Sixteen state attorneys general oppose EPA rule setting new greenhouse gas standards

Sixteen state attorneys general, 15 state associations and multiple organizations are fighting against another Environmental Protection Agency rule they argue jeopardizes American energy and national security.

The AGs, led by Texas Attorney General Ken Paxton, filed a brief with the U.S. Court of Appeals for the D.C. Circuit to halt the EPA from implementing “radical climate regulations.”

Their efforts follow another led by Paxton and 12 attorneys general last month opposing a new EPA “environmental justice” rule they also argue will risk Americans’ safety. Texas, which leads the U.S. in energy production powered by oil and natural gas, argues the standards “would make America weaker and increasingly reliant on hostile nations like China.”

At issue is the EPA’s “Revised 2023 and Later Model Year Light Duty Vehicle Greenhouse Gas Emissions Standards,” 86 Fed. Reg. 74,434, which was slated to go into effect Feb. 28, 2022. After eight lawsuits were filed over the rule, both the rule and cases, which were consolidated, are pending.

The EPA is still trying to exceed its statutory authority, Paxton argues, after the U.S> Supreme Court curtailed it in June. In the historic ruling in West Virginia v EPA, the high court “ended EPA’s plan to ‘substantially restructure the American energy market’ in pursuit of the agency’s unauthorized climate goals,” the AG’s brief says.

The EPA’s greenhouse gas rule “is a rerun of West Virginia, except here EPA seeks to substantially restructure the American automobile market in pursuit of unauthorized climate goals. EPA’s action should fail for the same reason as in West Virginia – under no plausible reading of the Clean Air Act was EPA given authority to perform this restructuring,” they argue.

Section 202 of the Clean Air Act charges the EPA with promulgating “standards” about how much air pollutants vehicles may lawfully emit. After a 2007 case, Massachusetts v. EPA, the EPA began including greenhouse gases in Clean Air Act standards. And in 2020, it promulgated carbon dioxide emissions standards on car manufacturers for cars made between 2022 and 2026.

However, once President Joe Biden took office, the EPA “radically shifted course,” Paxton argues. On his first day in office, Biden issued an executive order instituting a new climate agenda that included revising the EPA’s 2020 standards. He also directed a then-defunct “Interagency Working Group” to reform to provide monetized estimates of the “social cost” of a unit of greenhouse gases, which the AGs argue is “enormous.”

By doing so, the president “stacked the regulatory deck by directing EPA to rewrite its emission standards in a way that accounts for those extraordinary estimates,” the AGs argue, citing a Jan. 20, 2021, Federal Register entry. The standards aren’t based on individual vehicle compliance but on averaging the emissions from vehicles fleet-wide – which counts electric vehicle emissions as a zero.

The standards are so stringent that the EPA stated in a Dec. 30, 2021, Federal Register entry that they will “necessitate” manufacturers to “further deploy” electric vehicles to comply using fleet-averaging. The EPA also estimated its new rule would force 17% of new car sales in 2026 to be electric.

But the “EPA had no authority to promulgate the Standards and functionally force vehicle manufacturers to produce more electric vehicles,” the AGs argue. The standards “place enormous new strain on the electric grid,” they argue, “threatening the grid’s reliability altogether.” Federal agencies without “clear congressional authorization” don’t have the authority to take any action that would “threaten the reliability of the grid,” they also point out, arguing the EPA was granted no such authority in this case.

Paxton said the standards "unreasonably target car and light truck greenhouse gas emissions” with the goal of destroying "financial incentives to manufacture gas-powered vehicles. These actions will likely lead to substantial increases in the cost of transportation for working Americans.”

Another cause for concern, the AGs argue, is the standards jeopardize national security.

“An overwhelming share of the materials required to produce electric vehicles are in China and other hostile countries,” they maintain. “The State Petitioners have long partnered with the federal government to enhance energy security and diminish our reliance on hostile foreign actors. And Congress has expressly legislated on that topic. It is implausible that Congress would have empowered EPA . . . to jeopardize this goal by forcing vehicle manufacturers to increase reliance on foreign actors.”

Joining Paxton are the AGs from Alabama, Alaska, Arkansas, Arizona, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, and Utah.