California government bureaucrats call it the “Advanced Clean Car II Rule,” the update from last August to the state’s previous decree mandating that all new cars sold here be all-electric or plug-in hybrids by 2035. Between now and then other metrics also set, starting with 35 percent of new car sales being electric starting in 2026, just three years from now.
Since the rule was passed, it’s been a talking point for people who like to bash California, from Texas to Florida to Ohio. They call it just another unrealistic regulation that makes California a very difficult place for businesses to operate.
But it might not happen. And not just because of doubts about the capacity of the state electricity grid to handle all this additional demand.
With little fanfare, more than a dozen Republican state attorneys general just the other day filed a new court document arguing that California’s move and the federal law enabling it are unconstitutional.
Top government lawyers from Texas, Ohio, West Virginia and others argued in their lawsuit that an exemption from the 1970 Clean Air Act that gave California the right to regulate smog emissions from cars sold here “puts it in uneven playing field compared to other states in violation of the Constitution’s Interstate Commerce Clause,” while also giving that state unique power to regulate global climate change.
The Clean Air Act waiver, first signed by then-Republican President Richard Nixon and later renewed by every president except Donald Trump, is the authority behind many of the California Air Resources Board’s ordinances. These solutions, which began in the early 1970s, led to innovations such as early smog control devices, catalytic converters, hybrid cars, hydrogen cars, electric cars and plug-ins.
Each move was protested at first by nearly all automakers as impossible or too expensive, but all turned out well.
California’s rules carry additional clout that infuriates officials in some other states for two reasons: 1) California’s auto market is so large that manufacturers who want to sell nationwide find it cheaper to make all their cars to California’s rules rather than making different models for different locations, and 2) 16 other states and the District of Columbia already automatically adopt California’s car rules five years after they go into effect here. These states make up 40 percent of the US auto market.
None of this will last if Republican attorneys general get their way. They serve on the federal court of appeals for the District of Columbia, from which both the judges and cases often end up going to the Supreme Court.
And the Supreme Court has been particularly inconsistent on states’ rights since Trump’s three appointees gave it a 6-3 conservative majority.
That court has consistently upheld California’s Clean Air Act exemption, but never with its current conservative Republican-dominated membership.
So the survival of the denial is not certain, even as the court returns abortion and other matters to state jurisdiction. Not from a court whose majority justices took firearms policy out of the state’s hands, making their gun-carrying preferences and other matters applicable everywhere.
It is uncertain whether, when this case inevitably comes before them next year or in 2024, the Trump-appointed judges will essentially uphold his attempt to strip California of a unique power that has led to both millions of cleaner cars and to much cleaner air across the country.
Because the exemption was originally granted by the Nixon administration because of California’s unique geographic location, with many of the major cities, from Los Angeles to Sacramento to Bakersfield and Fresno, located in valleys where mountains or large hill ranges hold smog in place for -long periods of in a flatter environment where any old wind can quickly blow it away.
That’s why the air is often dirtier in these California cities than in places like Cincinnati and Seattle, Portland, New Orleans or New York.
Will the Supreme Court recognize that a unique environment requires unique tactics to preserve a healthy environment? Or the justices will agree with states like West Virginia and Texas, which don’t mind the smog so much because it doesn’t stick around very long.
At stake here is a continued decline in diseases from lung cancer to emphysema that has paralleled the advent of cleaner cars and light trucks. Whether a majority of the Supreme Court will listen to any of this is not yet known.