California Zero-Emission Goal May Get Caught in EPA Waiver Fight

California’s bold plan to phase out sales of new all-gasoline cars by 2035 could face legal challenges down the line from federal officials and industry—but how it may play out is uncertain.

Gov. Gavin Newsom (D) on Wednesday signed an executive order that calls for 100% zero-emission sales goals for all new passenger vehicles in 15 years. For heavy- and medium-duty trucks, the sales goal extends an existing rule and requires 100% of sales be zero-emission in 2045.

The transportation sector emits nearly 41% of the state’s greenhouse gas emissions, and Newsom said the new goals will help California meet climate commitments and signal to industry to ramp up efforts toward electrification.

“We want more choice and a lot more competition,” Newsom said during a news conference. “And we want more innovation. We want more economic growth. We want more inclusion in terms of these policies.”

Other states will have to follow California’s first-in-the-nation action, he said.

Legal maneuvering could complicate that already lofty goal.

‘Will Folks Sue? Yeah.’

The executive order doesn’t have immediate legal effects; it merely directs state officials to start crafting regulations to enact the plan in a way that’s “consistent” with state and federal law. But California is already in a high-stakes legal showdown with the Trump administration over its ability to regulate auto emissions.

The EPA last year revoked a Clean Air Act waiver allowing California to set its own greenhouse gas emissions standards and require sales of zero-emission vehicles. The Department of Transportation issued a companion rule saying the Energy Policy and Conservation Act, which governs fuel economy, preempts state standards.

The U.S. Court of Appeals for the District of Columbia Circuit is now reviewing the legality of those moves, and its decision could affect California’s ability to carry out its latest plan.

California Air Resources Board Chairwoman Mary Nichols said the state believed it was on firm ground with its action, and that half of states in the nation have filed briefs supporting its argument against the administration in the waiver fight.

“We believe the Clean Air Act gives us the authority to enact exactly the kinds of standards that we have since the late 60s, and therefore we look forward to being able to do that in the future,” Nichols said. “We’ll get there eventually.”

Newsom’s order says the Air Resources Board will work on regulations setting the rules, which are expected to reduce greenhouse gas emissions by 35% in 2035. It also requires state agencies to take actions to support the zero-emission vehicle market.

But opponents of Newsom’s order could adopt the Trump administration’s position that a forced shift away from gas-powered cars amounts to pollution standards or fuel economy rules that are the federal government’s domain. The Department of Transportation’s 2019 rule says federal law preempts state emissions standards and zero-emission vehicle mandates.

“Will folks sue? Yeah, I would be shocked if the automakers don’t pursue this,” Case Western Reserve University law professor Jonathan H. Adler said.

‘Have to Watch’

But it’s hard to know if such arguments will be successful, Adler said, until the D.C. Circuit resolves the existing litigation over the Trump administration’s decision to sideline California on emissions standards.

“Until we see what the precise contours of a [D.C. Circuit] ruling are, it’s hard for me to handicap it,” Adler said.

More than a dozen states and the District of Columbia signed an agreement in July to mirror California actions and work to increase the number of zero-emission medium- and heavy-duty trucks on the roads.

States will again look to follow California’s latest move, but with a keen eye on the ongoing litigation, said Paul Miller, executive director of the Northeast States for Coordinated Air Use Management, an association of air quality agencies in the Northeast.

“It is something we’re going to have to watch,” Miller said.

Adler said state officials will likely have the “benefit of judicial guidance” when crafting their regulations, assuming the D.C. Circuit resolves current litigation over California’s fuel emissions authority first.

The long goal timeline could also provide some cover as administrations come and go through elections, said Gil Tal, director of the Plug-in Hybrid & Electric Vehicle Research Center at the University of California, Davis.

“California is saying ‘We have one administration, we may have another administration, but this is where we’re going,’” Tal said.