Those warnings, issued directly from the desk of EPA Administrator Andrew Wheeler, were at odds with the agency's hands-off approach under Trump. At a time when EPA is weakening environmental standards on both air and water pollution and enforcement activity is at its lowest level in a decade, the agency was invoking one of the most severe penalties available, for a state that has invested billions in improved air quality and has among the best compliance records in the nation on water pollution.
California's governor has called the moves "pure retaliation," while former federal officials say that the unusual nature of the enforcement actions, and the management of the cases by top Trump appointees in Washington, reeks of political score-settling.
Together, the Trump administration's actions try to deliver the message that California is a laggard in addressing visible air pollution and sewage, and that the state's aggressive focus on global warming is a misguided distraction at best.
But the Trump administration's California narrative falls apart with a cursory review of the science and the state's record as a national leader in environmental protection. And it remains to be seen whether it has the legal arguments to persuade the courts, which will have the final say.
The Road Here
This is not the first time that politicians have sought to caricature California as a victim of its own progressive policies.
Former Vice President Dick Cheney famously used California's electricity crisis of 2001 as a pretext for expanded U.S. oil and natural gas production. Only later did it become clear that California's power shortages were created, not by conservation-oriented policies, but by profit-hungry energy traders like Enron who took advantage of the state's experiment with deregulation.
The same administration also sought to block California's effort to regulate greenhouse gas emissions from passenger vehicles, but the auto industry's collapse in 2008 forced it into the arms of the federal government for help. President Barack Obama's administration brokered an historic $80.7 billion bailout of the carmakers, which included an agreement to put California's standards into effect nationwide. It forced a gradual fleet-wide improvement in fuel economy that by 2025 would have cut 6 billion tons of carbon dioxide, the biggest step any nation has taken to reduce greenhouse gases.
Soon after Trump was elected, the carmakers sought to partially undo that deal—they still wanted a nationwide standard, but more flexibility. The Trump administration, however, sought a head-on battle with California that the automakers had long said they hoped to avoid.
Launching such a war runs counter to the Trump administration's stated goal of giving more environmental authority to the states. Just last month, for example, the Trump EPA delegated increased authority to North Dakota for oversight of oil and gas sites, and waste facilities, and power plants.
But EPA Administrator Wheeler has portrayed California as a different case—a rogue state that needed to be reined in.
"We embrace federalism and the role of the states, but federalism does not mean that one state can dictate standards for the nation," Wheeler said in a speech to the National Automobile Dealers Association just before announcing that California would be stripped of its greenhouse gas emissions authority on vehicles.
The following week, Wheeler took two surprising steps. He threatened to withhold California's federal highway funds for "failing to carry out its most basic tasks" under the Clean Air Act to control air pollution in its cities. Wheeler then fired off a letter to California Gov. Gavin Newsom, threatening enforcement action over what he said was his state's "failure to protect Californians from degraded water" due to human waste from homeless people in its cities. The EPA followed up with a notice of violation to the San Francisco Public Utilities Commission.
California's Environmental Record
Although the allegations by the Trump administration each contain a grain of truth, they paint a misleading picture of California's record on clean air and water.
California does indeed have the largest backlog of Clean Air Act implementation plans, but that is in part because the state has 35 regional authorities responsible for pollution regulation. In many of the backlogged cases, California is awaiting EPA action on proposed implementation plans, state authorities pointed out in a letter to Wheeler.
As the nation's most populous state and the largest by far in the size of its economy (by GDP it is larger than all but four nations), California indeed has more metropolitan areas than any other state that fail to meet the national air quality standard for smog. But California, so prone to poor air quality in the valleys between its coastlines and mountain ranges, has been ahead of the nation in setting standards to control air pollution, greatly reducing it over the past 50 years.
"California historically has had the worst air quality in the nation," said Paul Billings, senior vice president for advocacy for the American Lung Association. "Also, since the late 1950s, no state has done more to reduce air pollution than the state of California. And they have done it as their population and economy have grown."
Ironically, the greenhouse gas standards that Trump is seeking to overturn would have the benefit of further improving urban air quality. The rules are designed to drive greater adoption of electric cars, which would further reduce the fossil fuel pollutants that are precursors to smog.
The Trump administration's attacks belie its stated concern on clean air, argues Billings. "It seems to be politically motivated and about scoring points in some game and not about trying to improve the air quality in California," he said.
The threat to withhold federal highway funds from California was a shock for those familiar with EPA history, since that is a rarely imposed nuclear option in Clean Air Act enforcement.
"Sanctions are appropriate when a state is basically refusing to do what the law requires," said Janet McCabe, who served as acting assistant administrator in charge of the air pollution program at EPA during the Obama administration. "Almost all the time, states are working very hard to implement their responsibilities under the Clean Air Act. It's hard, and it takes a long time. As long as a state is working in good faith, I would say that is not a sanction situation."
Similarly, the EPA's allegations and threatened action against California on water pollution run counter to the administration's hands-off approach. EPA enforcement actions, inspections and penalties all are at their lowest levels in a decade under the Trump administration. Moreover, 45 states have a higher percentage of water systems or dischargers in significant violation of federal water standards than California, according to an analysis of EPA's own data by Cynthia Giles, a guest fellow at Harvard Law School who headed the EPA enforcement office during the Obama administration.
"You target California despite the fact that California has one of the best compliance records in the country," Giles said in a letter to Wheeler.
The EPA notice of violation to San Francisco came only days after the city's water board adopted a more stringent water treatment permit, aimed at eliminating discharges of partially treated wastewater to the ocean. The EPA and California authorities had been working together on an enforcement action on San Francisco's sewage system, but the EPA dropped the joint effort.
"This development is confounding, and contrary to [a] long history of productive state-federal cooperative enforcement," California Environmental Protection Secretary Jared Blumenfeld wrote in an Oct. 25 letter to Wheeler. Wheeler had reportedly bypassed the EPA's West Coast team to handle the actions against California from headquarters in Washington, D.C.
Likewise, the Justice Department action seeking to dismantle California's cap-and-trade agreement with Quebec is being advanced by an unusually limited team of lawyers, pointed out Sean Hecht, a former deputy attorney general for California who is co-executive director of the Emmett Institute on Climate Change and the Environment at the University of California, Los Angeles, Law School.
That case is being led by Trump's appointee to Justice's Environment and Natural Resources Division, Jeffrey Bossert Clark, a former lawyer for oil giant BP who has characterized Obama-era greenhouse gas regulation as "reminiscent of kind of a Leninistic program." Only members of Clark's own team are listed on the case. It doesn't list members of the civil division of the Justice Department, who would ordinarily handle foreign treaty or compact cases, nor personnel from the local U.S. Attorney's office.
"The idea the case 'isn't political' seems fanciful," Hecht wrote on UCLA and Berkeley's Legal Planet blog.
Newsom, a Democrat, has described the Trump administration's moves as "pure retaliation" against a state that has sued the Trump administration 60 times.
Nearly 600 former EPA officials also signed a letter to the House Committees on Oversight and Government Reform and Energy and Commerce calling for a probe into whether the agency's recent actions were improper uses of its authority to punish a state for opposing Trump's political agenda.
California Sens. Dianne Feinstein and Kamala Harris have asked the EPA inspector general for an investigation into "whether the White House pressured the agency to abuse its law enforcement authority to single out California and the city of San Francisco." San Francisco is home to House Speaker Nancy Pelosi, the Democrat who is now presiding over Trump's impeachment inquiry.
It will likely be the courts that decide the outcome of the Trump administration's battles with California. And on the state's greenhouse gas emissions standards for autos, the legal hurdle that the Trump administration faces is high.
When Congress originally passed the Clean Air Act in the 1970s, lawmakers gave California authority to set its own standards, seeking not to disrupt the steps the state already had taken to address pollution under then-Gov. Ronald Reagan. All the state needs to do to obtain its "waiver" to act is show a compelling need, and that its action is not arbitrary or capricious and is at least as protective as the federal standard. Until Trump, no administration had ever revoked a California waiver that already has been granted.
"To revoke a waiver that is already issued is a huge leap legally, and is sort of ironic in the light of other instances where the administration is taking the position of deferring to the states, and giving them more responsibility and autonomy," said McCabe.
The Trump administration plans to make the legal argument that the greenhouse gas emissions standards are, in effect, fuel economy standards—and that Congress prohibited states from setting their own fuel economy standards when it established a national auto efficiency program in 1975.
Two federal courts—in Vermont and in California—rejected that legal reasoning during the George W. Bush administration.
Trump's rollback of greenhouse gas standards could work to the automakers' short-term benefit, since their less fuel-efficient SUVs and pickup trucks are their most profitable vehicles.
In the long-run, though, automakers risk getting left behind in the competition to meet growing global demand for electric vehicles, which explains why Ford, Honda, BMW and Volkswagen struck a deal with California in July to voluntarily implement annual fuel economy improvements across their fleets even if the Trump administration weakened standards. The deal reportedly enraged Trump, and his administration has threatened them with antitrust action over the agreement.
When asked how it answers the charges that it is engaging in a political vendetta against California, the Trump EPA returned to its message on the environmental shortcomings of the state that is fighting the administration to keep environmental protections in place.
"Highlighting that California has very serious environmental failures both with air and water quality is not a political issue, and unlike previous Administrations, under this Administration the EPA is acting to protect public health and the environment for all Americans," said Corry Schiermeyer, EPA's associate administrator for public affairs in an email.
From a purely political standpoint, Trump has little to lose in warring with California. It resonates with the president's base, if the response from his Twitter followers is any indication. "California is such a mess @potus!," tweeted @carrieksada. "Fires everywhere. And they're worried about exhaust fumes."
Trump lost the state in 2016 by 30 percentage points, but he won the election without the nation's largest pot of electoral votes.