Underberg & Kessler
May 5, 20235 min
If you like your gas-powered car or truck, you cannot keep it according to the Biden Administration’s proposed Clean Air Act vehicle emission rules. On April 12, 2023, the Environmental Protection Agency (“EPA”) issued a proposed rule for carbon dioxide emissions that limits the amount generated by cars and trucks from 2027 through 2032.
In order to meet the standards, electric vehicles (“EV”) will need to account for two-thirds of car and light truck sales by 2032. Strikingly, this mandate is even more aggressive than President Biden’s August 2021 Executive Order that set the lofty goal of having 50% EV sales by 2030. Based on the 2021 EPA standards, EPA’s emission standard was a grams/mile of CO2 equivalent of a fleet average of 161 g/m for the 2026 model year. By comparison, EPA’s new proposed vehicle standard sets an emission limit of 152 g/m for 2027 cars and trucks. The standard escalates each year until the 2032 period when the limit is 82 g/m. To meet the 2032 standard vehicles would be required to meet a fuel economy standard of around 100 miles per gallon.
Although EPA is ostensibly attempting to use the Clean Air Act emission limits to regulate emissions, this rule is intended to force US automakers to phase out gas-powered vehicles and produce EVs. EVs only account for around 6% of vehicle sales currently, so it is hard to conceive of how automakers or the country will be able to transition to meet EPA’s mandates in the next decade.
As we have reported in prior articles, there are also a myriad of issues in transitioning to large scale EV use by US consumers and businesses. While the issues seem fundamental, they are apparently not worthy of consideration by the Biden Administration and EPA in setting car and truck emission standards that will be incredibly expensive and disruptive for citizens.
First, EVs are substantially more expensive than gas-powered vehicles ranging from 10% to 40% more. In an attempt to offset expense concerns, EPA has suggested that the rules are feasible due to subsidies and tax credits under the Inflation Reduction Act. Even accounting for the subsidies, the Energy Information Administration recently forecast that EVs will only make up 15% of sales in 2030 and 19% in 2050. The report also noted that although EVs are popular among luxury cars, they “remain less competitive against conventional gasoline-powered cars and light trucks serving the mass market.”
The practicality of EVs is also limited. EVs are presently appealing to citizens in urban areas that do not drive long distances. This is not surprising given the average range of an EV is 250 miles. In addition, charging times can be significant. Household charging can take up to 50 hours. Even using a 240 outlet to charge an EV can take up to 10 hours.
The US electrical grid currently does not have sufficient capacity to charge an EV car and truck fleet if consumers transition to the level of EV use mandated under EPA’s new rules. As addressed previously in this column, residential neighborhoods do not have sufficient capacity to sustain large-scale EV charging during peak night-time hours. Without massive changes to the electrical grid, the country could be subject to significant blackouts like California and Texas recently experienced.
An additional consideration in northern climates is that EVs are less efficient and safe in snow and extreme conditions. After sustaining multiple winter storms in Western New York and the Buffalo area during the winter of 2022-2023, in which numerous lives were lost when drivers were stranded, vehicle safety and security seem critical to New York residents. Assessments have indicated that EVs are 25% less efficient in freezing weather and up to 40% less efficient when drivers are using heat in vehicles.
Finally, the Biden Administration mandate is completely divorced from any analysis of international security and energy independence to protect the interest of US citizens and businesses. As we have reported in this column previously, EVs require lithium, copper, and cobalt for battery manufacturing. The vast majority of these minerals are mined in areas of the world that are not friendly to US interests. Significantly, China and Chinese-owned state industries have taken steps to acquire control of mining and processing companies that control the precious metals necessary for EV battery production. At a time of heightened tensions with China, it makes very little sense to mandate US companies and consumers become further dependent on Chinese-controlled materials to meet an emission standard that can only be attained through transformation to EV use. As we have seen with petroleum supplies and costs from the Middle East, ceding US energy independence has only hurt US consumers and heightened inflation. Compelled transformation to EVs by 2032 is likely to do the same on a massive scale.
Reactions to the proposed rule have been quite stark. Among other comments, Senator Joe Manchin (D-W.Va.) said that EPA is “lying to Americans” with “false claims about how their manipulation of the market to boost EVs will help American energy security.” Further, Senator Manchin noted that “[i]n reality, this is a Trojan horse.” Manchin expressed concern that “[t]o meet these timelines will mean strengthening our reliance on minerals and technologies controlled by the Chinese.” As a result, Senator Manchin indicated that he would support other Senators’ growing calls to take legislative action to overturn the proposed EPA rules.
The proposed EPA rule is also likely to be challenged in the courts on various grounds. A recent decision by the United States Supreme Court in West Virginia v. EPA dealing with Clean Air Act and the Clean Power Plan established that EPA does not have unlimited authority to impose regulatory schemes that set major policy for the entire country. The decision addressed the major questions doctrine and found that “it is not plausible that Congress gave EPA the authority to adopt its own such a regulatory scheme…A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to clear delegation from that representative body.”
In recent weeks, we have seen state and national reporting on efforts by New York State and the federal government to ban natural gas stoves and furnaces. On some level, those stories are amazing and fundamentally detrimental to personal choice and freedom. The Biden Administration’s self-pronounced war on fossil fuel has now taken a huge leap with the EPA’s proposed vehicle emission rules that will require two-thirds of all vehicles to be EVs by 2032. However, one feels about environmental protection and climate matters, Americans would be well served to vote like their freedom, safety, and lifestyle depend on election outcomes as this is further proof that elections matter.
George S. Van Nest is a Partner in Underberg & Kessler LLP’s Litigation and Municipal Practice Groups and Chair of the Firm’s Environmental Practice Group. He focuses his practice in the areas of environmental law, development, construction, and commercial litigation. George can be reached at gvannest@underbergkessler.com.
Reprinted with permission from The Daily Record and available as a PDF file here.