The EPA’s ‘De Facto EV Mandate’ Faces Potential Supreme Court Scrutiny
Congress and the Supreme Court move to halt the EPA waiver for California that would create a nationwide electric vehicle mandate.
Originally published at American Spectator (Oct. 22, 2024)
California political figures should not be permitted to impose their regulatory preferences on American consumers. Consumers who should have the freedom and latitude to select the cars that best suit their particular needs. At least that is what free-market activists argue in an amicus brief that could quickly find an audience before the U.S. Supreme Court.
House members provided further weight to the brief this past September when they passed a resolution under the Congressional Review Act that would overturn Vice President Kamala Harris, standing in for President Biden, and the EPA administrators’ “de facto electric vehicle mandate.”
Tom Pyle, a founding member of the Save Our Cars Coalition, which includes 31 national and state-based free-market organizations, trade associations, and consumer protection groups, sees an opportunity for Harris to demonstrate that she has had an epiphany that would help explain why she now sees fit to reverse her prior support of anti-consumer regulations. As Pyle explained in an interview:
Since becoming her party’s nominee, Vice President Harris has tried to walk back her long-standing support of EV mandates and other anti-energy and anti-consumer policies. If she wants to show the American people that she has changed her tune, and suddenly cares about consumer choice, now is the time for her to call on her former colleagues in the Senate to vote in favor of this resolution. Harris could also lean on President Biden to sign the CRA if it makes it to his desk. Otherwise, there’s no reason to take her policy reversal seriously.
The congressional resolution would strike down the EPA’s new tailpipe emissions rule that reinstates a waiver the Obama administration granted to California under the Clean Air Act. The waiver enabled California’s regulators to set standards for automobile emissions that are even more rigid and burdensome than federal standards.
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The Supreme Court Challenge
Litigants representing 23 states, alongside industry groups and trade associations, are making the case that the EPA overstepped its authority in granting the waiver and that the EPA’s decision violates a constitutional requirement that the federal government provide the states with equal treatment.
The three lead states in the case — Ohio, Indiana, and Virginia — achieved a critical victory this past June when the U.S. Supreme Court temporarily blocked the EPA rule in response to their petition asking for a stay in the new rule’s implementation.
Writing for the majority in the court’s 5-4 ruling, Justice Neil Gorsuch determined the state plaintiffs, and their allies in business and industry, would likely prevail on the merits of the case that the EPA overstepped its authority in how it applied the ‘good neighbor’ rule. The rule is a provision of the Clean Air Act, which requires “upwind” states to reduce emissions that affect the air quality in “downwind states.”
In granting the stay, Gorsuch also observed that if the court allowed the EPA rule to remain in effect while the case gestated at the federal appeals court level it would cost litigants “hundreds of millions, if not billions of dollars.”
Additional History and Sound Science
California’s power grab is based on the Corporate Average Fuel Efficiency (CAFE) standards established and enforced through the Department of Transportation. The EPA comes into play by calculating the average fuel economy levels and setting greenhouse gas emissions standards that operate in tandem with the CAFE standards.
The CAFE standards were initially enacted in response to the 1973 oil embargo in an effort to curtail U.S. dependence on Middle Eastern oil. But with the U.S. now positioned to be the top oil and gas producer in the world, the Harris–Biden administration notwithstanding, the original rationale for CAFE is anachronistic at best.
That’s why the EPA regulations have been folded into the Harris administration’s “whole-of-government approach” to climate change with tailpipe Co2 emissions targeted for reduction.
It’s worth noting that the repurposing of CAFE standards into a weapon to combat what Team Harris calls the “climate crisis” is not rooted in climatological observations. It is instead based on general circulation models purporting to project what temperatures might be in a few decades in response to Co2 levels. To call the projections specious would be generous.
What’s most relevant to consumers are the CAFE emission targets for “light-duty vehicles” since they include passenger cars and light trucks. As Pyle notes, the Harris–Biden administration is targeting traditional vehicles in favor of electric vehicles:
What we are really talking about is a de facto electric vehicle mandate on the part of Harris, and other centralized planners, with California leading the charge. The goal is for the EPA tailpipe rule to set emissions requirements so high to the point where auto companies will be compelled to manufacture electric vehicles to meet these targets. The Harris regime is bent on destroying consumer choice as it prioritizes politics over personal freedoms.
During the last administration, President Trump established a new rule, known as Safe Affordable Fuel-Efficient (SAFE 1) standards, to roll back the Obama administration’s CAFE standards. SAFE 1 still raised fuel economy standards, but did so at a slower rate than what Obama had proposed. Trump’s goal was to relieve the auto industry of costly mandates set in motion under President Obama that effectively priced millions of U.S. households out of the market for newer, safer, more fuel-efficient vehicles. The efforts made under Harris to repeal Trump’s SAFE 1 rule and restore the Obama-era directives are ripe for review before the Supreme Court.
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Federalism and California’s Overreach
Pyle, who is also president of the Institute for Energy Research (IER), a free-market advocacy group that joined the amicus brief, sees “legalized grift” and the oversized influence of California at work where the tailpipe regulations are concerned. The favoritism California is receiving from the federal government cuts to the heart of what IER, and others, are arguing in court. He points out that Harris, a former U.S. senator and attorney general for California, is on the same team as California Gov. Gavin Newsom, a Democrat and long-time climate activist, in advocating for overregulation:
They are helping each other out to the cost and detriment of everyone else. Not only does California have the largest congressional delegation in the country, but the state also has friends in high places in the form of Harris. The CAFE rule is all about power and money and self-dealing between the Harris–Biden EPA and Newsom’s California. They are operating in cahoots to make sure consumers have no say.
IER, and its coalition partners, argue in their brief that the federal government must treat all states equally under the U.S. Constitution — an argument in line with the principles of federalism and a long history of jurisprudence:
The agency, autonomy, dignity, authority, statutes, and of course sovereignty of California’s sister states — the very nature of being a state – seriously are undermined by the federal government’s unjustified bias in California’s favor. This EPA waiver irreparably has undermined ‘the federal sovereign’ constitutional duty to ‘govern impartially.’ Nor has the EPA advanced even a plausible justification for that special treatment.
But it’s not just the legal questions that gum up the works as Bonner Cohen, a senior fellow with the National Center for Public Policy Research, a conservative think tank, explains:
Complementing the compelling constitutional arguments against EPA’s de facto EV mandates are the clearly stated choices of the American driving public. According to auto industry tracker Edmunds, EVs accounted for 6.8 percent of all new car sales in the last quarter. That means that just over 93% of buyers chose a gasoline-powered vehicle. These people shunned federal EV tax credit of up to $7,500 to buy a car that suited their needs. The nation is woefully unprepared for the government-driven transition to EVs, having neither electricity nor the recharging infrastructure to accommodate the millions of EVs elites in California and Washington, D.C. are force-feeding the rest of the country.
In putting up a united front against California’s special waiver status, Pyle and crew astutely seize on the high court’s recent ruling overturning the Chevron deference, which had enabled federal agencies to usurp the judiciary’s Article III powers. In Loper Bright Enterprises v. Raimondo, the justices ruled that the Constitution’s structural principles call for an independent judiciary free from executive influence. Loper effectively puts the kibosh on the ability of unelected bureaucrats to coercively inflict their policy preferences on to the public without congressional approval by way of vague statutes.
The arguments that have been put into circulation by state and industry petitioners have the potential to bring the full force of the court’s reasoning in Loper to effect in California where Newsom and company seek to operate as a regulatory island. And, in Washington D.C., where Harris is leveraging the EPA to impose California rules on the rest of the country.
What next?
Pyle anticipates that sometime in October the U.S. Supreme Court will “almost certainly grant the petition and hear the case … the legal questions are too big to ignore.”
There is a scenario where the case could become moot — if Trump is elected and moves to reverse the CAFE rules. But that’s a big “if” heading into the next court term. As Pyle reminds us:
Remember, the American people never voted on the new CAFE standards. This was done through unelected government agencies. California’s one-size fits all approach robs people outside of the state, and even inside the state, of having their say so. Ultimately, this is all about the restoration of self-government.
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