Make a U-Turn and then Full Speed Ahead: Clean Air

Foley Hoag LLP - Energy and Cleantech Counsel

Foley Hoag LLP - Energy and Cleantech Counsel

[author: Sophia Sun]

Within hours after being sworn into office, President Joe Biden signed an executive order (“EO”) that teed up a slew of clean air issues as top environmental priorities. The Biden administration signaled its plan to unwind four years of environmental and energy policies marked by aggressive deregulation and sidelining efforts to combat climate change.

Although only allotted a short paragraph in the EO, one notable action is the immediate review of the Safe Affordable Fuel-Efficient Vehicles (“SAFE”) Rule. Part 1 of the SAFE Rule was issued by the Trump Administration in September 2019; the Rule withdrew the preemption waiver the EPA previously granted California. This waiver had allowed the state to set its own, more stringent, tailpipe greenhouse gas standards and enforce its zero-emission vehicles mandate. Part 2 of the SAFE Rule, issued in March 2020, finalized new standards for corporate average fuel economy and carbon dioxide emissions for passenger vehicles and light duty trucks. The Rule relaxed the previous 5% annual increase put in place by the Obama administration.  Instead, it required that emission standards increase in stringency by only 1.5% per year.

While the SAFE rule was purported to reduce regulatory costs by as much as $100 billion through model year 2029, it did not account for the detrimental impact on the environment. Particularly because transportation – especially passenger cars — is the largest source of greenhouse gas (“GHG”) emissions in the United States, the SAFE Rule had significant impact on the nation’s total GHG emissions.

While reversal of the SAFE Rule would go a long way to reducing emissions from transportation, after four years of government led efforts to weaken emissions reductions, it is likely that more needs to be done. In a report released this month, the EPA stated that pollution from automobiles increased in 2019 for the first time in 5 years. Furthermore, reversal of the SAFE Rule is not as easy as simply signing an EO because it went through notice and comment rulemaking. Any revisions would have to go through that process as well, accompanied by a record of support to justify it.  Nonetheless, as this blog noted previously, EPA’s Science Advisory Board had roundly criticized the analysis behind the SAFE Rule, so it may not be that hard to replace it.

It will be a long stretch of road ahead. So for now, just make the next legal U-turn and drive off (in your zero-emission vehicle, of course) into the sunset.

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Foley Hoag LLP - Energy and Cleantech Counsel

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