Guest essay by Eric Worrall

California has geared up to defy President Trump’s efforts to dismantle ridiculously strict auto-emission standards. But there may be a way President Donald Trump can overturn their intransigence.

California Upholds Auto Emissions Standards, Setting Up Face-Off With Trump

By HIROKO TABUCHIMARCH 24, 2017

California’s clean-air agency voted on Friday to push ahead with stricter emissions standards for cars and trucks, setting up a potential legal battle with the Trump administration over the state’s plan to reduce planet-warming gases.

The vote, by the California Air Resources Board, is the boldest indication yet of California’s plan to stand up to President Trump’s agenda. Leading politicians in the state, from the governor down to many mayors, have promised to lead the resistance to Mr. Trump’s policies.

Mr. Trump, backing industry over environmental concerns, said easing emissions rules would help stimulate auto manufacturing. He vowed last week to loosen the regulations. Automakers are aggressively pursuing those changes after years of supporting stricter standards.

But California can write its own standards because of a longstanding waiver granted under the Clean Air Act, giving the state — the country’s biggest auto market — major sway over the auto industry. Twelve other states, including New York and Pennsylvania, as well as Washington, D.C., follow California’s standards, a coalition that covers more than 130 million residents and more than a third of the vehicle market in the United States.

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One option is to allow US states to choose their own emissions standards – after all, one of the benefits of federalism is it allows experimentation, testing of different legislative solutions and frameworks. States which succeed, which embrace the best, most effective policies, inspire others by their example.

But a fragmented emissions framework could leave auto-makers in a situation where they have to attempt to satisfy 50 different emissions standards.

Another option might be to use the US constitution to overturn unfair barriers to interstate trade.

Article I section 8 of the US constitution contains the following clause;

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

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How might the power to regulate commerce apply to vehicle emission standards?

The Supreme Court has seldom restrained the use of the commerce clause for widely varying purposes. The first important decision related to the commerce clause was Gibbons v. Ogden, decided by a unanimous Court in 1824. The case involved conflicting federal and state laws: Thomas Gibbons had a federal permit to navigate steamboats in the Hudson River, while the other, Aaron Ogden, had a monopoly to do the same granted by the state of New York. Ogden contended that “commerce” included only buying and selling of goods and not their transportation. Chief Justice John Marshall rejected this notion. Marshall suggested that “commerce” included navigation of goods, and that it “must have been contemplated” by the Framers. Marshall added that Congress’s power over commerce “is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution”.

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If I have understood the Gibbons vs Ogden case of 1824, the Federal government has the power to regulate the navigation of goods, the transportation of goods. This obviously includes the right to regulate vehicles which transport goods. Vehicles registered in one state appear to have an unambiguous right to cross state lines, and be used in another state.

If a Californian resident wants to defeat Californian vehicle emissions laws, it might be as simple as buying a SUV out of state and registering it as a commercial transport vehicle in a friendly jurisdiction, possibly as part of a leaseback deal through that business registered in another state. California arguably does not have the right to prevent someone from doing this, as attempting to regulate the use of vehicles owned by an out of state business seems likely to infringe the Federal government’s right to regulate vehicles used for interstate commerce.

Such a leaseback deal would likely cost thousands of dollars over the life of the vehicle. The lawyers would get richer. But attempting to conform to lunatic Californian emissions standards could easily cost a lot more.

I am not a lawyer, so I may have misunderstood the Gibbons v. Ogden ruling, or there may be a ruling which supersedes and modifies the Gibbons v. Ogden precedent. But if the scheme I proposed is constitutionally and legally valid, California’s power to regulate vehicle emissions could be rendered essentially meaningless, by the large scale deployment of fleets of vehicles in California which do not conform to Californian vehicle emission standards, because they are registered out of state, in less insanely stringent jurisdictions.