Joint Appendix — Diamond Alternative Energy, LLC, et al., Petitioners v. Environmental Protection Agency, et al.

Supreme Court briefJan 27, 2025

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Text

No. 24-7

In the Supreme Court of the United States

DIAMOND ALTERNATIVE ENERGY, LLC, ET AL.,

PETITIONERS ,

ENVIRONMENTAL PROTECTION AGENCY , ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JOINT APPENDIX

JEFFREY B. WALL

Sullivan & Cromwell LLP

1700 New York Avenue NW

Suite 700

Washington, DC 20006

wallj@sullcrom.com

(202) 956-7660

Counsel of Record

for Petitioners

SARAH M. HARRIS

Acting Solicitor General

Department of Justice

Washington, DC

20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

Counsel of Record for

the Federal Respondents

PETITION FOR CERTIORARI FILED: JULY 2, 2024

CERTIORARI GRANTED: DECEMBER 13, 2024

Additional Counsel Listed on Inside Cover

JOSHUA A. KLEIN

Deputy Solicitor General

California Department

of Justice

1515 Clay Street, 20th Floor

P.O. Box 70550

Oakland, CA 94612-0550

Joshua.Klein@doj.ca.gov

(510) 879-0756

Counsel of Record for

the State Respondents

IAN FEIN

Natural Resources Defense

Council, Inc.

111 Sutter Street, 21st Floor

San Francisco, CA 94104

ifein@nrdc.org

(415) 875-6100

Counsel of Record for the

Public Interest Respondents

TABLE OF CONTENTS

Page

Excerpts from Item 7 – LEV – Initial Statement of

Reasons, R-7941,

EPA-HQ-OAR-2021-0257-0013

(Dec. 7, 2011) ................................................................... 1

Excerpts from Item 4 – ZEV -Initial Statement of

Reasons, R-8158,

EPA-HQ-OAR-2021-0257-0012

(Dec. 7, 2011) ................................................................. 15

Excerpts from 2012-06-27 ACC Waiver Request, R-7,

EPA-HQ-OAR-2021-0257-0006

(dated May 2012) .......................................................... 25

Excerpts from Comment Submitted by the State of

California et al., R-133,

EPA-HQ-OAR-2021-0257-0132

(July 6, 2021) ................................................................. 51

• Excerpts from Appendix A: California Air

Resources Board, Staff Report: Criteria

Pollutant Emission Reductions from California’s

Zero-Emission Vehicle Standards for Model

Years 2017-2025

(July 6, 2021) .......................................................... 69

• Excerpt from Appendix B: California Air

Resources Board, Staff Report: Benefits of

California’s Zero-Emission Vehicle Standards on

Community-Scale Emission Impacts

(July 6, 2021) .......................................................... 72

(I)

• Appendix C: California Air Resources Board,

Staff Report: Emission Benefits of California’s

Passenger Vehicle GHG Standards

(July 2, 2021) .......................................................... 75

• Excerpt from Appendix E: California Air

Resources Board, Staff Report: Passenger

Vehicle Manufacturers Are Outperforming the

ZEV Regulation

(July 6, 2021) .......................................................... 95

Excerpt from Comment Submitted by Toyota Motor

North America, Inc., R-382,

EPA-HQ-OAR-2021-0257-0381

(July 6, 2021) ................................................................. 98

Excerpt from Comment Submitted by National Coalition

for Advanced Transportation, R-132,

EPA-HQ-OAR-2018-0283-5067

(July 6, 2021) ................................................................101

Excerpt from Unopposed Motion by the State[] of

California [et al.] to Intervene in the D.C. Circuit

(filed May 19, 2022) ......................................................106

• Excerpts of Declaration of Sylvia Vanderspek

(May 16, 2022)........................................................108

• Excerpts of Declaration of Elizabeth Scheehle

(May 16, 2022)........................................................112

Excerpts from Private Petitioners’ Final Brief in the

D.C. Circuit

(filed Mar. 20, 2023) .....................................................117

• Private Petitioners’ Final Standing Declarations

(filed Mar. 20, 2023) ..............................................120

III

Excerpt from Final Brief of State and Local Government

Respondent-Intervenors in the D.C. Circuit

(filed Mar. 20, 2023) .....................................................185

• Declaration of Joshua Cunningham

(Feb. 10, 2023) .......................................................188

Excerpt from Private Petitioners’ Final Reply Brief in

the D.C. Circuit

(filed Mar. 20, 2023) .....................................................208

Petitioners’ Proposed Supplemental Declarations in the

D.C. Circuit

• Declaration of Reginald Modlin

(Sept. 28, 2023) ......................................................213

• Declaration of Walter Kreucher

(Sept. 28, 2023) ......................................................218

The following opinion and rule have been omitted in

printing this joint appendix because they appear on the

following pages of the appendix to the petition for a

writ of certiorari:

Court of appeals opinion (Apr. 9, 2024) ........................... 1a

EPA Final Decision, 87 Fed. Reg. 14,322

(Mar. 14, 2022) ..............................................................50a

Excerpts from Item 7 – LEV – Initial Statement

of Reasons, R-7941, EPA-HQ-OAR-2021-0257-0013

(Dec. 7, 2011)

CALIFORNIA ENVIRONMENTAL

PROTECTION AGENCY

AIR RESOURCES BOARD

STAFF REPORT: INITIAL STATEMENT OF

REASONS FOR PROPOSED RULEMAKING,

PUBLIC HEARING TO CONSIDER THE “LEV

III” AMENDMENTS TO THE CALIFORNIA

GREENHOUSE GAS AND CRITERIA POLLUTANT

EXHAUST AND EVAPORATIVE EMISSION

STANDARDS AND TEST PROCEDURES AND

TO THE ON-BOARD DIAGNOSTIC SYSTEM

REQUIREMENTS FOR PASSENGER CARS, LIGHTDUTY TRUCKS, AND MEDIUM-DUTY VEHICLES,

AND TO THE EVAPORATIVE EMISSION

REQUIREMENTS FOR HEAVY-DUTY VEHICLES

This report has been reviewed by the staff of the California

Air Resources Board and approved for publication.

Approval does not signify that the contents necessarily

reflect the views and policies of the Air Resources Board,

nor does the mention of trade names or commercial

products constitute endorsement or recommendation for

use.

Date of Release: December 7, 2011

Scheduled for Consideration: January 26, 2012

***

Table III-A-4-8. CO2 reduction from individual

technologies from 2008 reference

MidSmall

size

car

Small

lightduty

truck

Large

lightduty

truck

Area

Technology

Engine

technologies

Engine friction

3.50% 4.50% 3.40% 4.20%

reduction

Cylinder

6.10% 4.70% 5.70%

deactivation

Discrete cam

4.10% 5.20% 4.10% 4.90%

phasing (DCP)

Discrete variable

4.10% 5.20% 4.00% 4.90%

valve lift (DVVL)

sGDI (18-bar, 33%

12.20% 14.20% 12.10% 13.60%

downsize)

sGDI+DCP+DVVL

14.90% 17.50% 14.80% 16.80%

(18-bar, 33% TDS)

cEGR

sGDI+DCP+DVVL 21.40% 24.30% 21.20% 23.50%

(27-bar, 56% TDS)

Compression19.80% 21.30% 19.10% 21.30%

ignition DCP diesel

TransTorque convertor

0.40% 0.50% 0.50% 0.50%

mission lock-up

Aggressive shift

techno2.00% 2.50% 1.90% 2.40%

logic

logies

High efficiency

3.30% 3.90% 3.80% 4.30%

gearbox

Optimized shifting 5.20% 6.60% 5.10% 6.20%

6-speed automatic 1.80% 2.20% 1.70% 2.10%

8-speed automatic 6.50% 7.80% 6.80% 7.80%

Wet dual clutch

9.70% 11.50% 10.50% 11.90%

8-speed

Dry dual clutch

10.30% 12.20% 11.10% 12.60%

8-speed

Continuously

11.00% 6.30% 6.00%

variable

Vehicle

Low drag brakes

0.80% 0.80% 0.80% 0.80%

load and Secondary axle

1.20% 1.40% 1.40% 1.60%

accessory disconnect

Electric power

techno1.50% 1.30% 1.20% 0.80%

steering

logies

Improved accessory

3.30% 3.00% 2.60% 3.50%

efficiency

Mass reduction

5.10% 5.10% 5.10% 5.10%

(-10% curb mass)

Mass reduction

10.40% 10.40% 10.40% 10.40%

(-20% curb mass)

Tire low rolling

resistance (-10%

1.90% 1.90% 1.90% 1.90%

Crr)

Tire low rolling

resistance (-20%

3.90% 3.90% 3.90% 3.90%

Crr)

Aerodynamics

2.30% 2.30% 2.30% 2.30%

(-10% CdA)

Aerodynamics

4.70% 4.70% 4.70% 4.70%

(-20% CdA)

Hybrid

12V stop-start

6.10% 6.80% 5.60% 6.50%

High-voltage beltsystem

7.40% 7.60% 6.80% 8.00%

alternator system

technoParallel hybrid (23logies

34.30% 34.60% 32.80% 31.90%

40 kW)

Reference Test weight (lb)

2625 3625 4000 6000

Rated power (hp)

106

158

169

300

vehicle

characterRated torque (ft-lb) 103

161

365

istics

Notes: All potential CO2 improvements are from 2008 US baseline

technology based on the combined US test procedure (55% UDDS,

45% highway); sGDI= stoichiometric gasoline direct injection;

DCP=dual cam phasing; DVVL=discrete variable valve lift;

TDS = turbocharged downsize; cEGR= cooled exhaust gas

recirculation; DCT = dual clutch transmission

The technologies and their associated percent CO 2

improvements shown above are generally not simply

additive. Generally combining any two technologies listed

tends to be less than the simple sum of the two CO2 potential

values because of the ways that the two technologies

can both impact the same fundamental physical energy

efficiency losses through the various vehicle systems

(e.g., valvetrain, fuel injection, thermodynamic engine

efficiency, transmission, etc). Directly built upon the

Ricardo vehicle simulation modeling results, the USEPA

Lumped Parameter model incorporates technologies’

system interaction effects when technologies are jointly

implemented. The analysis involved from the Ricardo

results to the Lumped Parameter modeling is described

in detail in the federal agencies’ Technical Support

Document (USEPA and NHTSA, 2011c).

EPA’s modeling involved the analysis of many dozens of

technologies configured into technology packages across

each of the different vehicle classes. The modeling resulted

in varying complexity that ranged from the reference

2008 baseline technology, to many incremental engine

and transmission package steps, to advanced hybrids and

***

vehicles, the fuel cell electric vehicle crediting equation

includes the gasoline upstream adjustment factor to bring

the lifecycle GHG crediting into the tank-to-wheel GHG

standard. The GHG rating for fuel cell electric vehicles is

calculated as follows, based on the hydrogen consumption

(HFCV ) in kilograms of hydrogen per mile.

GHGFCV = (9132 gCO2e/kg H2) * HFCV – G upstream

In order to provide context for the proposed GHG crediting

of battery electric vehicle, plug-in hybrid electric vehicle,

and fuel cell electric vehicle technologies, approximate

GHG emission ratings for three currently available models

are shown here. Included are three example vehicles:

an battery electric vehicle at 0.24 kWh/mile (similar to

a Nissan Leaf); a plug-in hybrid electric vehicle with

0.25 kWh/mile, a 0.63 utility factor, and 177 gCO2 /mile

exhaust emissions (similar to a Chevrolet Volt); and a fuel

cell electric vehicle with 87 miles per kilogram hydrogen

(similar to a Honda FCX Clarity). The GHG crediting of

these hypothetical vehicles is shown in Table III-A-5-4. As

shown all three vehicles would achieve GHG ratings that

would give them substantial emission reductions within

the GHG crediting framework for California described

above, even after factoring in the reduced GHG of all

conventional vehicles against which the three vehicles

are being compared. The GHG ratings for these current

electric-drive vehicle models would be 80-93% below

current 2008 technology, 73-91% below 2016 technology,

and 69-89% below 2020 technology, respectively. Further

efficiency improvements from these current electric-drive

technologies (e.g., low rolling resistance tires, massreduction, improved aerodynamics, improved accessory

loads, low-GHG air conditioning systems), would result in

greater percent GHG effectiveness than the reductions

shown here when compared to conventional gasoline

vehicles.

0.63

0.240

0.252

177

81%

80%

93%

74%

73%

91%

70%

69%

89%

Notes: Upstream GHG emissions based on California 2020 and beyond characteristics for electricity and

hydrogen production, and gasoline upstream adjustment, Gupstream, of 40 gCO2 /mi is assumed for avoided

equivalent upstream gasoline usage; use of air-conditioning credits not included; Average assumed new

vehicle in California 336 gCO2 /mile in 2008, 251 gCO2 /mile in 2016, and 215 gCO2 /mile in 2020

Electric

vehicle

Plug-in hybrid

electric vehicle

(40-mile)

Fuel cell

vehicle

Technology

Reduction in GHG

Direct

Electric

GHG

emissions versus

CO2

Hydrogen

energy Utility

rating average new vehicle

emissions

use

Factor

(gCO2e/

(gCO2 /

(mi/kg)

(kWh/mi)

mi)

2008 2016 2020

Table III-A-5-4. Example GHG emission rating from electric-drive vehicles

Off-cycle credit: ARB staff is proposing to adopt

the same off-cycle crediting provisions as USEPA at

this time and revise, as needed, to maintain alignment

with the federal program in future years. The federal

USEPA program developed off-cycle crediting provisions

for the 2012-2016 rules, and the provisions are being

further developed for the 2017-2025 program. The major

modification for the 2017-2025

***

Table III-A-5-8. Percent of new vehicles with given

technology for GHG and GHG-plusZEV compliance

scenarios

Scenario

Technology

GHG

regulation

Aerodynamics

(10%+)

Low RR tires

(10%+)

Mass reduction

(10%+)

Dual clutch

transmission

Gasoline direct

injection

Cooled EGR

Hybrid

Percent of vehicles

with technology by

model year

2016 2020 2025

61%

79% 100%

61%

79% 100%

11%

32%

58%

38%

48%

62%

33%

50%

72%

0.20%

4.50%

14% 32%

7.5% 11.3%

Plug-in hybrid

electric vehicle

Electric vehicle

Fuel cell vehicle

Alternative

refrigerant

Aerodynamics

(10%+)

Low RR tires

(10%+)

Mass reduction

(10%+)

Dual clutch

transmission

GHG

Gasoline direct

and ZEV

injection

regulations

Cooled EGR

Hybrid

Plug-in hybrid

electric vehicle

Electric vehicle

Fuel cell vehicle

Alternative

refrigerant

1.7%

2.0%

1.9%

0.4%

0.1%

1.7%

0.5%

1.8%

0.9%

0% 100% 100%

61%

79% 100%

61%

79% 100%

11%

27%

46%

38%

47%

56%

33%

41%

51%

0.2%

4.5%

5.2%

14%

5.7%

1.7%

5.4%

9.3%

0.4%

0.1%

2.3%

0.6%

3.7%

2.5%

0% 100% 100%

The summary results shown above in Table III-A-5-8

represent two scenarios for compliance to achieve the

required regulatory GHG levels in the new California

fleet. In the national US fleet context, a compliance

scenario could resemble technology shares from each of

those two scenarios that are shown. Automakers will be

able to use ZEV-type vehicles (for California and ZEVadopting Section 177 compliance) toward compliance

with national USEPA GHG standards. California and

other ZEV-adopting states31 amount to about 29% of US

light-duty vehicle sales. As a result, ZEV requirements

in ZEV states alone would amount to a minimum of about

4% national US share for all ZEV types. The non-ZEV

technology shares, nationally and in California, could

be more similar to the “GHG only” scenario (e.g., over

70% GDI and over 10% hybrid shares). As a result, staff

believes that it is possible that selling the required ZEV

shares in California, along with a nationally compliant

GHG fleet, could deliver some amount of over-compliance

with the GHG standards within California. However, it is

uncertain exactly if or how automakers might choose to

differentially sell various vehicle technology types across

California and the rest of the US.

Price of compliance: Due to the incremental price

increases associated with the technologies that are used

toward compliance, the average vehicle is projected to

experience increasing vehicle prices through the vehicle

rulemaking period. Assuming that all of the associated

direct manufacturing and indirect cost mark-ups are

passed on to consumers, Table III-A-5-9 summarizes the

incremental vehicle price increase that

***

Currently A rizona, Connecticut, Maine, Maryland,

Massachusetts, New Jersey, New Mexico, New York, Oregon,

Rhode Island, and Vermont.

These expenditures would in turn bring about additional

(indirect) changes in the California economy that may

change the overall costs of the regulation to the economy.

Increased vehicle prices, for example, may result in a

reduction of demand for other goods and services as

consumers use more of their money to pay for the price

increase. California firms may respond by cutting back

production and decreasing employment. On the other

hand, in response to the proposed regulations automobile

manufacturers are expected to choose technologies that

reduce vehicle operating costs, leaving consumers with

additional money to spend on products and services. This

would, in turn, induce firms supplying those products and

services to expand their production and increase their

hiring of workers. A third type of effect occurs when

purchase of the new vehicles directly lowers demand for

the petroleum refining and gasoline distribution sectors.

The changes caused by the proposed regulations will

affect industries both negatively and positively. The

net effect on the California economy of these activities

hinges on the extent to which products and services

are obtained locally. Using the E-DRAM model of the

California economy, staff estimated the net effects of these

activities on affected industries and the overall economy.

The California industries and individuals affected most

by the proposed Advanced Clean Cars program are those

engaged in the production, distribution, sales, service,

and use of light- and medium-duty vehicles as well as the

refining and distribution of gasoline.

Table VII-C-1, Table VII-C-2, and Table VII-C-3

summarize the impacts of the proposed climate change

regulations on the California economy for forecast years

2020, 2025, and 2030 respectively. The results of the

E-DRAM simulation show that the changes caused by

the proposed regulations would increase the California

economic output by roughly $2 billion (0.1 percent) in 2020,

$8 billion (0.2 percent) in 2025, and $14 billion (0.3 percent)

in 2030. Personal income would increase more gradually,

remaining almost unchanged in 2020 but increasing by

roughly $3 billion (0.1 percent) in 2025, and $6 billion (0.2

percent) in 2030. As a result, California net employment

impacts due to the proposed regulation would also remain

about constant in 2020, but increase slightly by 21,000 jobs

(0.1 percent) in 2025, and 37,000 jobs (0.2 percent) in 2030.

Table VII-C-1. Economic Impacts of the Proposed

Advanced Clean Cars (ACC) Regulations on the

California Economy in Fiscal Year 2020 (2009 dollars)

California

Economy

Output

(Billions)

Personal

Income

(Billions)

Employment

(thousands)

Without

With ACC

% of

ACC

Difference

Regulations

Total

Regulations

$3,600

$3,602

0.1

$2,171

$2,172

17,913

17,919

Note: Difference of individual columns may not match due to

rounding.

***

parts of the country or the world, though conservatively

such positive impacts are not assumed in the modeling.

AFFILIATED BUSINESSES

The E-DRAM results reflect the overall impacts to the

statewide economy. While positive at the aggregate level,

some individual sectors may experience negative impacts.

As the directly regulated automotive manufacturing

sector currently has a limited presence in California,

indirect effects on affiliated businesses are likely to

be of greater interest. Potential effects are discussed

qualitatively here and in a more quantitative fashion in

section VIII.C.5 and Appendix S for affiliated businesses

located in low-income cities.

The oil and gas industry, fuel providers, and service

stations are likely to be the most adversely affected by

the proposed Advanced Clean Cars program due to the

substantial reductions in demand for gasoline – exceeding

$1 billion beginning in 2020 and increasing to over $10

billion in 2030. Some jobs could be transferred from

refineries or fuel providers to the electricity generation

or hydrogen production sectors or other unaffiliated

businesses. Likewise, some service stations may be able

to transition to providing alternative fuel types to offset

these losses. However, a net loss to these businesses would

be expected overall.

Vehicle dealers may also be affected due to changes

in vehicle sales. In 2010, 55 percent of average new

vehicle dealership revenue was generated by new

vehicle sales and another 24 percent from used vehicle

sales.46 The effect of the proposed program on vehicle price

increases and subsequently on new and used vehicle sales

are further discussed in section IX.A and IX.B. Those

analyses suggest that new vehicle sales in California would

increase slightly as a result of the proposed amendments,

which would in turn increase dealer revenues due to

the higher sales volume as well as the higher vehicle

prices. However, the higher new vehicle sales may reduce

populations of older vehicles, which could reduce business

for the parts and servicing departments at dealerships

(and independent repair shops). On the other hand, the

greater penetration of new advanced vehicle technologies

may result in servicing needs that can only be fulfilled at

the dealership. Additionally, dealers may need to provide

training to sales and servicing staff to familiarize them

with many of the new ZEV technologies anticipated to be

offered as a result of the proposed program.

The effects on used vehicle dealers (or the used vehicle

department at a new vehicle dealership) are more

ambiguous. Higher sales volumes of new vehicles do

not necessarily imply that used vehicle sales must fall.

A vehicle can be sold only once new and some are never

resold while others might be resold numerous times. New

vehicle buyers frequently trade in an existing vehicle,

generating both a new and used vehicle sale. In addition,

assuming that the higher price of new vehicles translates

into

***

California New Car Dealers Association 2011 Economic

Impact Report, http://w w w.cncda.org/secure/GetFile.aspx?

ID=2106 (Accessed November 2, 2011)

Excerpts from Item 4 – ZEV – Initial Statement of

Reasons, R-8158, EPA-HQ-OAR-2021-0257-0012

(Dec. 7, 2011)

CALIFORNIA ENVIRONMENTAL

PROTECTION AGENCY

AIR RESOURCES BOARD

STAFF REPORT:

INITIAL STATEMENT OF REASONS

ADVANCED CLEAN CARS

2012 PROPOSED AMENDMENTS TO THE

CALIFORNIA ZERO EMISSION VEHICLE

PROGRAM REGULATIONS

This report has been reviewed by the staff of the California

Air Resources Board and approved for publication.

Approval does not signify that the contents necessarily

reflect the views and policies of the Air Resources Board,

nor does the mention of trade names or commercial

products constitute endorsement or recommendation for

use.

Date of Release: December 7, 2011

Scheduled for Consideration: January 26-27, 2012

***

Figure 9: Expected Compliance for 2018 through 2025

Model Years

The expected numbers for each model year are enumerated

in Table 3.6 below. These numbers are based on future

sales projections from ARB’s Emissions Inventory Model,

(EMFAC) 201136.

ARB 2011b. California Air Resources Board. Emission

Inventory Model, EMFAC 2011. http://www.arb.ca.gov/msei/

msei.htm

Total Vehicles TZEVs BEVs FCVs

52,600

59,500

27,800

2023

64,200

35,200

2024

65,400

43,600

2025

366,900

163,300

Cumulative

TOTAL

1,413,900

46,300

21,600

2022

78,100 108,800 137,400 163,600 190,500 218,500 246,300 270,700

75,300

61,300

37,700

15,400

2021

883,700

27,300

13,900

10,600

2020

89,100 101,900 116,300 131,200 146,900 161,700

6,200

2019

2,900

2018

Table 3.6: Number of Vehicles Expected Annually – 2018 through 2025 Model Year

(Expected Compliance Scenario - Rounded to Nearest 100)

There are an innumerable number of compliance scenarios.

As explained above, manufacturers are not required to

make each technology stated in Table 3.6. LVMs

***

directly connect renewable power to BEVs and PHEVs

at home may influence the value customers consider in

purchasing these vehicles. 56,57

5.4

Potential Impact on Business Competitiveness

Automobile manufacturing in California represents a

small fraction of the State’s economy, less than 0.5 percent.

The California businesses impacted by this regulation

are largely indirectly affected as affiliated businesses

such as gasoline service stations, automobile dealers,

and automobile repair shops. Affiliated businesses are

mostly local businesses. These businesses compete within

the State and generally are not subject to competition

from out-of-state businesses. Therefore, the proposed

regulations are not expected to impose significant

competitive disadvantages on affiliated businesses.

UC Davis, 2010. University of California, Davis. J.Axsen

and K.Kurani. July 2010. “Reflexive Layers of Influence (RFI):

A model of social influence, vehicle purchase behavior, and prosocietal values.”

UC Davis, 2011c. University of California, Davis.

T.Turrentine et al. Mary 2011. “The UC Davis MINI E Consumer

Study.”

5 . 5 Potential Impact on Business Creation,

Elimination or Expansion

California businesses that purchase the same LDVs as

consumers would, like consumers, pay higher prices for

the vehicles but save on operating costs, as is discussed

in Section 5.3 above.

It is very likely that savings from reduced vehicle

operating costs would end up as expenditures for other

goods and services. These expenditures would flow

through the economy, causing expansion or creation of new

businesses in several sectors. Staff’s economic analysis

shows that as the expenditures occur, jobs and personal

income increase. As discussed in the LEV III ISOR, the

Environmental Revenue Dynamic Assessment Model

(E-DRAM) was used to assess the overall impact of the

regulation on California’s economy. Specifically, E-DRAM

was used to estimate impacts on California’s output of

goods and services, personal income, and employment.

In the analysis for the full ACC program which includes

the proposed amendments to the ZEV regulation, jobs

increase by 0.1 percent in 2025, and 0.2 percent in 2030

compared to the baseline economy that excludes the

proposed ACC program. Similarly, personal income

grows by $1 billion in 2020, by $3 billion in 2025, and $6

billion 2030. The estimates of the regulation’s impact on

these economic factors are used to assess the potential

impacts on business creation, elimination, or expansion

in California.

Staff’s proposed amendments will likely increase benefits

to companies specializing in ZEVs and ZEV infrastructure.

The creation of these businesses cannot be fully attributed

to staff’s proposed amendments. Business and job creation

from advanced vehicle technologies is part of the clean

technology sector, which is currently experiencing higher

than average job growth in California and nationally. 58

However, staff’s proposal will likely increase opportunities

for California-based manufacturers to generate credits

through production of ZEVs and TZEVs to increase

flexibility for regulated manufacturers who may purchase

credits for ZEV regulation compliance. Some specific

sectors are discussed below.

5.5.1

Manufacturing

Staff’s proposed amendments will require increased

manufacturing of ZEV and PHEV componentry. There

is very little vehicle component and final assembly in

California, most of it occurring in other parts of the

United States and internationally. However, as the ZEV

amendments are expected to increase demand for these

components and vehicles, these businesses would likely

expand, which could offset any reductions experienced in

the conventional vehicle segment.

In California, smaller manufacturers not currently

mandated to build ZEVs under the regulation do have

plans to increase ZEV and ZEV component production.

One vehicle assembly plant in the state, formerly a

joint venture between General Motors and Toyota that

Brookings, 2011. The Brookings Institution. M. Muro, J.

Rothwell, and D. Saha. “Sizing the Clean Economy: A National

and Regional Green Jobs Report”

produced conventional vehicles, was recently purchased

by Tesla, a California company developing BEVs. Tesla

intends to use the facility to manufacture the Model S

BEV due to arrive on the market in mid-2012. At one

time, the Fremont facility employed approximately

4,000 people. Under Tesla’s plans, it may employ nearly

1,000 people. Coda Automotive, another California BEV

company has announced plans to assemble vehicles in

Benicia, California. 59

5.5.2

Infrastructure

Staff’s proposed amendments will increase demand for

fueling infrastructure in California. There are several

California-based companies developing electric vehicle

charging equipment, including Coulomb, AeroVironment,

Better Place, Clipper Creek, and 350Green. Additional

non-California based electric vehicle supply equipment

(EVSE) providers are installing equipment in the state to

support the growing BEV and PHEV markets – including

ECOtality, Leviton, and General Electric. Many of these

companies are leveraging external grants, for example

U.S. DOE awards, and marketing and installing chargers

in California.60

Several major companies are entering the EVSE market

and using traditional large retail outlets. General Electric

BusinessTimes, 2011. San Francisco Business Times,

September 12, 2011. “Coda to assemble electric cars in Benicia”

http://www.bizjournals.com/sanfrancisco/news/2011/09/12/codato-assemble-evs-in-benicia.html

Coulomb, 2011. Coulomb ChargePoint America. Website.

http://chargepointamerica.com/. Accessed September 20, 2011

is planning to distribute its EVSE, the WattStation,

through Lowes home improvement stores.61 Ford and its

EVSE supplier, Leviton, are partnering with Best Buy

and its Geek Squad for retail and distribution of their

equipment to homes.62 Over time, it is expected that

partnerships will grow and innovative business models

will emerge for servicing and installing EVSE.

Staff’s proposal will also create a demand for hydrogen

fueling stations63. Several companies are already active

in developing these stations, including Air Products,

Praxair, and Linde. Most of the hydrogen dispensed at

these stations is expected to be produced within the state,

primarily from central production facilities and then

transported by truck to retail outlets. The Clean Fuels

Outlet (CFO) ISOR provides more information regarding

future hydrogen fueling demand, and infrastructure

development.

Green Car Congress, 2011a. Green Car Congress.com,

July 18, 201.1 “GE Energy partners with Lowe’s to provide EV

chargers for home and commercial use; Siemens Energy providing

chargers to Town of Cary, NC” http://www.greencarcongress.

com/2011/07/gesiemens-20110718.html Accessed September 9,

2011.

Green Car Congress, 2011b. Green Car Congress.com,

January 13, 2011 “Ford developed home charging station for the

Focus with Leviton” http://www.greencarcongress.com/2011/01/

ford-20110113.html

CaFCP, 2009. California Fuel Cell Partnership. CaFCP

Action Plan, February 2009. “Hydrogen Fuel Cell Vehicle and

Station Deployment Plan: A Strategy for Meeting the Challenge

Ahead” http://www.cafcp.org/sites/files/Action Plan FINAL.pdf

5.6

Potential Costs to Local and State Agencies

The proposed amendments are not expected to result in

an increase in costs for local and state agencies in the next

three to five years. However, as advanced vehicles enter

the fleet in larger numbers (10-15 years from now), there

will likely be an impact to state and local revenue from

vehicle and fuel sales taxes.

As a result of the projected fleet from the proposed ACC

program, large revenue losses could occur in later years

unless fuel tax policy changes occur. The vast majority of

the fuel tax loss will result from gasoline vehicles given

that the existing tax structure applies only to gasoline and

diesel fuel and has not changed over the years to adjust

for inflation or changes in consumption levels. Although

a small portion of the funding shortfall, ZEVs will result

in a loss of fuel taxes because there are currently no

road taxes on hydrogen and electricity sold for vehicles.

Between 2017 and 2025, if gasoline taxation rates remain

the same, California fuel tax revenue losses would be

approximately $3.8 billion64, only a small portion of which

would be associated with the ZEV population. These state

revenue losses will partially be offset by higher vehicle

sales tax revenues given the higher incremental vehicle

prices.

Although not a direct effect of the ZEV regulation, local

governments will need to devote resources to planning

and implementing electric charging and hydrogen

See Appendix C for more information.

infrastructure. These impacts are becoming clear as

the Nissan Leaf and General Motors Volt are entering

California communities, and as new hydrogen stations are

being constructed today. These impacts can include the

need to prepare city inspectors and permitting officials

to approve residential charging equipment; the need for

city planning officials to identify appropriate public and

workplace charging; and the need for local officials to help

evaluate and permit hydrogen stations.

To reduce the impact on local agencies, there are a number

of programs designed to help communities implement

planning programs for alternative fuels.65,66,67 For

***

Sonoma, 2011. County of Sonoma (CA), General Services

Department, July 2011. “Electric Vehicle Charging Station

Program and Installation Guidelines”

Rocky Mountain Institute, 2009. Rocky Mountain Institute,

February 24, 2009. “Project Get Ready: Helping Communities

Become Electrified Vehicle Pioneers”

Excerpts from 2012-06-27 ACC Waiver Request, R-7,

EPA-HQ-OAR-2021-0257-0006

(dated May 2012)

BEFORE THE UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

IN THE MATTER OF CALIFORNIA’S REQUEST

FOR WAIVER ACTION PURSUANT TO CLEAN

AIR ACT SECTION 209(B) FOR AMENDMENTS

TO CALIFORNIA’S ZERO EMISSION VEHICLE

REGULATION AND LOW EMISSION VEHICLE

REGULATIONS

CLEAN AIR ACT § 209(B) WAIVER SUPPORT

DOCUMENT SUBMITTED BY THE CALIFORNIA

AIR RESOURCES BOARD

May 2012

INTRODUCTION

California’s Air Resources Board (CARB or the Board)

has developed the Advanced Clean Cars program, a

pioneering approach of a “package” of regulations that,

although separate in construction, are related in terms

of the synergy developed to address interrelated ambient

air quality needs and climate change.

The Advanced Clean Cars program combines the

control of smog, soot causing pollutants and greenhouse

gas emissions into a single coordinated package of

requirements for model years (MY) 2015 through 2025

and assures the development of environmentally superior

passenger vehicles. The Advanced Clean Cars package

includes amendments to three regulations: the Low

Emission Vehicles regulation (LEV), the Zero Emission

Vehicles regulation (ZEV), hereinafter “2012 ZEV/LEV

Amendments,” and the Clean Fuels Outlet regulation.

Two of these regulations, LEV and ZEV, require a federal

waiver submittal under the Clean Air Act (CAA).

The earliest requirements of the LEV regulation as

amended are set to affect MY 2014 vehicles. Consequently,

manufacturers would benefit from the increased lead time

that an expedited consideration of this waiver request

would allow. The remainder of this support document

provides background for California’s LEV and ZEV

regulations, details their recent amendments, and gives

the basis for CARB’s waiver or within the scope request

for each.

II. ZEV REGULATION

BACKGROUND AND WAIVER HISTORY

In 1990, CARB adopted an ambitious program to

significantly reduce the environmental impact of lightduty vehicles through the commercial introduction of

ZEVs into the California fleet. The ZEV program, which

was a part of California’s first-generation low-emission

vehicle regulations (LEV I), has been modified five times

since its inception—in 1996, 1998/1999, 2001, 2003, 2008,

and most recently in 2012.1

A detailed account of these modifications, and their waiver

history, can be found in 71 Fed Reg 78190-78191(Dec. 28, 2006)

and 76 Fed Reg 61095-61096 (Oct 3, 2011).

The 2012 ZEV amendments f low from the Board’s

2008 direction to CARB staff to redesign the 2015 and

subsequent MY requirements for the ZEV regulation.

The Board directed its staff to strengthen the regulation

above what was currently required and focus primarily

on zero emission drive, that is battery electric vehicle

(BEV), hydrogen fuel cell electric vehicle (FCV), and plugin hybrid electric vehicle (PHEV) technologies. The goal

of the Board direction was to maintain California as the

central location for moving advanced, low greenhouse gas

(GHG) technology vehicles from the demonstration phase

to commercialization.

In 2009, CARB staff analyzed pathways to meeting

California’s long term 2050 GHG reduction goals in the

light-duty vehicle subsector. The analysis showed that

ZEVs would need to reach nearly 100 percent of new

vehicle sales between 2040 and 2050, with commercial

markets for ZEVs launching in the 2015 to 2020 timeframe.

The analysis concluded that even widespread adoption of

advanced conventional technologies, like non-plug-in

hybrid electric vehicles (HEV), would not be enough to

meet the 2050 GHG targets. Staff presented its findings

at the December 2009 Board hearing.

At the December 2009 hearing, the Board adopted

Resolution 09-66, reaffirming its commitment to meeting

California’s long term air quality and climate change

reduction goals through commercialization of ZEV

technologies. The Board further directed staff to consider

shifting the focus of the ZEV regulation to both GHG and

criteria pollutant emission reductions, commercializing

ZEVs and PHEVs in order to meet the 2050 goals, and

to take into consideration the new LEV fleet standards

and propose revisions to the ZEV regulation accordingly.

In addition to the Board’s directives, in 2010, President

Barack Obama directed the United States Environmental

Protection Agency (EPA) and National Highway Traffic

Safety Administration (NHTSA) to work with California

to develop GHG fleet standards for MY 2017 through 2025

LDVs. The Joint Technical Assessment Report (TAR),

which was developed by EPA, NHTSA, and CARB,

was released in September 2010. The report concluded

“electric drive vehicles including hybrid(s)…battery

electric vehicles…plug-in hybrid(s)…and hydrogen

fuel cell vehicles…can dramatically reduce petroleum

consumption and GHG emissions compared to conventional

technologies.... The future rate of penetration of these

technologies into the vehicle fleet is not only related to

future GHG and corporate average fuel economy (CAFE)

standards, but also to future reductions in HEV/PHEV/

EV [electric vehicle] battery costs, [and] the overall

performance and consumer demand for the advanced

technologies….” 2 Manufacturers confirmed in meetings

leading up to the release of the TAR their commitment

to develop ZEV technologies. “…[A] number of the firms

suggested that in the 2020 timeframe their U.S. sales of

HEVs, PHEVs, and EVs [electric vehicle] combined could

be on the order of 15-20 percent of their production.” 3

EPA, 2010. United States Environmental Protection

Agency, National Highway Safety and Traffic Administration and

California Air Resources Board. September 2010. “Interim Joint

Technical Assessment Report: Light-Duty Vehicle Greenhouse

Gas Emission Standards and Corporate Average Fuel Economy

Standards for Model Years 2017-2025” (p. vii).

Id. at pp. 2-5.

For the California ZEV rulemakings described above,

the Board sought and obtained waivers of federal

preemption from the EPA under Clean Air Act (CAA)

section 209(b). EPA granted California an initial waiver

of federal preemption for California’s original 1990 ZEV

requirements in January 1993 as part of the LEV I

waiver.4 In January 2001, it found that the Board’s 1996

ZEV amendments, which amended manufacturer ZEV

production mandates for MY 1998 through 2002, were

within the scope of the originally granted 1993 waiver. 5

In December 2006, EPA determined that the 1999, 2001,

and 2003 ZEV amendments as they applied to 2007 and

prior MY passenger cars and light-duty trucks equal to

or less than 3,750 pounds loaded vehicle weight (LDT1)

also fell within the scope of the 1993 waiver.6 It further

granted California a new waiver for MY 2007 through 2011

passenger cars and light-duty trucks, including light-duty

trucks with a loaded vehicle weight greater than 3,750

pounds (LDT2).7

In its December 2006 decision, EPA expressly made no

finding as to MYs 2012 and later. 8 In September 2009,

58 Fed.Reg. 4166 (Jan. 13, 1993).

66 Fed.Reg. 7751 (Jan. 25, 2001). See section IV.A.1., infra,

for discussion of EPA’s within the scope analysis.

71 Fed.Reg. 78190 (Dec. 28, 2006). In the alternative, EPA

found that the amendments affecting these vehicles also met

the requirements for a granting of a full waiver. Id., Decision

Document accompanying waiver decision at p. 61.

Id.

CARB submitted a Waiver request to EPA seeking

confirmation that amendments to the ZEV regulation

adopted in 2008, as they relate to the vehicles of 2011 and

earlier MYs, were within the scope of EPA’s prior ZEV

waivers. Additionally, CARB sought confirmation that

its 2008 ZEV amendments, as they relate to 2012 and

later MYs, were within the scope of EPA’s prior waivers

or otherwise met the criteria for a waiver of preemption.

On October 3, 2011, EPA determined that amendments

to the ZEV regulations, as they affected 2011 and prior

MYs, were within the scope of previous waivers for the

ZEV regulations (or in the alternative qualified for a new

waiver).9 At that time EPA also granted a waiver allowing

California to enforce the 2008 ZEV amendments as they

affected 2012 and later MYs.10

B. 2012 ZEV AMENDMENTS

The subject amendments to California’s ZEV regulation

are described below in two parts based on the timeframe

during which they apply. These timeframes are: 1) MY

2012 through 2017; and 2) MY 2018 and beyond. The

amendments identified in this section B. represent the

most significant changes during each of these timeframes.

2009 through 2017 Model Year Amendments

CARB’s goal for amendments affecting the current

ZEV regulation through MY 2017 was to make minor

76 Fed.Reg. 61095 (Oct. 3, 2011).

Id.

mid-course corrections and clarifications and to enable

manufacturers to successfully meet 2018 and subsequent

MY requirements. These amendments included:

a. Provision of Compliance Flexibility: Removed

carry forward credit limitations for ZEVs,

allowing manufacturers to bank ZEV credits

indefinitely for use in later years. Slightly reduced

the 2015 through 2017 credit requirement for

intermediate volume manufacturers (IVM, less

than 60,000 vehicles produced each year), to

allow them to better prepare for requirements

in 2018. Extended the provision that allows

ZEVs placed in any state that has adopted the

California ZEV regulation to count towards the

ZEV requirement through 2017 (i.e. extending

the “travel provision” for BEVs through 2017).

b. Adjustment of Credits and Allowances: Increased

credits for Type V (300 mile FCV) ZEVs to

appropriately incentivize this longer-term

technology.

c. Addition of New Vehicle Category: Added Type

I.5x and Type IIx vehicles (collectively “BEVx”

vehicles) as a compliance option for manufacturers

to meet up to half of their minimum ZEV

requirement. The proposed vehicle types are

closer to a BEV than to a PHEV, in that they are

vehicles primarily designed for zero-emission

operation but are equipped with a small non-ZEV

fuel auxiliary power unit (APU) to be used only

for limited range extension if the zero-emission

capacity is depleted.

2 018 a n d S ub s e que nt Mo d el Ye a r

Amendments

CA RB’s goal for amendments affecting 2018 and

subsequent MYs is to achieve ZEV and transitional

zero-emission vehicle (TZEV; most commonly a PHEV)

commercialization through simplifying the regulation and

pushing technology to higher volume production in order

to achieve cost reductions. The amendments included:

a. Increased ZEV Requirement for 2018 and

Subsequent MYs: Increased requirements which

push ZEVs and TZEVs to over 15 percent of

new sales by 2025. This will ensure production

volumes are at a level sufficient to bring battery

and fuel cell technology down the cost curve and

reduce incremental ZEV prices.

b. Regulation Focused on ZEVs and TZEVs:

Removed PZEV (near-zero emitting conventional

technologies) and advanced technology PZEV

(AT PZEV, typically non-plug-in HEVs) credits

as compliance options for manufacturers because

these technologies are now commercialized and

their emissions are better reflected in the LEV

III program. Allowed manufacturers to use

banked PZEV and AT PZEV credits earned in

2017 and previous MYs, but discount the credits,

and place a cap on usage in 2018 and subsequent

MYs. Focused the 2018 and subsequent MY

requirements on ZEVs and TZEVs

c. Amended Manufacturer Size Definitions,

Ownership Requirements, and Transitions:

Amended IVM and large volume manufacturer

(LVM) size definitions to bring all but the smallest

manufacturers under the full ZEV requirements

by M Y 2 018. A lig ned LEV III and ZEV

ownership requirements, so that manufacturers

who own more than 33.4 percent of each other

are considered as the same manufacturer for

determination of size. Modified transition periods

for manufacturers switching size categories.

These changes result in applying the ZEV

regulation to manufacturers that represent 97

percent of the light-duty vehicle market.

d. Modified Credit System: Based credits for ZEVs

on range, with 50 mile BEVs earning 1 credit

each and 350 Mile FCVs earning 4 credits each.

Allowed extended range BEVs (BEVx) which

have a limited combustion engine range extender

to meet up to half of a manufacturer’s minimum

ZEV requirement. The range of credit reflects

the utility of the vehicle (i.e. the zero emitting

miles it may travel) and its expected timing for

commercialization. Simplified and streamlined

TZEV credits based on the vehicle’s zeroemission range capability, and their ability to

perform at least 10 miles on the more aggressive

US06 drive schedule. In addition to simplifying

the program, reducing the spread of credits

makes the technologies more evenly treated and

reduces the variation in compliance outcomes

(numbers of vehicles produced to meet the

regulation requirements).

e. Modified Travel Provision: Ended the Travel

Provision for BEVs after MY 2017. Extended

the Travel Provision for FCVs until sufficient

complementary polices are in place in states that

have adopted the California ZEV regulation. This

will allow FCV technology to continue to mature

and provide time for Section 177 states to build

infrastructure and put in place incentives to

foster FCVs.

f. Added GHG-ZEV Over-Compliance Credits:

A llows manufacturers who systematically

over comply with the proposed LEV III GHG

fleet standard to offset a portion of their ZEV

requirement in 2018 through 2021 MYs only.

Effect of Amendments

As a result of the 2012 amendments, over 1.4 million ZEVs

and TZEVs are expected to be produced cumulatively in

California by 2025, with 500,000 of those vehicles being

pure ZEVs (BEVs and FCVs) as represented in the top

two wedges in the figure below.

Expected ZEV Regulation Compliance for 2018 through

2025 Model Years

During this timeframe, the incremental price of a ZEV or

TZEV is expected to rapidly decline, yet remain higher

than a conventional vehicle by approximately $10,000

(high-end estimate in 2025).

The 2012 amendments will also result in an emissions

benefit as compared to the earlier ZEV regulations

and will likely provide benefits beyond one achieved by

complying with the LEV III criteria pollutant standard

with conventional vehicles only. This is due to increased

electricity and hydrogen use that is more than offset by

decreased gasoline production and refinery emissions.

III. CALIFORNIA’S LOW EMISSION VEHICLE

PROGRAM FOR LIGHT-DUTY VEHICLES

BACKGROUND

Despite significant progress in reducing smog-forming and

particulate matter criteria emissions from the passenger

vehicle fleet, California needs further reductions in order

to meet State and federal ambient air quality standards.

Additionally, climate change continues to pose a serious

threat to the economic well-being, public health, natural

resources, and environment of California. To address

the challenge presented by climate change, vehicle GHG

emissions must be drastically reduced to meet our state

goal of an 80 percent reduction from 1990 levels by 2050.

To address these issues, CARB adopted its LEV III

program as described below.

Criteria Emissions

In 1990, CARB established the LEV program that

contained the most stringent exhaust emission regulations

ever for light-duty passenger cars and trucks. The

regulations included three primary elements: 1) tiers

of increasingly stringent exhaust emission standards;

2) a fleet-average emission requirement for 1994-2003

that required manufacturers to phase-in a progressively

cleaner mix of vehicles from year to year; and 3) a

requirement that a specified percentage of passenger

cars and lighter light-duty trucks be ZEVs, vehicles with

zero emissions of any pollutants. EPA granted CARB’s

associated waiver request on February 13, 1993.11

58 Fed.Reg. 4166 (January 13, 1993).

In 1999, CARB adopted the second phase of the LEV

program. These amendments, known as LEV II, set

more stringent fleet average non-methane organic gas

(NMOG) requirements for MYs 2004-2010 for passenger

cars and light-duty trucks and established a new more

stringent super ultra-low emission vehicle (SULEV)

standard. In addition, a partial zero-emission vehicle

(PZEV) category was established for vehicles meeting the

SULEV emission standard that also included extended

150,000-mile durability, zero fuel evaporative emissions,

and extended emission warranty requirements. PZEVs

could be used to meet a portion of the zero-emission vehicle

requirement. The amendments also expanded the lightduty truck category to include trucks and sports utility

vehicles (SUV) up to 8,500 lbs. gross vehicle weight rating

(GVWR) and required these vehicles to meet the same

emission standards as passenger cars and extended full

useful life from 100,000 miles to 120,000 miles. The LEV

II amendments also established more stringent emission

standards for medium-duty vehicles (MDV) between

8,501-14,000 lbs. GVW. EPA granted CARB’s associated

waiver request on August 5, 1999.12 EPA has also found

that CARB’s other amendments to the LEV program were

either within the scope of previous waivers or qualified

for a waiver on their own. EPA took final action on these

waiver requests on April 22, 200313, April 28, 200514, and

July 30, 2010.15

64 Fed.Reg. 42689 (August 5, 1999).

68 Fed.Reg. 19811 (April 22, 2003).

70 Fed.Reg. 22034 (April 28, 2005).

75 Fed.Reg. 44951 (July 30, 2010).

Greenhouse Gas Emissions

Recognizing the increasing threat of climate change to

the well-being of California’s citizens and the environment,

in 2002 the legislature adopted and the Governor signed

Assembly Bill (AB) 1493 (Chapter 200, Statutes 2002,

Pavley). AB 1493 directed CARB to adopt the maximum

feasible and cost-effective reductions in GHG emissions

from light-duty vehicles. Vehicle GHG emissions included

carbon dioxide (CO2), methane (CH4), and nitrous oxide

(N2 O) that are emitted from the tailpipe, as well as

emissions of HFC134a, the refrigerant then currently

used in most vehicle air conditioning systems.

As directed by AB 1493, CARB adopted what is commonly

referred to as the Pavley regulations, the first in the nation

to require significant reductions of GHGs from motor

vehicles. These regulations, covering the 2009-2016 and

later MYs, call for a 17 percent overall reduction in climate

change emissions from the light-duty fleet by 2020 and a

25 percent overall reduction by 2030. They also formed

the foundation for the federal GHG program for lightduty vehicles for 2012-2016 MYs. EPA granted CARB’s

associated waiver request on July 8, 2009.16

After the Board adopted the Pavley regulations, the

legislature adopted and the Governor signed AB 32, the

California Global Warming Solutions Act (Chapter 488,

Statutes 2006, Nuñez/Pavley). AB 32 charges CARB with

the responsibility of monitoring, regulating, and reducing

74 Fed.Reg. 32744 (July 8, 2009).

GHG emissions in the State. AB 32 also directed CARB

to prepare a Scoping Plan outlining the State’s strategy

to achieve the maximum feasible and cost-effective

reductions in furtherance of reducing GHG emissions

to 1990 levels by 2020. Measure T1 of the Scoping Plan

anticipates an additional 3.8 million metric tons carbon

dioxide equivalent (MMTCO2e) reduction by 2020 from

the subject regulatory amendments, beyond the GHG

reductions arising from the 2009-2016 AB 1493 standards.

In addition, in 2005, in order to mitigate the long-term

impacts of climate change, the Governor issued Executive

Order S-3-05. Among other actions, the Executive

Order called for reducing GHG emissions to 80 percent

below 1990 levels by 2050. This ambitious yet achievable

reduction path and goal are considered necessary to

stabilize the long-term climate. The subject amendments’

2021-2025 MY requirements will further both AB 32 and

the 2050 reduction goal.

As mentioned earlier, in 2010, President Barack Obama

directed the EPA and NHTSA to work with California

to develop GHG fleet standards for MY 2017 through

2025 LDVs.17 The resulting jointly developed report

concluded “electric drive vehicles including hybrid(s)…

batter y electr ic vehicles…plug-in hybr id(s)…and

hydrogen fuel cell vehicles…can dramatically reduce

petroleum consumption and GHG emissions compared

to conventional technologies.... The future rate of

http://www.whitehouse.gov/the-press-office/presidentialmemorandum-regarding-fuel-efficiency-standards

penetration of these technologies into the vehicle fleet

is not only related to future GHG and CAFE standards,

but also to future reductions in HEV/PHEV/EV [electric

vehicle] battery costs, [and] the overall performance and

consumer demand for the advanced technologies….”18

Following development of this report, NHTSA and EPA

formally issued a Notice of Joint intent to develop strong

greenhouse gas and fuel economy standards for the 2017 to

2025 timeframe,19 and 14 automobile manufacturers have

joined CARB in submitting letters to EPA committing

to a continued national program of light-duty GHG and

CAFÉ standards20.

B. S U M M A R Y O F R E C E N T L E V I I I

A M EN DM EN T S I NC LU DI NG GHG

COMPONENTS

In order to achieve further emission reductions from the

light- and medium-duty fleet, CARB adopted several

amendments that together represent a significant

strengthening of the LEV program. Specifically, the

criteria emission requirements of the program are made

substantially more stringent, and the GHG requirements

are restructured to provide for later acceptance of the

EPA, 2010. United States Environmental Protection

Agency, National Highway Safety and Traffic Administration and

California Air Resources Board. September 2010. “Interim Joint

Technical Assessment Report: Light-Duty Vehicle Greenhouse

Gas Emission Standards and Corporate Average Fuel Economy

Standards for Model Years 2017-2025” (p. vii).

76 Fed.Reg. 48758 (August 9, 2011).

http://www.epa.gov/otaq/climate/letters.htm#2011al

EPA and National Highway Traffic Safety Administration

(NHTSA) proposed 2017-2025 federal GHG emission

and fuel economy standards for light-duty vehicles as

compliance with CARB standards. 21 Effectively, these

amendments will do the following:

Criteria Pollutants:

•

Reduce fleet average emissions of new light-duty

vehicles to SULEV levels by 2025, an approximate

75 percent reduction from 2010 levels;

•

Replace separate NMOG and oxides of nitrogen

(NOx) standards with combined NMOG plus NOx

standards, in order to provide manufacturers

with compliance flexibility to more cost-effectively

meet SULEV emission levels across their lightduty fleets;

•

Establish additional emission standard categories,

such as ULEV70, ULEV50, and SULEV20 in

order to provide additional options for compliance

with the SULEV fleet average;

•

Eliminate intermediate useful life (50,000 miles)

standards;

•

Increase full useful life durability requirements

from 120,000 miles to 150,000 miles;

•

Provide a backstop to help ensure continued

production of SULEVs after PZEVs migrate

CARB Resolution 12-11, January 26, 2012 (p. 6).

from the ZEV program to the LEV program

in 2018. Without a backstop, beginning in 2018,

manufacturers would not need to produce

SULEVs until 2023 in order to meet the fleet

average requirement;

•

Establish more stringent emission requirements

for MDVs;

•

Require all MDVs between 8,501-10,000 lbs.,

GVWR to certify on a chassis dynamometer,

which would greatly enhance the ability to

perform in-use compliance evaluation of these

vehicles;

•

Establish more stringent 3 mg/mi and 1 mg/mi

particulate matter (PM) standards for light-duty

vehicles and more stringent PM standards for

medium-duty vehicles;

•

Establish zero fuel evaporative emission

standards for light-duty vehicles, and more

stringent evaporative emission standards for

medium-, and heavy-duty vehicles;

•

Establish more stringent supplemental federal

test procedure (SFTP, reflecting more aggressive

driving) standards for light-duty vehicles and, for

the first time, require medium-duty vehicles to

meet SFTP standards;

•

Allow pooled fleet average NMOG plus NOx

emissions from California and the federal CAA

Section 177 States that adopt the LEV III

program; and

•

Revise the NMOG Test Procedures.

Greenhouse Gases:

• Reduce new light-duty CO 2 emissions from

new light-duty regulatory MY 2016 levels by

approximately 34 percent by MY 2025, and from

about 251 grams of CO2 per mile to 166 grams,

based on the projected mix of vehicles sold in

California;

• Set emission standards for CO2 , CH4, and N2O;

• Establish footprint based CO2 emission standards,

as distinguished from the current California GHG

requirement of a fleet average GHG standard.

This will allow manufacturers’ new vehicle fleet

CO2 emissions to fluctuate according to their cartruck composition and sales according to vehicle

footprint and will align the requirement with

current federal GHG requirements;

• Provide credits toward the CO2 standard if a

manufacturer reduces refrigerant emissions

from the vehicle’s air-conditioning system;

• Provide credits toward the ZEV standards if a

manufacturer over complies with the LEV III

GHG fleet requirement;

• Provide credits towards the CO2 standards if a

manufacturer produces full size pickups with

high efficiency drivetrains;

• Provide credits for deployment of technologies

that reduce off-cycle CO2 emissions; and

• Unlike the proposed federal GHG program for

2017-2025, require upstream emissions from

zero-emission vehicles to be counted towards a

manufacturer’s light-duty vehicle GHG emissions.

IV. WAIVER ANALYSIS

CRITERIA FOR DETERMINING WHETHER

AMENDMENTS QUALIFY FOR A WAIVER

OF PREEMPTION OR ARE WITHIN THE

SCOPE OF PREV IOUS WA I V ER S OF

FEDERAL PREEMPTION

The Clean Air Act Section 209(b) Waiver

Mechanism

CAA section 209(a) preempts states from adopting or

enforcing any emission standard for new motor vehicles

and from requiring certification, inspection, or any other

approval relating to the control of emissions from any new

motor vehicle as a condition of registration or titling in the

states. However, section 209(b) directs the Administrator

to waive federal preemption for new motor vehicle

emission standards adopted and enforced by California 22

The section 209(b) waiver provisions apply to any state

which has adopted standards (other than crankcase emission

if the State determines that the State standards will be, in

the aggregate, at least as protective of public health and

welfare as applicable federal standards. The Administrator

is to deny a waiver on a finding: (1) that the protectiveness

determination of the State is arbitrary and capricious, (2)

that California does not need separate State standards

to meet compelling and extraordinary conditions, or (3)

that the State standards and accompanying enforcement

procedures are not consistent with CAA section 202(a).

With regard to the consistency criterion, the Administrator

has stated that California’s standards and accompanying

test procedures are inconsistent with section 202(a) if: (1)

there is inadequate lead time to permit the development

of technology to meet those requirements, giving

appropriate consideration to the cost of compliance within

that timeframe, or (2) the federal and California test

procedures impose inconsistent certification requirements

so as to make manufacturers unable to meet both sets of

requirements with the same vehicle. 23

standards) for the control of emissions from new motor vehicles

or motor vehicle engines prior to March 30, 1966. (Clean Air Act

§209(b)(1).) California is the only state that meets this condition.

(S. Rep. No. 403, 90th Cong. 1st Sess., 532 (1967); Motor and

Equipment Manufacturers Ass’n v. EPA [MEMA I], 627 F.2d

1095, 1100 note 1 (D.C.Cir. 1979).).

See, e.g., 46 Fed.Reg. 26371 (May 12, 1981). Even where

there is incompatibility between the California and federal test

procedures, EPA has granted a waiver under circumstances

where EPA accepts a demonstration of federal compliance based

on California test results, thus obviating the need for two separate

tests. (43 Fed.Reg. 1829, 1830 (Jan. 12, 1978); 40 Fed.Reg. 30311,

30314 (July 18, 1975).).

For nearly 30 years, EPA has administered a mechanism

under which, in appropriate cases, no new waiver is needed

for amendments to California’s motor vehicle emission

control regulations for new motor vehicles because the

amendments are within the

***

Consequently, the amendments do not materially affect

the lead time provided to manufacturers under earlier

iterations of the ZEV program, which EPA has found to

be consistent with CAA section 202(a) in the 1993, 2006,

and 2011 waivers.61

Test Procedure Consistency

The second prong of the consistency criteria requires that

the federal and California test procedures not impose

inconsistent certification requirements so as to make

manufacturers unable to meet both sets of requirements

with the same vehicle.62 The test procedures for certifying

ZEVs are contained in the ZEV Standards and Test

Procedures documents incorporated by reference in

sections 1962.1(h) and 1962.2(h).

The 2012 ZEV amendments primarily affect only the

standards portions of the incorporated documents and

hence do not generally change the pre-existing testing

58 Fed.Reg. 4166 (Jan. 13, 1993), 71 Fed.Reg. 78190 (Dec.

28, 2006), 76 Fed.Reg. and 61095 (Oct. 3, 2011).

Id.

requirements for certification. Accordingly, there also

are no inconsistencies in the federal and California test

procedures for PZEVs and AT PZEVs that would preclude

a manufacturer from conducting one set of tests to

demonstrate compliance or would prohibit a confirmation

that the 2012 ZEV amendments are within the scope of

1993, 2006, and 2011 waivers.

New Issues Affecting Previous Waiver

Determinations

CARB is not aware of any new issues affecting the

previous waiver determinations that are raised by the

2012 ZEV amendments as they affect MYs 2009-2017.

E. THE 2012 ZEV AMENDMENTS TO THE

REQUIREMENTS FOR 2018 AND LATER

MODEL-YEAR VEHICLES ARE WITHIN

THE SCOPE OF EXISTING WAIVERS FOR

CALIFORNIA’S ZERO-EMISSION VEHICLE

STANDARDS

Consideration of the A mend ment s

Applicable to 2018 and Later Model-Year

Vehicles as Within the Scope of Existing

Waivers

In light of EPA’s earlier decisions waiving preemption

of the ZEV standards, the 2012 ZEV amendments

are also within the scope of the previous waivers 63

58 Fed.Reg. 4166 (January 13, 1993) and 71 Fed.Reg. 78190

(Dec. 28, 2006), and , and 76 Fed.Reg. 61095 (Oct. 3, 2011).

as they apply to 2018 and later MY vehicles because the

standards contained in the 2012 amendments are at least

as protective as those in earlier versions of the waived

ZEV standards.64 In those earlier versions, manufacturers’

2018 and subsequent MY ZEV requirements were held

at the same percentage each year, as shown in the table

below.

There is one aspect of the 2012 ZEV amendments as applied

to MYs 2018 and later that opponents could argue is not within the

scope of earlier waivers. Specifically, there is a group of current

IVMs that will become subject to LVM requirements in 2018, due

to the 2012 amendments to the definition thresholds. Some of these

current IVMs are closer to becoming an LVM under the current

definition of 60,000 vehicles sold, and others will only become an

LVM due to the amended definition changes. The purpose of the

2012 amendments is to bring a larger percentage of manufacturers

under the full ZEV requirements. This amendment to the lead

time provision ensures a level playing field, making manufacturers

close to the current definition thresholds (60,000 vehicles per year),

subject to LVM requirements at the same time as manufacturers

affected by staff’s proposed definition change. CARB agrees

that this aspect of the 2012 ZEV amendments can be analyzed as

qualifying for a new waiver as detailed in the alternative analysis

below in section IV. F.

2018 and Subsequent ZEV Credit Requirement Before

2012 Amendments

Credit Category

Minimum ZEV

Maximum TZEV*

Maximum AT PZEV*

Maximum PZEV

Total ZEV Requirement

Credit Requirement

5.0%

3.0%

2.0%

6.0%

16.0%

* The regulation did not specify the split between TZEVs and

AT PZEVs. For this analysis, staff assumed AT PZEV and TZEV

credit requirements would remain the same from the 2015 through

2017 requirements. The PZEV and AT PZEVs (highlighted in

grey) were moved to the LEV III program so the remaining ZEV

requirement under the current regulation would be 8 percent.

To address one of the program’s primary objectives

(i.e. ZEV technology commercialization and long-term

GHG and criteria emission goals), CARB’s 2012 ZEV

amendments increased each manufacturer’s compliance

requirements for 2018 and subsequent MYs, ultimately

reaching credit requirements of 6 percent for TZEVs and

16 percent for pure ZEVs in 2025. This increase is outlined

in the table below.

4.00%

3.00%

2.00%

2.50%

6.00%

3.50%

9.50%

2020

8.00%

4.00%

12.00%

2021

10.00%

4.50%

14.50%

2022

12.00%

5.00%

17.00%

2023

14.00%

5.50%

19.50%

2024

16.00%

6.00%

22.00%

2025 and

Subsequent

As shown in the post-2012 Amendment table above, while the overall ZEV credit requirement

between MY 2018 and MY 2022 is less than the current program, CARB has revised the

number of credits earned per vehicle (typically by one half), and PZEVs and AT PZEVs

no longer count towards meeting a manufacturer’s ZEV obligation. Accordingly, it is more

illustrative to compare the actual number of ZEVs required to be produced given the current

and proposed crediting structure. This is shown in the figure below.

7.00%

4.50%

Overall ZEV

Requirement

Min. ZEV

Max. TZEV

2019

2018

Model Year

ZEV Credit Requirement for 2018 and Subsequent After 2012 Amendments

Excerpts from Comment Submitted by the State of

California et al., R-133, EPA-HQ-OAR-2021-0257-0132

(July 6, 2021)

COMMENTS OF STATES AND CITIES

IN SUPPORT OF EPA REVERSING ITS

SAFE 1 ACTIONS

July 6, 2021

Docket ID No. EPA–HQ–OAR–2021–0257

via www.regulations.gov

INTRODUCTION

The State of California, by and through the California

Air Resources Board (CARB) and California Attorney

General Rob Bonta, along with the undersigned States

and cities submit these comments in response to EPA’s

Notice of Reconsideration (86 Fed. Reg. 22,421 (Apr. 28,

2021)) concerning the actions EPA took in “SAFE 1” (84

Fed. Reg. 51,310 (Sept. 27, 2019)). We welcome EPA’s

reconsideration of its SAFE 1 actions and the opportunity

to comment.

We urge EPA to reverse both actions it took in SAFE

1: 1) the withdrawal of the portions of the 2013 waiver

covering California’s greenhouse gas (GHG) and zeroemission-vehicle (ZEV) standards (Waiver Withdrawal)

and 2) the conclusion that Section 177 of the Clean Air

Act does not authorize other States to adopt California’s

GHG standards (Section 177 Determination). Both actions

were unprecedented, unlawful, and ill-advised. Moreover,

both actions were entirely unnecessary and upset longsettled reliance interests, including EPA-approved

State Implementation Plans (SIPs) to meet National

Ambient Air Quality Standards (NAAQS). In fact, many

of the undersigned States are depending on emissions

reductions from these standards to protect their residents

and natural resources from multiple forms of harmful

pollution, including smog, particulate matter, and the

GHGs that are causing the growing climate change crisis.

As discussed below, there are multiple grounds on which

EPA can and should reverse its SAFE 1 actions.

1. EPA can and should reverse both its Waiver

Withdrawal and its Section 177 Determination because

those actions will increase harmful criteria pollution and

have already, at a minimum, cast a cloud of uncertainty

over approved SIPs. Nothing compelled EPA to take these

actions, and EPA should not have taken discretionary

actions that undermined public health protections and

SIPs. Indeed, Congress has expressly prohibited federal

agencies, including EPA, from taking actions that

interfere with—or do not “conform” with—approved SIPs.

EPA itself maintained throughout SAFE 1 that reducing

criteria pollution and attaining and maintaining NAAQS is

central to the Clean Air Act, generally, and Sections 209(b)

(1) and 177, specifically. Yet, EPA nonetheless expressly

opted to ignore its own prior findings concerning the

criteria benefits of GHG and ZEV standards (including

its approval of multiple SIPs containing those standards).

EPA’s disregard for the record was a clear violation of

reasoned decision-making requirements, was inconsistent

with its own assertions about the importance of reducing

criteria pollution, and contravened the spirit (and letter) of

the Clean Air Act’s general conformity requirements. EPA

can and should reverse its unnecessary SAFE 1 actions

to correct those errors and restore the public health

protections California’s GHG and ZEV standards provide.

And it may do so without regard to the conclusions it

reaches on any of the other, alternative grounds discussed

below.

***

Indeed, EPA found that CARB had “reasonably refute[d]”

the contrary claim—that its ZEV standard would produce

no criteria emission benefits. 78 Fed. Reg. at 2,125.7

EPA confirmed the ZEV standard’s role in reducing criteria

pollution yet again when it approved that standard into

California’s and other States’ SIPs. 81 Fed. Reg. 39,424,

39,425 (June 16, 2016) (California). 8 EPA acknowledged

this in SAFE 1: “EPA reviewed [and approved] California’s

SIP submission, including ZEV measures, as a matter of

NAAQS compliance strategy.” 84 Fed. Reg. at 51,337

(emphasis added). Similarly, EPA has approved CARB’s

EMission FACtor (EMFAC) emission inventory model as

a tool to estimate emissions and develop implementation

plans to attain the NAAQS. See 80 Fed. Reg. 77,337 (Dec.

Congress, too, has recognized that ZEVs and California’s

ZEV standards reduce criteria pollution. 42 U.S.C. § 7586(f)

(authorizing credits for zero-emission vehicles, defined “as closely

as possible” as in “standards which are established by the State

of California,” as part of state plans to attain criteria-pollution

standards).

See also 82 Fed. Reg. 42,233, 42,235 (Sept. 7, 2017) (Maine);

80 Fed. Reg. 40,917, 40,920 (Jul. 14, 2015) (Maryland); 80 Fed. Reg.

13,768, 13,769 (Mar. 17, 2015) (Connecticut).

14, 2015) (EMFAC2014 approval); 84 Fed. Reg. 41,717

(Aug. 15, 2019) (EMFAC2017 approval). Both EMFAC2014

and EMFAC2017 reflect the emission benefits of CARB’s

motor vehicle pollution control program, including its

GHG and ZEV standards. EPA’s approval of these models

is further indication that EPA recognizes the emission

reductions benefits of these programs.

In SAFE 1, EPA identified no record evidence that would

support reversing its prior conclusions. And, in fact,

CARB’s comments in the SAFE 1 proceeding confirmed

that EPA’s prior findings were correct: that the ZEV

standard reduces criteria pollution. For example, CARB

modeled the consequences of the actions proposed in

SAFE, which included withdrawing California’s waiver

for its GHG and ZEV standards and freezing the federal

GHG standards at MY 2020 levels. CARB concluded those

actions, which would eliminate California’s ZEV and GHG

standards and leave in place only federal GHG standards

at MY 2020 levels, would increase NOx emissions in the

South Coast air basin alone by 1.24 tons per day. CARB

SAFE Comments at 288, 308. While that figure combined

the effects of replacing both California standards with a

weaker federal standard, it nonetheless demonstrated

that invalidating the state standards would have adverse

criteria pollution consequences—including in the area of

the country with the worst ozone challenges.

CARB’s additional analysis submitted in this docket

provides still more confirmation and documentation of

the criteria pollution benefits of the ZEV standard. See

Appendix A at 2–5 (estimating criteria pollution benefits

of replacing conventional vehicles with ZEVs); Appendix B

at 11–15 (describing the importance of ZEVs for reducing

pollution in overburdened communities).

The GHG Standard

EPA has also found that vehicular GHG emission standards

reduce criteria pollutant emissions. For example, when it

adopted its federal GHG standards for the same period at

issue here (MY2017-2025), EPA found that those standards

would reduce emissions of most criteria pollutants, including

those, like VOCs and PM2.5, related to California’s

well-documented challenges with criteria pollution. 77

Fed. Reg. 62,624, 62,899 (Oct. 15, 2012). California’s

***

absent satisfaction of one of those three criteria (and it

must), it cannot have broader, implicit authority to revoke

such a grant on entirely different grounds.

Finally, any withdrawal authority EPA might have must

be exercised consistent with the principles and precedents

governing agency actions, generally, and reversals of

informal adjudications, specifically.12 As the constraints

EPA has long maintained (including in in SAFE 1) that

its waiver actions are informal adjudications. E.g., 84 Fed.

Reg. at 51,337 (SAFE 1); 74 Fed. Reg. at 32,781 (“EPA believes

that its waiver proceedings and actions therein should be

considered an informal adjudication…. EPA has been conducting

its waiver proceedings in this manner for decades, and while

Congress has amended provisions in section 209 on two separate

of Section 209(b)(1) itself indicate, Congress has not

“countenance[d]” the “ill-conceived revisory power” EPA

claimed in SAFE 1—where “[w]aivers granted after the

statutorily-prescribed determination … would be open

to revocation at any time, based on any evidence, subject

to no substantive or procedural safeguards.” Am. Methyl

Corp., 749 F.2d at 835. At a minimum, precedent requires

1) that reversals of informal adjudications occur within a

reasonable time after the original decision (id.); 2) that the

agency consider reliance interests that have attached to

its original decision (Chapman v. El Paso Nat. Gas Co.,

204 F.2d 46, 53–54 (D.C. Cir. 1953); DHS v. Regents of the

Univ. of California, 140 S. Ct. 1891, 1914 (2020)); and 3)

that the reversal is not for “the sole purpose of applying

some … change in administrative policy” (Chapman, 204

F.2d at 53–54.; see also United States v. Seatrain Lines

Inc., 329 U.S. 424, 429 (1947)).13 EPA’s Waiver Withdrawal

violated each and every one of these principles.

1. By any measure, six years was too long a delay for

EPA’s reconsideration to be lawful. That period was well

beyond the “weeks, not years” sometimes referenced as

guidance for reasonableness. Mazaleski v. Treusdell,

562 F.2d 701, 720 (D.C. Cir. 1977). Likewise, the period

for seeking judicial review had long ago run, Am. Methyl

occasions, Congress has not chosen to alter EPA’s administrative

requirements. Instead, Congress has expressed support for EPA’s

practice in applying and interpreting section 209(b).”).

Some statutes may also grant agencies the authority to

correct ministerial errors in their original adjudications. See Am.

Trucking Ass’ns v. Frisco Transp. Co., 358 U.S. 133, 145 (1958).

EPA’s SAFE 1 action was not a correction of a ministerial error,

nor did EPA claim that it was.

Corp., 749 F.2d at 835, and, in fact, no one had sought

that review.

2. EPA refused to consider the reliance interests that

had attached to its 2013 Waiver Grant. At the time EPA

proposed SAFE 1, twelve other States had relied on

EPA’s 2013 Waiver Grant and adopted one or both of the

California standards as their own. Multi-State SAFE

Comments at 130. California and those Section 177 States

further relied on the 2013 Waiver Grant in developing their

long-term plans to control various forms of air pollution—

including plans to reach state GHG and air quality targets

as well as SIPs to attain or maintain compliance with

NAAQS. Id. at 131.

These reliance interests are weighty. See Ctr. for

Sustainable Economy v. Jewell, 779 F.3d 588, 595 (D.C.

Cir. 2015) (describing as “important” state and local

governments’ reliance interests in “long-term plans” based

on federal agency actions). The Clean Air Act and longstanding Executive branch policy both place substantial

importance on States’ interests in implementing the plans

and laws they have determined best meet the needs of

their States. E.g., 42 U.S.C. §§ 7401(a)(3), (a)(4), (b)(3), 7416;

64 Fed. Reg. 43,255 (Aug. 10, 1999) (E.O. 13132). And, at

bottom, the States’ interests here are in protecting their

residents and natural resources from harm, precisely

as the Clean Air Act intends. E.g., 42 U.S.C. §§ 7401(c),

7506. Moreover, because achievement of the NAAQS and

many other air pollution goals requires long-term plans

that often cannot change easily or quickly, upending those

plans causes serious disruptions that could require years

of additional state planning (and attendant expenditures

of state resources) and could result in the imposition

of unexpected regulatory burdens on various parties

to ensure the achievement of public health and welfare

objectives. And, as EPA well knows, States face serious

consequences for not achieving NA AQS goals, only

enhancing the significance of reliance interests here for

States relying on California’s GHG and ZEV standards as

part of their plans to achieve those goals. Other parties,

including industry groups, also identified significant

reliance interests, including sizable investments and

their own long-range planning, in California’s standards.

Yet, EPA gave these reasonable, explained, and serious

reliance interests no weight at all.

Instead, EPA asserted that no reliance interests could

reasonably attach to the 2013 Waiver Grant because EPA

had agreed, in 2012, to conduct a Mid-Term Evaluation of

its own federal GHG standards. 84 Fed. Reg. at 51,335.

The mere fact that an agency might change its standards

in the future is insufficient to undercut reliance interests

in already promulgated standards. To conclude otherwise

would suggest that no reliance interests in regulations are

reasonable given that, as EPA itself forcefully asserted

in SAFE 1, agencies can generally reconsider their own

regulations for prospective application. See 84 Fed. Reg.

at 51,333. Indeed, the requirement that agencies “provide

a more detailed justification” when replacing a “prior

policy [that] has engendered serious reliance interests”

demonstrates that substantial and reasonable reliance

interests can attach to policies that are subject to change.

See Fox Television, 556 U.S. at 515. But, even accepting

arguendo that EPA’s Mid-Term Evaluation commitment

could undercut the reasonableness of reliance on the

federal standards adopted in 2012, that commitment would

remain immaterial to reliance on California’s separate

standards.

Notably, EPA pointed to no “express limitations,”

Regents of the Univ. of California, 140 S. Ct. at 1914, or

anything else that would have provided “explicit notice”

that EPA might reconsider that waiver decision as part

of EPA’s Mid-Term Evaluation or otherwise, Solenex

LLC v. Bernhardt, 962 F.3d 520, 528 (D.C. Cir. 2020).

EPA’s Mid-Term Evaluation regulation speaks only of the

federal standards and nowhere mentions California’s. 40

C.F.R. § 86.1818–12(h). Given that EPA had never before

withdrawn a waiver in more than fifty years of waiver

practice, the absence of any indication from EPA that

this particular waiver was unsettled speaks volumes.14

Moreover, EPA entirely failed to consider the self-evident

state (and state resident) reliance interests in EPAapproved State Implementation Plans containing one

or both of these California standards, going so far as to

indefinitely postpone this consideration. 84 Fed. Reg. at

51,338 n.256. This failure is particularly noteworthy given

Congress’s clear indication that it shares the interests

of these States in the ongoing validity and effectiveness

CARB’s inclusion of a “deemed-to-comply” provision, under

which CARB would accept compliance with EPA’s GHG standards

as compliance with California’s GHG standards, does not aid EPA’s

contention. See 84 Fed. Reg. at 51,335. As California made clear at

the time it adopted that provision, acceptance of federal compliance

was conditioned on the federal standards “provid[ing] equivalent

or better overall greenhouse gas reductions in the state compared

of their approved SIPs, such that federal agencies are

prohibited from undercutting those plans. 42 U.S.C.

§ 7506(c)(1). EPA’s rejection of the substantial reliance

interests in the 2013 Waiver was unjustified. And EPA’s

failure to adequately consider those interests—including

its failure to determine that they were outweighed by some

(unidentified) need to take this action—renders its action

unlawful. Chapman, 204 F.2d at 54; Regents of the Univ.

of California, 140 S. Ct. at 1914.

3. EPA chose to sua sponte reconsider its 2013 Waiver

Grant for the sole purpose of applying new policy

determinations, as reflected in the two bases for the

Waiver Withdrawal. EPA chose, for the first time, to

rely on NHTSA’s views of EPCA preemption and its

Preemption Rule. EPA also chose to depart from its longstanding interpretations of Section 209(b)(1)(B), to adopt

new interpretations that served only to categorically bar

state standards that reduce vehicular GHG emissions, and

to apply those new interpretations to a six-year-old, settled

decision. EPA thus acted for “the sole purpose of applying

some … change in administrative policy,” Chapman, 204

to California’s program.” CARB Initial Statement of Reasons to

Consider Proposed Amendments to the LEV III GHG Emission

Regulation at 6 (“DTC Clarification ISOR”); see also infra at 57

(Section VI.A.1). The “deemed-to-comply” provision did not, then,

undercut California’s reliance interests in the emissions benefits of

its own standards because, as EPA noted in 2013, California always

intended its standards would “remain an important backstop in the

event the national program is weakened or terminated.” 78 Fed.

Reg. at 2,128. Moreover, that provision only applies to the GHG

standard, and EPA never attempted to explain how its Mid-Term

Evaluation commitment or the “deemed-to-comply” provision

undercut reliance interests in the ZEV standard.

F.2d at 53–54, and neither precedent nor some implicit

power in Section 209(b)(1) authorized it to do so.

EPA lacked authority for its Waiver Withdrawal, even if it

has some withdrawal authority, because this action flouted

every constraint on an agency’s authority to reconsider a

settled adjudication. EPA should reverse its ultra vires

action.

III. EPA Should Reverse Its D ecision To Rely O n

NHTSA’s P reemption Rule A nd Reinstate T he

Waiver For Model Years 2017-2020

EPA should reverse its decision to rely on NHTSA’s

Preemption Rule as a basis for a Waiver Withdrawal. We

note that NHTSA has proposed to repeal its unlawful

and unwarranted Preemption Rule. But, regardless of

whether NHTSA finalizes that repeal, EPA should reverse

its decision to rely on NHTSA’s Rule.

In its Notice, EPA asked whether “EPA has the authority

to withdraw an existing waiver based on a new action

that is beyond the scope of section 209 of the CAA.” 86

Fed. Reg. at 22,429. As discussed above, the answer is no.

Whatever reconsideration authority EPA may have (but

see supra at 16), EPA may not reconsider a settled waiver

grant simply because the agency has changed its mind

on policy matters, supra at 19, and particularly cannot

do so when the result upends weighty reliance interests

and EPA-approved SIPs, supra at 17. EPA’s decision

to look outside the three Section 209(b)(1) criteria—

for the first time—was precisely the kind of policy

***

problem,” and “offered an explanation for its decision

that … is so implausible that it could not be ascribed to

a difference in view or the product of agency expertise.”

State Farm, 463 U.S. at 43. This reversal requires

restoration of the withdrawn portions of the 2013 waiver

for model years 2017-2020, if, as the agency asserted in

the D.C. Circuit, it withdrew the waiver for those years.

EPA’s reliance on NHTSA’s Preemption Rule was the

sole basis of any withdrawal for those model years. 84

Fed. Reg. at 51,328 (withdrawing only for MY2021–2025

on Section 209(b)(1)(B) grounds). Confirming that the

waiver is in effect for those model years would have the

added advantage of correcting the legal error EPA made

when it purported to expand the scope of the Waiver

Withdrawal to include those model years without any

notice.15 We appreciate EPA granting California’s petition

for reconsideration or clarification on that issue, and

encourage EPA to reverse course.

Finally, there are no reasonable reliance interests that

could outweigh the stability and clarity that would result

from a return to EPA’s consistent long-standing approach

of limiting review to the Section 209(b)(1) criteria or the

correction of EPA’s error in failing to justify its onetime change in course. As discussed above, there are no

reasonable reliance interests in any parts of the Waiver

Withdrawal. See supra at 15. In addition, no automaker

(or party affected by automaker compliance) could have

reasonable reliance interests in the withdrawal of a

See Petition for Clarification and Reconsideration submitted

by CARB and the California Attorney General (October 9, 2019).

preemption waiver for standards governing periods that

were already past or well underway when the withdrawal

occurred. And, in any event, the automakers have complied

with, and often over-complied with, model years 2017-2020

already and are projected to be able to comply easily

with the remaining model years. Appendix D at 2 (“[T]he

industry will enter the 2021 model year in compliance with

California’s [GHG] standards and, given the progression

of technologies, are on a trajectory to continue to comply

at or below previous cost projections.”); Appendix E at 2

(“Since 2005, all auto manufacturers have complied with

California’s Zero Emission Vehicle (ZEV) Regulation, and

all have collectively exceeded its requirements—and by

increasing margins.”), 4 (Figure 1) (showing significant

over-compliance through MY 2019, the latest year for

which data was available).

Moreover, restoration of the waiver for already-completed

model years of the ZEV standard would actually serve

the reliance interests of automakers. All of them hold

credit balances now under California’s ZEV program,

Appendix E at 18 (Table 6, 2019); see also id. at 7 (Table

2), and those existing balances reflect credits issued for

model years 2017 and later. If the waiver is not restored

for those model years, the status of credits issued for those

model years (and the automakers’ credit balances) could

become questionable.

Whatever force NHTSA’s Preemption Rule had, and

whatever NHTSA decides to do about that Rule,

EPA should abandon its reliance on it and reverse

the Waiver Withdrawal for model years 2017-2020.

***

These recent unprecedented fire seasons, droughts, and

the rising temperatures that help fuel them reaffirm

that California’s climate conditions are compelling and

extraordinary and that EPA’s conclusion to the contrary

in SAFE 1 was arbitrary and capricious.

The record also demonstrates that California

needs its GHG and ZEV standards now

The record also demonstrates 1) that California’s GHG

and ZEV standards effectively reduce greenhouse

gas emissions now, 2) that these immediate emissions

reductions are critical in avoiding climate “tipping

points”—thresholds of abrupt and irreversible change—

and 3) that the standards are necessary now to incentivize

technological advancements essential to longer-term

emission reductions. In SAFE 1, EPA failed to identify

any contrary evidence that would undermine the inevitable

conclusion that California needs these standards.

In erroneously concluding that California did not need

its GHG and ZEV standards, EPA claimed California’s

standards would cause “indistinguishable change[s]

in global temperatures.” 84 Fed. Reg. at 51,341. That

assertion rests on an inappropriately narrow construction

of “need.” See supra at 40. Indeed, if governments were

limited to taking actions that would, by themselves, solve

a particular problem, only the smallest of problems would

ever be solvable. EPA’s approach to “need” also ignores

the incremental emission reductions that will result from

California’s GHG and ZEV standards as well as CARB’s

analysis in the record showing larger emissions impacts.

CARB SAFE Comments at 57, 370; Waiver Request at 10,

16–17. Recently, CARB conducted another analysis of the

emission reductions attributable to its GHG standards,

confirming that these standards effectively reduce

greenhouse gas emissions today and will increasingly do

so in the future. Appendix C at 5–6, 9–11.

These incremental emissions reductions in greenhouse gas

emissions are needed now because greenhouse gases can

remain in the atmosphere for long time periods. Carbon

dioxide in particular remains in the atmosphere longer

than the other major greenhouse gases emitted as a result

of human activities: once emitted, 40 percent will remain

in the atmosphere after 100 years and 20 percent will

reside after 1000 years; only after about 10,000 years will

the remainder break down. As explained in the Fourth

National Climate Assessment, “[w]aiting to begin reducing

emissions is likely to increase the damages from climaterelated extreme events (such as heat waves, droughts,

wildfires, flash floods, and stronger storm surges due to

higher sea levels and more powerful hurricanes).”64

Even moderate climate change could pose serious risks.

For instance, there may be tipping points in the climate

system such that even a small incremental change in

temperature could push Earth’s climate into catastrophic

runaway global warming. Indeed, a recent commentary

in the journal Nature warned that nine major climate

tipping points (including the accelerating ice loss from

the West Antarctic ice sheet) are “dangerously close” to

U.S. Global Change Research Prog ram, Impacts,

Risks, and Adaptation in the United States: Fourth National

Climate Assessment, Volume II, at 1488 (2018) (EPA-HQOAR-2018-0283-7447).

being triggered.65 Therefore, serious efforts to reduce

GHG emissions are needed now to avoid scenarios where

steeper (and likely more expensive) emission reductions

are needed later. Delaying efforts to mitigate carbon

dioxide emissions will have negative—and potentially

irreversible—consequences for global warming and its

impacts, including more extreme wildfires, rising sea

levels, greater ocean acidification, and increased risks to

food security and public health.

Finally, California’s regulations are critical not just for

immediate emissions reductions but also because they

incentivize technological advancement that facilitates

greater emission reductions in the future. Waiver Request

at 2, 4–5, 16–17; CARB SAFE Comments at 373. Notably,

in SAFE 1, EPA did not contest that California’s GHG and

ZEV standards are critical for incentivizing production

and deployment of zero-emission vehicles, reducing

greenhouse gas emissions, and achieving California’s longterm greenhouse gas emission reduction goals. 84 Fed.

Reg. at 51,337. Nor could it, given CARB’s demonstration

in its 2012 waiver request and the confirmation provided

by the remainder of the record. See, e.g., Waiver Request

at 2–3, 8–9, 16–17; CARB Board Resolution 12-11.

In S A FE 1, EPA i nappropr iat ely na r rowed it s

interpretation of “need” to exclude the incremental

emission reductions f rom Ca li for nia’s GHG and

Timothy M. Lenton, et al., Comment: Climate Tipping

Points—Too Risky to Bet Against, Nature (Apr. 9, 2020), https://

www.nature.com/articles/d41586-019-03595-0.

ZEV standards. EPA’s SAFE 1 Section 209(b)(1)(B)

Determination should be reversed on this additional

ground: because this unjustified change in interpretation

was unlawful, as explained above, and because the record

firmly indicates that California does need these standards

to reduce its contribution to its climate crisis,.

V. E PA S h o u l d W i t h d raw I t s S e c t i o n 17 7

Determination

In Section 177 of the Clean Air Act, Congress conferred

directly on States the discretionary authority to adopt

California motor vehicle emission standards, so long as:

1) the States’ standards are identical to standards for

which California has been granted a waiver by EPA; and

2) the States provide two years of lead time. 42 U.S.C.

§ 7507. This authority belongs exclusively to States,

with no intermediary role for EPA. As the agency has

long acknowledged: “States are not required to seek

EPA approval under the terms of section 177.”66 The one

prerequisite for a State to avail itself of Section 177 is that

the State must have “plan provisions approved under”

Part D of Subchapter I of the Act. Id.

Thirteen States have adopted California’s light-duty

vehicle GHG emission standards pursuant to Section 177,

and many have been implementing these GHG standards

for up to a decade. These standards play an important

role in State’s planning for reaching their GHG emission

https://w w w.epa.gov/state-and-local-transportation/

vehicle-emissions-california-waivers-and-authorizations#state

reduction targets and mandates67 as well as in planning

for attainment of NA AQS, which States face legal

***

For example, in 2019, New York State adopted the Climate

Leadership and Community Protection Act, which mandates

an 85% reduction in GHG emissions in New York by 2050. New

York Environmental Conservation Law, Article 75. In 2021,

Massachusetts enacted new climate change legislation that

mandates the Commonwealth achieve net-zero economywide

greenhouse gas emissions by 2050, with interim milestones in 2030

and 2040 and a requirement to adopt sector-specific greenhouse

gas emissions sublimits, including for the transportation

sector. 2021 Mass. Acts Ch. 8. §§ 8–10. In 2007 New Jersey’s

legislature passed, and in 2018 modified, the Global Warming

Response Act which mandates an 80% reduction in greenhouse

***

Appendix A

State of California

Air Resources Board

Criteria Pollutant Emission Reductions from

California’s Zero-Emission Vehicle Standards for

Model Years 2017-2025

Staff Report

Date of Release: July 6, 2021

This report has been prepared by the staff of the

California Air Resources Board and approved by the

Executive Officer for publication. At this time, this

report has not been approved by a vote of the Board

itself, and, accordingly, the views expressed herein

should not be assumed to necessarily reflect those of the

Board. In addition, the use of trade names or commercial

products herein does not constitute endorsement or

recommendation.

Summary

California has adopted requirements for zero-emission

passenger vehicles for model years 2017-2025 as part of

its Advanced Clean Cars (ACC) program. CARB analyzed

three scenarios to estimate the emission benefits of these

requirements:

• Estimates using the most recent version of

CARB’s emission inventory tool, EMFAC2021,

that uses the most recent data and ZEV

forecasting tools;

• Estimates using EMFAC2017, the version of

CARB’s emission inventory tool that U.S. EPA

has approved for transportation and air quality

planning under the Clean Air Act; and

• Estimates using EMFAC 2021 that estimate

the benefits of manufacturer statements and

California’s policy directives to transition new

passenger car and light-truck sales to zeroemission vehicles (ZEVs) by 2035.

All these scenarios show significant reductions in air

pollution from the transition to ZEV technology. CARB

has shown, including in implementation plans required

under the Clean Air Act and approved by the U.S.

Environmental Protection Agency, that a transition

towards requiring nearly all new passenger vehicles to

be zero emission is critical to attaining health and climate

standards. California’s authority to reduce emissions from

vehicles is critical to meeting public health standards,

including the National Ambient Air Quality Standards.

Public health will improve dramatically if emissions from

transportation-related combustion are nearly eliminated,

through the proper regulatory course and in a reasonable

time considering the costs and advancement of technology.

Analysis

ZEV Benefits Based on EMFAC2021

The first analysis uses the current version of CARB’s onroad emission modeling tool, EMFAC2021,1 to estimate the

emission benefits of the ZEV requirements. EMFAC2021

uses the best available data and forecasting tools. These

include the most recent available California Department

of Motor Vehicle (DMV) population data and an updated

market share projection that reflects recent policy and

industry developments.

As one way of estimating the emission benefits of

CARB’s ZEV regulation for calendar years 2021,

2030, and 2 035, CA RB calculated the emissions

benefits of the ZEV vehicles required under that

regulation to illustrate that required ZEV sales have

***

EMFAC is approved by U.S. EPA for planning required to

meet the National Ambient Air Quality Standards. See 40 C.F.R.

§§ 93.110, 93.111 ; 80 Fed.Reg. 77,337 (Dec. 14, 2014) [EMFAC2014

approval]; 84 Fed.Reg. 41,717 (Aug. 15, 2019) [EMFAC2017

approval]. EMFAC2021 is pending approval.

Appendix B

State of California

Air Resources Board

Benefits of California’s Zero-Emission Vehicle

Standards on Community-Scale Emission Impacts

Staff Report

Date of Release: July 6, 2021

This report has been prepared by the staff of the

California Air Resources Board and approved by the

Executive Officer for publication. At this time, this

report has not been approved by a vote of the Board

itself, and, accordingly, the views expressed herein

should not be assumed to necessarily reflect those of the

Board. In addition, the use of trade names or commercial

products herein does not constitute endorsement or

recommendation.

***

emissions in the East LA/Boyle Heights/West Commerce

community make up 58% of all NOx emissions, 29% of all

VOC emissions, and 23% of all PM2.5 emissions.11

Community Emissions Reduction Plan for East Los Angeles,

Boyle Heights, West Commerce, September 2019 http://www.aqmd.

gov/docs/defau/t-source/ab-617-ab-134/steering-committees/eastla/cerp/carb-submittal/final-cerp.pdf?sfvrsn=8

Passenger light-and medium-duty vehicles emit most

of the on-road TOG and PM2.5 emissions. Passenger

light-and medium duty vehicles also emit nearly half of

all NOx emissions from on-road vehicles. Figure 7 shows

the relative contribution of passenger light-and mediumduty vehicle emissions as compared to all other vehicles in

the East LA/Boyle Heights/West Commerce community.

Passenger cars are the main source of TOG emissions

because of the large number of vehicles and miles

travelled by these types of vehicles in the community.

PM2.5 emissions from on-road sources are from fuel

combustion as well as from tire and brake wear. Lightand medium-duty vehicles are the main contributors to

the total emissions of PM2.5, as these vehicles travel the

most miles in the community.

Figure 8 shows the toxicity weighted emissions for the

top 10 toxic air contaminants (TACs) with a cancer risk

health value from passenger light- and medium-duty

vehicles in the community.12 Benzene and 1,3-butadiene

contribute the most to the cancer risk weighted emissions

One way to compare different toxic pollutants is to look at

Toxicity Weighted Emissions (TWE). TWE are adjusted emissions

for TACs that have OEHHA approved health values. They are

calculated by multiplying the mass emissions of each TAC by

the corresponding health values as determined by OEHHA,

molecular weight adjustment factors accounting for the molecular

weight fraction of a compound associated with the specific health

effects, maximum hours of emissions, and normalization factors

(these are factors that allow the conversion of different toxic

pollutant emissions into a standard to help compare pollutants to

one another). TWEs are not risks, but the weighted emissions are

useful to compare the relative toxicity of TACs.

from these vehicles in the community. Reducing criteria

pollutant and TAC emissions from passenger light- and

medium-duty vehicles through the increased adoption

of ZEVs could have a significant impact in reducing the

air pollution burden on the community and substantial

impact on overall health and well-being of people living

and working there.

***

Appendix C

State of California

Air Resources Board

Emission Benefits of California’s Passenger Vehicle

GHG Standards

Staff Report

Date of Release: July 2, 2021

This report has been prepared by the staff of the

California Air Resources Board and approved by the

Executive Officer for publication. At this time, this

report has not been approved by a vote of the Board

itself, and, accordingly, the views expressed herein

should not be assumed to necessarily reflect those of the

Board. In addition, the use of trade names or commercial

products herein does not constitute endorsement or

recommendation.

Summary

Staff at the California Air Resources Board (CARB) have

estimated the emissions benefits of its passenger-vehicle

greenhouse gas (GHG) emission standards.

Emissions from motor vehicle use may be comprehensively

described as well-to-wheel, or WTW. These emissions are

comprised of two components reflecting the production

and use of fuel (well-to-tank or WIT) and from the use of

the vehicle (tank-to-wheel or TTW). TTW emissions are

from the vehicle tailpipe as well as evaporative emissions

from the vehicle’s fuel system. These emissions are

distinguished from the vehicle’s WTT emissions, which

are the proportionate emissions attributed to the vehicle

from fuel extraction, processing and production, and

distribution to refueling stations for consumers.

This analysis estimates the upstream (WTT), downstream

(TTW), and total (WTW) criteria and GHG emission

reductions from CARB’s GHG emission standards for

model years 2021-2025. These estimates are quantified for

the years by when the South Coast air basin must meet

the National Ambient Air Quality Standards (NAAQS)

for ozone.

CARB estimated the emission benefits of its GHG

standards for passenger vehicles using two versions of

its emission inventory tool, EMFAC.1 Under the first

approach, CARB used EMFAC2017, which U.S. EPA has

approved for use in transportation and air quality planning

under the Clean Air Act. Under this approach, CARB’s

GHG standards will result in a statewide decrease in tons

per year (tpy) and tons per day (tpd) of upstream oxides

of nitrogen (NOx) emissions of:

• 67 fewer tons per year NOx, or 0.18 tons per day,

in calendar year 2023

EMFAC is approved by U.S. EPA for planning required to

meet the National Ambient Air Quality Standards. See 40 C.F.R.

§§ 93.110, 93.111; 84 Fed.Reg. 41,717 (Aug. 15, 2019) [EMFAC2017

approval]. EMFAC2021 is pending approval.

• 358 fewer tons per year NOx, or 1.03 tons per

day, in calendar year 2031, and

• 483 fewer tons per year NOx, or 1.39 tons per

day, in calendar year 2037.

Similarly, CARB’s GHG standards for passenger vehicles

will result in a statewide decrease in carbon dioxide

equivalent (MMTCO2e) GHG emissions of:

• 1.6 million fewer metric tons in 2023,

• 8.4 million fewer metric tons in 2031, and

• 11.3 million fewer metric tons in 2037.

Using EMFAC2021, which incorporates the best available

data and ZEV forecasting assumptions, CARB’s GHG

standards will result in a statewide decrease in tons per

year (tpy) and tons per day (tpd) of upstream oxides of

nitrogen (NOx) emissions of:

• 51 fewer tons per year NOx, or 0.15 tons per day,

in calendar year 2023

• 297 fewer tons per year NOx, or 0.86 tons per

day, in calendar year 2031, and

• 404 fewer tons per year NOx, or 1.16 tons per day,

in calendar year 2037.

Similarly, CARB’s GHG standards for passenger vehicles

will result in a statewide decrease in carbon dioxide

equivalent (MMTCO2e) GHG emissions of:

• 1.2 million fewer metric tons in 2023,

• 7.0 million fewer metric tons in 2031, and

• 9.5 million fewer metric tons in 2037.

Background of California’s Passenger Vehicle GHG

Standards

In 2002, California’s Legislature found that “[g]lobal

warming would impose on California, in particular,

compelling and extraordinary impacts.” These included

poor air quality, more extreme wildfires, and agricultural

damage. To address the root causes, the Legislature

directed CARB to reduce motor vehicle greenhouse gas

emissions, which comprised about 40 percent of state’s

total greenhouse gas pollution. 2

CARB adopted its first greenhouse gas emission standards

for passenger vehicles in 2005, codifying them in section

1961.1 of title 13 of the California Code of Regulations.

U.S. EPA initially denied California’s request for a waiver

of federal preemption under Section 209 of the Clean

Air Act for these standards. 3 Upon reconsideration, U.S.

2002 Cal. Stat. c. 200 (A.B. 1493) (Digest).

73 Fed. Reg. 12,156 (Mar. 6, 2008).

EPA granted the waiver.4 EPA, NHTSA, and California

subsequently created a harmonized “National Program”

for regulating passenger vehicle greenhouse gas emissions

and fuel-economy to maximize benefits and minimize

costs. 5 Automakers supported the approach.6 California

included provisions under which manufacturers would

be deemed to meet the State’s GHG emission standards

if they complied with EPA’s roughly analogous federal

standards.7

In 2013, U.S. EPA granted California a waiver for its

Advanced Clean Cars program, which included GHG

emission standards, criteria pollutant emission standards,

and requirements for zero-emission vehicles, for model

years 2017 and later. 8 The program also included the

“deemed-to-comply” provision referenced above. That

followed U.S. EPA’s adoption, in 2012, of federal GHG

emission standards analogous to California’s and

harmonized with NHTSA’s fuel economy standards.

In 2018, U.S. EPA and NHTSA proposed to end this

harmonized national program through the “Safer

74 Fed. Reg. 32,744 (July 8, 2009).

75 Fed. Reg. 25,324, 25,545 (May 7, 2010).

Id. at 25,328.

Cal. Code. Regs. tit. 13, §§ 1961.1(a)(1)(A)(ii) [compliance

option for model years 2012-2016], 1961.3(c) [compliance option

for model years 2017-2025].

78 Fed. Reg. 2,112 (Jan. 9, 2013).

Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model

Years 2021-2026 Passenger Cars and Light Trucks.” 9

In 2020, U.S. EPA and NHTSA finalized a portion of

this proposal and issued the “Safer Affordable FuelEfficient (SAFE) Vehicles Rule for Model Years 2021-2026

Passenger Cars and Light Trucks” (Final SAFE 2 Rule).10

In those final rules, U.S. EPA and NHTSA set improperly

lax federal GHG emission and Corporate Average Fuel

Economy standards that increase in stringency at only

about 1.5 percent (%) per year from model year (MY) 2020

levels over MYs 2021-2026. The previously established

federal GHG emission standards and related “augural”

fuel economy standards would have achieved about 5%

per year improvements through MY 2025.

If left in place, the federal GHG emission standards

will dramatically increase emissions compared to the

previous set of standards. California’s “deemed to

comply” provision was never intended to allow for that in

California, and California does not accept compliance with

the improperly relaxed federal standards as equivalent to

compliance with its own standards under the “deemed to

comply” provision. The analysis here summarizes CARB

staff’s assessment of both the criteria pollutant and GHG

emissions benefits of CARB’s GHG emission standards for

model years 2021-2025. These benefits are from both the

upstream (WIT) and downstream (TTW) reduced GHG

and criteria emissions from CARB’s standards.

83 Fed. Reg. 42,986 (Aug. 24, 2018).

85 Fed. Reg. 24,174 (Apr. 30, 2020).

This assessment models the impacts of the standards

themselves. This assessment does not account for the

Framework Agreements in which, given the SAFE

rulemaking and resulting ongoing litigation, CARB

entered agreements with various forward-thinking

manufacturers which required those manufacturers to

take specific actions that would result in fewer emissions

than direct compliance with California’s GHG standards.

These agreements do not change the underlying standards.

Analysis

Tank-to-Wheel (TTW) Emissions Impact

CARB estimated the change in TTW (or downstream

vehicle tailpipe and evaporative) emissions of the

California light-duty vehicle fleet using its EMission

FACtor 2017 (EMFAC2017) model.11 EMFAC2017 is

the latest U.S. EPA-approved version of California’s onroad mobile source emission inventory model. It reflects

California-specific driving and environmental conditions,

fleet mix, and most importantly the impact of California’s

unique mobile source regulations. These include the LowEmission Vehicle (LEV) program, the LEV II and LEV

III standards, California inspection and maintenance

programs, and in-use diesel fleet rules. The EMFAC

model supports CARB’s regulatory and air quality

planning efforts and fulfills the federal Clean Air Act and

EMFAC2017, EMFAC2021and other versions of CARB’s

emission models are available at: https://ww2.arb.ca.gov/our-work/

programs/mobile-source-emissions-inventory/msei-modeling-tools

the Federal Highway Administration’s transportation

planning requirements. The U.S. EPA has approved

EMFAC2017 for use in state implementation plan (SIP)

and transportation conformity analyses.12

The EMFAC2017 default model, with an “annual average”

setting, was run to estimate statewide vehicle emissions

by calendar year, vehicle category, fuel type, and model

year projected to occur under the existing Federal and

CARB GHG standards.

In addition, CARB also estimated emission benefits using

the latest version of the EMFAC model, EMFAC2021,

to consider the best available information and most

current data. These results are presented in Tables 4 to

6. EMFAC2021 provides an updated estimate of ZEV

populations in California, which are higher than predicted

by EMFAC2017. The 2021 model, like the 2017 model, is

based on CARB’s Advanced Clean Cars regulations but

also considers updated California Department of Motor

Vehicles data through calendar year 2019 and improved

projections of the ZEV market share to forecast future

ZEV population. EMFAC2021 is not yet approved by

U.S. EPA for use in SIP and transportation conformity

analyses.

These projections recognize California’s policies to

transition to clean transportation technology. On

September 23, 2020, California Governor Newsom

issued Executive Order N-79-20 that set a goal for all

84 Fed. Reg. 41,717 (Aug. 15, 2019).

new passenger car and truck sales in the state to be

zero-emission by 2035 and directed CARB to consider

regulations to reach this goal. CARB staff are developing

the Advanced Clean Cars II (ACC II) program that will

focus on post-2025 model year light-duty vehicles.

Fully transitioning to zero-emission passenger vehicles is

expected to significantly reduce emissions. For instance,

according to staff analysis presented in the Revised Draft

of the 2020 Mobile Source Strategy,13 meeting the ZEV

targets set by the Governor’s executive order combined with

more stringent GHG standards14 for internal combustion

engine vehicles and VMT reduction 15 strategies can

https://ww2.arb.ca.gov/sites/default/files/2021-04/Revised_

Draft_2020_Mobile_Source_Strategy.pdf

The light duty vehicle scenario of the 2020 Mobile Source

Strategy assumes that GHG emissions of new gasoline-only

vehicles, including hybrids (non-plugged vehicles), will be reduced

by 2.0% per year from 2026 to 2035. This assumption reflects an

investment by the automotive industry in ongoing conventional

vehicle improvements while focusing most investments on ZEVs,

and likely would require a regulatory change to California’s vehicle

standards. More details are provided on pages 86 through 88 of

the Revised Draft 2020 Mobile Source Strategy.

The light duty vehicle scenario of the 2020 Mobile Source

Strategy assumes a 15% reduction in statewide light-duty VMT

by 2050 compared to business-as-usual assumption, the same

as the 2016 Mobile Source Strategy and the 2017 Scoping Plan.

The VMT reduction strategy areas discussed in this document

reflect the nature of the actions necessary to achieve the level of

reductions in the scenario. More details are provided on pages 99

through 120 of the Revised Draft 2020 Mobile Source Strategy.

reduce GHG emissions associated with passenger vehicles

by more than 80% in 2045 below the 2045 baseline and

beyond what would otherwise be expected with current

programs absent the zero-emission executive order and

other upcoming measures16. Additionally, the 2020 Mobile

Source Strategy shows that fully transitioning to ZEVs

can generate a 17% reduction in NOx emissions in 2031 and

a 43% reduction in 2037 relative to baseline projections of

tailpipe emissions Statewide for each of those years. More

details are provided in Chapter 6 of the Revised Draft of

the 2020 Mobile Source Strategy.

Well-to-Tank (WTT) Emissions Impact

For WTT, or upstream, emission impacts, CARB’s

analysis calculated the emissions reductions that would

result from the avoided production and delivery of

gasoline, and the increased emissions from increased

production of electricity and hydrogen to fuel ZEVs that

can be part of an automakers’ compliance with the GHG

standards. Though both of these categories of emissions

impacts could be attributed to the ZEV standard to the

extent the impacts are tied to ZEV sales, a substantial

portion of the benefits estimated herein would nonetheless

remain for the GHG standard given that ZEVs constitute

a relatively modest (but growing) percentage of the fleet

sold in California.

This is equivalent to an 87% reduction in well-to-wheel

GHG emissions in 2045 below 2020 levels. See Revised Draft 2020

Mobile Source Strategy, p. 89.

To calculate these values, staff used the following analyses

and data previously developed or relied upon for CARB’s

vehicle emission standards:

1. VMT by ZEV were divided into miles driven

by battery electric vehicles (BEVs) and fuel cell

electric vehicles (FCEVs) based on the technology

splits projected in the Mid-Range Scenario of

CARB’s Advanced Clean Cars Midterm Review.17

2. Vehicle electricity and hydrogen consumption

was estimated by applying the average vehicle

efficiencies for BEVs and FCEVs developed in

CARB’s Vision scenario modeling framework.18

3. Upstream emission factors associated with fuel

and energy production for gasoline, electricity,

and hydrogen were based on the best available

California-specific data when possible. Data

sources for criteria emission factors included

the California Emission Inventory Development

and Reporting System (CEIDARS) from CARB,

annual power generation by plant unit reported

by the Energy Commission, facility nameplate

capacities and utilization rates, Renewable

https://w w 2 .arb.ca.gov/sites/default /f iles/2 02 0 - 01/

appendix_a_minimum_zev_regulation_compliance_scenarios_

formatted_ac.pdf

https://ww2.arb.ca.gov/sites/default/files/2020-06/vision

2.1_scenario_modeling _system_general_documentation.pdf,

Appendix B

Por tfolio Standards (RPS), and A rgonne

National Laboratory’s study on refinery products’

contributions to facility emissions. Staff used

CA GREET 3.0 to develop the GHG emission

factors by fuel/energy type and estimated GHG

emissions changes within California for gasoline

and hydrogen, and globally for electricity. These

sources are summarized below.

The California Emissions Inventory Data Analysis and

Reporting System (CEIDARS) is a database management

system developed to track statewide criteria pollutant

and air toxic emissions. The database includes emissions

from stationary point sources that can be identified by

locations and are often permitted by local Air Quality

Management Districts and Air Pollution Control Districts

(Districts). Examples of stationary sources include facility

point sources, such as power plants and oil refineries. See

Criteria Pollutant Emission Inventory Data I California

Air Resources Board and https://ww3.arb.ca.gov/ei/

dreilmaintain/database.htm.

The statistics presented in the Annual Generation–Plant

Unit are derived from the Quarterly Fuel and Energy

Report (QFER) CEC-1304 Power Plant Owner Reporting

Form. The CEC-1304 reporting form collects data from

power plants with a total nameplate capacity of 1 MW or

more that are located within California or within a control

area with end users inside California. The information

includes capacity, net generation, and fuel use by fuel type

for each plant. See QFER CEC-1304 Power Plant Owner

Reporting Database (ca.gov).

The U.S. Energy Information Administration (EIA)

creates the annual fuel ethanol production capacity report.

The report contains detailed nameplate capacity of fuel

ethanol plants by Petroleum Administration for Defense

District (PAD District) for all operating U.S. fuel ethanol

production plants. See https://www.eia.gov/petroleum/

ethanolcapacity/.

Maintained by the Pacific Northwest National Laboratory,

the Merchant Hydrogen Plant Capacities In North

America data file contains data on location, capacity,

hydrogen source, and customers for individual hydrogen

plants in North America. See Merchant Hydrogen Plant

Capacities in North America | Hydrogen Tools (h2tools.

org).

The U.S. Energy Information Administration (EIA)

releases Refinery Utilization and Capacity data by PADDs

which includes Operable Utilization Rate representing the

utilization of the atmospheric crude oil distillation units.

The rate is calculated by dividing the gross input to these

units by the operable calendar day refining capacity of

the units. See PAD District 5 Refinery Utilization and

Capacity (eia.gov).

The Clean Energy and Pollution Reduction Act of 2015

(De Leon, Chapter 547, Statutes of 2015) (SB 350) put

into law the requirement to serve 50% of the State’s

electricity use with renewable resources by 2030. See 50

RPS Procurement Rules (ca.gov).

The study titled “Creation of unit process data for life

cycle assessment of steam methane reforming and

petroleum refining” and authored by B. Young, B. Morelli,

and T. Hawkins, provides detailed, baseline gate-to-gate

unit process data for petroleum refining and hydrogen

production by PADDs. The datasets improve the resolution

of the emissions attributable to specific processes involved

in petroleum refining and steam methane reforming

(SMR) and the attribution of emissions to the products of

refineries. This study updated emission factors of fossil

fuel production in the latest GREET model. See Argonne

GREET Publication: Creation of unit process data for

life cycle assessment of steam methane reforming and

petroleum refining (anl.gov).

The CA-GREET3.0 model is used to generate the carbon

intensities (Cls) of all fuel pathways. The Cls are calculated

using a modified, California-specific version of Argonne

National Laboratory’s Greenhouse Gases, Regulated

Emissions, and Energy Use in Transportation (GREET)

model. See CA-Greet 3.0 Supplemental Document and

Tables of Changes.

Benefits of California’s GHG Standards on Reducing

Emissions

Tables 1–3 summarize the criteria pollutant and GHG

emissions reductions of California’s GHG standards,

apportioned for WTT (or upstream), TTW (or downstream),

and total WTW emissions, respectively, as estimated by

EMFAC2017. Tables 4–6 provide these estimates using

EMFAC2021. The two versions are used to show the

benefits using the version currently approved by U.S.

EPA for use in planning under the Clean Air Act, and

using the next version that incorporates updated data and

forecasting tools. For both approaches, the reductions are

shown in the years for which the South Coast air basin

must meet the National Ambient Air Quality Standards

(NAAQS) for ozone.

As shown using EMFAC2017, CARB’s GHG standards

for passenger vehicles will result in a statewide decrease

in tons per year (tpy) and tons per day (tpd) of upstream

oxides of nitrogen (NOx) emissions of:

• 67 fewer tons per year NOx, or 0.18 tons per day,

in calendar year 2023

• 358 fewer tons per year NOx, or 1.03 tons per

day, in calendar year 2031, and

• 483 fewer tons per year NOx, or 1.39 tons per

day, in calendar year 2037.

To consider this in context, NOx emissions in the South

Coast air basin are approximately 278 tons per day as

of calendar year 2021 for all mobile sources (annual

average).19 These emissions must be reduced to 141 tons

per day to meet the 1997 ozone NAAQS of 80 parts per

Based on CARB’s CEPAM 2016 SIP Standard Emissions

To ol ht t p s: // w w w. a rb.c a .g ov/app /em s i nv/ fc em s su mc at /

fcemssumcat2016.php

billion (ppb), which has a deadline of 2023. To meet the

2008 standard of 75 ppb, which has a deadline of 2031,

NOx emissions must be reduced to 96 tpd. A significant

portion of the reductions described above will occur in the

South Coast air basin because of its high concentration

of people, vehicles, and refineries; they are a significant

part of the solution to meeting the air quality standards in

California. Every reduction matters to meet these healthbased standards. (Other regions in California are also

in non-attainment with federal standards for ozone, and

reductions of all sizes are likewise needed there, although

the South Coast air basin faces the most significant ozone

air quality challenge in the country.)

Similarly, using EMFAC2017, CARB’s GHG standards for

passenger vehicles will result in a statewide decrease in

carbon dioxide equivalent (MMTCO2e) GHG emissions of:

• 1.6 million fewer metric tons in 2023,

• 8.4 million fewer metric tons in 2031, and

• 11.3 million fewer metric tons in 2037.

Based on EMFAC2017, a typical passenger vehicle emits

about 4.3 metric tons of CO2 per year. The statewide

decreases in GHG emissions are equivalent to:

• 372,000 passenger vehicles in 2023,

• 2.0 million passenger vehicles in 2031, and

• 2.6 million passenger vehicles in 2037.

In comparison, using EMFAC2021, CARB’s GHG

standards for passenger vehicles will result in a statewide

decrease in tons per year (tpy) and tons per day (tpd) of

upstream oxides of nitrogen (NOx) emissions of:

• 51 fewer tons per year NOx, or 0.15 tons per day,

in calendar year 2023

• 297 fewer tons per year NOx, or 0.86 tons per

day, in calendar year 2031, and

• 404 fewer tons per year NOx, or 1.16 tons per day,

in calendar year 2037.

And a statewide decrease in carbon dioxide equivalent

(MMTCO2e) GHG emissions of:

• 1.2 million fewer metric tons in 2023,

• 7.0 million fewer metric tons in 2031, and

• 9.5 million fewer metric tons in 2037.

These results are shown in Tables 4-6, below.

Table 1. Tank-to-Wheel Downstream GHG Emissions

Benefits of GHG Standards calculated using EMFAC2017

Years

2021

2023

2030

2031

2035

2037

Downstream Reductions (Tank-to-Wheel)

CO2e (MMTCO2/year)

0.3

1.3

6.4

6.9

8.6

9.2

Table 2. Well-to-Tank Upstream Criteria and GHG

Emissions Benefits of GHG Standards calculated using

EMFAC2017

Upstream

Emissions

Reductions—

Years Reductions— Reductions—

Well-toWell-to-Tank Well-to-Tank Tank CO2e

NOx (tpy)

PM2.5 (tpy)

(MMTCO2/

year)

2021

1.7

0.05

2023

10.2

0.26

2030

331

58.7

1.42

2031

358

63.6

1.54

2035

449

79.9

1.95

2037

483

86.2

2.11

Table 3. Well-to-Wheel (Total) GHG Emissions Benefits

of GHG Standards calculated using EMFAC2017

Years

2021

2023

2030

2031

2035

2037

Well to Wheel Reductions CO2e

(MMTCO2/year)

0.3

1.6

7.8

8.4

10.5

11.3

Table 4. Tank-to-Wheel Downstream GHG Emissions

Benef its of GHG Standa rds calculated using

EMFAC2021

Years

2021

2023

2030

2031

2035

2037

Downstream Reductions (Tank-toWheel) CO2e (MMTCO2/year)

0.2

1.1

5.3

5.8

7.3

7.8

Table 5. Well-to-Tank Upstream Criteria and GHG

Emissions Benefits of GHG Standards calculated using

EMFAC2021

Upstream

Emissions

Years Reductions— Reductions—

Well-to-Tank Well-to-Tank

NOx (tpy)

PM2.5 (tpy)

2021

2023

2030

2031

2035

2037

273

297

375

404

0.8

7.3

47.9

52.2

66.3

71.6

Upstream

Emissions

Reductions—

Well-to-Tank

CO2e (MMT

CO2/year)

0.02

0.18

1.12

1.23

1.58

1.71

Table 6. Well-to-Wheel (Total) GHG Emissions Benefits

of GHG Standards calculated using EMFAC2021

Years

2021

2023

2030

2031

2035

2037

Well to Wheel Reductions CO2e

(MMTCO2e/year)

0.2

1.2

6.5

7.0

8.9

9.5

Appendix E

State of California

Air Resources Board

Passenger Vehicle Manufacturers Are

Outperforming the ZEV Regulation

Staff Report

Date of Release: July 6, 2021

This report has been prepared by the staff of the

California Air Resources Board and approved by the

Executive Officer for publication. At this time, this

report has not been approved by a vote of the Board

itself, and, accordingly, the views expressed herein

should not be assumed to necessarily reflect those of the

Board. In addition, the use of trade names or commercial

products herein does not constitute endorsement or

recommendation.

Summary

Since 2005, all auto manufacturers have complied with

California’s Zero Emission Vehicle (ZEV) Regulation, and

all have collectively exceeded its requirements—and by

increasing margins. Since 2012, each auto manufacturer

has entered every model year with a positive balance in

its ZEV credit bank. Prior to 2017, manufacturer credit

banks typically contained enough credits for one to two

years of compliance ahead of the ZEV requirement.1 As of

the end of the 2019 model year (MY), most manufacturers

are retaining credit balances sufficient for compliance for

two to five years.

Manufacturers are also complying more and more on

their own. Transfers, or credit sales, between auto

manufacturers have slowed dramatically in the last four

years. Transfers went from an industrywide high of 93,770

total ZEV credits transferred in the 2015 model year

among ten auto manufacturers to only 6,000 total ZEV

credits transferred among two auto manufacturers in the

2019 model year. 2,3

In sum, even if all manufacturers maintained ZEV

production at model year 2019 levels and did not

increase their ZEV production as expected or required,

approximately half of the manufacturers would comply

through model year 2025 based on their own credit banks

and the industry as a whole would comply easily through

model year 2025 through available credit transfers.

CARB, California’s Advance Clean Cars Midterm Review,

January 18, 2017, MTR Summary (ca.gov), Appendix A: Analysis

of Zero Emission Vehicle Regulation Compliance Scenarios:

Estimated minimum 1.2 million ZEVs and PHEVs by 2025, p. A-9,

Attachment A Compliance Scenarios (ca.gov).

2015 ZEV Credit Annual Disclosure, https://ww2.arb.ca.gov/

sites/default/files/2020-10/2019_zev_credit_annual_disclosure.pdf.

2019 ZEV Credit Annual Disclosure, https://ww2.arb.ca.gov/

sites/default/files/2020-10/2019_zev_credit_annual_disclosure.pdf.

But manufacturers are in fact expected to increase ZEV

production. Manufacturers have made tangible, public

commitments to zero-emission technology. Manufacturers

have steadily increased the performance and reduced

the costs of their zero-emission technology, especially

for battery-electric vehicles, and that trend is expected

to continue. Battery charge capacity, vehicle range, and

efficiency have all gone up. These all point to increased

deployment of zero-emission technologies at costs

competitive with conventional engines.

Analysis

To illustrate historical compliance margins, Figure 1

below shows MY 2012 through 2019 ZEV credit compliance

requirements and the number of credits produced for

***

Excerpt from Comment Submitted by

Toyota Motor North America, Inc., R-382,

EPA-HQ-OAR-2021-0257-0381 (July 6, 2021)

TOYOTA

TOYOTA MOTOR NORTH AMERICA, INC.

Sustainability and Regulatory Affairs

July 6, 2021

U.S. Environmental Protection Agency

EPA Docket Center, Air Docket, Mail Code 28221T

1200 Pennsylvania Avenue NW

Washington, DC 20460

Subject: Public Comment Re: California State Motor

Vehicle Pollution Control Standards; Advanced Clean Car

Program; Reconsideration of a Previous Withdrawal of a

Waiver of Preemption; Opportunity for Public Hearing

and Public Comment, Docket ID No. EPA-HQOAR-20210257

Dear Sir or Madam:

Toyota Motor North America, Inc. (TMNA) appreciates

the opportunity to comment on the Environmental

Protection Agency’s (EPA’s) notice of reconsideration of its

prior action, “The Safe Affordable Fuel-Efficient (SAFE)

Vehicles Rule Part One: One National Program” (“SAFE

l”), withdrawing California’s waiver of preemption for its

zero-emission vehicle (ZEV) mandate and greenhouse

gas (GHG) emissions standards. In addition to this

proposed rulemaking, the National Highway Traffic

Safety Administration (NHSTA) is separately addressing

the portion of SAFE 1 that interprets the preemption

provision in the Energy Policy and Conservation Act

(EPCA); the Alliance for Automotive Innovation, of which

TMNA is a member, has already commented on that

separate action.

TMNA Supports One National Program for Greenhouse

Gases and Fuel Economy

It is TMNA’s hope that the various regulatory and

administrative actions described above will result in

a regulatory framework that once again brings all

automakers under a unified set of common requirements.

Should EPA reinstate California’s waiver, we request it

be reinstated as it was originally granted, including the

“deemed-to-comply” provision that was so important in

establishing One National Program (ONP) over a decade

ago.

Any Waiver Reinstatement Should Apply Prospectively

Reinstatement of California’s waiver for model years

2021 and 2022 poses significant lead time challenges

considering that 2021 model year is well underway, and

2022 model year vehicles are generally already designed,

sourced, certified to various regulatory requirements, and

ready to begin production. Some manufacturers may have

already begun production of 2022 model year vehicles. As

a result, a reinstatement of California’s waiver by EPA

should apply prospectively to model years 2023 and later.

100

TMNA remains committed to working with EPA, NHTSA,

and CARB to craft a 50-state solution that protects the

environment and U.S. energy security, promotes the

industry’s competitiveness, and supports automotive jobs

and innovation.

Toyota’s public comments addressing these issues in

detail are set forth in Attachment 1. Thank you for your

consideration of these comments. Should you have any

questions, please feel free to contact me at (202) 463-6851

or tom.stricker@toyota.com.

Sincerely,

/s/ Tom Stricker

Tom Stricker

Group Vice President

Sustainability & Regulatory Affairs

Toyota Motor North America, Inc.

101

Excerpt from Comment Submitted by National

Coalition for Advanced Transportation, R-132,

EPA-HQ-OAR-2018-0283-5067 (July 6, 2021)

NCAT

NATIONAL COALITION FOR

ADVANCED TRANSPORTATION

Comments of the National Coalition

for Advanced Transportation

On the U.S. Environmental Protection Agency’s

Notice of Opportunity for Public Hearing and

Comment: California State Motor Vehicle Pollution

Control Standards; Advanced Clean Car Program;

Reconsideration of a Previous Withdrawal of a

Waiver of Preemption

Docket No. EPA-HQ-OAR-2021-0257

July 6, 2021

Submitted via Regulations.gov

INTRODUCTION AND EXECUTIVE SUMMARY

The National Coalition for Advanced Transportation

(NCAT) submits these comments in response to the

Environmental Protection Agency’s (EPA) notice

entitled “California State Motor Vehicle Pollution

Control Standards; Advanced Clean Car Program;

Reconsideration of a Previous Withdrawal of a Waiver

of Preemption; Opportunity for Hearing and Public

Comment,” Docket No. EPA-HQ-OAR-2021-0257, 86 Fed.

Reg. 22,421 (Apr. 28, 2021) (Notice).

102

NCAT is a coalition of companies and non-profit

organizations that support electric vehicle and other

advanced transportation technologies and related

infrastructure, including business leaders engaged in

energy supply, transmission, and distribution; vehicle

and component design and manufacturing; and charging

infrastructure production and implementation, among

other activities.1 California’s longstanding ability to set

state vehicle standards drives innovation and incentivizes

new technologies, in addition to significantly reducing

air pollution. Over the past several years, NCAT has

vigorously defended California’s authority to issue its own

state vehicle greenhouse gas (GHG) and Zero Emission

Vehicle (ZEV) regulations.

NCAT strongly urges EPA to reconsider and rescind

the unlawful actions the agency took in “The Safer

Affordable Fuel-Efficient (SAFE) Vehicles Rule Part

One: One National Program,” 84 Fed. Reg. 51,310 (Sept.

27, 2019) (SAFE 1). In SAFE 1, EPA sought to strip

California’s and

***

NCAT’s membership is listed on its website https://www.

lwncat.com/Membership.html, and currently includes Atlantic

City Electric, Baltimore Gas & Electric, Center for Climate

and Energy Solutions, ChargePoint, Commonwealth Edison

Company, Delmarva Power, Edison International, EVgo, Exelon

Corporation, Pacific Gas and Electric Company, PECO, PEPCO,

Plug In America, Portland General Electric, Rivian Automotive,

Sacramento Municipal Utility District, and Tesla, Inc. These

comments represent an integrated package that reconciles

individual member perspectives that may differ on specific issues;

accordingly, no particular position should be attributed to any

individual NCAT member.

103

VII. EPA FAILED TO CONSIDER IN DUSTRY

AND OTHER STAKEHOLDER RELIANCE

INTERESTS IN ITS SAFE 1 ACTIONS

EPA has asked for comment on whether in its SAFE 1

action EPA identified and considered relevant reliance

interests. 86 Fed. Reg. at 22,429. As NCAT has explained

in litigation filings, in SAFE 1 EPA failed to justify its

unilateral reversal of its prior decision and disregarded

significant industry and other stakeholder reliance

interests.

NCAT members have invested billions of dollars with

the well-founded expectation that increased demand for

electric vehicles would be propelled by California and the

Section 177 States’ continued ability to drive technology

innovation and emission reductions. By purporting to

withdraw these states’ authority to enforce GHG and

ZEV standards that incentivize the deployment of

electric vehicles, EPA actions in SAFE 1 contradicted

Congress’ intent, and arbitrarily devalued NCAT

members’ reasonable investments in electric vehicle

technology and supporting infrastructure. Innovation

in the transportation sector requires very significant

investments and advance planning. In the years since

EPA granted California’s waiver, the state GHG and ZEV

standards have spurred billions of dollars of investment

in electric vehicle manufacturing and infrastructure.

NCAT members based substantial investments in part

on the reasonable expectation that, regardless of what

happened with the federal standards, California’s and

the Section 177 States’ authority would remain intact.

104

EPA failed to address these industry reliance interests

when it withdrew the waiver in SAFE 1 in 2019, and such

failure was arbitrary and capricious. See Motor Vehicle

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983) (declaring an agency’s action arbitrary and

capricious when an agency “entirely failed to consider an

important aspect of the problem.”).

For instance, NCAT Member Tesla, Inc. (Tesla)

designs, develops, manufactures, and sells highperformance fully electric vehicles, among other products,

and has made significant investments to establish, and

continues to grow, a large network of retail stores,

vehicle service centers, and electric vehicle charging

stations to accelerate and support the widespread

adoption of its vehicle products. For many years, the

California standards have helped drive investment in

electric vehicle manufacturing and technology because

those performance standards incentivize manufacturing

vehicles with lower GHG and criteria pollutant emissions

and provide a mechanism by which vehicle manufacturers

that deploy innovative technologies and out-perform

the standards are rewarded as they can earn and sell

tradeable compliance credits. 22 Tesla’s required, public

See, e.g., IHS Markit, The Economic Footprint of Tesla

in California (May 15, 2018), https://ihsmarkit.com/researchanalysis/the-economic-footprint-of-tesla-in-california.html

(finding that in 2017 Tesla supported over 31,000 additional jobs

in the state, and the company’s economic impact in California goes

far beyond that of its immediate employees and includes infusing

over $4 billion into the California economy).

105

SEC filings regularly report quarterly revenue derived

from automotive regulatory credit sales, including those

occurring in California and other participating states’

ZEV programs. Moreover, the regulatory certainty

embodied in California and the Section 177 States’ Model

Year 2017-2025 GHG performance standards and ZEV

programs have contributed to market conditions that have

supported billions of dollars in manufacturing investments

by Tesla. These are clear industry reliance interests that

EPA failed to consider in its waiver withdrawal decision

in SAFE 1.

***

106

Excerpt from Unopposed Motion by the State[] of

California [et al.] to Intervene in the D.C. Circuit

(filed May 19, 2022)

ORAL ARGUMENT NOT SCHEDULED

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 22-1081

(and consolidated cases)

STATE OF OHIO, et al.,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY AND MICHAEL

S. REGAN, IN HIS OFFICIAL CAPACITY

AS ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

107

UNOPPOSED MOTION BY THE STATES OF

CALIFORNIA, COLORADO, CONNECTICUT,

DELAWARE, HAWAII, ILLINOIS, MAINE,

MARYLAND, MINNESOTA, NEVADA,

NEW JERSEY, NEW MEXICO, NEW YORK,

NORTH CAROLINA, OREGON, RHODE ISLAND,

VERMONT, AND WASHINGTON;

THE COMMONWEALTHS OF MASSACHUSETTS

AND PENNSYLVANIA; THE DISTRICT OF

COLUMBIA; AND THE CITIES OF LOS ANGELES

AND NEW YORK FOR LEAVE TO INTERVENE

IN SUPPORT OF RESPONDENTS

INTRODUCTION

Pursuant to Federal Rule of Appellate Procedure

(FRAP) 15(d) and Circuit Rule 15(b), the States of

California, Colorado, Connecticut, Delaware, Hawaii,

Illinois, Maine, Maryland, Minnesota, Nevada, New

Jersey, New Mexico, New York, North Carolina,

Oregon, Rhode Island, Vermont, and Washington; the

Commonwealths of Massachusetts and Pennsylvania;

the District of Columbia; and the cities of Los Angeles

and New York (collectively, “Movant-Intervenor States”)

hereby move the Court for leave to intervene in case

number 22-1081 and all consolidated cases in support of

Respondents United States Environmental Protection

Agency (EPA) and Administrator Regan.

Petitioners in these consolidated cases challenge

EPA actions that directly affect Movant-Intervenor

States’ abilities to enforce the state vehicular emission

108

standards they have chosen to adopt in order to protect

their residents and their States’ resources. Accordingly,

and as explained in more detail below, Movant-Intervenor

States have undeniable sovereign interests at stake

in this litigation. Movant-Intervenor States also have

substantial interests in the benefits—including emission

reductions—that the state laws at issue are designed

to provide. Movant-Intervenor States easily satisfy the

requirements for intervention and respectfully request

the Court grant this motion.

Counsel for all Petitioners and for Respondents

indicated they do not oppose Movant-Intervenor States’

intervention.

***

Excerpts of Declaration of Sylvia Vanderspek

(May 16, 2022)

I, Sylvia Vanderspek, declare as follows:

Relevant expertise

1. I make this declaration based upon my knowledge

and expertise in the matters within, my review of the

relevant rulemakings, reports, and other documents

discussed below, and (where indicated) information

provided by my colleagues at the California Air Resources

Board (CARB). I submit this declaration in support

of Movant-Intervenor State of California’s Motion to

Intervene in this challenge.

109

2. I am the Chief of the Air Quality Planning Branch

in the Air Quality Planning & Science Division at CARB.

I have held this position since May 2013.

3. I am the lead manager responsible for the Clean Air

Act state implementation planning and control strategy

development throughout the State for meeting air quality

standards. The State Implementation Plan is required by

the Clean Air Act for areas that do not meet air quality

standards and describes how those air quality standards

will be met by their attainment deadline. As part of the

control strategy development, I oversaw the development

of the 2016 Mobile Source Strategy1 and 2020 Mobile

Source Strategy 2 integrating the technologies for and

approaches to criteria emission reductions with climate

and toxic emission reductions in the mobile source sector.

The Mobile Source Strategies build upon past and inform

future State Implementation Plans as well as California’s

Climate Change Scoping Plan and Community Emission

Reduction Plans.

4. In fulfilling my responsibilities as the lead

manager for Clean Air Act state implementation planning

throughout the State, I routinely review relevant plans

and reports, and in doing so rely on my knowledge of:

atmospheric modeling of air pollution, atmospheric

reactions that contribute to air pollution, air pollution

trends and projections, other causes of air pollution,

and the health effects of air pollution. My knowledge

Mobile Source Strategy (May 2016), https://ww3.arb.ca.gov/

planning/sip/2016sip/2016mobsrc.pdf.

Mobile Source Strategy (Oct. 2021), 2020 Mobile Source

Strategy (ca.gov).

110

of atmospheric modeling, including the atmospheric

reactions that contribute to air pollution, is critical to

my management of State Implementation Plan planning

in order to identify the most effective strategies for

providing healthy air for the residents of California. I also

use my knowledge of air pollution trends and emissions,

along with future emission projections, when overseeing

the selection of future strategies and their impact on air

quality. And as part of the State Implementation Plan

planning process, I must analyze the health effects of

criteria pollutants and other air pollutants.

***

light-duty vehicle greenhouse gas emission and ZEV

standards be overturned, it would result in higher criteria

pollutant and greenhouse gas emissions and increase

concentrations of ground-level ozone and particulate

matter.

22. In particular, without enforceable ZEV sales

requirements, it is reasonable to expect that there would

be fewer ZEVs produced and sold than would otherwise

have been to meet existing requirements, and thus

additional gasoline-fueled vehicles produced and sold

during these model years to meet the market’s demand for

vehicles, all else being equal. This would increase criteria

pollutant emissions, as CARB modeling has confirmed.18

E.g., CARB, Appendix A to Comments of States and Cities

in Support of EPA Reversing its SAFE 1 Actions, at 2-3 (July 6,

2021), Docket No. EPA-HQ-OAR-2021-0257-0132 (hereinafter

“2021 Multistate Comments”); CARB, Appendix B to 2021

Multistate Comments, at 11-14; Analysis in Support of Comments

111

And the increase in greenhouse gas emissions resulting

from preemption of both standards will also impede

progress toward attaining NAAQS.

23. As a result, for each of California’s current

implementation plans that included the ZEV mandate,

California could not rely on the expected emission

reductions from its requirements for clean transportation.

The increased emissions that would result from reversal

of the waiver restoration would need to be mitigated by

developing additional enforceable control measures. But

the

***

of the California Air Resources Board on the Safer Affordable

Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026

Passenger Cars and Light Trucks, at 69, 288, 294-302 (Oct. 26,

2018), Docket No. NHTSA-2018-0067-11873.

112

Excerpts of Declaration of Elizabeth Scheehle

(May 16, 2022)

I, Elizabeth Scheehle, state and declare as follows:

Experience

1. I am currently the Chief of the Research Division

of the California Air Resources Board (CARB). I have a

B.S. in Earth and Atmospheric Sciences from the Georgia

Institute of Technology, a Masters of Public Policy from

the Kennedy School of Government at Harvard University,

and a Masters of Public Health from the Bloomberg School

of Public Health at Johns Hopkins University.

2. I have worked for more than 20 years in climate

change and air quality programs, starting at the U.S.

Environmental Protection Agency (U.S. EPA) where

I led national and international efforts on non-carbon

dioxide greenhouse gases (GHGs). I served as an expert

for the United Nations Framework Convention on Climate

Change and the Intergovernmental Panel on Climate

Change (IPCC). In that role, I earned recognition for my

contribution to the IPCC’s Nobel Prize. I continued my

career at U.S. EPA, developing its Carbon Capture and

Sequestration expertise, including comprehensive risk

assessment considerations.

3. I joined CARB’s Research Division in 2007 and

led three climate change-related efforts: carbon capture

and sequestration, an ozone-depleting substance offset

protocol, and an early action climate measure. I was a

Section

113

***

Global Warming Solutions Act, requiring the State

to reduce its greenhouse gas emissions to 1990 levels by

2020. This legislation directed CARB to adopt regulations

to achieve the maximum technologically feasible and costeffective greenhouse gas emission reductions. It further

directed CARB to develop a Scoping Plan laying out

California’s strategy for meeting its climate goals, to be

updated every five years. In 2016, the State Legislature set

more ambitious goals in Senate Bill (SB) 32, which directs

CARB to ensure that State greenhouse gas emissions are

reduced 40 percent below 1990 levels by 2030.

14. As part of its efforts to reduce both greenhouse

gas emissions and criteria pollutants (air pollutants

with national ambient air quality standards), CARB has

regulated emissions from light-duty vehicles since 1959.

In 2012, CARB combined these emission standards and

established its Advanced Clean Cars program. In 2013,

California obtained from U.S. EPA a waiver of preemption

under the Clean Air Act for this program (the 2013 waiver),

including the State’s vehicle criteria pollutant standards,

greenhouse gas emission standards, and zero-emission

vehicle (ZEV) mandate.

15. California’s ZEV mandate is technology forcing,

as it has required increasing numbers of ZEVs to be sold

annually within the State since 2009.14 And it has been

successful: sales of ZEVs have risen to more than 7 percent

13 Cal. Code Regs. §§ 1962.1, 1962.2.

114

of new car sales in California, equal to more than 140,000

ZEVs and plug-in hybrids in 2019.15 California’s current

ZEV regulations are on track to produce 1.5 million

ZEVs on the road by 2025 and over 2 million by 2030.

California’s light-duty vehicle greenhouse gas standards

also produce year-over-year reductions in greenhouse gas

emissions, by about 5 percent per year for model years

2020 through 2025.16 Because light-duty vehicles remain

the largest source of emissions within the transportation

sector and are responsible for 70 percent of the State’s

transportation greenhouse gas emissions, California’s

light-duty vehicle greenhouse gas emission standards

and the ZEV mandate with its resulting technological

penetration were key pieces to California’s 2017 Scoping

Plan update, by which the State outlined how it would meet

its increasingly stringent climate obligations.17

The EPA’s 2013 Waiver Revocation and Restoration

16. In 2018, EPA took the unprecedented action of

proposing to withdraw the portions of the 2013 waiver

for California’s greenhouse gas emission and ZEV

standards, an action it finalized in September 2019 (the

E.g., California New Car Dealers Association, 16 CAL.

AUTO OUTLOOK, no. 1, Feb. 2020, at 2, https://www.cncda.org/

wp-content/uploads/Cal-Covering-4Q-19.pdf.

13 Cal. Code Regs. § 1961.3.

E.g., CARB, California’s 2017 Climate Change Scoping

Plan at 25 (Nov. 2017), https://ww3.arb.ca.gov/cc/scopingplan/

scoping_plan_2017.pdf.

115

so-called “SAFE” Part One Rule).18 California challenged

EPA’s SAFE Part One Rule as arbitrary, capricious,

and unlawful. That litigation was stayed upon the Biden

Administration’s direction to EPA to reconsider its SAFE

rules.

17. EPA restored the withdrawn portions of the 2013

waiver in March 2022.19 That restoration has now been

challenged. Should EPA’s restoration of California’s

2013 waiver for the State’s existing light-duty vehicle

g reenhouse gas emission and ZEV standards be

overturned, it would result in higher greenhouse gas and

criteria pollutant emissions. Indeed, fewer ZEVs are likely

to be sold than would otherwise have been to meet existing

requirements, all else equal, and thus additional gasolinefueled vehicles would be sold during these model years.

These additional gasoline-fueled cars would produce

substantially more greenhouse gas emissions over their

lifetimes than the ZEVs they will displace not only because

gasoline-fueled vehicles produce emissions, unlike ZEVs,

but also because vehicle tailpipe and evaporative emissions

substantially increase over time due to the deterioration

of the emission controls. For instance, a model year 2020

gasoline-fueled vehicle overall produces about four times

as many greenhouse gas emissions as a ZEV. 20

84 Fed. Reg. 51,310 (Sept. 27, 2019); 83 Fed. Reg. 42,986

(Aug. 24, 2018).

87 Fed. Reg. 14,332 (March 14, 2022).

CARB, Fact Sheet: The Zero Emission Vehicle (ZEV)

Regulation (2 018), https: //w w 2 .a rb.ca .gov/sites/default /

files/2019-06/zev_regulation_factsheet_082418_0.pdf.

116

18. Over time, these repercussions will expand.

Without the critical push from the ZEV standards, ZEVs’

market share would likely fail to expand at the rate

needed to meet California’s climate and public health

requirements. This loss of greenhouse gas emissions

reductions amplifies the risk of further climate impacts

California is already facing, as discussed below.

Climate Change Impacts on California

19. California is one of the most geographically and

ecologically diverse regions in the world, with landscapes

ranging from chaparral and grasslands to sandy beaches

and rugged coastal areas to redwood rainforests and

dense interior forests to snow-covered alpine mountains

to dry desert valleys. Each of these regions experiences

a unique combination of impacts from climate change.

From record temperatures to increasingly intense

wildfires 21 to rising sea levels and increasingly acidic

seas22 to less reliable snowpack, 23 climate change poses an

***

N.S. Diffenbaugh, A.G. Konings, C.B. Field, (2021).

Atmospheric variability contributes to increasing wildfire weather

but not as much as global warming. Proceedings of the National

Academy of Sciences Nov 2021, 118 (46) e2117876118; DOI:

10.1073/pnas.2117876118. https://www.pnas.org/content/118/46/

e2117876118.

E.B. Osborne, et al., Decadal Variability in Twentiethcentury Ocean Acidification in the California Current Ecosystem,

13 NAT. GEOSCI. 43–49 (2020), https://doi.org/10.1038/s41561019-0499-z.

P.W. Mote, et al., Dramatic Declines in Snowpack in the

Western US, 1 NATURE PARTNER JS. CLIM. ATMOS. SCI.

(2018), https://doi.org/10.1038/s41612-018-0012-1.

117

Excerpts from Private Petitioners’ Final Brief in the

D.C. Circuit (filed Mar. 20, 2023)

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

No. 22-1081 (and consolidated cases)

STATE OF OHIO, et al.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY

AND MICHAEL S. REGAN, IN HIS OFFICIAL

CAPACITY AS ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY,

Respondents,

ADVANCED ENERGY ECONOMY, et al.,

Intervenors.

ORAL ARGUMENT NOT YET SCHEDULED

On Petition for Review from the United

States Environmental Protection Agency

(No. EPA-HQ-OAR-2021-0257)

FINAL BRIEF FOR PRIVATE PETITIONERS

***

118

STANDING

Petitioners include entities that produce or sell liquid

fuels and the raw materials used to produce them, along

with associations whose members include such entities. By

design, California’s greenhouse-gas standards and zeroemission-vehicle mandate reduce the demand for liquid

fuels and their raw materials by forcing automakers to sell

vehicles that use significantly less liquid fuel or no liquid

fuel at all. As shown in the accompanying declarations,

depressing the demand for those fuels injures petitioners

and petitioners’ members financially. California itself found

that the “oil and gas industry, fuel providers, and service

stations are likely to be” the industries “most adversely

affected” by California’s Advanced Clean Cars program

and the resulting “substantial reductions in demand for

gasoline” in California. J.A. 801; see J.A. 799; J.A. 830,

832. This economic injury to petitioners and petitioners’

members constitutes injury-in-fact under Article III. That

injury is caused by the challenged regulatory action, and

this Court can redress that injury by setting aside the

action. See, e.g., American Fuel & Petrochemical Mfrs.

v. EPA, 3 F.4th 373, 379-80 (D.C. Cir. 2021); Airlines for

Am. v. TSA, 780 F.3d 409, 410-411 (D.C. Cir. 2015).

The petitioners that are membership associations also

have associational standing to challenge EPA’s decision.

See Hunt v. Wash. State Apple Advert. Comm’n, 432

U.S. 333, 342-343 (1977). Their members have standing

to sue in their own right, for the reasons described. The

interests petitioners seek to protect are germane to their

organizational purposes, which include safeguarding the

119

viability of their members’ businesses. And neither the

claims asserted nor the relief requested requires the

participation of individual members.

STANDARD OF REVIEW

This Court “shall hold unlawful and set aside agency

action” that is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law”; “contrary to

constitutional right, power, privilege, or immunity”; or “in

excess of statutory jurisdiction, authority, or limitations,

or short of statutory right.” 5 U.S.C. § 706(2)(A)-(C).

ARGUMENT

EPA Exceeded Its Statutor y Author ity In

Reinstating A Waiver For California To Set

Emission Standards Meant To Address Global

Climate Change.

To prevent “an anarchic patchwork of federal and

state regulatory programs,” the Clean Air Act establishes

federal control over motor-vehicle emission standards.

MEMA, 627 F.2d at 1109. It does so through Section

***

120

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

No. 22-1081 (and consolidated cases)

STATE OF OHIO, et al.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY

AND MICHAEL S. REGAN, IN HIS OFFICIAL

CAPACITY AS ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY,

Respondents,

ADVANCED ENERGY ECONOMY, et al.,

Intervenors.

ORAL ARGUMENT NOT YET SCHEDULED

On Petition for Review from the United

States Environmental Protection Agency

(No. EPA-HQ-OAR-2021-0257)

PRIVATE PETITIONERS’ FINAL ADDENDUM

OF STATUTES AND STANDING DECLARATIONS

***

121

STANDING DECLARATIONS

A. Chris Bambury, Vice President of Bambury, Inc.,

Board Member of the National Association of

Convenience Stores

B. Dave Loos, Director of Biofuels and Research of the

Illinois Corn Growers Association

C. Deepak Garg, Vice President of the Fuels Regulatory

and Planning, and HSE Assurance division servicing

Valero Renewable Fuels Company, LLC and Diamond

Alternative Energy, LLC

D. Erin Graziosi, President of Robinson Oil Company, a

Member of the National Association of Convenience

Stores and California Fuels and Convenience Alliance

E. Jennifer M. Swenton, Director of Optimization

Planning and Economics division for Valero Renewable

Fules Company, LLC

F. James E. Zook, Executive Director of the Michigan

Corn Growers Association

G. Josh Roe, Vice President of Market Development and

Policy of the Kansas Corn Growers Association

H. Kirk Leeds, CEO of the Iowa Soybean Association

122

Lane Howard, A ssociate Di rector of Market

Development of the M issou r i Cor n Growers

Association

Rock Zierman, CEO of the California Independent

Petroleum Association, a Member of the Domestic

Energy Producers Alliance

K. Susan W. Grissom, Chief Industry Analyst for the

American Fuel & Petrochemical Manufacturers

L. Trecia Canty, Senior Vice President, General

Counsel and Secretary for PBF Energy, a Member

of American Fuel & Petrochemical Manufacturers

M. Trevor Hinz, Director of Government and Industry

Relations of ICM, Inc.

N. Varish Goyal, CEO of Au Energy, Member of the

National Association of Convenience Stores

***

123

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Case No. 22-1081 and consolidated cases

STATE OF OHIO, et al.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY

AND MICHAEL S. REGAN, IN HIS OFFICIAL

CAPACITY AS ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

ADVANCED ENERGY ECONOMY, et al.,

Intervenors.

DECLARATION OF CHRIS BAMBURY

I, Chris Bambury, declare under penalty of perjury

that the following is true and correct to the best of my

knowledge:

1. I am the Vice President of Bambury, Inc.

(“Bambury”), a family-owned and operated business in

California. Bambury is a fourth-generation operated

company that just celebrated 100 years since it was

124

established. For 50 years it operated towing and auto

repair services, but recently ceased those operations due

to profitability challenges. We’ve operated a foodservice

(deli) business for over 30 years, but it has struggled

through COVID.

2. Bambury is a member of the National Association

of Convenience Stores (“NACS”), and I currently serve

on the Board of Directors of NACS. I am also the Senior

Vice President of the California Fuels and Convenience

Alliance (“CFCA”), which is the state association that

represents independently owned convenience store

operators and fuel marketers. While CFCA is not formally

affiliated with NACS, the two organizations collaborate

and share resources to stay on top of federal, state, and

local issues, such as EPA’s de

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