Fast and Furious: Understanding the Rush of Vehicle Pollution News
Biden Administration Jump Starts Climate Goals With Focus on Transportation
You may have noticed quite a few headlines recently about EPA, NHTSA, cars, trucks, waivers, model years, and lawsuits. It’s worth breaking down this flurry of activity, all of which seeks to address vehicle emissions. Here, I’ll clarify the current status of the five separate proceedings happening right now, and offer a preview of what’s to come.
Much ink has been spilled (including by me) explaining how transportation emission are regulated by the federal government. But here’s a quick refresher laying out the basics before we get into the nitty gritty of what is currently happening.
Under Clean Air Act section 202, EPA sets emission standards for light-duty vehicles that limit the allowable pollution from a car’s tailpipe. This includes standards for carbon monoxide, particulate matter, oxides of nitrogen, volatile organic compounds, and more recently, carbon dioxide. While the Clean Air Act generally preempts states from regulating tailpipe emissions independently, California gets special treatment. Thanks to California’s historic leadership role in studying and reducing vehicle pollution, California alone is permitted to set its own standards so long as they are no less stringent than the federal standards and are “necessary to meet the compelling and extraordinary conditions” presented by California’s air quality woes. For each new standard that California issues, it requests a waiver of preemption from EPA. Once this waiver is granted, other states may then choose to adopt California’s tailpipe standards in lieu of the federal standards. (More than a dozen states have done so as of this year.) The Clean Air Act contains a similar — though not identical — framework for the regulation of emissions from heavy-duty vehicles.
Separately, the National Highway Traffic Safety Administration (“NHTSA”) regulates vehicle fuel economy under a different statute designed to increase national energy efficiency, the Energy Policy and Conservation Act (“EPCA”). NHTSA issues fuel economy standards as manufacturer fleet averages called Corporate Average Fuel Economy (“CAFE”) standards. In the landmark U.S. Supreme Court decision Massachusetts v. EPA, the court explained that EPA and NHTSA had overlapping — but not inconsistent — roles in regulating vehicles under their respective statutes: EPA, to protect public health and welfare, and NHTSA, to promote energy efficiency.
Light Duty Vehicles: Rolling Back the Rollbacks
The Trump-era EPA finalized two separate rulemakings rolling back much of the progress made by the Obama administration to reduce greenhouse gas emissions from the transportation sector. In the Safer Affordable Fuel-Efficient Vehicle Rule (“SAFE”) Part 1, the Trump EPA rescinded the Clean Air Act waiver previously granted to California for its 2013 Advanced Clean Cars (“ACC”) program that set stringent CO2 limits for vehicles sold in the state. In tandem, NHTSA issued what it called a Preemption Regulation that purported to make a legal determination that California was preempted from regulating greenhouse gas tailpipe emissions. In SAFE Part 2, EPA and NHTSA significantly weakened the Obama administration’s emission and fuel economy standards for model years 2021–26. All of these actions were immediately challenged by California, other blue states, and environmental NGOs. But none of the cases were decided before the Biden Administration took office and changed gears, bringing that litigation to a halt and bringing us to the current rule proposals.
In late summer 2021, EPA and NHTSA issued notices of proposed rulemaking (“NPRM”) to strengthen the greenhouse gas tailpipe emission and CAFE standards, respectively, that had been weakened by the Trump administration. EPA proposed new standards for MY2023–26, while NHTSA’s proposal covered MY2024–26. (Differences in covered model years are due to quirks of how the two statutes treat the lead time required between finalization of standards and the beginning of the regulated model year.) The Institute for Policy Integrity submitted comments on both proposals, urging EPA and NHTSA to adopt the most stringent options presented and offering technical advice to strengthen their rule analysis.
In December 2021, EPA finalized its emission standards for MY2023–26, adopting the more stringent option presented in the NPRM and returning the standards to roughly where the original Obama-era standards had been. These standards have now been challenged in the D.C. Circuit by a coalition of red states led by Texas, various consortiums of oil and gas interests (some represented by the Competitive Enterprise Institute), and biofuel trade groups. Notably, no automakers (or indeed any party actually regulated by EPA’s standards) have challenged the rule. Environmental NGOs and blue states led by California have intervened to defend EPA’s standards. These cases were only recently filed, so a briefing schedule has not yet been set.
NHTSA has yet to finalize their proposed CAFE standards for MY2024–26, but we can expect similar legal challenges as those against EPA’s finalized standards. (It’s possible that a recent injunction against using the social cost of greenhouse gases may be holding up NHTSA.)
Finally, EPA and NHTSA have also acted to restore California’s waiver authority to independently regulate greenhouse gas emissions from vehicles. Just this week, EPA formally reinstated California’s waiver for its ACC program by repealing its 2019 revocation. And last December, NHTSA repealed its Preemption Regulation.
Heavy-Duty Vehicle Standards: A Long Time Coming
Moving away from light-duty vehicles and into the realm of heavy-duty vehicles, EPA also this week proposed NOx standards for heavy-duty trucks, covering MY2027–31. This is the first proposal to strengthen NOx standards at the federal level in over twenty years. The proposal also contains some minor changes to the GHG rules set in 2016, but its primary focus is reducing NOx emissions. While the rule is quite detailed and technical, the more stringent of the options it proposes would roughly bring the federal NOx standards in line with California’s heavy-duty truck standards, albeit several years behind in terms of compliance timeline.
Looking Ahead: A Zero-Emission Future?
Now that the Biden Administration has made its first steps toward rolling back the Trump-era rollbacks, it can look toward the future. Before the end of the year, we should see NPRMs for EPA and NHTSA light-duty standards for MY2027 and beyond. We should also see heavy-duty truck GHG fleet rules for MY2028 and beyond relatively soon as well. We can expect proposals in the near future for much more stringent standards that more heavily rely on electrification and increased penetration of battery electric vehicles (in both the light- and heavy-duty space) in order to meet climate goals, including President Biden’s Executive Order targeting that electric vehicles make up 50% of new vehicle sales by 2030.
In the last decade, the transportation sector overtook electricity generation as the single largest source of greenhouse gas emissions in the U.S. Many automakers have already announced plans to shift their sales mix away from traditional internal combustion engines in favor of battery electric vehicles. But stringent regulations from EPA and NHTSA are necessary to ensure that automakers follow through on their public statements and move us toward a zero-emission future. Not only will this transition be key for meeting national (and international) climate goals, expanding access to electric vehicles will also provide redress for environmental justice communities that face disproportionate burdens from toxic pollution from cars and trucks spewed into their backyards.
