Last week, the National Highway Traffic Safety Administration (NHTSA) released its long-awaited vehicle emissions standards that complement EPA’s aggressive vehicle tailpipe emissions rule.
NHTSA’s update to the CAFÉ standards was overseen by Acting Administrator Ann Carlson. Last year, Carlson was nominated by President Biden to lead NHTSA, but her nomination was pulled by the White House following overwhelming criticism of her aggressive climate policy track record and her history of supporting frivolous lawsuits against the American energy industry.
Although her nomination was stonewalled by the Senate Commerce Committee, Carlson has continued on as NHTSA Acting Administrator. Regarding Carlson’s acting status, Politico reported that the Biden administration “realized that there’s no reason to go through [with] this,” referring to Carlson’s failed nomination.
In a statement to Fox News regarding the new NHTSA regulations, Senate Commerce Committee Ranking Member Ted Cruz argued that the proposed standards – which, taken together with the EPA’s vehicle emissions proposal, effectively ban gas-powered cars – are precisely the reason why the Committee would not advance Carlson’s nomination:
“Commerce Republicans warned the failed radical NHTSA nominee Ann Carlson not to take this step in a May 1st letter because American families should be free to purchase any vehicle they want… This de facto EV mandate will dramatically raise car prices, weaken energy security, and is likely contrary to the law.”
It’s evident that the White House anticipates EPA’s proposed tailpipe emissions rule to be challenged on constitutional grounds, likely under the major questions doctrine, the same legal reasoning that allowed the Supreme Court to strike down the EPA’s Clean Power Plan. EPA’s proposed vehicle emissions rules have drawn criticism from a diverse set of stakeholders from automakers to labor groups, and several energy trade associations have already indicated upcoming legal challenges.
As Sen. Cruz suggested, the NHTSA standards may come under legal fire as well. In comments to E&E News, Carlson defended the legal justification for the proposal:
“EPA and NHTSA operate under different laws, acting NHTSA Administrator Ann Carlson said on a call with reporters. While both agencies have to ensure that their rules are technically feasible, NHTSA can’t consider the impact of electric or alternative-fueled vehicles when it writes its standards, she said.”
The fact is, Carlson’s own words make the case that Biden administration environmental regulators are aiming to avoid single-point-of-failure policies – like the Clean Power Plan – by enacting a suite of duplicative and overlapping regulations that have the same effect as heavy-handed regulations that run afoul of separation of powers.
In November 2020, speculating how the Biden administration could enact aggressive climate policy without the support of a Democratic Congress, Carlson spelled out this strategy in a statement to Vox:
“‘I think one big strategy that will be important for a Biden administration without a Democratic Senate is to have a suite of climate policies rather than relying too heavily on any single policy — think of it as the don’t place all your eggs in the same basket approach,’ said Ann Carlson, a professor of environmental law at the University of California Los Angeles. Some of these tactics could include stricter efficiency standards for appliances, more stringent fuel economy rules for vehicles, and appointing members of the Federal Energy Regulatory Commission who factor climate change into energy policy, according to Carlson.” (emphasis added)
Carlson has expressed her explicit support for policies that would raise energy costs before. It comes as no surprise that under Acting Administrator Carlson, NHTSA is pursuing vehicle emissions standards that are likely to reduce vehicle choice and raise costs for consumers and manufacturers.
Bottom Line: NHTSA Acting Administrator Ann Carlson is a ground-zero architect of the campaign to sue oil and natural gas companies for the effects of climate change under state public nuisance law. It is hard to imagine how, under Carlson’s leadership, NHTSA did not consider whether a vehicle is gas-powered or electric when devising its new vehicle emissions standards.
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