D.C. Circuit Seems Skeptical of Claim that EPA Tailpipe Emissions Standards Are Unconstitutional Under Major Questions Doctrine

In oral arguments, a D.C. Circuit panel seemed skeptical of the claim that the EPA’s stringent tailpipe emissions regulations are unconstitutional under the major questions doctrine.

The outcome of the case will likely have major implications for the environment and automakers. If left in place, the challenged emissions standards are projected to reduce greenhouse gases emissions for new vehicles by 56%. That’s a big deal considering vehicles are the largest source of greenhouse gas emissions in the nation, accounting for 28% of emissions.

Whereas West Virginia involved a completely redesigned regulatory scheme for power plants, this case involves an unaltered regulatory scheme that merely changed the pollution thresholds it would enforce. ‘They’re turning the knob up from a four to an eight,’ 

Judge Katsas

The petitioners claim the EPA’s tailpipe regulations violate the major questions doctrine, which requires an agency to have express authorization from Congress before developing rules that could have a major political or economic impact. The doctrine was invoked last year by the Supreme Court in West Virginia v. EPA when it struck down an EPA regulatory scheme for coal-fired powerplants.

“This case is West Virginia all over again,” the petitioners argued. Judges on the panel, though, seemed skeptical. Judge Gregory Katsas pointed to differences between the current tailpipe regulations and the regulatory scheme for coal-fired powerplants at issue in West Virginia. Whereas West Virginia involved a completely redesigned regulatory scheme for power plants, this case involves an unaltered regulatory scheme that merely changed the pollution thresholds it would enforce. “They’re turning the knob up from a four to an eight,” said Judge Katsas. “That’s very costly, but it’s not a sharp difference in kind.”

Claiming the emissions standards would force automakers to produce electric vehicles, the petitioners argue that the standards are in essence a de facto mandate for electric vehicle production. Judge Florence Pan, however, disputed this claim, pointing to the fact that Subaru is expected to be able to comply with the standards without producing any electric vehicles. Chief Judge Sri Srinivasan also expressed interest in this point, asking whether other manufacturers would be able to do the same.

The petitioners contended that, regardless of Subaru’s ability to comply, the regulation’s impact on the auto industry would be major. But Judge Katsas disputed this, pointing out that the regulation is projected to only increase the amount of electric vehicle sales from 7% to 17% of all new vehicle sales. He said this relatively minor change in market share was only probative—not conclusive—for determining whether the regulation is a de facto mandate for electric vehicle production.

The panel also seemed skeptical of the petitioners’ arguments on a second, more fundamental issue: whether they even had standing to bring the suit in the first place. The petitioners argued that the court could hear the case even though they did not exhaust their administrative remedies during the rulemaking process. Judge Katsas seemed skeptical, saying this line of reasoning would essentially mean “no statutory argument is ever subject to exhaustion.”The potential impact of this case is magnified by the fact that other emissions regulations are also under attack. Another case at the D.C. Circuit is challenging whether the EPA has the authority to grant the waiver that has allowed California to enact its own, stricter tailpipe emissions regulations for the last several decades. Historically, California’s emissions standards have served as a model for many other states, and at least 15 states and the District of Columbia have adopted California’s emissions standards. Moreover, the House voted for a measure that would bar any state from imposing such emissions regulations at all. Both of these threaten to hamstring the efforts of any state wanting to impose emissions standards stricter than those imposed at the federal level—making the enforceability of the EPA’s standards all the more important.

Abe Loven

Abe Loven is a second-year law student at the University of North Carolina School of Law. He is interested in criminal and civil litigation and has special interests in environmental law and artificial intelligence. Before studying law, he studied journalism and political science as an undergraduate student in the Hussman School of Journalism and Media at the University of North Carolina at Chapel Hill.