IN-DEPTH: Why Biden Admin’s Latest Push for EVs, Wind, and Solar Is Likely Headed to the Supreme Court

EPA rules will 'force progressive lifestyle choices' on all Americans, critics say

The Environmental Protection Agency in Washington on Dec. 12, 2018. Samira Bouaou/The Epoch Times

Two Environmental Protection Agency (EPA) regulations that are currently being finalized will leverage the agency’s authority to regulate emissions in order to force the United States’ electricity network and automotive industry to shift production to wind and solar energy and electric vehicles (EV).

However, new EPA initiatives targeting the U.S. fossil fuel industry will face legal challenges that likely will find their way to the Supreme Court and might result in landmark decisions about separation of powers in the United States, and the extent to which federal agencies, instead of elected officials in Congress, can assume broad lawmaking authority.

In April, the EPA announced significantly tighter standards on light-duty and medium-duty vehicles—starting in 2027. These new rules, the EPA says, would “leverage advances in clean car technology to unlock benefits to Americans, ranging from reducing climate pollution, to improving public health, to saving drivers money through reduced fuel and maintenance costs.”

The auto rules build on new EPA regulations to set tight emissions limits on power generation plants, forcing coal-fired plants either to close or install expensive and untested carbon-capture technology.

The EPA argues that, since Congress gave it the power to regulate emissions, it’s simply carrying out that mandate. Critics say the agency has gone beyond regulating emissions to crafting a national energy policy.

Federal agencies such as the EPA “are way outside of their mandate set by Congress,” Joe Trotter, director of the American Legislative Exchange Council’s energy, environment, and agriculture task force, told The Epoch Times. “They do not, and should not, have the power to make huge sweeping changes to the American, and ultimately the global, economy through regulatory fiat.”

“The Biden administration has proposed tailpipe restrictions at levels that are so stringent that, by their own analysis, they can only be met if electric vehicles become the vast majority of cars sold in America,” O.H. Skinner, executive director of Alliance for Consumers, told The Epoch Times.

EVs are currently in demand by consumers who drive short distances, can charge them conveniently, and are wealthy enough to afford them. The average income of EV buyers is twice the median income in America, suggesting that EVs are the car of choice for rich Americans who live in or near cities.

“Rather than allow consumers to make choices, they’re just trying to force progressive lifestyle choices on everybody, no matter where they live, no matter how much money they make,” Skinner said. “It is very, very unpopular when you tell people they have to live life a certain way that doesn’t match how they want to live it. And I think even this administration recognizes that.

“So what they seem to be doing is demanding that manufacturers basically take away these choices. Their argument is, ‘We didn’t tell you you can’t buy a gas car, the manufacturers stopped making them.’”

A BMW i4 electric vehicle during a visit of the German Economic and Climate Protection Minister at the BMW plant in Munich on Jan. 20, 2022. Lukas Barth/Reuters

The ‘Major Questions’ Doctrine

Challenges to the EPA’s authority to mandate such sweeping changes, which are currently moving through the District of Columbia Circuit Court, will ultimately hinge on the court’s interpretation of what is called the “major questions” doctrine. This doctrine, set down most notably in the 2021 Supreme Court ruling West Virginia v. EPA, states that questions of major importance to Americans must be decided by elected officials in Congress and not by federal agencies—unless Congress explicitly mandated that authority to an agency.

“The Court’s approval of the ‘major questions’ doctrine signals a willingness to realign separation of powers in ways that restrict the administrative state,” the prominent law firm Skadden advises its clients.

Skadden argues that the Supreme Court’s “distrust of agency action, combined with its interest in reviving the nondelegation doctrine” will lead to more legal challenges against agency authority, “but the argument won’t always gain traction.”

Support for the “major questions” doctrine is now split along party lines, with Republicans in favor and Democrats against. In December 2022, 16 Republican attorneys general filed a brief in D.C. courts challenging EPA authority on vehicle emissions. By contrast, in February, 19 AGs from liberal states wrote in support of the EPA’s right to enact its new emissions standards on utilities.

Whether Congress gave the EPA the authority to set energy industrial policy or force an EV transition on automakers will be the essential question that judges will decide in coming months. The courts have ruled on many such issues during the Biden administration in response to the administration’s habit of scouring congressional mandates to find clauses that would give sweeping powers to federal agencies.

They include mandating COVID vaccines under the guise of employee safety by Occupational Safety and Health Administration, forgiving student loans by the Department of Education, and imposing mask mandates by the Centers for Disease Control and Prevention. All of these efforts were checked by federal courts, which ruled the Biden administration lacked the authority.

By its own admission, the Biden administration’s new auto emissions regulations are designed to boost the market share of EVs, effectively replacing internal combustion engines, although critics say that Congress hasn’t given the EPA authority to manipulate markets in that way.

“Sometimes, this administration doesn’t learn its lesson the first time around,” Trotter said.

EVs Could Be a Bad Bet for Carmakers

While challenges to the EPA regulations are likely from industry groups such as corn growers associations, which produce biofuels for internal combustion engine (ICE) vehicles, the auto industry thus far has been reluctant to “fight City Hall.” Analysts can only speculate on motives, but venture to guess that this may be because automakers don’t want to be seen as climate deniers, would rather leave the fight to others, or that they relish the federal and state subsidies for investments in new battery assembly plants.

Whatever the case may be, the EV bet has proven costly for carmakers thus far.

Ford CEO Jim Farley poses for a photo at the launch of the electric Ford F-150 Lightning pickup truck at the Ford Rouge Electric Vehicle Center in Dearborn, Mich., on April 26, 2022. Bill Pugliano/Getty Images

Ford is currently losing more than $66,000 on every EV it sells, an analysis by energy economist Robert Bryce found. Ford’s announcement of $2.1 billion in total losses on its EVs for 2022 was double what it lost per vehicle in 2021, Bryce stated. In addition, the cost of EV batteries went up by 7 percent last year, amid predictions that the cost of making EVs would fall, making them cheaper and more profitable.

While EV sales have seen rapid growth between 2020 and 2023 to 8.5 percent of new-vehicle sales from 2.6 percent, that growth could soon hit a wall. Bryce cites a report by J.D. Power, titled “EV Divide Grows in U.S. as More New-Vehicle Shoppers Dig in Their Heels on Internal Combustion,” that states sales slipped to 7.3 percent in March. There has been a steady increase in consumers who say they are “very unlikely” to buy an EV because of cost and charging concerns.

“What we’re seeing is the Biden administration effectively trying to force automakers through regulation to produce more EVs, but there’s no evidence to suggest that consumers want to buy them,” Bryce told The Epoch Times. “We could be setting up a massive pileup here, with automakers spending billions to produce cars that the vast majority of consumers don’t want.”

In addition to betting on consumer demand that may not be there, automakers may be choosing a bad time to invest billions in new manufacturing plants.

“All of this is happening at the same time that interest rates are rising and the signs of a recession are very clear,” Bryce said. “Consumers are spending less money and keeping their existing automobiles longer. That could result in a further slowdown across the automotive sector and across the economy, not just for EVs.”

A Retreat From Impossible EPA Mandates?

There is some speculation that automakers aren’t opposing the EPA rules because, given that they are impossible to meet, the limits and deadlines ultimately won’t be enforced.

A report by the Cato Institute, titled “Electric Cars: Policy Beyond Capability?” states that “the unrealistic nature of the [EPA] proposal is actually a persistent characteristic of environmental policy.”

Noting that the EPA standards would require 67 percent of new cars to be EVs by 2032, the Cato report states that data from the Energy Information Administration projects that EV sales will still be less than 20 percent of the market by 2050. In addition to shortfalls in demand, the ability of carmakers to source the minerals they need to make EVs in such large numbers is questionable.

“It’s just not realistic to have all these goals happen the way they’re being laid out,” Trotter said. “You’ve seen huge increases in the prices of things like lithium, copper, and aluminum, which are all necessary to make electric vehicles. Far more of it is needed for EVs than for traditional cars.

The U.S. Environmental Protection Agency headquarters in Washington, D.C., is seen in a file photo. hapabapa, iStock Editorial/Getty Images

“There aren’t huge increases in supply to make up for the increase in demand,” he said.

When policies such as the new EPA emissions standards prove impossible for companies to implement, Congress often “quietly” steps in, taking action such as cutting funding to specific agencies to “restrict their ability to implement unrealistic regulations,” the Cato report says.

“The retreat from unrealism will probably be quiet,” the report states.

“But if motorists can’t buy the cars they want, the retreat will be visible and rapid.”