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Tuesday, September 27, 2022

OPINION:

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America.


The California Air Resources Board recently voted to ban the sale of gasoline-powered cars and trucks in California by 2035.

Such a ban will eviscerate consumer choice, pose enormous and perhaps insurmountable challenges to electricity generation, infrastructure, charging and battery production, damage consumers (electric vehicles already cost $66,000 on average and are not going to get cheaper), and lead directly to increased dependence on communist China (which owns or controls 80% of all minerals used to make EVs).

This is an important issue for all Americans, because under the Clean Air Act, California alone has the authority to establish air quality standards that are more stringent than those of federal law, although other states may choose to adopt California’s standards. And 16 states — with 40% of the national car and truck market — are already prepared to follow California’s lead.

California, however, must seek and obtain a federal waiver to do so.

Even if the Biden administration grants the waiver, California will need to explain to the courts why the ban on gasoline-powered vehicles is acceptable under the federal Energy Conservation and Policy Act, which established the corporate average fuel economy (CAFE) program. That statute specifically precludes all states from setting their own miles-per-gallon standards. Because a car’s carbon dioxide emissions are proportional to its fuel consumption, regulating carbon dioxide for cars is, in practice, the same thing as regulating fuel economy standards.

It is possible that the entire mess will be rejected by the courts under the major questions doctrine. That doctrine, recently clarified by the Supreme Court in West Virginia v. EPA, requires that agencies have explicit congressional direction when a regulatory action involves issues of broad social, economic or policy consequence. If changing the entire energy and transportation systems of the United States does not qualify as a major question, nothing ever will.

Finally, California’s proposed ban is also very likely contrary to the commerce clause in the Constitution.

That clause gives Congress, as one of its enumerated powers, the authority “to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

In defending the commerce clause, the authors of the Federalist Papers warned about precisely this sort of freelancing by individual states — and how it might affect the nation’s policies and give advantages to other sovereigns, such as communist China.

In Federalist 11, Alexander Hamilton wrote: “The importance of the Union, in a commercial light, is one of those points, about which there is least room to entertain a difference of opinion, and which has in fact commanded the most general assent of men, who have any acquaintance with the subject. This applies as well to our intercourse with foreign countries, as with each other.”

In Federalist 42, James Madison noted: “The powers included in the third class [to regulate interstate commerce] are those which provide for the harmony and proper intercourse among the states. Under this head might be included the particular restraints imposed on the authority of the states …

“To the proofs and remarks which former papers have brought into view on [interstate commerce], it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. … Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export … with duties which would fall on the makers of the latter and the consumers of the former.”

What is a ban on a legal product imposed by one state on another anything except “duties”?

The current litigation over California’s motor vehicle program (Ohio v. EPA) has not yet been heard by a court, but it seems likely that the states that are concerned about California’s twisting of the federal statutory regime will argue that the waiver provision in the Clean Air Act is unconstitutional, because it violates other states’ equal sovereignty — as expressed at least partially in the commerce clause.

A ban on gas-powered cars across 40% of the United States would have predictable and bad results: increased prices for cars and electricity, blackouts, associated economic damage, and a growing and unhealthy reliance on our global adversary — communist China — for critical resources.

Fortunately, it seems likely that the courts will conclude that California is prevented from imposing the ban because it intrudes on federal regulation of fuel economy standards. Or because the Clean Air Act waiver is the wrong instrument in this case. Or because the major questions doctrine requires explicit congressional direction. Or the courts may decide that the whole mess is contrary to the commerce clause. In other words, those who seek to stop California’s attempt to upend the vehicle market have many legal and constitutional paths to do so. That’s a good thing.

• Thomas Pyle is president of the American Energy Alliance and the co-host of “The Unregulated Podcast.” 


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