Charge to undo emission standards

While stakeholders are figuring out how to adjust to stricter truck emission standards, two lawsuits are attempting to completely undo them.

In May, nearly half of states filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit challenging the Environmental Protection Agency’s new truck emission standards that were published in April. Led by Nebraska Attorney General Mike Hilgers, the coalition is comprised entirely of Republican state attorneys general.

“California and an unaccountable EPA are trying to transform our national trucking industry and supply chain infrastructure,” Hilgers said in a statement. “This effort – coming at a time of heightened inflation and with an already-strained electrical grid – will devastate the trucking and logistics industry, raise prices for customers and impact untold number of jobs across Nebraska and the country. Neither California nor the EPA has the constitutional power to dictate these nationwide rules to Americans.”

Shortly after the coalition of states announced the lawsuit, the Western States Trucking Association, along with the Construction Industry Air Quality Coalition, also filed a petition for review challenging the EPA’s truck emission standards. The petition was filed on behalf of the association by the Texas Public Policy Foundation. The two petitions for review have since been consolidated.

As of early June, details of the arguments to be made against the truck emission standards have yet to be filed. The coalition of states noted it will argue that the new rule exceeds the EPA’s statutory authority. The petition for review calls the final rule “arbitrary, capricious, an abuse of discretion and not in accordance with law.” In a court filing, the Western States Trucking Association explained the main issues it plans to bring up:

• Whether carbon dioxide is an “air pollutant” within the meaning of 42 U.S.C. section 7602 and other provisions of the Clean Air Act
• Whether the truck emission rule violates the nondelegation doctrine prohibiting agencies from exercising legislative power unlimited by an “intelligible principle”
• Whether the rule violates the major questions doctrine prohibiting agencies from acting without “clear Congressional authorization”
• Whether the rule is arbitrary, capricious or otherwise contrary to law or fact

The trucking association also indicated that it may ask the court to pause the new truck emission rule while it is under review.

“EPA does not have the legal authority to require the wholesale electrification of trucks and cars. The rules are not only inconsistent with the Clean Air Act – they are unconstitutional,” Ted Hadzi-Antich, a senior attorney with Texas Public Policy Foundation, said in a statement. “In promulgating the illegal rules, EPA ignores the obvious fact that there is woefully insufficient infrastructure in the nation to support the break-neck pace set by EPA for switching from fossil fuels to electricity. In the process, EPA restricts the freedom of ordinary Americans to choose their preferred modes of transportation. Congress never gave EPA that kind of expansive authority over individual liberty.”

The EPA’s new truck emission standards will require 25% of new sleeper cab tractors to be zero-tailpipe-emission trucks by 2032. Manufacturers can reach the requirement through a variety of technologies. However, there is a focus on battery-electric due largely to issues of price and charging infrastructure.

Congressional challenge

The federal lawsuits challenging the EPA’s truck emission standards came shortly after Republican lawmakers introduced a resolution to undo the final rule.

On May 1, Sens. Pete Ricketts, R-Neb., and Dan Sullivan, R-Ark., along with Rep. John James, R-Mich., announced they are introducing Congressional Review Act (CRA) resolutions to invalidate the EPA’s latest rules setting stricter emission standards for both heavy-duty trucks and passenger vehicles.

Sullivan concluded his remarks with a statement from the Owner-Operator Independent Drivers Association.

“Small-business truckers make up 96% of trucking and could be regulated out of existence if the EPA’s misguided mandate comes into effect,” OOIDA President Todd Spencer said in the statement. “This could have devastating effects on the reliability of America’s supply chain and ultimately on the cost and availability of consumer goods. Local mom-and-pop trucking businesses would be suffocated by the sheer cost and operational challenges of effectively mandating EV trucks. We thank Sen. Ricketts and Sen. Sullivan for their leadership in Congress in standing up for America’s small-business truckers to fight EPA’s unworkable emission regulations.”

The CRA resolutions are unlikely to succeed.

A CRA resolution is an oversight tool Congress can use to overturn agencies’ rules. However, it requires passage in both chambers of Congress and a signature from the president or a supermajority in Congress to override a presidential veto. Since CRA resolutions are typically partisan in nature, they rarely survive.

Out of the more than 250 resolutions introduced between 1996 and 2022, only 20 have been successful – 16 of those during former President Donald Trump’s first year in office, when Republicans controlled both the legislative and executive branches. Currently, Republicans have only a slim majority in the House.

With the CRA resolutions being largely symbolic, the most likely path to reverse the EPA’s truck emission standards will come in the form of legal challenges in the courtroom. As of June, the above petitions for review were the only two on file, but more could come in as stakeholders weigh their options. LL