I just finished reading Jonathan Adler’s take in National Review Online on California’s request to the federal government that they allow the state to enact tough tailpipe emissions standards that would curb the emission of the greenhouse gases causing climate change. Now I may not agree with what he has to say later, but at least Adler gets the facts right early on (mostly).

California Attorney General Jerry Brown came to Washington this week, urging the federal government to let California impose the first regulations on greenhouse-gas emissions from automobiles. The Golden State has adopted regulations under which automakers must reduce greenhouse-gas emissions from new cars sold in California beginning in 2009. By 2016, new vehicle greenhouse-gas emissions must decline by nearly 30 percent. If the federal government won’t take decisive action on climate change, Brown declared, “California will take action.”

The problem for California is that it cannot enforce its new regulations without a waiver of federal law. Under the federal Clean Air Act, states are generally precluded from adopting their own vehicle-emission standards. According to Congress, regulating motor vehicles is a federal job. California gets special treatment, however. California is authorized to seek a waiver of federal law when it adopts vehicle-emission regulations. Once a waiver is obtained, and only then, other states may follow suit.

So why can’t California get a waiver? Adler says that the state is stepping to much on the federal government’s toes when it comes to the state doing what the feds are supposed to do. Follow me after the flip as I explain why Adler is wrong here…

So what’s so bad about what Adler has to say? He seems to know his law here:

California’s special status in air-pollution law dates to the early days of federal environmental regulation. California adopted the nation’s first vehicle-emission standards in the 1960s. Afraid that other states would soon follow suit, the automakers went to Washington, D.C. seeking a uniform federal standard that would preempt the states. The automakers hoped they would get less stringent rules from Washington, D.C., but preferred a tighter federal rule than a polyglot of state rules. From the automakers’ perspective, it was essential that a car rolling off an assembly line in Pontiac, Michigan, could be sold in any state.

Yes, this is true. California did adopt vehicle emissions standards some five years before the federal government did. And yes, the federal government later adopted nationwide standards on vehicle emissions. However recognizing that California did this first, the federal government allowed California to continue setting its own standards, just so long as they are at least as strong as federal standards. And always, California standards have been stronger than federal standards.

So why can’t California adopt tough standards to curb global climate change?

The waiver provision was designed to ensure that California could adopt tighter emission controls where necessary for California cities to meet federal air-quality standards. California had the worst air pollution in the nation, and there was a strong argument that what would clear the air in Houston or Chicago might not work so well in southern California. So, over the past 30 years, California sought and obtained tens of waivers to help control soot and smog. In each case, California could argue that more stringent auto-emission rules were necessary to meet the “extraordinary conditions” that California faced.

Global climate change, however, is a global phenomenon. The relevant airshed is not the Los Angeles basin or South Coast Air Quality Management District, but the global atmosphere. The degree of warming experienced by California is a consequence of atmospheric concentrations of carbon dioxide and other greenhouse gases, not local conditions or controls.

California may face specific threats from the effects of global warming, but the climate-forcing of carbon dioxide and other greenhouse gases is dispersed throughout the world.

Oh, really? Now yes, climate change is a global phenomenon. So California doesn’t face any specific threats from global climate change?

Another problem for California’s case is that adopting new car-emission standards will have no meaningful effect on the climate-related threats that California fears. Even once California’s standards are adopted in a dozen states, this will do nothing to reduce the threat of sea-level rise that Californians’ face. That climate change may present a “compelling” threat to the nation or the world is not relevant as a legal matter, as the Clean Air Act proscribes other considerations. California was granted the ability to seek waivers to enact measures addressing pollution problems in California, not a roving authority to drive environmental policy for the nation as a whole.

Hold on, Mr. Adler! Actually, those greenhouse gases are contributing to the rise in sea level that would threaten our state. And yes, this is a real threat! And oh yes, it’s already happening! And yes, it’s more than just the sea level. Look at the flooding in Marin County. Look at what’s happening in the Delta. Look at the bizarre deep freeze in much of Orange County this winter.

Obviously, climate change is something that something that our federal government needs to tackle. The US Supreme Court even recognizes that now! However, Bush has refused to act. And in the mean time, places like California are suffering the consequences! So why doesn’t the state government have the right to protect its citizens by taking action against climate change?

I never thought I’d say this, but I agree with Arnold here [writing with Governor Jodi Rell (R-Connecticut)]:

(From Washington Post)

There can be little debate anymore on whether the effects of climate change constitute a looming threat to the public’s health and welfare.

Republicans and Democrats in statehouses around the country have already spoken loudly that federal inaction on climate change is unacceptable and have acted on their own initiative.

Whether it is Northeastern states uniting to reduce greenhouse gases from electric generators or Western states looking to reduce emissions throughout the economy, momentum is building everywhere but in Washington. The federal government should not stand in the way of dealing with the most serious environmental challenge facing the world.

While the United States represents just 5 percent of the world’s population, it produces 25 percent of the world’s greenhouse gases.

With the landmark legislation authored by former assemblywoman Fran Pavley and passed in 2002, California demonstrated that it is serious about cutting down these emissions from cars. Connecticut also has a strong record on greenhouse gas reduction, which includes adoption of California’s tough standards for vehicle tailpipe emissions.

California, Connecticut and a host of like-minded states are proving that you can protect the environment and the economy simultaneously.

It’s high time the federal government becomes our partner or gets out of the way.

So why can’t California take action on a global climate phenomenon that is already harming the people of this state? Why can’t the state regulate the greenhouse gas emissions that are causing all this trouble? Why shouldn’t the EPA give California a waiver to take action and reduce these dangerous emissions?

It’s high time the State of California is allowed to stop the global climate catastrophe that’s causing real harm in this state. And it’s time to allow these other states to follow California’s lead. It’s just too bad that Bush won’t allow the federal government to do the same. I guess that’s why these states need to take action in the first place.