CARB Litigation Update – November 2023
Opening Salvo in Legal Filings: WSTA et al v. US EPA
Currently, there are three legal challenges to the California Air Resources Board (CARB) regulations mandating the sale of only zero-emissions trucks and that fleets can only add zero-emissions trucks to their fleet, the WSTA has two of those legal challenges. Below is a brief explanation of each legal case.
Western States Trucking Association, et al v. U.S. EPA
Filed in the U.S. Court of Appeals, D.C. Circuit on June 5, 2023, the WSTA along with the Construction Industry Air Quality Coalition is challenging the waiver U.S. EPA granted California to enforce the Advanced Clean Trucks (ACT) regulation which mandates a zero-emissions only truck manufacturing/sales restriction in California (and the seven other states that have adopted the rule thus far).
WSTA and CIAQC retained pro bono attorney Ted Hadzi-Antich of Texas Public Policy Foundation (TPPF) to file a lawsuit on our behalf challenging EPA’s waiver grant under the Clean Air Act to CARB’s Advanced Clean Trucks rule and CARB’s Heavy-Duty Vehicle and Engine Emission Warranty and Maintenance Provisions.
Opening briefs to the D.C. Circuit were filed in the lawsuit in the D.C. Circuit on November 3, 2023 and was joined by 31 other petitioners represented by a total of 17 attorneys from 10 law firms, including TPPF. Some of the other petitioners include 18 Republican state Attorney Generals.
The opening brief makes a series of legal arguments:
A). The Clean Air Act does not permit EPA to directly mandate forced electrification of trucks and therefore EPA may not allow CARB to do so under the waiver provision.
B). California does not have “compelling and extraordinary conditions” that require these specific emission control standards because, at best, they constitute CARB’s efforts to deal with climate change, which is not an issue peculiar to California.
C). EPA’s use of the “program as a whole” standard to approve CRAB waiver requests is impermissible under the Clean Air Act.
D). EPA failed to conduct a proper cost-benefit analysis in granting the waiver application.
E). Forced electrification is a “major question” that EPA is not squarely authorized to impose (directly or indirectly) under the Clean Air Act.
The 18 Republican states filed a separate brief making primarily a Constitutional argument against U.S. EPA’s issuance of the required waiver needed by California. They are:
1). First, the Clean Air Act’s California waiver allowance is unconstitutional because it unlawfully gives California sovereign authority that no other State has.
2). Second, the waiver is unlawful because it allows California to impose standards for heavy-duty vehicles without providing the Act’s required lead time. See 42 U.S.C. § 7521(a)(3)(c).
Parties opposed to our petition will now be able to file response briefs and all briefings will be completed by April 1, 2024, after which the court will schedule oral argument, which will likely occur during between mid-to-late 2024.
Western States Trucking Association v. California Air Resources Board
Filed in the Superior Court of California, County of Fresno on July 21, 2023, this petition challenges the Advanced Clean Fleets (ACF) regulation based our belief that CARB violated California’s Environmental Quality Act and the states Administrative Procedures Act in developing the ACF.
We await scheduling for the case.
California Trucking Association v. California Air Resources Board
Filed in the United States District Court for the Easter District of California on October 16, 2023, the legal argument challenges the Advanced Clean Fleets (ACF) regulation adoption as a violation of the Federal Aviation Administration Authorization Act of 1994*, impermissibly burdens interstate commerce in violation of the Dormant Clause of the U.S. Constitution, and violates the due process clauses of the 5th and 14th amendments to the Constitution.
All three cases bring distinctly different legal challenges in attacking CARB’s zero-emissions truck rules from and the industry only needs a win on one argument to prevail and send CARB back to the drawing boards.
Commentary
Of course, the environmental community and their supporters are in meltdown (as usual) to these legal challenges as they view their fight against “climate change” in apocalyptical terms. They truly believe the trucking industry doesn’t care about the children, women, and the elderly, etc., who they always claim are most harmed by pollution. Keep in mind, todays diesel technology is 98 percent cleaner than truck engines produced 20 years ago, and the primary focus of the CARB’s regulations are greenhouse gases, namely CO2 – which we all need to breath. CARB documents always refer to “climate change” and as our legal filings point out to the federal court, CARB doesn’t have the legal authority to act as a worldwide mediator on the effects of climate change, that is the role of national governments – and their duly elected representatives, not a bunch of unelected bureaucrats. CARB’s jurisdiction is California only and these imposed rules will do nothing to address worldwide “climate change.” The U.S. EPA is allowing California to regulate in this manner and is using CARB as a “backdoor” to a rulemaking they could never get passed in Washington D.C.
*The focus on the Federal Aviation Administration Authorization Act of 1994 is its prohibition against state laws that effect the “prices, routes, and service” of motor carriers.
