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UPDATE: US government starts to restore California's right to set its own GHG vehicle limits

28 April 2021 Amena Saiyid

California's right to set its own GHG standards for automobiles and impose a zero-emissions vehicles mandate as well as the rights of other states to follow California's lead could be restored under actions the Biden administration has taken as recently as 28 April.

The US Department of Transportation's National Highway and Traffic Safety Administration (NHTSA) proposed a rule on April 22, which is yet to be published, repeals the first part of the Trump administration's Safer Affordable Fuel-Efficient (SAFE I) Vehicles Rule that it wrote with the US Environmental Protection Agency (EPA).

EPA followed NHTSA's proposal with an April 28 notice that allows the public to comment on its decison to reconsider the 2019 regulation until 6 July. EPA said it also will hold a virtual public hearing on its action on 2 June.

Both the proposed rule and the notice meet the timeline -- established by President Joe Biden's 20 January executive order on protecting the climate and environment -- to immediately review and consider suspending, revising, or rescinding the Trump-era rule no later than April 2021.

NHTSA reviewed the Trump-era rule, concluding it had "substantial doubts" whether the SAFE I Rule was a proper exercise of its authority under the 1975 law.

EPA also said there are "signifcant issues regarding whether SAFE 1 was a valid and appropriate exercise of agency authority."

The actions by both NHTSA and EPA would be an important step toward protecting public health and tackling climate change because the transportation sector remains the biggest GHG contributor across the US economy, which means "it can and must be a big part of the climate solution," US Secretary of Transportation Pete Buttigieg said on 22 April.

Transportation was responsible for 29% of US GHG emissions, and passenger cars and light trucks make up 60% of that total, according to EPA data.

In 2019, EPA reported the US emitted 6.58 billion mt of carbon dioxide-equivalents (CO2e), or 5.76 billion mt CO2e after accounting for sequestration from the land sector.

"Likely exceeded authority"

The previous administration argued the Energy Policy and Conservation Act of 1975 superseded provisions of the Clean Air Act, which the US Environmental Protection Agency (EPA) invoked to allow California to set more stringent GHG standards than the federal government, and for other states to follow California's lead.

The Trump-era rule's novel reading of both laws was challenged by at least 22 states along with the District of Columbia, New York City, Los Angeles, and San Francisco as well as three California air quality districts. The 2019 rule also was challenged by a coalition of environmental groups including the Union of Concerned Scientists (UCS). A federal appeals court, however, decided to pause the litigation after the Biden administration said it would reconsider the rule.

The rule "likely exceeded" NHTSA's rulemaking authority under the decades-old law, the agency concluded after its review.

The EPA also took issue with the "novel approach and legal interpretations" used in the 2019 reguation, and questioned whether EPA at the time accounted for the environmental conditions in California and the environmental consequences from the waiver withdrawal in SAFE 1.

"I am a firm believer in California's long-standing statutory authority to lead. The 2019 decision to revoke the state's waiver to enforce its greenhouse gas pollution standards for cars and trucks was legally dubious and an attack on the public's health and wellbeing," EPA Administrator Michael Regan said in a 26 April statement, announcing the agency's notice to reconsider the rule.

NHTSA Acting Administrator Steven Cliff said the proposed rule would allow the Biden administration to wipe the regulatory slate clean, "removing unnecessary barriers" for states to begin regulating GHGs and other air pollutants expelled by car exhausts.

The California Air Resources Board (CARB) said 23 April it was pleased with the federal government's decision to repeal what it called an "unlawful Preemption Rule."

"This key step will help clear the path for California to once again enforce important vehicle emissions standards to address the state's air pollution, continue to cut carbon pollution from cars and trucks, and move forward with putting more electric vehicles on our roads and highways," CARB spokesman Dave Clegern wrote in an email.

Waiting on EPA

Before California or any of the 14 states that have adopted the standards set by the Golden State can move forward, EPA has to formally waive the requirement that California met Clean Air Act standards in lieu of its more stringent GHG standards. EPA also has to extend that waiver to other states.

"We assume in the coming days EPA will restore California's authority," David Cooke, senior vehicles analyst with the UCS, said in an interview April 23.

EPA's 28 April notice to reconsider and reopen the 2019 rule has started this process. The agency said it will reconsider whether the EPA appropriately withdrew California's waiver to set its own standards under the decades-old energy law and the Clean Air Act. It also will reconsider whether the agency was within its right to disallow other states from following California's lead.

The governors of 12 states wrote to Biden on 21 April urging him to establish a clear regulatory process to adopting zero-vehicle emission vehicles and to require that all new passenger cars and light-duty trucks sold are zero-emission no later than 2035.

Economy-wide goal

NHTSA's proposal was released after Biden announced a target for the US to reduce its GHG emissions by 50-52% compared with 2005 levels by 2030 to meet its share of the Paris Agreement goal to limit global warming to 1.5 degrees Celsius.

The NHTSA proposal, said Cooke, "helps states move forward. A lot of states have adopted standards through 2025 that will result in much higher emissions reductions than what the Trump administration has done."

Cooke said NHTSA and EPA now need to move forward with repealing and rewriting part two of the SAFE rule, which came out in 2020 and relaxed fuel efficiency standards for passenger cars and light-duty trucks for model years 2021 through 2026.

"We need 100% of the country to move as quickly as possible to realize real emissions reductions," not just these 15 states, Cooke said.

In his "Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis" order, Biden directed EPA and NHTSA to review and consider revising or rescinding the 2019 rule no later than April and the 2020 rule by July. EPA Administrator Michael Regan has said the agency is on track to meet the July deadline.

"We really need the federal government in July to hit that same target, not just have 40% of the country. We need 100% of the country to move as quickly as possible to realize real emissions reductions," Cooke said.

Forging ahead

Meanwhile, the Biden administration is not waiting for the regulatory process to play out. Under the leadership of the National Climate Advisor Gina McCarthy, the Department of Transportation (DOT), EPA, and other agencies are announcing grants and guidance for how states can use existing laws and policies to meet the 50-52% GHG reduction goal.

Buttigieg joined McCarthy on April 22 to announce the release of guidance that shows how DOT grants can be used to deploy charging infrastructure along newly designated alternative fuel corridors, and to announce the progress the federal government has made in acquiring an electric vehicle fleet.

Alternative Fuel Corridors

The DOT also announced the fifth round of available grants that would enable the Federal Highway Administration to designate certain segments of national highways as "Alternative Fuel Corridors," or designate national plug-in electric vehicle charging and hydrogen, propane, and natural gas fueling corridors in strategic locations along major highways to improve the mobility of alternative fuel vehicles.

The White House said DOT has designated 166,000 miles of US Interstates and highways in 49 states and the District of Columbia. Of that total, DOT has designated electric vehicle corridors on about 59,000 miles in 48 states plus DC. South Dakota and Mississippi are the only two states without an electric vehicle corridor designation.

The two officials also said the US is already a fifth of the way to the goal Biden outlined in the American Jobs Plan of installing a national network of 500,000 public electric vehicle charging points "to support convenient and affordable travel by drivers of zero-emission vehicles across the whole country."

As part of the White House push for climate-friendly solutions, the Department of Energy also on 22 April announced $34 million in grants to encourage greater adoption of plug-in electric vehicles along with supporting infrastructure; to develop designs and infrastructure to lower the cost of DC-charging outlets; and to encourage public-private partnerships to make workplace charging outlets available.

At the concluding session of the climate summit on 23 April, Biden said climate change should not be seen as just the threat it poses. "It is about the opportunity that climate change provides."

--Article updated with EPA's 28 April notice to reconsider the 2019 regulation.

Posted 28 April 2021 by Amena Saiyid, Senior Climate & Energy Research Analyst, IHS Markit

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