UPDATE: Feinstein is now trying to dig out of this.

In all the galling news of today, this probably ranks as a mere annoyance, but still: Diane Feinstein (D-Calif.) has her imprimatur on an expression of opinion that could, if it became law, void her own state’s pioneering tailpipe pollution laws, just when the courts are explicitly upholding them.

Some background: As you probably know, one of the fondest dreams of the American auto industry is to get something passed in legislation that would, in effect, override the court decision in Mass. v. EPA. That ruling stated explicitly that CO2 is a pollutant under the Clean Air Act and that EPA has authority to regulate it. This has two implications that automakers fear:

  • EPA could set tailpipe GHG standards that in effect trump CAFE fuel efficiency standards.
  • States like Calif. can regulate CO2 from tailpipes, and their standards cannot be preempted by federal fuel efficiency standards.

What automakers (and their lackeys in Congress and the White House) want is for Congress to pass legislation stating explicitly that the NHTSA has sole authority over fuel efficiency standards, and that nothing EPA does can be interpreted as overriding standards set by NHTSA. In other words: CAFE trumps EPA and state standards alike.

That would be very, very bad for many reasons, among them that NHTSA is far more biz-friendly than EPA, much less California. Luckily, it’s an absolute dealbreaker for Pelosi and House Dems, so there’s no way it will end up in the energy bill, despite repeated attempts and support from the White House.

So, that brings us to this morning. Carl Levin (D-Mich.), having given up on getting his preemption amendment in the energy bill, held what’s called a "colloquy" with Sens. Feinstein and Daniel Inouye (D-Hawaii). He asked them to agree that "these new federal standards [the 35mpg CAFE] will not be undercut in the future by regulations issued by the Environmental Protection Agency regulating greenhouse gas emissions from vehicles."

Incredibly, Feinstein and Inouye agreed, on record. (Here’s the PDF.) WTFF? I can’t imagine a rationale for this. To buy Levin’s vote for the energy bill? Maybe. I doubt it will have all that much legal consequence, though it could muddy the waters.

Mainly it’s just irksome. Is Feinstein actively looking for ways to sell out now?