Bloomberg Law
April 14, 2023, 9:30 AM

Biden Tailpipe Emission Rules Face ‘Major Questions’ Legal Wave

Jennifer Hijazi
Jennifer Hijazi

An ambitious Biden administration’s plan to clean up emissions from a heavily polluting transportation sector will face industry litigation, but environmental lawyers see the rule holding up during eventual challenges.

The Environmental Protection Agency unveiled the proposed standards on Wednesday, touting the rules as the most aggressive ever for cars and trucks. The agency estimated emission cuts of “more than twice the total U.S. CO2 emissions in 2022,” according to a press release.

Future challengers are sure to turn to the major questions doctrine in forthcoming lawsuits, likely arguing the rule has too much of a transformative effect on the transportation sector by forcing automakers to transition to electric models that don’t emit carbon dioxide and air pollution.

The standards set light-duty vehicle efficiency at 82 grams per mile in model year 2032, a 56% bump from 2026 levels. That would put electric vehicles at 67% of new light-duty vehicle sales in 2032, according to the agency.

But the rule is not as transformative as some claim, which provides it with insulation from future claims that the rule raises “major questions,” according to Meredith Hankins, an attorney for the Institute for Policy Integrity, who said the action is rooted in tried-and-true Clean Air Act authority.

The Clean Air Act has always been “technology-forcing,” and electric vehicles are squarely in the same vein as catalytic converter emission controls were when they were first mandated for vehicles, Hankins said.

“They’re just technologies to reduce pollution and protect public health, and that’s exactly what Congress has been telling EPA to do for 50 years,” Hankins said.

Far-reaching Impact

But industry groups are already balking at the proposal, which is estimated to stem US oil imports by as much as 16 billion barrels through 2055 while pushing the industry predominately into electric vehicle manufacturing.

The “deeply flawed proposal is a major step toward a ban on the vehicles Americans rely on,” according to a statement from American Petroleum Institute president Mike Sommers.

“As proposed, this rule will hurt consumers with higher costs and greater reliance on unstable foreign supply chains,” Sommers said.

West Virginia Attorney General Patrick Morrisey—who successfully led the legal resistance to an EPA effort to regulate power plants with last summer’s West Virginia v. EPA rulingis already hinting at a lawsuit.

“Over the coming weeks, we’ll be taking a closer look at the proposed rule, and we’ll be ready to once again lead the charge against wrongheaded energy proposals like these,” Morrisey said in a statement on Wednesday’s proposal.

Other states are already using the major questions doctrine, which establishes that Congress must make significant policy decisions instead of agencies, in another suit against a first round of vehicle rules targeting earlier model years. They claim that the agency overstepped into issues of vast economic and political importance to set fleet-wide emissions standards.

Pushing Technology

The energy industry is expending more money and effort on litigation now than ever, according to Margo Oge, a former longtime EPA official who served as director of EPA’s Office of Transportation and Air Quality from 1994-2012.

Still, Oge is not worried about the viability of the rule despite the threat of litigation.

“I feel confident that the EPA team has designed a legally durable standard,” said Oge, who is now the board chair of the International Council on Clean Transportation. “EPA has used the traditional, performance based strategy in setting the standards, and that’s what the Clean Air Act requires.”

The rule faces a wave of litigation but is on solid legal ground, according to advocates of the standards.

The fact that industry is already moving in the direction of mass electric vehicle adoption is part of its projected success, according to Earthjustice senior climate attorney Hana Vizcarra.

The EPA’s proposal is running parallel to trends that are already being adopted in the transportation sector towards zero-emission technology, and the agency could have gone even further than it did in the proposal, Vizcarra said.

The agency is “improving the standards as they go in light of what’s happening in the marketplace, and that has shifted a lot in the last few years,” she said. “And it’s not because of anything EPA is doing with this rule, it’s because that’s where we’re going already.”

To contact the reporter on this story: Jennifer Hijazi in Washington at

To contact the editors responsible for this story: Zachary Sherwood at; JoVona Taylor at

Learn more about Bloomberg Law or Log In to keep reading:

Learn About Bloomberg Law

AI-powered legal analytics, workflow tools and premium legal & business news.

Already a subscriber?

Log in to keep reading or access research tools.