Pacific Legal Foundation Calls Out EPA

LINCOLN, Neb. (DTN) -- The Pacific Legal Foundation said in a new court filing the U.S. Environmental Protection Agency is doing with the tailpipe emissions rule exactly what the Supreme Court said federal agencies cannot do when it ruled the so-called Chevron doctrine was unconstitutional.

The PLF asked a federal court to toss the rule that mandates electric vehicles, arguing that neither the Clean Air Act nor Congress gives the agency power to change the U.S. vehicle fleet.

Earlier this year the Supreme Court struck down the Chevron doctrine that let courts yield to federal agencies on interpreting federal law. Further, the Supreme Court in 2022 set the major questions doctrine that requires agencies to have clear statutory authority when issuing rules.

On Sept. 6, 2024, attorneys general from 26 states along with state politicians and many petroleum and automobile interests sued the Biden administration asking the U.S. Court of Appeals for the District of Columbia Circuit to throw out the rule.

At the end of last week, the Pacific Legal Foundation was one of a handful of groups to file amicus briefs in support of the lawsuit.

Two weeks ago, biofuels and agriculture groups joined the lawsuit, filing a brief also asking the court to reverse the rule. (See https://www.dtnpf.com/…)

"Even among the small subset of genuinely 'major' rules, the EPA's attempt to remake the automobile sector stands out," the Pacific Legal Foundation said in an amicus brief.

"With conceded costs of $870 billion, EPA's tailpipe rule is the poster child for the doctrine. And while the rule's eye-popping price tag, by itself, requires -- but lacks -- clear congressional authorization, the rule's forced electrification of the automobile industry also meets every other criterion to make this court 'hesitate before concluding that Congress has intended such an implicit delegation.'"

EPA FACES LAWSUITS ON RULE

The EPA faces a multitude of lawsuits on the rule that essentially has pushed biofuels out of the picture when it comes to reducing carbon emissions in the transportation sector.

The Chevron doctrine was struck down by the Supreme Court in Loper Bright Enterprises v Raimondo.

In that case, the court recognized Congress can empower federal agencies to "fill up the details of a statutory scheme." However, Pacific Legal Foundation said, courts have to set the boundaries of that delegation.

The foundation said EPA's tailpipe rule is yet another example of the federal government overreaching.

"The agency's refusal to heed the Supreme Court's decision speaks to the source of the major questions doctrine: ever-bolder executive lawmaking," the brief said.

"Indeed, the tailpipe rule is the latest of 'a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.' The view that interpretation of ambiguous statutory provisions amounts to policymaking suited for political actors rather than courts is especially mistaken."

Ethanol interest group Growth Energy also filed an amicus brief in the case at the end of last week.

GROWTH ENERGY AMICUS

Growth Energy also asked the court to throw out the tailpipe rule because it is arbitrary and capricious in its discounting of biofuels.

"EPA's analyses treated vehicles that operate on biofuels the same as vehicles that operate exclusively on fossil fuels," Growth Energy said in its brief.

"EPA failed to consider using or incentivizing higher biofuel blends in vehicles as a way to reduce emissions. And EPA's cost-benefit analysis looked only at the employment and energy security impacts of the petroleum industry, disregarding the biofuels industry entirely. For the agency that Congress entrusted to promote biofuels, EPA's total failure to acknowledge biofuels in the rule is arbitrary and capricious."

Growth Energy said the EPA rule "inaccurately inflated the benefits of EVs" by failing to consider the emissions of electricity generation.

"Light-duty vehicles are more than just a motor; they are a system that includes the engine and the fuel or electricity that powers it," the group said.

"For EVs, EPA ignores half of that system, with dramatic results. While a passenger car running primarily on ethanol would have roughly similar GHG emissions as an EV charged from the current U.S. electricity grid, EPA treats an EV's GHG emissions as zero yet treats a car using biofuel as having the same emissions as a car burning petroleum."

EPA makes the claim that it does not need to consider emissions from power plants as part of electric vehicles' emissions because it has separate power plant regulations.

"Regardless of how power plants are regulated, EVs use electricity that internal combustion engines do not and excluding that component from emissions calculations creates an inaccurate comparison between vehicles," Growth Energy said.

TAILPIPE RULE COSTS CHALLENGED

The Center for Environmental Accountability challenges EPA's cost analysis in the tailpipe emission rule, in an amicus brief filed last week.

Despite "propping up the electric vehicle industry" for many years, the center said, EPA acknowledges electric vehicles cost far more to purchase and maintain over the life of an internal combustion engine vehicle.

"EPA has drastically undersold the true cost of electric vehicles to manufacturers, obscured the extent to which manufacturers and retailers must raise prices for internal combustion engine vehicles in order to achieve compliance with the emissions standards, and hidden this cost-shifting from the many consumers who, while having no desire to purchase an EV, unwittingly foot the bill for the small segment of Americans who do," the amicus brief said.

The center said EPA has "not adequately conducted" a cost-benefit analysis of regulatory cross-subsidies or disclosed them to consumers, "rendering this regime arbitrary and capricious.

"EPA has concealed a key component of the cost of compliance -- cross subsidization," the center said.

"Auto manufacturers subsidize the cost of electric vehicles by increasing the price of conventional vehicles, maintaining overall profitability. The reason for this is that consumers are unwilling to pay a price that reflects the full cost of manufacturing an electric vehicle."

The center said analyses estimate that cross subsidies cost between $10,500 and $60,000 per vehicle, depending on the manufacturer.

"One consequence of failing to consider and disclose these costs is that the EPA obscures an uncomfortable and inconvenient fact: These hidden cross subsidies are borne by individuals who have chosen not to purchase an electric vehicle," the center told the court.

Read more on DTN:

-- "Ag Effects Limited in Chevron Decision," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on social platform X @DTNeeleyeley

(c) Copyright 2024 DTN, LLC. All rights reserved.