Howard Learner [Executive Director, Environmental Law & Policy Center]: "On the transportation front, the Clean Air Act balances federal and state interests by making clear a binary approach: states are empowered to adopt California's emission standards, if a waiver is approved by the U.S. EPA following reasonable consideration, or default to the federal standards. Federal District Courts in California and Vermont have rejected federal preemption claims against the states taking action in light of this explicit two-pronged framework. All of this turns, however, on the U.S. EPA giving fair consideration in granting the California waiver in appropriate cases. Historically, the U.S. EPA has approved the California waivers.
When the U.S. EPA appears to have engaged in scientific and policy gamesmanship in considering a waiver for California, that is not only a political issue, but a legal issue as well. The balanced approach to preemption under this part of the Clean Air Act should not be distorted by arbitrary or unreasonable U.S. EPA review and consideration. The Bush Administration's refusal to provide the U.S. House Oversight and Government Reform Committee with access to documents that discuss and explain why the U.S. EPA refused to allow California to adopt its own emission standards adds weight to the claim that there was arbitrary and unreasonable agency action here."