California gas-powered car ban could fuel GOP legal battle

California last week approved the country’s most ambitious electric vehicle targets, with the state’s Air Resources Board voting to ban the sale of gas-powered cars by 2035. 

Now the question is whether Republican officials will be able to derail it in court.

Deborah Sivas, an environmental law professor at Stanford Law School, told The Hill that automobile manufacturers are already poised to make the changes outlined in California’s Advanced Clean Cars II rule, which was approved last Thursday.

“They’re going to electric vehicles — they’re just going faster or slower, depending on the philosophy of the company,” Sivas said. 

“Who would be opposed to this?” she asked. “Well, there’s the ideological opposition.”

The GOP counteroffensive could take various forms, but will likely include lawsuits arguing that California does not have authority to set its own standards, and efforts to further erode the federal Clean Air Act. 

California’s new rule, which follows a 2020 executive order issued by Gov. Gavin Newsom (D), would increase the proportion of emissions-free cars sold in the state annually, until that percentage reaches 100 in 2035.

California’s targets extend far beyond federal goals, and many states have expressed their intention to follow suit. While President Biden said last year that he hoped half of new vehicle sales would be electric by 2030, California’s rule would require 68 percent of sales to be electric that year.

But in order to move ahead, California needs to apply for a special waiver from the Environmental Protection Agency (EPA), as mandated by the Clean Air Act.

When Congress passed the Clean Air Act in 1970, it authorized California to set its own separate and stricter-than-federal emissions standards for vehicles.

Such action was deemed necessary due to historic smog that polluted the Los Angeles region.

But because the Clean Air Act includes a provision prohibiting states from implementing their own standards, California must apply for a waiver with the EPA for each new rule it wants to enact. 

The EPA must then approve that waiver unless the administrator determines that California’s reasons for applying are “arbitrary and capricious,” per the Clean Air Act.

“Congress wanted it to be easy for California to get a waiver, based on what local authorities felt in their judgment,” Sivas said. 

While the Biden administration is expected to accept California’s new application, red states could sue over that decision.

Further, a future Republican administration could revoke a previously issued waiver, as the Trump administration did for a waiver that was issued in 2013. 

Republicans are already expressing opposition to California’s rule, with U.S. House Minority Leader Kevin McCarthy (R-Calif.) calling it “bad and stupid.”

“I think that policy only harms people from the standpoint that government is going to dictate what you can buy. Here we are with people with that like minded opinion that they know best and want to control all,” he said last week, according to local news. 

Clues about how this may play out can be found in the conflict around that 2013 waiver, which the Biden administration reinstated in March. 

In May, the Republican attorneys general of 17 states filed a lawsuit accusing EPA Administrator Michael Regan of violating the Constitution’s equal sovereignty doctrine by granting California the authority to set emissions restrictions that are stricter than the national limit.

Ohio Attorney General Dave Yost, who led the lawsuit, previously said in a statement from last year that vehicle emissions standards should be set by the federal government. 

“As a practical matter, this is not a waiver of federal regulation — it is a delegation of federal authority to a state, and an improper one at that,” he said. 

While Sivas characterized the legal theories presented in the May lawsuit as “kind of questionable,” she said that there could be an additional lawsuit filed against any future waiver the EPA grants. 

“Some folks opposed to the rule could try to directly challenge it on various grounds in state court,” Sivas said. “But I think the most likely and the suit with the most teeth is going to be to challenge the waiver that gets granted. So that’s a federal suit.”

If a new waiver from the EPA entirely replaces the old one, then California could argue that the May lawsuit is moot, according to Sivas.

Nonetheless, that would not necessarily prevent the petitioners from demanding that the case be heard anyway — as it could address legal issues that might arise again in a future challenge, she explained.

“Those 17 states are looking to take down that whole provision of the Clean Air Act,” she said, adding that these states want to make it impossible to even issue such waivers.

“I would normally say, that case has a pretty slim chance,” Sivas added.

While she believes that the D.C. Circuit — the destination for any future such lawsuit — would reject the case, Sivas said this might not be true for those above them. Historically, it has been difficult to challenge agency decisions at the Supreme Court, but its recent rightward tilt complicates the issue, she explained.

“Given what’s going on at the Supreme Court — and this case will clearly go up right up to the Supreme Court — it’s hard to predict what that court might do,” she said.

Sivas highlighted a June decision where the Supreme Court restricted the agency’s power to oversee power plants.  

“They’ve not shown any inclination on these big policy type issues to defer to the agency,” she continued. “So I think it’s a big question mark.”

Margo Oge, who was the director of the EPA’s transportation and air quality office for nearly two decades, said new language in the Democrats’ recently passed Inflation Reduction Act puts the California waiver on stronger legal footing. 

In addition to investing nearly $370 billion to fight climate change, that bill labels greenhouse gases as air pollutants, meaning that it more explicitly enables the EPA to fight them. 

“There is a lot of strengthening of the Clean Air Act,” she said. “And it will protect, I think, California’s efforts.”

Jody Freeman, a professor of administrative and environmental law at Harvard Law School, said she did not expect car makers to join the GOP opposition, and added that California “leaning in like this is important because it lays down a marker.”

“It will be awkward for the auto industry to oppose it,” she told The Hill in an email, adding that manufacturers are currently pouring billions of dollars into electrification.

“And there is so much federal funding flowing to support both infrastructure and consumer demand,” Freeman said.

For the automotive industry, planning for vehicle fleets takes years, so even if the California rule is defeated companies may already be on a path to compliance. 

“It takes a long time — for about five years — to develop a solid plan,” Cynthia Williams, Ford’s global director of sustainability, told The Hill. “It takes time to build your supply chain in order to make sure that you have the right material to build the vehicles.”

Williams stressed that the company is committed to shifting toward selling a greater share of electric vehicles, even if California’s rule were to be overturned. 

“We plan to forge ahead with our plan despite who’s in office or who’s in a leadership position,” she said. 

Still, Freeman acknowledged that “there are likely going to be legal ebbs and flows as this policy unfolds.”

“The Biden administration will surely grant the federal preemption waiver needed to approve California’s rules, but a new administration could revoke it, and then we’d be back in the courts,” Freeman said.

Sivas also said there is bound to be pushback from other entities like the fossil fuel sector, which tends to have more political influence than the auto industry. 

“I really hesitate to make any predictions,” Sivas said, noting that the recent activities of the Supreme Court were fueling her uncertainty. 

“They’re using environmental cases, to some extent, to really radically rethink the law,” she added. “So I just don’t have any confidence in predicting what might happen.”