Tuesday, August 12, 2003

Rights and Reason: Automakers Settle With Calif. Regulators

Brian Melley of the Associated Press reports that three automakers have settled their lawsuits challenging California’s auto emissions regulations:

Under terms of the deal, General Motors, DaimlerChrysler and Isuzu will not challenge new regulations for creating low-polluting and nonpolluting cars. In turn, the state will drop its appeals of lawsuits brought by automakers, said Jerry Martin, an Air Resources Board spokesman.

The settlement, scheduled to be announced Tuesday, strengthens the possibility that automakers will be forced to build cleaner cars rather than continue fighting to weaken the emissions rules.

"We get to start getting the cars on the road so California breathers can get what they expect from us, cleaner air," Martin said.

A GM spokesman in California who spoke on condition of anonymity confirmed the settlement and said it depends on the air board adopting the rules as they now stand. The board changed its emissions regulations in April, but they are still in a public comment period and subject to change.

The automakers and car dealers in the San Joaquin Valley successfully challenged California's landmark 1990 requirement that 10 percent of cars sold in the state this year — about 100,000 vehicles — be nonpolluting.

They charged that the state overstepped its authority and was setting fuel efficiency policy that can only be set by the federal government.

A federal judge in Fresno agreed in June last year and ordered the state to put the regulations on hold. Automakers also won a round in state court.

The air board appealed the federal ruling, claiming they enacted sound air pollution control policy and that any improved mileage was a benefit to drivers. Environmentalists joined state regulators in the appeal, while the Bush administration sided with automakers.
The California auto emissions regulation is a troubling mandate. It places the responsibility for smog on automakers, instead of drivers. It forces drivers into smaller, lighter cars, despite their obvious preference for larger vehicles. It also treats the state as a homogeneous whole, instead of specifically targeting smog afflicted areas, and drivers who drive during periods of smog risk.

There also is the larger question of just who are the victims of smog and what damages do they suffer. Not being able to see 100 miles on a summer day is not an actionable tort. Asthma, if proven to be caused by smog, probably is.

At rough glance, I think the question of smog could be alleviated if roads were private and we approached the problem from the common law instead of regulation. Road owners would charge tolls, and those tolls could be raised during periods of high smog. If there are victims of smog, their damages could be compensated by common law torts and paid out by the road tolls.

Vehicles could also be given a smog rating that would be the basis for computing their tolls. If you drive a non-polluting vehicle, no responsibility for smog is placed on you. If you require a polluting vehicle, and you do drive it during periods of smog risk, you are assessed your toll based on your level of culpability.

Under this system, pollution generators pay when their pollution impacts others, and are left free when it doesn’t.

I put this out, not on the grounds that I have a fully formed answer to this problem, but that I think the principle of individual rights ought to drive the debate. Environmentalists have owned the smog problem for too long. The simple fact is that if smog does impact people’s lives for the negative, it ought not to be taken as metaphysically given. People who burn fuel inefficiently produce smog. In smog afflicted areas, we ought not to give up civilization to alleviate smog, but, even if the contribution is infinitesimal, those responsible for creating smog are still responsible for the negative effects of their actions. I think it stands that they be held accountable under the common law.

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