California’s Ban on Gasoline-Powered Vehicles – Will it Take Effect?
October 20, 2020 by Camden Douglas
Newsom addressing California's constituents about the purpose of his recent executive order, an effort by the State to mitigate the on-going consequences of climate change. Image by Daniel Kim/The Sacramento Bee.
On September 23, 2020, California Governor Gavin Newson issued an executive order[1] that is expected to reduce the impact of climate change by drastically transforming the State's transportation industry. California experiences many unique climate change-related problems. For instance, as a result of climate change, the duration of California's wildfire season has more than doubled since 1980.[2] Indeed, this year, California is experiencing a record-breaking burn,[3] with wildfires scorching millions of acres of land.[4] The executive order, in an attempt to attenuate some of these climate change-related impacts on the State, requires all new passenger vehicles sold in California to be zero-emission by 2035, effectively banning the sale of new gasoline-powered vehicles in just fifteen years.[5]
Background
The Environmental Protection Agency (“EPA”), the federal agency responsible for regulating environmental health and quality in the United States, uses the Clean Air Act ( “CAA”) to set national automotive emission standards.[6] Section 209(a) of the CAA preempts emission standards set by the states, meaning that even if a state enacts a law setting emission standards, the federal requirements under the CAA will apply.[7] However, Section 209(b) grants the Administrator permission to waive this federal preemption for any state that adopted automotive emission standards prior to 1966.[8] Historically, California has been the only state for which the EPA has granted the right to waive this preemption and set more stringent emission standards under Section 209(b). However, section 177 of the CAA grants any state the right to choose to adopt California’s emission standards instead of the federal requirements.[9]
The Executive Order
Governor Newson’s Order instructs the California Air Resources Board (“CARB”) to develop regulations that mandate all new passenger vehicles reach zero-emission by 2035 and all medium and heavy-duty vehicles reach zero-emission by 2045.[10] The Order also requires that state agencies work with the private sector to accelerate the development of affordable charging options.[11] Governor Newsom intends California’s ban on gasoline-powered vehicles to significantly reduce harmful emissions from the transportation sector and aid the fight against climate change, with the 2035 target slated to achieve a 35% reduction of greenhouse gas emissions from vehicles statewide.[12] Because California, with a population of over 40 million people, accounts for “more than one out of every 10 new cars sold in the United States,”[13] the environment and public health benefits are likely to expand past the borders of California and spread nationwide. Nationwide carbon dioxide emissions are also likely to be reduced, as California accounts for a substantial amount of carbon dioxide emissions resulting from the burning of petroleum, with emissions in 2017 equaling roughly the total emissions from the country of Egypt.[14]
Thirteen states and the District of Columbia (the “Section 177 States”) have adopted California’s more stringent automotive emission standards in lieu of the federal requirements.[15] Together, these states account for 35% of new vehicle sales in the United States.[16] While none have vowed to follow California’s lead and end the sale of gasoline-powered vehicles, the potential for a vast reduction of automotive emissions nationwide is significant. Interestingly, when Connecticut, one of the Section 177 States, chose to adopt California’s emission standards, they did so by enacting a statute that ties Connecticut’s automotive emission standards to California’s, subject to review by the Legislative Regulation Review Committee.[17] This means that unless the Review Committee decides to produce legislation that decouples Connecticut from California’s emission standards, California’s 2035 ban will implicate Connecticut by law.[18]
The EPA and California’s Relationship
California’s relationship with the EPA under the Trump administration has become rocky as time and politics weigh on the increasingly partisan divide. Predictably, EPA Administrator Andrew Wheeler has openly criticized Governor Newsom’s Order, calling the switch to zero-emission vehicles “impracticable and possibly illegal.”[19] The ban is potentially illegal, Wheeler believes, because CARB will be unable to implement the executive order absent approval from the EPA–something Wheeler is not prepared to grant.[20] This comes as no surprise, given the EPA recently withdrew California’s preemption waiver, taking away its power to set automotive emission standards.[21] This withdrawal has created a multi-state litigation that is still pending in the United States Court of Appeals for the D.C. Circuit. Joined by environmental and health groups, the states sued the EPA, arguing that the agency lacks the authority to withdraw both California’s waiver and the section 177 States’ rights to adopt California’s emission standards in lieu of federal requirements.[22] The D.C. Circuit’s ruling will likely have a profound impact on the ability of California–or the Section 177 States–to act on Governor Newsom’s mandate to enact regulations banning gasoline-powered vehicles by 2035.
[1] Cal. Exec. Order No. 79-20 (Sept. 23, 2020), https://perma.cc/ELC4-UT73.
[2] Daisy Dune, Explainer: How Climate Change is Affecting Wildfires Around the World, Carbon Brief (July 14, 2020, 1:18 PM), https://perma.cc/SWP5-U9C5.
[3] Id.
[4] Wynne Davis, California Wildfires Have Burned 4 Million Acres and the Season Isn’t Over Yet, National Public Radio (Oct. 4, 2020, 8:06 PM), https://perma.cc/B4CV-BR5T.
[5] Press Release, Cal. Off. of Governor, Governor Newsom Announces California Will Phase Out Gasoline-Powered Cars & Drastically Reduce Demand for Fossil Fuel in California’s Fight Against Climate Change (Sept. 23, 2020), https://perma.cc/664W-YDTF.
[6] 42 U.S.C. § 7401.
[7] Id. § 7543.
[8] Id.
[9] Id. § 7507.
[10] Press Release, supra note 2.
[11] Id.
[12] Id.
[13] Adam Beam, California is Ready to Pull the Plug on Gas Vehicles, Associated Press (Sept. 24, 2020), https://perma.cc/D4MF-J8CB. (https://apnews.com/article/technology-gavin-newsom-california-4956d87b72b000a917eed27392d16d8b).
[14] Id. (stating that the federal government announced in 2017 that California’s carbon dioxide emissions in this category equaled 266.5 million tons).
[15] Colorado, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington. Cal. Air Res. Bd., States that have Adopted California’s Vehicle Standards under Section 177 of the Federal Clean Air Act (Sept. 27, 2019), https://perma.cc/B5EV-4LGV.
[16] Amelia Raether, Commandeering, Preemption, and Vehicle Emissions Regulations Post-Murphy v. NCAA, 114 Nw. U. L. Rev. 1015, 1040 (2020).
[17] Marc E. Fitch, State Statute Says Connecticut Must Follow California’s Ban on Gas-Powered Cars, Yankee Inst. Pub. Pol’y (Sept. 29, 2020), https://perma.cc/Q3BX-F3HN.
[18] See id.
[19] Andrew Restuccia, EPA Chief Mocks California’s 2035 Ban on Gas-Powered Cars: ‘You Can’t Even Keep the Lights on Today’, Market Watch (Sept. 28, 2020, 4:46 PM), https://perma.cc/5TGY-YW33. (https://www.marketwatch.com/story/epa-chief-mocks-californias-2035-ban-on-gas-powered-cars-you-cant-even-keep-the-lights-on-today-2020-09-28).
[20] Id.
[21] Press Release, EPA, AO, Trump Administration Announces One National Program Rule on Federal Preemption of State Fuel Economy Standards (Sept. 19, 2019), https://perma.cc/GM5A-B7BC.
[22] Thomas Donnelly & Nicholas Faas, Challenges to Safer Affordable Fuel-Efficient Vehicle Rules Coming Soon, Jones Day (July 2020), https://perma.cc/66CU-ZBH9.