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Republican states target California’s authority to set stringent vehicle GHG standards

16 May 2022 Amena Saiyid

Republican-governed states are drawing on a nearly a decade-old US Supreme Court ruling to attack Clean Air Act authority granted to California, and upheld by federal regulation, to set more stringent GHG standards for cars and pickup trucks.

Led by Ohio Attorney General Dave Yost, a coalition of 17 Republican attorneys general are suing the US Environmental Protection Agency (EPA) for violating their equal sovereignty by allowing California to set more stringent GHG emissions standards than other states under its Advanced Clean Cars program.

The challenge was filed over EPA's 14 March rule that essentially rescinded actions taken in 2019 by the prior administration. These Trump administration actions include yanking California's authority granted under the Clean Air Act to set more stringent GHG standards and reinterpreting a related Clean Air Act provision that barred states from adopting all or part of California's clean cars program.

California remains a leader among states in pursuing clean technologies to help the state, and thereby the US, reach its net-zero emissions goals.

The lawsuit, which the attorneys general filed 13 May in the US Court of Appeals for the District of Columbia Circuit (DC Circuit), draws on a 2013 US Supreme Court ruling involving a Voting Rights Act case in Alabama's Shelby County. In that 5-4 decision, Chief Justice John Roberts invoked the equal sovereignty principle to determine that certain counties did not need special permission from the federal government to make changes to their voting laws.

California gets "special treatment"

In the suit, the attorneys general contend that "this special treatment" granted under the Clean Air Act to California violates the Constitution, which West Virginia Attorney General Patrick Morrisey said creates a federalist framework in which all states are equal and none is more equal than others.

"The [Clean Air] Act simply leaves California with a slice of its sovereign authority that Congress withdraws from every other state," Morrisey said. "The EPA cannot selectively waive the act's pre-emption for California alone because that favoritism violates the states' equal sovereignty."

Missouri Attorney General Eric Schmitt, who joined in the lawsuit, said auto manufacturing will become "astronomically expensive" if California is able to set restrictive standards.

"The Trump administration understood that, and prohibited California from setting its own oppressive standards," Schmitt said in a 13 May statement. "The Biden administration has since repealed the Trump order and given California the go-ahead to set 'green' manufacturing standards, which in reality, crush the average American who is already facing astronomical prices at the pump because of the Biden administration's failed policies."

The average price of regular grade gasoline 16 May in the US was $4.48/gallon, which automotive group AAA said is the highest on record and about 32% higher than the year-ago price of $3.04/gal a year ago.

Republicans targeting Biden climate agenda

The EPA, which typically does not comment on pending litigation, did not respond to a request for comment about the claims made by the states.

A total of 17 states already have adopted California's Advanced Clean Cars program, which the state is now proposing to update with more stringent targets to increase the share of zero-emission vehicles (ZEV).

Under the proposal, California would raise its ZEV mandate to 35% of new sales for 2026, up from the current requirement of 24%. The mandate would reach 68% of new car sales in 2030 and 100% in 2035. Battery EVs, fuel cell EVs, and plug-in hybrid EVs would qualify as ZEVs.

A smaller subset of the 17 states that includes Missouri also have filed a challenge in the DC Circuit against EPA's revision of GHG emissions standards for passenger cars and light trucks that the agency finalized toward the end of 2021. The regulation revises current GHG standards beginning with model year (MY) 2023 and increases in stringency year over year through MY 2026, but with less flexibility than was originally proposed.

Republican states also are involved in challenging the EPA's authority to regulate GHGs from coal-fired power plants in the Supreme Court, which heard arguments in late February and is expected to issue its ruling any day.

Posted 16 May 2022 by Amena Saiyid, Senior Climate and Energy Research Analyst



This article was published by S&P Global Commodity Insights and not by S&P Global Ratings, which is a separately managed division of S&P Global.

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