IN-DEPTH: EPA Faces Backlash, Court Battles Over Its New Emissions Rule

Electric vehicle parking at a grocery store in Mount Joy, Penn., in February 2023. Beth Brelje/The Epoch Times

The Environmental Protection Agency (EPA) will likely face more legal challenges over its latest emissions standards, which are projected to lead to two-thirds of new car sales being all-electric vehicles by 2032.

“Once it’s published as a final rule, it will undoubtedly be challenged again, just like the last set of rules was challenged,” Steven Bradbury, a distinguished fellow at the Heritage Foundation, a conservative think tank, and a former general counsel at the Department of Transportation (DOT), told The Epoch Times.

“At that point, there may be a ruling by the D.C. Circuit [Court of Appeals] on the earlier challenges that would help inform how the court would handle a new challenge,” he added.

Currently, three interrelated legal challenges are pending in the D.C. Circuit Court of Appeals. The challenges are to the EPA’s current emissions rules seeking to make half of new car sales be all-electric by 2030, EPA’s waiver to California to allow the state to set its own emissions rules, which mandates 100 percent zero-emission new vehicle sales by 2035, and fuel economy requirements by Department of Transportation’s National Highway Traffic Safety Administration (NHTSA).

And some petitioners of the current legal challenges have already spoken up.

American Fuel and Petrochemical Manufacturers (AFPM), the main trade association representing oil refineries for gasoline and other petroleum products, said EPA’s new emissions rules would “effectively ban gasoline and diesel vehicles.”

“The Agency should withdraw this rule and work collaboratively with the fuel, petrochemical, and vehicle industries to find cost-effective ways to reduce emissions while maintaining competition, U.S. energy and national security, and choice for consumers,” wrote AFPM President and CEO Chet Thompson in a statement on April 12, the same day EPA announced the proposed new emissions rules.

AFPM didn’t respond to The Epoch Times’ inquiry about whether the organization planned to file a new legal challenge, but referred to its statements.

Also on April 12, West Virginia Attorney General Patrick Morrisey said that the new EPA emissions rules were “enormously problematic.” “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,” he said, hinting at potential legal action.

His spokesperson didn’t confirm or deny potential legal petitions to The Epoch Times. The attorney general’s office in Texas, another Republican-led state currently challenging EPA emissions rules finalized in 2021, hasn’t responded to The Epoch Times’ inquiry.

West Virginia Attorney General Patrick Morrisey speaks at an event in Inwood, W.Va., on Oct. 22, 2018. Win McNamee/Getty Images

Agency Power at Question

In his statement, Morrisey also questioned whether the EPA has the statutory authority to set the emissions rules.

When setting the emissions rules, EPA claimed statutory authority under the Clean Air Act. In addition, the Inflation Reduction Act (IRA) has specified carbon dioxide as a type of greenhouse gas; that has led to some believing that the IRA has given EPA additional authority, a view that Jonathan Adler, a law professor and director of the Coleman P. Burke Center for Environmental Law at Case Western Reserve University, disagrees with.

According to him, the IRA doesn’t give EPA new authority because the definition applies to provisions that are not related to EPA’s regulatory authority.

“The EPA does have the authority under current law to regulate greenhouse gases from automobiles. The question is how far that extends. And does that allow them to adopt rules that either mandate or dramatically encourage the use of electric vehicles?” Adler told The Epoch Times.

While the Clean Air Act (CAA) authorizes EPA to regulate emission standards, DOT’s NHTSA controls fuel economy as per the Energy Policy and Conservation Act of 1975 (EPCA).

According to Bradbury, EPA’s role in fuel economy is limited to measuring and reinforcing the standards NHTSA sets. In his view, the EPA’s setting the limit on the amount of carbon dioxide a car can emit per mile traveled is the equivalent of imposing an MPG requirement due to “a direct and constant relationship between EPA’s carbon dioxide emission limits and NHTSA’s fuel economy standards.”

Therefore, EPCA and CAA overlap in some ways. “I don’t think that means EPA can properly move the Department of Transportation out of the way and, in effect, set fuel economy standards for cars,” said Bradbury, adding that this viewpoint hasn’t been tested in court, but will be heard when the pending legal challenges reach argument stage in the D.C. Circuit Court.

Adler agrees.

“You have these two statutes that are focused on two different questions that happen to overlap,” he said. “It will certainly be something that will have to be resolved in court for sure.”

“When it comes to electric vehicles, you’re dealing with something that can be thought of in both terms because electric vehicles both result in lower emissions but also have a lot to do with energy conservation because they don’t use fossil fuels,” he added.

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

‘Real-World Economics’

Bradbury said that CAA talks about the costs of regulation and asks for practical rules.

“The statute says EPA is supposed to take into account the costs of regulation. They are supposed to come up with a practical rule and weigh the benefits,” he added. “It doesn’t say anything about using Section 202 of the Clean Air Act to try to force a complete transformation of the industry and force it to electrification.”

A similar practicality requirement is in place for NHTSA, he said. “Congress made it clear that the fuel economy standards have to take into account real-world economics.”

In his view, EPCA, a response to the Arab oil embargo in retaliation against the United States’ support of Israel during the Arab–Israeli War, is “not an environmental statute.” “It was really a concern about national security and our dependence on foreign oil. And it was also a concern about preserving the markets for transportation options for America’s families, the vitality of the auto industry, etc.”

“When Congress created the fuel economy program in the 1970s, it was very careful and made it very clear in the statute, I believe, that it did not want NHTSA’s fuel economy standards to undermine the health and vitality of the automotive industry,” he said.

“Because, of course, the auto industry in the U.S. is a major part of our industrial base. There are not just the hundreds of thousands of jobs that the automakers are responsible for; there are millions of jobs in all the companies that supply inputs to the automotive industry.”

In 2022, several months after EPA’s emissions standards for light-duty vehicles in model years 2023 through 2026 became final, NHTSA released corresponding fuel economy requirements, increasing MPG requirements by nearly 10 miles per gallon on average for 2026 over 2021 models. Bradbury said NHTSA will likely soon release an updated MPG requirement to go along with EPA’s latest rules for car models in years 2027 through 2032.

“So when EPA goes first with these rules, EPA is getting out in front of DOT and is usurping DOT’s role to set fuel economy standards by, in effect, setting its own fuel economy standards,” he said.

“So here again, we have an old statute enacted for very different purposes or reasons being used today by the Biden Department of Transportation for a very different purpose—one that Congress never contemplated, never approved—which is trying to force through regulatory fiat a massive wholesale transformation in the industry from internal combustion engine production vehicles to electric vehicles,” he added, referring to EPCA.

The Epoch Times has contacted EPA for comment.

President Joe Biden speaks in Irvine, Calif., on Oct. 14, 2022. John Fredricks/The Epoch Times

Possible Legal Outcomes

A 30-day period of public comments is underway on the latest EPA emissions standards. Once it’s published as a final rule, petitioners have 60 days to file their complaints to the D.C. Circuit Court. So they will likely file petitions before the pending challenges, which have not reached the argument stage, render any decisions.

According to Bradbury, the petitions may have one of the following outcomes: the D.C. Circuit may reject the challenges; it may send the rules back to EPA to reconsider if it finds that the agency needs to address any neglected factors; or it may hold that the agency doesn’t have authority from Congress and strike the rules down based on the “major questions doctrine”—an agency must have clear authorization from Congress before it can decide a major issue of national importance.

After the ruling of a three-judge panel, the parties could seek review by all judges in the whole D.C. Circuit, which is rare, or by the Supreme Court as a next step. Bradbury said if the D.C. Circuit rules that the EPA doesn’t have sufficient authority or strikes the rules down based on the major questions doctrine, those types of decisions would be more likely to be taken up by the Supreme Court because they are big decisions.

Consumer Choice and National Security

As a part of the initiative to achieve President Joe Biden’s executive order on tackling climate issues, the standards would “significantly reduce climate and other harmful air pollution, unlocking significant benefits for public health, especially in communities that have borne the greatest burden of poor air quality,” according to the EPA.

However, the Energy Information Administration, a principal agency responsible for official energy statistics, projected the market share of electric light-duty vehicles—including battery electric and hybrid electric—to be between 10 and 30 percent by 2025, according to its annual energy outlook released last month.

“I think the fundamental thing is: people don’t want to buy these cars,” Diana Furchtgott‑Roth, director of the Center for Energy, Climate, and Environment at the Heritage Foundation, told The Epoch Times. “Because they don’t want to have to stop 45 minutes to charge [EVs] up. They’re more expensive; they’re smaller. And they have very limited range and don’t fit people’s lifestyles.”

A driver recharges the battery of his Tesla car at a Tesla Super Charging station in a petrol station on the highway in Sailly-Flibeaucourt, France, on Jan. 12, 2019. Pascal Rossignol/Reuters

Only 5.8 percent of new vehicles sold last year in America were electrics, and she pointed out further that two-thirds of last year’s new EV car sales were from Tesla. “So people don’t really want to buy these other vehicles.”

“Here, it’s a question of forcing people, people don’t want to buy this but they’re forcing them to do so,” she added.

According to a new Gallup poll earlier this month, 41 percent of adults said they would never buy an EV. Four percent said they currently own an EV, and an additional 12 percent said they were “seriously considering” buying one.

A Pew Research poll conducted in July 2022 found that 55 percent of Americans opposed phasing out new gasoline cars and trucks by 2035, while 43 percent were in favor of that. The poll also showed that people were divided on whether Biden’s climate policies were taking the country in the right direction: 49 percent said it was right versus 47 percent who said it was wrong. Among Democrats, a majority—79 percent—supported Biden’s climate policies, and a majority of Republicans—82 percent—said those policies were taking the country in the wrong direction.

According to Furchtgott‑Roth, an economist and a former deputy assistant secretary for research and technology at DOT, China has increased its carbon emissions by more than 5 billion tons in the past 16 years. Due to the use of cleaner natural gas, the United States has seen its carbon emissions decline by over 1 billion metric tonnes during the same period.

“Moving our energy-intensive manufacturing abroad to China doesn’t help global emissions because the emissions come off made in China rather than here. And goods are produced in China with coal-fired power plants rather than here with clean natural gas,” she added. “This is making China’s economy stronger and America’s economy weaker.”

A worker puts away equipment after coming out of the Datai coal mine in Mentougou, west of Beijing, on Jan. 8, 2020. Greg Baker/AFP via Getty Images

AFPM’s Thompson agrees.

“It’s unconscionable that the Administration would propose this knowing full well that China controls 80% of global battery production capacity, and even with robust U.S. investment to fortify our own electric grid and grow our battery supply chains by a magnitude of 10, we will not come close to overtaking China’s dominant position and will be left more dependent and financially beholden to them as a result,” he said in a statement on April 12, while calling the new EPA standards “bad for consumers, the environment, our freedom of mobility, and U.S. national security.”

Rep. Chip Roy (R-Texas) said the new EPA emissions standard “kills jobs” and would make the United States fall behind China. “It sums up all these things that they’re doing: the entire effort of this administration is to make us beholden to China, undermine our growth,” he told The Epoch Times.

“These EPA rules, all of the IRA subsidies can be turned back,” he added.

In response to a query from The Epoch Times on whether the new rules will aid China, the EPA defended the proposed standards, saying that they are “in line with the direction the American auto industry is already going.” The industry has made significant investments in zero-emissions vehicles, which the administration is building upon, an EPA spokesperson said.

Auto Industry’s Reaction

America’s automobile industry supported the EPA’s previous rule that would lead to half of new car sales being all-electric by 2030. But the industry was worried this time when EPA took it further by accelerating that goal to 60 percent by 2030 and 67 percent by 2032.

“To be clear, 50 percent was always a stretch goal and predicated on several conditions,” John Bozzella, CEO of the Alliance for Automotive Innovation, which represents large U.S. and foreign automakers, said in a statement on April 12. “Those included supportive policies like the manufacturing incentives in the Inflation Reduction Act (that have only just begun to be implemented) and tax credits to support EV purchases and affordability.”

But in an emailed statement to The Epoch Times on April 17, Bozzella’s tone seemed to have softened.

“Customer affordability is a key condition for a successful EV transition (along with charging, critical mineral availability, and utility capacity), so that’s why we’ve been focused on making the 30D incentive as broadly available to as many customers and on as many EVs as possible,” he said, referring to the EV consumer credit of up to $7,500 under the Inflation Reduction Act.

The auto industry’s embrace of Biden’s EV push was a misstep, according to Bradbury. “I think they cooked their own goose.”

“At this point, they’re probably regretting that because even though they publicly made commitments to transition to electric vehicle production as quickly as they can, and are incurring enormous expenses to do that, they can’t really meet these benchmarks that are being mandated. And at some point, something’s got to give,” he added.

He described the industry’s reaction as “political.” “They’re sort of testing the political winds or predicting the political winds. And I think they think the push for green technology and electric vehicles is here to stay.”

In addition, the industry welcomed the U.S. government’s mandate to force consumers to accept EVs so they could achieve global economies of scale, since they were also selling EVs in Europe and China, according to Bradbury.

The new EPA rule is “going to have enormous dislocating costs across the economy, just massive costs,” he added.

“For a rule like that, I think it’s classic under the major questions doctrine that the Supreme Court should require that there be a clear and express authorization from Congress to do something like that, and that [authorization] certainly does not exist.”