Is Obama Out of Bounds on Climate Change?

Did President Obama exceed his authority by announcing a fuel economy goal--35.5 miles per gallon fleet average--for automakers in 2016? The goal (which works out to 30 mpg for trucks, 39 for cars) is part of a sweeping and unprecedented rulemaking announced earlier this week that combines Corporate Average Fuel Economy (CAFE) legislation with greenhouse gas regulation.

Kirk Van Tine is a partner in the government relations practice group at the Washington law firm Baker Botts--and a former general counsel in the Bush-era Transportation Department headed by Norm Mineta. Some background is necessary with Baker Botts. The Baker is Republican leader James Baker, a fixture in both Bush administrations. According to The Nation, "No law firm in America has profited more from its association with the two Bush Administrations than Baker Botts."

But, this aside, Van Tine makes an interesting point. "The announcement and the media coverage made it sound like a decision has been made and the 35.5-mpg standard is going to happen. It sounded like the end of the process, when, in fact, a lot has to happen between now and the middle of next year to accomplish the end point they announced. It's a long technical and legal process, and the mileage number comes at the end of it. They seem to have short-circuited that approach."

Van Tine also said that the EPA has not finished the similar rulemaking that will, in the end, give it authority to regulate greenhouse gases.

Indeed, the process is lengthy and complicated. The joint rulemaking includes an extensive public comment period, and the mileage numbers take into account such balancing factors as engineering feasibility, consumer and environmental issues. Van Tine says, "It's not appropriate to announce what the end result of the CAFE process will be when it's barely begun."

But Dan Becker of the Safe Climate Campaign, who has worked on CAFE issues for many years, including at his previous post at the Sierra Club, said that Van Tine "should read the actual federal notice."

According to Becker, "The EPA and the Department of Transportation are working up standards to achieve the 35.5-mpg goal. It's a goal. And the President also instructed the EPA to determine whether carbon dioxide [CO2, the major global warming gas] is a threat to health and welfare. That opened the door to allow regulation, and empowers the agency to reduce carbon emissions."

President Obama has also given the EPA until the end of June to approve or turn down California's attempt to regulate greenhouse gases. The fact that those California regulations will go away, at least temporarily, is a major incentive for automakers. The federal climate regulation runs from model year 2012 to model year 2016, and after that California could decide to issue its own standards if it deems the federal ones not tough enough.

As issued by the lawyer in chief, the joint rulemaking does seem to make it amply clear that 35.5 mpg is a goal. EPA and DOT, it says, have been charged with combating climate change and reducing oil consumption. They "intend to work in coordination to propose standards for control of emissions of greenhouse gases and for fuel economy, respectively," the document says. "If proposed and finalized, these standards would apply to passenger cars, light-duty trucks, and medium-duty passenger vehicles (light-duty vehicles) built in model years 2012 through 2016." It admits some uncertainty: "If ultimately adopted, these standards would represent a harmonized and consistent national policy--"

A single, consistent national policy is what automakers have been saying they wanted, and that's why they're not calling their own lawyers. Carol Browner, the White House assistant (and former EPA secretary) who is a major figure in helping shepherd the new rules forward, assures corporate America in this video that such regulations will have dramatic upsides for business: