No Clear Strategy for Challenging EPA Vehicle Standards

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By David Schultz

The automotive industry’s options may be limited if it plans to challenge the Environmental Protection Agency’s affirmation of its greenhouse gas emissions standards for cars and trucks, according to advocates and industry representatives.

The agency disappointed many in the industry with its Jan. 13 announcement that it would not be altering its emissions standards for model year 2022 through 2025 cars and trucks.

It’s possible that automakers could take EPA to court over the decision. Or Congress may be able to overturn it through a little-used mechanism known as the Congressional Review Act (CRA).

But people familiar with the decision say there are a number of factors that could complicate these efforts, if not invalidate them altogether.

Courts

Joanne Rotondi, an attorney with the firm Hogan Lovells LLP who represents car makers, said the Clean Air Act allows official agency actions to be challenged in federal appeals court. However, it’s unclear whether the EPA’s decision not to alter its standards actually qualifies because it was reviewing standards that were originally issued in 2012.

“I’m sure we’ll see that argument floated as a defense,” Rotondi told Bloomberg BNA.

Another obstacle that a court challenge will face is that it would have to counter the EPA’s substantial scientific justification for why these emissions standards should remain unchanged, according to Luke Tonachel, the head of vehicle policy with the Natural Resources Defense Council.

“They’d have to challenge a very strong technical record,” he told Bloomberg BNA. “The basis has been well established. These standards can be met.”

However, Rotondi said the industry may not need to make a case on the substance of the standards because it could instead focus on the flaws in the EPA’s process. The agency didn’t need to finalize this review until April 2018. Instead, it issued a draft version late last year and, after denying numerous requests to extend the comment period, went final with the review Jan. 13.

Congress

Another possible avenue to reopen the EPA’s vehicle standards would be to go through Capitol Hill. The CRA allows Congress to overturn a federal agency’s regulation, though it’s only been used once before shortly after President George W. Bush took office.

In this instance, it’s far from clear whether the EPA’s upholding of its vehicle standards would be eligible for a CRA challenge because the agency has said in the past that the decision it not an official rulemaking, Rotondi said. She added that this may not be the most effective way to attack the vehicle standards because a CRA challenge can be time consuming for lawmakers.

But that doesn’t mean members of Congress will take the EPA’s actions lying down. Three Republicans on the House Energy and Commerce committee issued a statement slamming the EPA for refusing to relax the vehicle standards, arguing that they will inflate the prices of new cars.

“EPA’s rushed analysis falls far short,” they said. “If the EPA won’t do its job and take a careful look at these regulations, then Congress will.”

Committee staff did not respond on the record to questions about what specific actions its members will, or even can, take against the standards.

Administrative

A third, and perhaps more appealing, option for automakers looking to challenge the emissions standards would be to simply ask the EPA to reconsider its decision. Rotondi said the Clean Air Act also provides the public with the option of challenging an action administratively through a petition for reconsideration.

Agencies rarely agree to reconsider an action they just recently finalized. However, in this instance, the EPA that would hear a reconsideration petition will be led by a different president than the EPA that made the decision being challenged.

“Anything is possible right now,” Rotondi said.

To contact the reporter on this story: David Schultz in Washington at dSchultz@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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