- - Wednesday, September 7, 2022

On August 25th, an obscure but powerful agency – the California Air Resources Board – voted to ban the sale of gasoline-powered cars and trucks in California by 2035.

There are already 17 States —  Colorado, Connecticut, Delaware, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New York, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia (maybe), and Washington – representing 40% of the national car and truck market that are prepared to follow California’s lead.

Before that can happen, however, California needs a federal waiver under the Clean Air Act. That waiver is provided for in the Clean Air Act and is specifically designed to account for California’s somewhat unusual geography and climate, as well as their powerful Congressional delegation.



Unfortunately for California, a different federal statute, the Energy Conservation and Policy Act of 1975, actually establishes the corporate average fuel economy (CAFE) program that they need to commandeer to ban gas-powered cars and trucks. That statute specifically precludes states – like California – from setting their own miles-per-gallon standards.

So, even if Team Biden grants the waiver, it will likely get rejected by the courts.

It is also likely that the waiver request will be rejected by the courts under the major questions doctrine. That doctrine, recently sharpened by the Supreme Court in West Virginia v. EPA, requires that agencies have clear Congressional direction when a proposed regulatory action involves issues of broad social, economic, or policy consequence. If changing the entire energy and transportation systems of the United States through regulatory whim does not qualify as a major question, nothing ever will.

Despite this, and even in the event of total legal defeat, the automakers – at this point an almost wholly-owned client of the federal government – may very well announce that they intend to voluntarily comply with the California mandate.

That would be a terrible idea for a number of reasons.

First, and most importantly, the foundational question with respect to this policy is straightforward: Who should decide what kinds of cars you buy — you and your family or an unelected bureaucrat in Sacramento? We’ve been asking just that question in surveys for years, and it will surprise no one that about 90% of respondents want to make those decisions for themselves. Not really sure what the other 10% are thinking.

Second, California is not ready for this mandate, nor are most States. Electricity generation, infrastructure, charging, and battery production are all suboptimal compared to what would be needed to support a fleet comprised entirely of battery-driven vehicles — according to a Stanford University study, California would need to triple its electricity supply. As recently as today – less than a month after the ban was imposed — California issued an alert warning people not to charge their electric vehicles or pretty much do anything else that involves using electricity because it is hot, and the grid in California is apparently not built to withstand the heat.

Third, electric vehicles already cost $66,000 on average (compared to about $40,000 for gas-powered cars). They are not going to get cheaper.

Finally, and most damningly, electric vehicle mandates will increase our dependence on communist China, which owns or controls 80% of all the minerals used to make electric vehicles and their batteries. Given our national aversion to permitting mines, that is not likely to change anytime in the next generation.

In short, a ban on gas-powered cars across 40% of the United States is going to have predictable results: Increased prices for cars and electricity, blackouts, associated economic damage, and a growing and unhealthy reliance on our global adversary – communist China – for critical resources.

Chet Thompson, the CEO of the American Fuel and Petrochemical Manufacturers brings characteristic clarity to the problem: “California’s radical ban on gasoline-and diesel-fueled cars and trucks will have devastating implications for consumers, energy security and the U.S. manufacturing economy…  Most Americans have no idea this ban is happening or that California’s extreme policy — providing it gets an EPA waiver — could become law for them too. Consumers and elected officials in every state who want to retain decision-making power over the types of vehicles they own and drive need to press EPA to deny California’s waiver.”

Consumers also need to press the automakers to continue making the cars and trucks that people want to buy because, ultimately, this issue may come down to what consumers want and what they are willing to pay.

• Michael McKenna, a columnist for The Washington Times, co-hosts “The Unregulated” podcast. He was most recently a deputy assistant to the president and deputy director of the Office of Legislative Affairs at the White House.

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