Vermont Global Warming Trial Challenges Auto Emissions Law

Published July 1, 2007

In a scene reminiscent of Michael Crichton’s novel State of Fear, global warming alarmists and realists squared off in federal district court in Vermont for two weeks in early May.

The issue in dispute was whether a Vermont law, which would require a 30 percent cut in greenhouse gas emissions from automobiles by 2016, was an impermissible attempt to establish fuel economy standards.

Back-Door Law

Automakers challenging the Vermont law, which is modeled after a California measure that is also being challenged in federal court, presented expert testimony that auto companies would have to raise average fuel economy to 43 miles per gallon to meet the law’s requirements.

Individual states have no legal authority to set fuel economy standards, as Congress has the exclusive authority to pass fuel economy laws.

“Simply put, these regulations are fuel economy standards … fuel economy standards with potentially devastating consequences,” said auto industry lead attorney Andrew Clubok in closing arguments.

Clubok presented email exchanges among California regulators acknowledging the law amounts to fuel economy standards. The California regulators cautioned each other in the emails to avoid discussing this in public, for fear of having the law struck down.

“There is something disturbing about public regulators trying to find a way to hide what this regulation is about,” said Clubok.

Standards Not Feasible

Experts further testified that automakers have neither the technological nor the financial ability to raise fuel economy to 43 miles per gallon by 2016.

The State of Vermont, supported by the State of New York and environmental activist groups, argued automakers already have all the technology they need to meet the more stringent standards.

Government Witnesses Falter

Reporters covering the trial noted the state appeared to take it on the chin during much of the trial.

“Vermont and its allies–the state of New York and a number of environmental groups–appeared to struggle at times during the trial,” observed the May 13 Burlington Free Press.

“Auto industry lawyers had what may be an advantage of witnesses from auto companies themselves, able to present detailed data to back up their assertions the rules are too challenging to meet,” the Free Press added. “The state’s witnesses relied on less-detailed industry-wide and average data about technology improvements and costs. Automobile witnesses challenged that data as unreliable or misleading.

“Auto industry lawyers who cross-examined each of the state’s witnesses had at their fingertips video clips from earlier depositions, ready to pounce if a witness on the stand gave an answer that differed from the answer given at the pre-trial deposition. They did so repeatedly,” the Free Press reported. “Cross-examination by the defense team appeared to succeed much less frequently in raising doubts about the reliability of automakers’ witnesses.”

$5,000 per Car

A key point of contention was the feasibility of implementing the law.

Auto industry lawyers presented evidence, supported by computer simulations, that showed raising fuel economy to the amount required to sufficiently reduce greenhouse gases would require some auto companies to raise prices more than $5,000 per vehicle.

Vermont’s main witness, independent automotive consultant K.G. Duleep, asserted the law would add $1,500 to the cost of each new vehicle.

More Witness Problems

The auto industry called Donald Patterson, an automotive textbook author and leading automotive engineer from the University of Michigan, who testified Duleep’s analysis was not credible.

“He used a fudge factor … that is entirely arbitrary,” said Patterson. “You could not independently test his model.”

Similarly, independent automotive expert Tom Austin testified Duleep used faulty data and methodological irregularities to reach an unsupportable conclusion about compliance costs.

The State of Vermont flew in another University of Michigan professor to defend Duleep’s analysis. After taking the professor’s deposition outside the courtroom, the state’s representatives changed their mind about calling the professor to the stand.

A Moot Issue?

Even if the state’s lawyers make a good impression on Judge William Sessions, a Clinton appointee, Vermont may not be able to move ahead with the standards, said Sterling Burnett, senior fellow at the National Center for Policy Analysis.

“The entire issue may be moot,” said Burnett, “as EPA has not granted California a necessary waiver to implement its own fuel economy standards. Unless such a waiver is granted, Vermont cannot do anything, anyway.

“Vermont’s actions are premature here,” Burnett added. “States cannot adopt California’s clean air standards unless California itself adopts such standards.”

James M. Taylor ([email protected]) is senior fellow for environment policy at The Heartland Institute and managing editor of Environment & Climate News.