When the Biden Administration promulgated new GHG emission reduction standards for heavy-duty trucks on March 29, 2024, those of us who’ve been tracking challenges to the EPA’s rulemaking authority couldn’t help but wonder what the president was up to. Here was a new set of rules aimed at increasing the number of electric vehicles on American roads, rules which the EPA promulgated under the authority it has from Congress under Section 202(a) of the Clean Air Act (CAA). It couldn’t be coincidence that there is a U.S. Supreme Court case pending that also concern the EPA’s authority under Section 202(a), and two other Section 202(a) cases held in abeyance in the U.S. Court of Appeals for the District Court of Columbia (DC Circuit) pending the Court’s decision. 

Now, the Biden Administration steps headlong into this morass of litigation over the exact same agency (EPA), the exact same code section (Section 202(a) of the CAA), and essentially doubles down on what is sure to be another challenge by proponents of the so-called “major questions doctrine.” 

The new rule (Greenhouse Gas Emissions Standard for Heavy-Duty Vehicles – Phase 3 (Docket ID No. EPA-HQ-OAR-2022-0985) (HD GHG Phase 3) would affect heavy-duty vehicles with model years 2027 through 2032. It is the third phase of an action plan meant to deploy a nationwide, zero-emission freight network by 2040. The EPA predicts that its rule, which does not mandate automakers to manufacture more electric vehicles, would, by virtue of more stringent GHG standards, make 25 percent of long-haul trucks and 40 percent of medium-sized trucks nonpolluting by 2032.

Because this new rule would, if it goes into effect, significantly change the types of trucks rolling out of factories and into dealerships, HD GHG Phase 3 essentially has a target on its back that proponents of the major question doctrine and the shrinking of the so-called administrative state have undoubtedly sighted. The major questions doctrine percolated for some time in academic circles before emerging for the first time in a U.S. Supreme Court decision in West Virginia v. EPA, 142 S. Ct. 2587 (2022) (West Virginia). The doctrine, which runs counter to the decades’ long deference given to administrative agencies under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984), states that an administrative agency may not promulgate regulations with vast economic and political implications without explicit congressional approval.

The three previously mentioned challenges to the EPA’s authority under CAA Section 202(a), concern new regulations with far reaching impacts. At issue in Ohio v. EPA (Ohio) (No. 22-1081) is the “friendly neighbor” provision of the Clean Air Act. This provision requires states to control their major pollution sources so that they don’t cause neighboring or downwind states to exceed the National Ambient Air Quality Standards from out-of-state pollution. The Court heard argument in February on whether, pending a decision by the DC Circuit on the merits, the friendly neighbor provision should be stayed. Texas v. EPA (Texas) (No. 22-1031) involves a Section 202(a) challenge regarding individual states’ ability to set GHG emission standards supplementary to federal standards. After the DC Circuit issues decisions in Ohio and Texas, it will consider Western States Trucking Association v. EPA (Western States) (No. 23-1143). There, EPA’s waiver of its emission standards for California, pursuant to Section 202(a), is facing a challenge; the waiver would give California the authority to set emissions standards for vehicles that are more stringent than national standards and allow it to require increasing numbers of electric vehicles on the state’s roads.   

Because HD GHG Phase 3 shares the EPA’s Section 202(a) authority with the three other cases, it is hard to imagine that states, advocacy groups, and industries who’ve been resisting GHG reduction efforts will not challenge the new rule. They may also, with Ohio, seek to stay its implementation. This could mean that, during this election year, the Biden Administration’s efforts to use its rulemaking authority to address global warming may be on a collision course with those who want to reign in the administrative state. And, it’s likely the U.S. Supreme Court will weigh in with a majority of justices firmly in the major questions camp.