The Competitive Enterprise Institute, the Domestic Energy Producers Alliance, and four individuals — in conjunction with several states and other private parties — are challenging a new auto emission rule issued by the Environmental Protection Agency as beyond the EPA’s power.
In 2021, President Biden directed the EPA to change the consumer vehicle market from 7% electric to 50% electric by 2030. Historically, the EPA has worked jointly with the National Highway Traffic Safety Administration to set fuel efficiency requirements for consumer vehicles. However, because the NHSTA is prohibited from considering such electric vehicles in its regulations, the EPA was required to rely solely on its own authority; it therefore implemented the Biden order in a rule estimated to cost $300 billion. Because this policy constitutes a major change to the consumer vehicle market, it requires clear congressional authorization.
Nonetheless, the EPA chose a different path: rather than relying upon congressional authorization, the agency is using a program it calls regulatory “flexibility.” The EPA acknowledged, when it set up this program, that “Congress did not specifically contemplate” it. Congress gave the EPA the authority to set a maximum emission rate of pollutants, but instead the EPA concocted a cap and trade program with bonus credits for electric vehicles. Consumers value internal combustion engines more than electric vehicles, but the EPA is encouraging manufacturers to increase the cost of internal combustion engines so that more electric vehicles are sold. These measures go beyond the authority that Congress gave the agency, and they invited the action that CEI is currently pursuing.