Oklahoma and 14 other states, the Petroleum Alliance of Oklahoma, and six other oil and natural gas associations contend the federal government has exceeded its authority in trying to compel carmakers to manufacture electric vehicles.
Texas, Oklahoma, Louisiana, Missouri, Arkansas and 10 other states petitioned the appellate court to review an action of the U.S. Environmental Protection Agency. The case was filed April 27; oral arguments have not yet been scheduled.
The petitioners contend the EPA and the National Highway Traffic Safety Administration overreached in mandating Greenhouse Gas Tailpipe Standards that are favorable to electric vehicles and biased against internal combustion engine vehicles.
Last June the U.S. Supreme Court “ended EPA’s plan to ‘substantially restructure the American energy market’ in pursuit of the agency’s unauthorized climate goals,” the plaintiffs write.
The latest litigation is “a rerun” of that case “except here EPA seeks to substantially restructure the American automobile market in pursuit of unauthorized climate goals.” No “plausible reading” of the Clean Air Act gives the agency that authority, the petitioners argue.
Section 202 of the Clean Air Act charges EPA with promulgating “standards” about the volume of air pollutants that motor vehicles may lawfully emit. Subsequently the EPA began including greenhouse gases in those standards.
And in 2020 the EPA added carbon dioxide emissions standards that imposed “relatively manageable compliance burdens” on auto manufacturers, and that pertained to vehicle model years 2022-26.
But after President Biden’s inauguration, EPA “radically shifted course,” the petitioners complain. Biden issued an Executive Order that focused on “a new climate agenda.”
EPA responded by promulgating “substantially more stringent emissions standards” for vehicle carbon dioxide emissions.
The standards “also do something wholly new: they functionally force vehicle manufacturers to start shifting their fleet production to an ever-increasing share of electric vehicles.”
The standards achieve that by measuring not whether an individual vehicle complies with the emission standards, but the fleet as a whole complies, after averaging the emissions from vehicles fleetwide. “And that averaging counts electric vehicle emissions as a zero.”
The standards are “so stringent” that, “in EPA’s own words,” they will “necessitate” that manufacturers “further deploy” electric vehicles. The agency predicts the standards will force 17% of new car sales in 2026 to be electric.
These new standards are onerous for three particular reasons, the petitioners argue.
Emission standards ‘threaten electric grid and national security’
• The standards will place “enormous strain” on the nation’s electric grid, threatening its reliability. This would affect an arena where administrative agencies cannot act without “clear congressional authorization.”
EPA “has none here,” the petitioners write. In fact, Congress has emphasized that maintaining grid reliability is “a priority of the highest order.”
• The standards “jeopardize national security” because “an overwhelming share” of the materials required to produce EVs are in China “and other hostile countries.”
It is inconceivable that Congress would empower EPA via the Clean Air Act to jeopardize energy security by forcing vehicle manufacturers to increase reliance on “hostile foreign actors.”
• The standards are “arbitrary and capricious” because they were established based on “the flawed ‘social cost’ of greenhouse gas estimates,” the petitioners believe.
The standards will have “significant adverse effects” on multiple industries that states “rely on for revenue” and thus will produce a “pocketbook injury,” the petitioners maintain. And the states mounting this challenge to the EPA have legal standing to protect their “quasi-sovereign interest in managing their electrical grids.”
The EPA responded that the Clean Air Act directs the agency to “set and periodically revise emission standards” for motor vehicles, and to “account for ‘development and application of the requisite technology’ when doing so.”
Consequently, since 2010 EPA has set and revised motor vehicle emission standards for greenhouse gases “based on feasible emission-control technologies,” including vehicle electrification.
The agency also contends that automakers now “enjoy even more flexibility” because compliance with the revised standards is “averaged over entire vehicle fleets.”
These flexibilities have been part of EPA’s vehicle emissions program for decades, the agency notes. The petitioners, in contrast, “are states, fuel producers and other parties not regulated by the standards.” All of their “asserted interests” fall outside the statutory “zone of interests.”
Additionally, the petitioners “failed to raise their arguments during the comment period,” the EPA pointed out.
Furthermore, “far from doing something unexpected or novel, EPA merely tightened existing standards,” the agency contends. And Congress authorized the agency’s approach “with the necessary clarity.”
Numerous intervenors have entered the case
A host of intervenors have entered the case, on both sides of the argument.
Besides the 15 states, other petitioners include several agricultural organizations, American Fuel & Petrochemical Manufacturers, Domestic Energy Producers Alliance, American Fuel & Petrochemical Manufacturers, the Clean Fuels Development Coalition, Valero Renewable Fuels Co., and Energy Marketers of America.
Representing Oklahoma on behalf of Attorney General Gentner Drummond is Deputy Solicitor General Bryan Cleveland.
Submitting legal briefs as “friends of the court” on behalf of the petitioners were the American Royalty Council, American Trucking Associations, the National Federation of Independent Business, the Louisiana Mid-Continent Oil & Gas Association, Texas Association of Manufacturers, Texas Independent Producers & Royalty Owners Association, Texas Oil & Gas Association, Texas Royalty Council, the Austin-based American Royalty Council, the Western States Petroleum Association, the California Manufacturers & Technology Association and the California Asphalt Pavement Association.
“Friends of the court” supporting the EPA include the American Academy of Allergy, Asthma and Immunology, the American Association for Respiratory Care, American College of Occupational and Environmental Medicine, the American Medical Association, Consumer Reports, the National League of Cities and the U.S. Conference of Mayors.
Intervenors backing the EPA include the Clean Air Council, American Lung Association, National Parks Conservation Association, Natural Resources Defense Council, Public Citizen, Environmental Defense Fund, Sierra Club, Environmental Law and Policy Center, several states including California, New Mexico, Illinois, Maine, Vermont and Rhode Island, and the cities of Denver, Los Angeles, New York and San Francisco.