Two new Environmental Protection Agency (EPA) regulations that are currently being finalized will leverage the EPA’s authority to regulate emissions in order to force both America’s electricity network and America’s automotive industry to shift production to wind, solar, and electric vehicles (EVs).
However, new EPA initiatives targeting America’s fossil fuel industry will face legal challenges that will likely find their way to the Supreme Court and could result in landmark decisions about separation of powers in the United States, and the extent to which federal agencies, instead of elected officials in Congress, can assume broad lawmaking authority.
In April, the EPA announced new, significantly tighter standards on light-duty and medium-duty vehicles—starting in 2027. These new rules, the EPA said, would “leverage advances in clean car technology to unlock benefits to Americans, ranging from reducing climate pollution, to improving public health, to saving drivers money through reduced fuel and maintenance costs.”
The auto rules build on new EPA regulations to set tight emissions limits on power generation plants, forcing coal-fired plants either to close or install expensive and untested carbon-capture technology.
The EPA argues that, since Congress gave it the power to regulate emissions, it is simply carrying out this mandate. Critics say the EPA has gone beyond regulating emissions to crafting a national energy policy.
Federal agencies like the EPA “are way outside of their mandate set by Congress,” Joe Trotter, Energy, Environment, and Agriculture Task Force Director at the American Legislative Exchange Council, told The Epoch Times. “They do not, and should not, have the power to make huge sweeping changes to the American, and ultimately the global, economy through regulatory fiat.”
“The Biden administration has proposed tailpipe restrictions at levels that are so stringent that, by their own analysis, they can only be met if electric vehicles become the vast majority of cars sold in America,” O.H. Skinner, Executive Director of Alliance for Consumers, told The Epoch Times.
EVs are currently in demand by consumers who drive short distances, can charge them conveniently, and are wealthy enough to afford them. The average income of EV buyers is twice the median income in America, suggesting that EVs are the car of choice for rich Americans who live in or near cities.
“Rather than allow consumers to make choices, they’re just trying to force progressive lifestyle choices on everybody, no matter where they live, no matter how much money they make,” Skinner said. “It is very, very unpopular when you tell people they have to live life a certain way that doesn’t match how they want to live it. And I think even this administration recognizes that.
“So what they seem to be doing is demanding that manufacturers basically take away these choices. Their argument is, ‘We didn’t tell you you can’t buy a gas car, the manufacturers stopped making them,’” Skinner said.
Challenges to the EPA’s authority to mandate such sweeping changes, which are currently moving through the D.C. Circuit Court, will ultimately hinge on the court’s interpretation of what is called the “major questions” doctrine. This doctrine, set down most notably in the 2021 Supreme Court ruling, West Virginia v. EPA, states that questions of major importance to Americans must be decided by elected officials in Congress and not by federal agencies—unless Congress explicitly mandated that authority to an agency.
Skadden, a prominent law firm, advises its clients that “the Court’s approval of the ‘major questions’ doctrine signals a willingness to realign separation of powers in ways that restrict the administrative state.”
Skadden argues that the Supreme Court’s “distrust of agency action, combined with its interest in reviving the nondelegation doctrine” will lead to more legal challenges against agency authority, “but the argument won’t always gain traction.”
Support for the “major questions” doctrine is now split along party lines, with Republicans in favor and Democrats against. In December 2022, 16 GOP attorneys general filed a brief in D.C. courts challenging EPA authority on vehicle emissions. By contrast, in February 2023, 19 AGs from liberal states wrote in support of the EPA’s right to enact its new emissions standards on utilities.
Whether or not Congress gave the EPA the authority to set energy industrial policy or force an EV transition on automakers will be the essential question that judges will decide in the coming months. The courts have ruled on many such issues during the Biden administration in response to the administration’s habit of scouring Congressional mandates to find clauses that would give sweeping powers to federal agencies.