California’s EV Mandate on Trial

The Supreme Court takes up a challenge to the EPA’s damaging emissions waiver for the Golden State

WSJ editorial. 

"What fortuitous timing. As the Biden Administration prepares to green-light an extension of California’s electric-vehicle mandate, the Supreme Court on Friday agreed to hear a challenge to the rule (Diamond Alternative Energy LLC v. EPA).

The Clean Air Act bars states from regulating vehicle emissions, but it allows the Environmental Protection Agency to grant California a waiver to enforce its own rules “to meet compelling and extraordinary conditions.” Congress created the California carve-out because its geography and climate can exacerbate smog.

Unlike tailpipe pollutants such as NOx and particulate matter—the intended targets of the Clean Air Act—CO2 is ubiquitous and doesn’t cause asthma or other respiratory ailments. Because the climate effects of greenhouse gases are global, California has no more compelling reason to regulate vehicle CO2 emissions than any other state.

The Obama Administration nonetheless granted California a waiver for its CO2 standards and EV quotas, which the Trump team revoked, only for the Biden EPA to reinstate it through next year. The Administration is expected in its final days to renew California’s waiver through 2035, when all new cars sold in the state (and other states that have adopted its mandates) must be “zero emission.” Sorry, no hybrids allowed.

Most auto makers are falling well short of California’s EV quotas. Many are buying compliance credits from Tesla, though some have also struck deals with the California Air Resources Board for regulatory flexibility in return for not supporting a rollback of its waiver authority. Although auto makers gripe about California’s EV mandate, they’re afraid to sue their regulators.

Not so refiners and gas stations, which are challenging the EPA’s California waiver. A D.C. Circuit Court of Appeals panel dismissed their suit on grounds that the plaintiffs lacked standing. To sue in federal courts, plaintiffs must demonstrate a concrete injury as a result of a defendant’s actions that can be redressed by courts.

The express purpose of California’s EV mandate is to reduce gasoline consumption, which would hurt gas stations and refiners. But the D.C. Circuit quibbled that the plaintiffs hadn’t submitted evidence, such as affidavits from auto makers, showing that the waiver would reduce gas-powered car production. Say what?

Enter the Supreme Court, which on Friday agreed to review the D.C. Circuit ruling. If the Justices rule that the plaintiffs have standing, the D.C. Circuit would have to address the merits—i.e., whether the EPA can let California regulate auto CO2 emissions—which will be all the more important if Mr. Biden extends California’s waiver through 2035.

While Donald Trump has pledged to revoke California’s waiver, the Golden State sued him last time he did. So courts may have to decide the issue, as the U.S. auto trade group noted in a memo to “interested parties” last week. “Achieving [California’s] mandates will take a miracle” and “depress economic activity, increase costs and limit vehicle choice,” the group stressed.

How about auto makers tell that truth to the Justices?"