The SAFE Rule Is On the Way Out - I Don’t Feel Any Less Safe

Foley Hoag LLP - Environmental Law

Foley Hoag LLP - Environmental Law

Last week, the National Highway Traffic Safety Administration proposed to withdraw Part I of the Trump Administration’s SAFE Rule, in which EPA had concluded that California’s regulation of motor vehicle GHG emissions was preempted by the Energy Policy and Conservation Act.  It’s not a surprise, given that Executive Order 13990 specifically directed NHTSA to revisit the SAFE I Rule. 

It is interesting, if not ironic, that the proposed rule takes a page from the conservative anti-Chevron playbook.  It does not propose to revise the rule to provide that state rules are not preempted.  Instead, NHTSA proposes simply to withdraw the Trump Safe I rule, in order to “restore a clean slate for the Agency’s position on EPCA preemption.”  In short:

NHTSA now has substantial doubts about whether the SAFE I Rule was a proper exercise of the Agency’s statutory authority with respect to CAFE preemption, particularly as to whether NHTSA had authority to define the scope of EPCA preemption through legislative rules, carrying the force and effect of law.

Lest California be concerned about the ultimate outcome, NHTSA also expressed “substantial doubts” about the Trump administration’s position on the merits.  Overall, NHTSA expressed either “substantial doubts” or “significant doubts” about aspects of the SAFE I rule 15 times in last week’s proposal.  Moreover, E&E News reports (subscription required) that EPA is expected to follow the NHTSA proposal by proposing to restore California’s Clean Air Act waiver before the end of the month.

I don’t know if we’ll succeed in completely electrifying all new cars by 2035, but it’s pretty clear where we’re headed at this point.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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