A core part of federal emissions regulations since the early 1970s has been the so-called California Waiver. California, alone among all 50 US states, has the right to set its own auto emissions regulations. No other state can do that, but other states can, if they wish, choose to follow California’s emission standards instead of less stringent federal standards.
The states that have followed California’s lead on emission standards tend to be more densely populated ones like New York, New Jersey and Massachusetts. But Nevada and New Mexico have also adopted them. Together these states account for well over a third of auto sales in the United States and about 40% of its population. It’s not clear that all these states will, like California, ban sales of cars without charging ports or hydrogen tanks after 2035 but, if even some do, that could represent a large portion of the country.
It may seem strange that one state – California – has so much power to set its own climate and emissions policies, and even to have sway over other states. The reasons for this go back over 50 years. The core reason is that California has long had air quality issues for a number of reasons.
“They had so many cars and they’ve got those damn mountains,” said Richard Lazarus, a professor who teaches environmental law at Harvard University.
Besides its sprawling urban and suburban areas that encourage driving and its mountain ranges that trap air – and pollution – parts of California also have lots of sunshine that stimulate chemical reactions that worsen pollution.
“I’m third generation Angelino, and I remember growing up as a kid when the skies were just… you could barely see across the street,” said Allan Marks, a Los Angeles attorney whose work involves renewable energy and transportation.
The histories of the California Air Resources Board and the Environmental Protection Agency, the federal agency that regulates emissions, hinge on two people you might not think of as being on the environmentalist vanguard, Ronald Reagan and Richard Nixon. Both are, today, remembered as stalwart conservative Republicans and, in modern America, that often means being against environmental regulation.
But, in 1967, it was Reagan, then the governor of California, who signed off on the creation of the California Air Resources Board. The new agency was created by joining together California’s Bureau of Air Sanitation and the California Motor Vehicle Pollution Control Board. By this time, California had already enacted the nation’s first tailpipe emissions regulations.
These first regulations of car emissions prompted a push for federal standards to preempt other individual states from following suit, said Lazarus. The fear was that there might eventually be as many as 50 different emissions standards and that a federal standard, the Clean Air Act of 1970, was preferable.
“There were federal acts before the Clean Air Act, going back into the fifties, that were looking at air quality,” said Marks. “But a lot of what the federal government was doing was just studying the problem.”
In 1970 President Richard Nixon also created the Environmental Protection Agency, which studies and regulates pollution of all sorts, combining work that had, until then, been done by a variety of different federal agencies. The EPA oversees and applies the Clean Air Act.
“The great question of ’70s is, ‘Shall we surrender to our surroundings or shall we make our peace with nature and begin to make reparations for the damage we have done to our air, to our land, and to our water?’” Nixon said in his State of the Union Address that year.
By this time, the groundwork had already been laid for California to set its own rules and that continued with the “California waiver,” a part of federal regulations that made this special exception for California. It has been renewed many times since and, usually, without much fuss. EPA administrators are required to have compelling reasons to deny the waiver, said Lazurus, and there have been attempts, but none have been successful in the long term. The California wavier might have been a little awkward, but it prevented what was seen as potential chaos. At worst automakers would have to comply with two sets of rules but at least not three, four or even more different sets of rules.
At the time, environmental concerns didn’t cut across clear party lines, said Lazarus. There were Republicans as well as Democrats pushing for cleaner air and water. Nixon’s actions, to some degree, were designed to head off at the pass a perceived political threat from environmentalists, according to Lazarus, though he later changed course and fought some environmental regulation.
Another part of the Clean Air Act, passed in 1977, allows other states, if their air quality fails to meet federal standards, to follow California’s stricter emissions rules as a way of improving their air quality. (They’re not allowed to just create their own stricter rules.) So far, 17 other states have chosen to abide by California’s emissions standard, at least in some part. In total, they represent more than 35% of all new auto sales in America.
The auto industry has been able work well within the current system, said Marks. It has provided the stability originally sought with the creation of the Clean Air Act and the California waiver.
“Manufacturers work very collaboratively with California, trying to figure out how to meet the standards, what the standards should be,” he said.
During his tenure, President Donald Trump asked the courts to do away with the California waiver. That attempt failed or, at least, hadn’t succeeded by the time Trump was turned out of office in the 2020 election. President Joseph Biden’s administration dropped that effort and, in March 2022, the California waiver was renewed once more.
