Thank you for the opportunity to comment on the Environmental Protection Agency’s (EPA’s) proposed greenhouse gas (GHG) emission standards for model years (MYs) 2027-2032 passenger cars, light trucks, and medium-duty trucks.
I. Summary of argument
- The proposed standards are de facto electric vehicle (EV) mandates. Automakers cannot comply without rapidly phasing out internal combustion engine (ICE) vehicles and rapidly increasing sales of battery electric vehicles (BEVs), plug-in hybrid electric vehicles (PHEVs), and fuel cell vehicles, or, for simplicity’s sake, electric vehicles (EVs). The proposed standards are projected to increase EV market share from 39 percent in 2032 under the current policy baseline to 67 percent.
- The proposal will restrict consumer choice, further cartelize the auto industry, make automakers increasingly dependent on corporate welfare, and make new cars increasingly unaffordable to middle-income households. Forced vehicle electrification will impose disproportionate burdens on low-income, single-car households.
- The proposal flouts the Supreme Court’s major-questions doctrine. The EPA attempts to settle major questions of public policy and assume the powers of an industrial policy czar without a clear authorization from Congress, as it did when promulgating the Clean Power Plan, which the Court vacated in West Virginia v. EPA.
- The EPA touts the 2021 Bipartisan Infrastructure Bill (BIL) and 2022 Inflation Reduction Act (IRA) as “pivotal milestones” in the transition to a “clean transportation” future. Sen. Tom Carper (D-Del.) and others try to spin the IRA as a “clear statement” in favor of GHG regulation. That rhetorical sleight-of-hand neglects to mention that the IRA promotes EVs through subsidies, not mandates—carrots, not sticks.
- The proposed standards are fleet-average standards. However, Title II emission standards apply to individual vehicles, not to fleets on average. Thus, the agency’s tailpipe GHG standards are also unlawful on statutory grounds.
- The only agency Congress has authorized to set fleet-average standards is the National Highway Traffic Safety Administration (NHTSA), and Congress prohibits NHTSA from making CAFE standards so stringent that automakers cannot comply without increasing sales of alternative vehicles, such as EVs. That is a further reason why the EPA, which has no power to establish fleet-average standards, may not lawfully compel electrification.
- The MY 2023-2026 standards establishing the current policy baseline are also unlawful EV mandates, albeit less aggressive than those proposed. Moreover, much of the recent growth in EV sales is driven by State zero-emission vehicle (ZEV) programs, which the EPA approved in January 2013 and March 2022. State ZEV mandates are substantially “related to” fuel economy standards and, thus, are preempted by the Energy Policy Conservation Act (EPCA). The proposed standards are the latest phase of an unlawful agenda of market-rigging interventions.
I. The Proposed Standards Are Electric Vehicle Mandates
The EPA protests that, unlike California’s motor vehicle program, which officially bans the sale of gasoline-powered cars by 2035, “the GHG program in this proposal is performance-based and not a ZEV mandate.” In fact, like the California program, the EPA program compels automakers to manufacture and sell increasing percentages of ZEVs, only at a slower pace. It does this by establishing fleet-average GHG emission standards that automakers can meet only by phasing out gasoline-powered vehicles. The EPA’s program is not a bare-naked EV mandate, but almost.
The evidence is palpable. According to the EPA, in 2022, EVs accounted for 5.8 percent of new light-duty passenger vehicle sales. Under the policy baseline established by the EPA’s MY 2023-2026 GHG emission standards, EV market share in 2032 is projected to reach 39 percent. Under the proposed standards, EV market share in 2032 is projected to reach 67 percent—two-thirds of all new light-duty vehicles sold. The California Air Resources Board may be in the fast lane, but the EPA is driving down the same regulatory freeway and with no plan to stop before the final destination.
Here’s an easy way to visualize the substance of the EPA’s proposal. The Toyota Prius is the most popular hybrid car. In terms of fuel efficiency and GHG emissions, the Prius is the best-in-class gasoline-powered car on the market. Could Toyota comply with the EPA’s proposed standards in 2032 if all its light-duty vehicles were hybrids matching today’s Prius in fuel economy and GHG emissions per mile? No, far from it.
The EPA’s GHG standards are calibrated in grams per mile (g/mi) of carbon dioxide (CO2). According to the EPA, “for passenger cars, the proposed MY 2032 standards are projected to result in CO2 fleet-average levels of 73 g/mi in MY 2032, which is 52 percent lower than that of the (adjusted) MY 2026 standards.” The MY 2032 standard is less than half the CO2 emissions per mile of MY 2023 Toyota Prius hybrids, which range from 155 g/mi to 179 g/mi.