On March 15, 2017, the U.S. Environmental Protection Agency (EPA)
announced that the agency and the U.S. Department of
Transportation will jointly reconsider EPA's January 12, 2017 determination not
to change greenhouse gas (GHG) emission standards for light-duty
cars and trucks manufactured in model years (MYs) 2022–2025.
Although this decision does not alter the regulations finalized in
2012 that require automakers to achieve specified GHG
emission–reduction standards for MYs 2022–2025, it does
kick off a process of revisiting those requirements. The
reconsideration responds to auto industry requests, and will be
coordinated with the development by the National Highway Traffic
Safety Administration (NHTSA) of Corporate Average Fuel Economy
(CAFE) standards for those MYs.
The reconsideration announcement is among the first in a series of anticipated actions by the new
administration to reverse the Climate Action Plan. Such actions are
likely to be strenuously resisted by clean-energy interests and
others—first before administrative agencies and, if
necessary, in court.
The reconsideration announcement that will appear
in the Federal Register makes explicit reference to two
parallel processes that EPA and NHTSA will pursue jointly and
individually. It also recognizes the unique role that the
California Air Resources Board (CARB) has previously played.
The reconsideration announcement does not change the need for
NHTSA to establish CAFE standards for MYs 2022–2025 at least
18 months before the beginning of each model year. As NHTSA has
previously acknowledged, it must initiate and complete a full
notice and comment rulemaking process to set fuel economy standards
for those MYs. The Federal Register notice will make clear
that this rulemaking process is being coordinated with the
reconsideration to ensure that there continues to be one harmonized
California's role in establishing nationwide standards has
not changed. The Federal Register notice will not make
prospective statements regarding the coordination between EPA,
NHTSA, and CARB.
CARB continues on its current course: to review
California's Advanced Clean Cars Program, including the Low and
Zero Emission Vehicle regulations, Particulate Matter (PM)
Standards, and GHG regulations. Public comment on CARB's
"Midterm Review" is open until March 20.
When EPA reached its determination in January not to change the
emissions standards, it explained that those standards will achieve
significant reductions in carbon dioxide emissions and oil
consumption; those standards are "feasible at reasonable cost,
without need for extensive electrification" of the vehicle
fleet; provide significant benefits to consumers and to the public;
and would be implemented in the context of an "auto industry
[that] is thriving and meeting the standards more quickly than
required." EPA cannot change that determination by fiat. As
the Federal Register notice will
emphasize, EPA has the authority to "revise, replace or repeal
a decision to the extent permitted by law and supported by a
reasoned explanation. FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 515 (2009)." If, based on its planned
review, EPA determines that revisions to the 2012 final standards
are necessary, it, like NHTSA, must undertake a formal
rulemaking—with public notice and comment—to propose
and finalize any revisions.
In the March 15 announcement, EPA commits to working closely
with NHTSA and stakeholders to inform its decision-making. EPA also
reaffirmed an April 2018 deadline for this reconsidered final
determination. Absent a determination to the contrary, the current
GHG emission standards for MYs 2022–2025 remain in place.
In its reaction to the reconsideration announcement, the auto industry signaled a desire to maintain
"One National Program"—a harmonization between EPA,
NHTSA, and CARB. This harmonization objective, the diversity of
stakeholders, complex and overlapping statutory responsibilities,
and the existing record supporting the EPA's January 2017
determination may together constrain the administration's
ability to make major changes to CAFE standards for MYs
Because of the generality of this update, the information
provided herein may not be applicable in all situations and should
not be acted upon without specific legal advice based on particular
On April 11, 2017, the Court of Appeals for the D.C. Circuit, in Waterkeeper Alliance, et al., v. EPA, vacated a 2008 EPA rule that exempted farms from certain hazardous substance reporting requirements (the "2008 Rule").
Although the climate change rhetoric coming out of Washington, D.C. may have some believing that regulatory scrutiny of "green" claims will soften, a closer look at the current political and social climate at the state level and in the private sector reveals that both the demand for green products and the use (and regulation) of green marketing claims actually could trend upwards this year.
On March 28, 2017, President Trump issued an "Executive Order on Promoting Energy Independence and Economic Growth" (E.O.) that takes aim at a broad range of federal climate and energy programs and regulations.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).