to make and publish a 

finding that this action is based on a 

determination of ‘‘nationwide scope or 

effect’’ within the meaning of section 

307(b)(1).484 This action rescinds EPA’s 

final action in SAFE 1, which withdrew 

a waiver for new motor vehicle 

greenhouse gas emission standards and 

ZEV sales mandate granted to California 

under section 209(b) of the CAA. In 

addition to California, sixteen other 

states and the District of Columbia have 

already adopted California’s motor 

vehicle greenhouse gas standards. The 

other states are New York, 

Massachusetts, Vermont, Maine, 

Pennsylvania, Connecticut, Rhode 

Island, Washington, Oregon, Minnesota, 

New Jersey, Nevada, Maryland, Virginia, 

Colorado, and Delaware.485 These 

jurisdictions represent a wide 

geographic area and fall within eight 

different judicial circuits.486 In addition, 

this action will affect manufacturers 

nationwide who produce vehicles to 

meet the emissions standards of these 

states. For these reasons, this final 

action is nationally applicable or, 

alternatively, the Administrator is 

exercising the complete discretion 

afforded to him by the CAA and hereby 

finds that this final action is based on 

a determination of nationwide scope or 

effect for purposes of section 307(b)(1) 

and is hereby publishing that finding in 

the Federal Register. 

Under CAA section 307(b)(1), 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the District of 

Columbia Circuit within 60 days from 

the date this final action is published in 

the Federal Register. 

X. Statutory and Executive Order 

Reviews 

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. 601(2). Therefore, EPA has 

not prepared a supporting regulatory 

flexibility analysis addressing the 

impact of this action on small business 

entities. 

Further, Subtitle E of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, also known as the 

Congressional Review Act, 5 U.S.C. 801, 

et seq., does not apply because this 

action is not a rule for purposes of 5 

U.S.C. 804(3). 

Michael S. Regan, 

Administrator. 

[FR Doc. 2022–05227 Filed 3–11–22; 8:45 am] 

BILLING CODE 6560–50–P 


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