On September 23, California Governor Gavin Newsom issued an executive order (“Order”) directing that “all new cars and passenger trucks sold in California be zero-emission vehicles by 2035.”[1] The order’s public announcement emphasizes concern over smog and toxic diesel emissions and notes that half of California’s carbon pollution originates from the transportation sector.[2] The Order prioritizes deploying zero emissions technologies to “reduce both greenhouse gas emissions and toxic air pollutants that disproportionately burden our disadvantaged communities of color.”[3]

Californian Exceptionalism in Regulatory Freedom and Electric Vehicle Technologies

California has a long history of promoting electric vehicle adoption and vehicle fuel efficiency, spearheading a national movement. The State’s ability to set its own emissions standards is a longstanding precedent set under a California-specific exemption to the Clean Air Act (CAA). [4] The EPA has continually granted California waivers for provisions which prohibit states from enacting emission standards for new motor vehicles, allowing California to set standards that are stricter than federal standards.[5] The waivers have traditionally been intended to assist California in battling pervasive smog problems.[6] Under the CAA, states may adopt California’s stricter motor vehicle emission standards.[7] To date, thirteen states have adopted California vehicle standards under section 177 of the CAA.[8]

Ten states have also joined the Multistate Zero-Emission Vehicle (ZEV) Task Force, an effort to promote ZEV adoption coast-to-coast that was started by California in 2013.[9]  California’s stricter standard-setting have already resulted in several lawsuits involving the Trump administration, which has attempted to revoke California’s ability to set tougher standards.[10] The response to litigation from automakers has been mixed, as only some, but not all of the major vehicle manufacturers struck a deal with the state.[11]  By 2026, Ford, Honda, Volkswagen and BMW will increase fuel efficiency to 50 miles per gallon, according to the deal.[12]

California and Other States Continue to Move Electric Vehicle (EV) Adoption Forward

Despite ongoing battles with the current administration and little support from the federal government, local and state legislation and programs continue to move electric vehicle (EV) adoption forward.

The U.S. Department of Energy’s Alternative Fuels Data Center tracks thousands of state and local laws and incentives, which range from charging station infrastructure support to electric vehicle rebate programs.[13]  New York, for example, launched an EV make-ready program in July in partnership with investor-owned utilities to develop charging infrastructure across the state.[14] Other states rely heavily on funding from the 2016 Volkswagen Clean Air Act Civil Settlement, a multibillion dollar lawsuit that punished Volkswagen for violation of emissions standards.[15] All 50 states opted to receive funding from the settlement, and Volkswagen set up subsidiary Electrify America to fund electric vehicle charging stations across the United States to fulfill the settlement.[16]

[1] Press Release, Office of Governor Gavin Newsom, Governor Newsom Announces California Will Phase Out Gasoline-Powered Cars & Drastically Reduce Demand for Fossil Fuel in California’s Fight Against Climate Change, (Sept. 23, 2020), https://www.gov.ca.gov/2020/09/23/governor-newsom-announces-california-will-phase-out-gasoline-powered-cars-drastically-reduce-demand-for-fossil-fuel-in-californias-fight-against-climate-change/

[2] Id. at 1

[3] Cal. Exec. Order No. N-79-20, (2020) https://www.gov.ca.gov/wp-content/uploads/2020/09/9.23.20-EO-N-79-20-text.pdf

[4] United States Environmental Protection Agency, Vehicle Emissions California Waivers and Authorizations, (n.d.),  https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations#:~:text=for%20that%20issue)-,Waiver%20Process,California’s%20rules%20may%20be%20enforced

[5] Id. at 4

[6] California Air Resources Board, History, (n.d.), https://ww2.arb.ca.gov/about/history

[7] Clean Air Act, 42 U.S.C. § 7507 (2013), https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html/USCODE-2013-title42-chap85-subchapI-partD-subpart1-sec7507.htm

[8] California Air Resources Board, States that have Adopted California’s Vehicle Standards under Section 177 of the Federal Clean Air Act, (Aug. 19, 2019), https://ww2.arb.ca.gov/sites/default/files/2019-10/ca_177_states.pdf

[9] California Air Resources Board, ZEV Collaboration, (n.d.) https://ww2.arb.ca.gov/zev-collaboration; see About the ZEV Task Force, Multi-State ZEV Task Force, https://www.zevstates.us/.

[10] Tony Barboza & Anna M. Phillips, California sues Trump again for revoking state’s authority to limit auto emissions, LA Times, (Nov. 15, 2019), https://www.latimes.com/california/story/2019-11-15/california-trump-administration-lawsuit-auto-emissions-climate-change

[11]Morgan Folger & Ross Sherman, Automakers strike deal with California on vehicle emissions standards, Environment America, (July 25, 2019), https://environmentamerica.org/news/ame/automakers-strike-deal-california-vehicle-emissions-standards

[12] Id. at 11

[13] U.S. Department of Energy Alternative Fuels Data Center, Federal and State Laws and Incentives, (n.d.),  https://afdc.energy.gov/laws

[14] Press Release, New York State Governor Andrew M. Cuomo, Governor Cuomo Announces “Make-Ready” Program for Electric Vehicles, (Jan. 17, 2020), https://www.governor.ny.gov/news/governor-cuomo-announces-make-ready-program-electric-vehicles

[15] United States Environmental Protection Agency, Volkswagen Clean Air Act Civil Settlement, (Aug. 31, 2020), https://www.epa.gov/enforcement/volkswagen-clean-air-act-civil-settlement

[16] Electrify America, Learn about charging with Electrify America, (n.d.), https://www.electrifyamerica.com/