‘Solid’ Biden Vehicle Emission Proposal Still Open to Lawsuits

Aug. 6, 2021, 6:31 PM

The Biden administration’s carefully unveiled plans for tighter vehicle emission rules appear more resistant to major litigation but aren’t immune to lawsuits, lawyers and policy experts say.

Flanked by U.S. automakers, President Joe Biden unveiled a set of actions Thursday that chart a course for greater electric vehicle sales and tighter tailpipe carbon standards from the Environmental Protection Agency and the National Highway Traffic Safety Association.

The proposed regulation will no doubt be subject to litigation, potentially from groups who question its efficacy. Legal experts, however, don’t see court battles on the horizon over agency authority or lax justifications.

“There may be some contest about whether it’s impossible, too stringent, not stringent enough,” according to Georgetown law professor William Buzbee. “That’s different than fundamental challenges to the government’s ability to act in a basic, certain area.”

Center for Progressive Reform policy analyst James Goodwin is sure the proposed rule is legally more bulletproof than its Trump-era predecessor, but that doesn’t mean judges won’t find any issues.

“If you have a conservative judge, industry attorneys who are talented enough, you can always find holes and poke holes, but this is going to be a solid sort of thing,” he said.

EPA’s proposed rule, released Thursday evening, suggests a jump in stringency for model year 2023 cars, and a more gradual escalation through 2026.

The new efficiency levels unwind embattled Trump administration car rules that slashed fuel economy levels to 1.5%. The hefty reduction from Obama-era standards set at 5% was met with a barrage of now-stayed litigation.

More ‘Reasoned’

Biden will need to have airtight reasoning for changing course from the Trump administration and tightening the standards, said Bethany Davis Noll, executive director of NYU’s State Energy & Environmental Impact Center.

But “given that the Trump-era rule basically lacked a justification, rolling back the rollback to do something more rational and reasoned should be easy enough to explain,” she said.

Jane Montgomery, a partner at Schiff Hardin LLP’s environmental practice in Chicago, says litigation could arise from the details of the rule—not on broad agency authority—but agencies have probably done a thorough job with their reasoning.

“I am sure he has directed his staff to provide adequate justifications for their rulemakings,” she said in an email.

What’s more, Biden’s heavy emphasis on industry support could help avoid any legal missteps down the line, Buzbee said.

“That itself is a signaling both to the government and environmentalists and to each other that they intend to support rather than fight the efforts,” he said. “A more cooperative and sharing posture is far more likely to result in progress than all out fighting.”

No ‘Obvious Holes’

There aren’t any “obvious holes” in the EPA’s proposal according to Dave Cooke, senior vehicle analyst at the Union of Concerned Scientists’ Clean Transportation Program.

“From the legal side, they made very clear to reverse the previous administration’s interpretation of what is appropriate to weigh under the Clean Air Act,” he said in an email.

But Cooke said he didn’t find a good explanation for opting out of a more stringent option than what was proposed, which is based off levels from a California deal with automakers in 2019.

The proposed standards don’t “represent the full reset needed to both recoup as much of the rolled back standards as possible and put the industry back on a trajectory consistent with what is needed to address climate change,” he said.

That California framework called for a 3.7% increase in fuel economy, but some environmentalists are not convinced those reductions adequately slash emissions, which could result in lawsuits over the stringency of the eventual rule.

“The Biden administration proposed loophole-riddled rules that don’t even rise to the improvements car companies agreed to with President Obama nine years ago,” Center for Biological Diversity’s Safe Climate Transport Campaign director Dan Becker said in a statement.

Policy Shift

Judges also could more closely scrutinize whether Biden’s new emissions standards are well-justified by the record of prior policy, since the action is a complete policy shift from the previous administration, Goodwin said.

“It does appear that judges do a little more intrusive inquiry when there’s a change in policy, so that’s just something else that the Biden administration will no doubt be aware of,” he said.

But Goodwin noted that the next rule will likely be the “main event” for challenges, since the current proposal likely falls within well-laid plans already established by automakers.

“Much of this fight won’t play out in the current in the Biden term,” he said. “Between this and whatever happens on the power sector, the next presidential election is shaping up to be a referendum on whether this country tackles climate change or not.”

To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com

To contact the editor responsible for this story: Rebecca Baker at rbaker@bloombergindustry.com

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