Apr 272021

U.S. Transportation Department Moves to Revive States’ Authority to Regulate Vehicle Greenhouse Gas Emissions

Samuel B. Boxerman and Allison H. In
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On April 22, the National Highway Traffic Safety Administration (NHTSA) issued a proposed rule that revokes the agency’s portion of the September 2019 rule, known as SAFE-1 Rule, which sought to preempt states, including California, from issuing their own tailpipe greenhouse gas (GHG) regulations and zero emission vehicle (ZEV) mandates. NHTSA explained in the proposal that the issuance of the SAFE-1 Rule was improper under the Energy Policy and Conservation Act because the SAFE-1 Rule exceeded the agency’s authority. Several states challenged the rule, and in February 2021, the U.S. Court of Appeals for the District of Columbia consolidated the cases and then granted the Biden administration’s motion to stay the cases while the new administration reconsidered the rule. The proposal will be available for public comment for 30 days after it is published in the Federal Register.

On April 26, the U.S. Environmental Protection Agency (EPA) issued a notice to reconsider that agency’s portion of the SAFE-1 Rule, which withdrew the waiver EPA had issued to California under the Clean Air Act for the GHG emission standards and ZEV mandate of the state’s Advanced Clean Car program. EPA’s notice will be available for public comment until July 6, and EPA will hold a virtual public hearing on June 2. EPA also plans to reconsider the Safer Affordable Fuel Efficient Vehicles Rule for 2021-26, known as SAFE-2 Rule, and to propose a rule in July 2021.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

Allison H. In

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