Gov. Gavin Newsom and his climate regulators at the California Air Resources Board, or CARB, have promised to phase out all gas-powered cars and force automakers to sell 100% electric vehicles by 2035.
CARB’s purpose is not really to improve local air quality in any part of California but rather to fight the specter of global climate change by using the coercive power of one big state to achieve a complete transformation of the U.S. auto industry.
CARB is able to pursue this transformational agenda only because the Biden administration has reinstated an extraordinary waiver of federal law—a waiver available to California and no other state.
California’s initial request for permission to set its own greenhouse gas auto standards was denied by the Bush administration in 2008, but the Obama administration quickly reversed that decision and later granted California an expanded waiver for automotive climate change rules.
In 2019, under President Donald Trump, the federal government withdrew all waiver authority for California’s greenhouse gas auto emissions rules and zero-emission vehicle mandate after concluding that such a waiver conflicted with federal law.
Now, in a game of political ping pong, the Biden administration has reversed that 2019 decision.
Don’t be fooled: The special waiver President Joe Biden has approved for California and the regulatory war on fossil fuels and the internal combustion engine that California is waging by virtue of it cannot be legally defended. Nor should they be dismissed or ignored on the grounds that they are just an example of federalism in action. They’re not.
In the American system of dual sovereignty known as federalism, citizens deal with their state governments on matters of state and local concern and with the federal government on matters of national interest.
The Founders recognized that issues uniquely or most directly affecting the residents of one state are best handled at the state or local level—not just for efficiency’s sake, but more importantly because the exercise of self-government over local affairs promotes the virtue and recognizes the dignity of the people, and therefore nurtures the strength of our republic.
A core principle of federalism is that all 50 states—whether large or small, densely or sparsely populated—are equal in dignity and in sovereignty. Each state’s representatives are free to experiment with different policy approaches within their own local markets: Some state legislatures may choose to prohibit or restrict certain types of behavior, while other states may allow the same conduct to go on with little or no regulation.
In this way, through the so-called “laboratories of democracy,” one state’s innovative policies can inspire more effective government solutions for other states or the federal government while still permitting the residents of each state to retain the right of governing themselves in matters of local interest.
But the virtues of true federalism are negated when one state’s regulations override the policy judgments of other states and dictate the market conditions and options available to consumers throughout the nation. That’s exactly what will happen if the California waiver and CARB’s “Green Dream” car mandates are allowed to stand.
The California market is so big and important that automakers have little choice but to produce cars, pickups, and SUVs that comply with the activist climate edicts issued by CARB.
This coercive effect is compounded by the fact that the federal Clean Air Act allows other states to adopt California’s waivered regulations for use in their own local areas where air quality is poor. More than a dozen blue states, including major states like New York, New Jersey, Massachusetts, and Pennsylvania, have already adopted CARB’s greenhouse gas-related mandates.
Because automakers need to spread their costs of production across a nationwide market and can’t economically engineer different fleets for different regions of the country, families in Texas, Ohio, Florida, and other red states will inevitably find their choices for new vehicles (or, rather, their lack of choices) determined for them by California.
Make no mistake, the revolutionary new industrial policy that CARB is pushing with the complicity of the Biden administration will have calamitous effects for all Americans, not just the residents of the Golden State. By coercing the auto industry to accelerate its transition to electric vehicle, or EV, production far sooner than market demand would support, the CARB mandates will:
- Eliminate consumer choice in every region of the country. Many of the vehicle models most popular with America’s families will disappear under CARB’s rules. In 2021, the three top-selling new vehicle models in the U.S. were the Chevy Silverado/GMC Sierra family of light trucks, the Ford F-Series pickups, and the Ram line of pickups. CARB is aiming to eliminate all three, along with the many other models of gas-powered vehicles that cannot realistically be designed to meet CARB’s greenhouse gas emissions limits in the near term and that eventually will be outlawed altogether under its zero-emission vehicle mandate.
- Increase the cost of vehicles for all American families. CARB’s rules will impose a sharp increase in the average price of all new cars and trucks as automakers spend tens of billions of dollars to develop expensive electric vehicle technologies to meet California’s requirements. Ford Motor Company alone has announced that it will spend $50 billion on EV development through 2026. Automakers will have no choice but to spread these massive costs across their entire fleets of new vehicles. All Americans will be harmed by these price increases, but the biggest losers will be low-income Americans who won’t be able to afford to buy an EV or to pay more for a gas-powered vehicle at the dealership and those who live in rural areas who need to drive longer distances and for whom EVs are impractical.
- Destroy jobs in the U.S. auto industry. The loss of popular new vehicle options and the significant price increases at the dealership mean that far fewer new vehicles will be purchased. This drop-off in demand, combined with the enormous costs of EV development, will challenge the profitability of the auto industry and lead to a loss of jobs for tens of thousands of America’s autoworkers. The United Auto Workers union has warned about the potential for job losses from the transition to EVs, which have far fewer moving parts than gas-powered vehicles and require on average 30% fewer workers to assemble. As a bellwether, Stellantis recently announced the closing of its Jeep Cherokee plant in Belvidere, Illinois, and the indefinite layoff of more than 1,200 plant workers due mostly to “the increasing cost related to the electrification of the automotive market.” In contrast, the transition to EVs will increase employment in China, which is the world’s leading producer of batteries and other EV components.
- Trigger more deaths and injuries on America’s highways. As more American families are priced out of the new car market, the average age of vehicles on U.S. roads will rise dramatically. More Americans will be forced to settle for older used cars and will be left driving older vehicles well beyond their useful lives. Not allowing people to upgrade to newer cars will lead to avoidable traffic deaths and injuries, since statistics show that newer vehicles are much more safe than older models. CARB ignores the deaths and injuries its mandates will cause.
- Worsen air quality and increase global carbon emissions. While CARB claims its zero-emission vehicle and greenhouse gas auto mandates will benefit the global environment by reducing carbon dioxide emissions from new motor vehicles, the overall environmental consequences of its rules, in fact, will be negative. First, the older cars that will continue using America’s highways because of CARB’s rules will produce more smog and other traditional air pollutants. Second, the Chinese batteries installed in the new EVs mandated by CARB will be made with electricity generated mostly from less technologically advanced power plants in China that burn dirty coal and release large volumes of carbon dioxide and traditional pollutants. Third, accelerating the transition to an all-EV fleet will necessitate an enormous increase in electricity generation to power it, and much of this additional electricity will have to come from burning fossil fuels, since there won’t be sufficient reliable sources of wind, solar, hydroelectric, and nuclear power to meet this need. The U.S. Energy Information Administration’s Annual Energy Outlook 2022 forecasts that in the year 2050, around 75% of total U.S. energy will still come from fossil fuels and nearly half of all U.S. electricity will still be generated from fossil fuel-fired power plants. CARB pretends battery-electric vehicles equal zero emissions, but it totally overlooks the upstream carbon dioxide emissions associated with producing and powering EVs.
- Harm our national security. Finally, forcing a faster switchover to EVs will reduce the nation’s security by (1) making us more dependent on China and other unfriendly nations for the production and processing of rare minerals needed for battery systems, (2) putting a massive additional strain on our already vulnerable national power grid, and (3) holding hostage our ability to move people and property throughout the country to the need for huge new investments in a nationwide electric infrastructure to support the mass conversion to EVs.
Thanks to the foresight and genius of our Founders, America’s constitutional scheme of dual sovereignty was designed to ameliorate the risk that one state’s regulatory overreach would interfere with the freedom and sovereign authority of other states and could harm the nation as a whole.
Thus, Article I, Section 8 of the Constitution grants Congress the power to ensure the consistent regulation of interstate commerce for the benefit of all Americans, and the Supremacy Clause of Article VI declares that federal requirements enacted under the authority of Congress have preeminence over state law.
Congress exercised its interstate commerce power in the Energy Policy and Conservation Act of 1978, or EPCA, when it directed the secretary of transportation to establish uniform national fuel economy standards for all new motor vehicles sold in the U.S., and it did it again when it authorized the Environmental Protection Agency to set federal limits on emissions of dangerous air pollutants from new vehicles in the Clean Air Act.
In both EPCA and the Clean Air Act, Congress required that the standards set by the federal agencies be feasible for gas-powered vehicles to achieve using existing technologies and that they be consistent with maintaining jobs, prosperity, safety, free markets, and the security of the American people. In fact, EPCA expressly forbids the Department of Transportation from considering “alternative fuel” vehicles, which include electric vehicles, when setting federal fuel economy standards.
To ensure national uniformity in fuel economy and auto emissions regulation, Congress included broad preemption provisions in both statutes: EPCA prohibits states from adopting or enforcing requirements different from the federal requirements “relating to fuel economy standards,” and the Clean Air Act prohibits all state regulations “relating to the control of emissions” for any new vehicle covered by the federal limits.
The internal combustion engine automobile has long been central to the freedom, mobility, and prosperity of the American people, and domestic auto manufacturing is critical to our economic and industrial strength, sustaining millions of good-paying jobs. It’s therefore not surprising Congress concluded that fuel economy requirements and emissions limits for new cars must be standardized and carefully formulated to preserve the full range of affordable vehicle options American families demand and to enable the continued health and dynamism of the traditional auto industry.
Moreover, Congress wanted to ensure the standards reflected the current need of the nation to conserve energy; that they didn’t significantly impair traffic safety; and that they didn’t harm the national security interests of the United States, for example, by making us more dependent on unreliable foreign sources of fuel and raw materials.
As laid out above, CARB’s greenhouse gas auto rules and zero-emission vehicle mandate contradict every one of these congressional objectives.
Predictably, but tragically, the Biden administration is trying to undermine Congress’ directives in pursuit of the Left’s preferred anti-fossil fuel agenda. By executive order, Biden declared “a goal that 50 percent of all new passenger cars and light trucks sold in 2030 be zero-emission vehicles.”
Like Newsom and CARB, the president is pushing this aggressive goal by ordering the Environmental Protection Agency to issue stringent limits on carbon dioxide emissions from new motor vehicles under the Clean Air Act and by telling the Department of Transportation to use its EPCA authority to set similarly strict fuel economy standards.
There’s a hitch, however: Congress never authorized the Biden policy—no statute gives any federal agency the power to compel such a momentous transformation in the auto industry. And the rules issued by the Biden EPA and DOT in furtherance of the president’s goal cannot be squared with the requirements of EPCA and the Clean Air Act.
So, on top of attempting to finalize its own rules, which are currently being challenged in federal court, the Biden administration took the extra step of empowering CARB to pile on with parallel but even more draconian state mandates by giving California back its special waiver from preemption.
Too bad for the Biden administration, but the special California waiver and the CARB edicts issued under it are themselves flatly inconsistent with federal law:
- EPCA’s broad prohibition on states creating their own requirements “relating to fuel economy standards” allows no exception or possibility of waiver. CARB’s greenhouse gas and zero-emission vehicle mandates clearly violate this prohibition. They purport to restrict the amount of carbon dioxide new vehicles emit per mile driven, with greater restrictions applying over time, until eventually, if enforced, they would require zero carbon dioxide emissions. Because there’s a direct mathematical relationship between the carbon dioxide a vehicle emits per mile traveled and the amount of gasoline or diesel fuel it burns, the CARB mandates unavoidably relate to, or in fact constitute, fuel economy standards that differ from the standards set by the Department of Transportation, and they are therefore preempted—no ifs, ands, or buts.
- It’s equally clear these CARB mandates seek to control emissions from new motor vehicles regulated by EPA, so they also violate the plain language of the Clean Air Act’s preemption of state rules “relating to the control of emissions.”
- Unlike EPCA’s absolute preemption, section 209(b) of the Clean Air Act does permit the EPA to grant California (and California alone) a waiver of Clean Air Act preemption, but only to the extent necessary “to meet compelling and extraordinary conditions” involving local air quality. This justification is lacking for California’s global climate waiver:
- The Clean Air Act’s California waiver provision is a rare example of special treatment for a single state under federal law. Congress enacted this waiver provision based on a recognition that California historically has faced unique local air quality problems due to smog, especially in the Los Angeles basin. Consistent with that original justification, most of the waivers previously granted to California by the EPA allowed California to impose stricter controls on automobile emissions of traditional smog-generating pollutants, like unburned hydrocarbons, particulate matter, carbon monoxide, and nitrogen oxides. These pollutants can be controlled by adjusting a vehicle’s fuel mix or by the addition of discrete pieces of equipment, like enhanced catalytic converters; their control doesn’t necessitate the entire transformation of the vehicle’s powertrain and a total conversion of the automaker’s production plants.
- CARB’s greenhouse gas auto mandates are a different animal. They will require an industry-wide reengineering of the automobile and the entire auto manufacturing process from soup to nuts. At the same time, they weren’t motivated by the need to reduce smog in L.A. or improve local air quality anywhere in California; their aim was far more grandiose: to address the supposed global atmospheric effects of carbon dioxide, an otherwise benign molecule essential to the existence of green plants and a byproduct of all animal life, including human life. According to climate science, the atmospheric effects of carbon dioxide emissions are global in nature, not localized and not unique to California; any release of carbon dioxide will have the same climate effects whether it occurs in California or in any other state—or at any point on the globe, for that matter.
- Earlier versions of CARB’s low-emission and zero-emission vehicle sales requirements, which involved relatively modest sales targets as a percentage of an automaker’s overall new car sales in California, were also directed at reducing emissions of traditional smog-related pollutants. CARB’s more aggressive recent zero-emission mandates, including the latest version requiring 100% zero-emission vehicle sales by 2035, are another thing entirely. They’re intended to advance CARB’s Green Dream agenda of reducing carbon dioxide emissions to forestall global climate change, and they portend an end to the traditional U.S. auto industry and the elimination of nearly all the most popular vehicle models America’s families need and demand.
- Several states, including Ohio and Texas, as well as numerous industry organizations, are challenging the legality of the Biden administration’s California waiver order in the U.S. Court of Appeals for the D.C. Circuit. Among other arguments, the challenging states object to the waiver as a violation of the constitutional principle of equal sovereignty of the states. At a minimum, this principle requires that any decision to give special treatment under federal law to a single state alone—if ever allowed by the Constitution—should be supported by a clear showing that the treatment is warranted to address extraordinary local conditions unique to that state. No such showing supports the Biden EPA’s California waiver decision.
Congress decided the U.S. required uniform fuel economy and emissions standards for new motor vehicles that achieve a balance among various interests of national importance. That choice was eminently sensible, especially given the economics of the auto industry, which drive the automakers to build their fleets to meet common national standards.
The question is whether those standards will be established at the federal level according to Congress’ directives or by California bureaucrats in obedience to Newsom’s radical regulatory agenda.
If left unchecked, the California waiver and CARB’s greenhouse gas and zero-emission vehicle mandates—working in close conjunction with the rules issued by the Biden administration—will sweep away Congress’ considered design for regulating the U.S. auto industry, with negative consequences for all Americans. This isn’t federalism in action—it’s federalism turned on its head.
The bottom line: It’s entirely consistent with a proper regard for federalism and the rule of law to oppose vigorously the special waiver EPA has granted California and the overreaching climate mandates CARB is propounding under that waiver. California should not be allowed to push aside the policy judgments of Congress and impose its will on the rest of the country, especially at the cost of lives, jobs, the economy, and the law.
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