In a recent tweet, New York Governor Kathy Hochul announced that all new vehicles sold in the state must be zero emissions by 2035. But, as is usually the case with these kinds of announcements, the devil is in the details.
NEW: All new vehicles sold in New York must be zero emissions by 2035.
By revving up our clean transportation transition and making major investments to make EVs more accessible, we’re supercharging our fight against climate change. #NationalDriveElectricWeek pic.twitter.com/AWvSjK8b7D
— Governor Kathy Hochul (@GovKathyHochul) September 29, 2022
What the tweet and most other coverage of the announcement wont tell you is that the process isn’t only not complete, but hasn’t really even begun yet. To explain that, we need to look at some legislation that was passed last year.
Just over a year ago, the Governor signed legislation (A.4302/S.2758), setting a goal for all new passenger cars and trucks sold in New York State to be zero-emissions by 2035. The new law requires that all new off-road vehicles and equipment sold in New York be zero-emissions by 2035, and new medium-duty and heavy-duty vehicles by 2045. Furthermore, a zero-emissions vehicle development strategy must be created by 2023 to accelerate the implementation of state policies necessary to reach these goals. This task will fall upon NYSERDA (New York State Energy Research and Development Authority).
At the time, NYSERDA President and CEO Doreen M. Harris said, “Stronger regulations to reduce emissions will help our communities, particularly in densely populated, underserved areas, which typically face higher levels of pollution from trucks and vehicles. Today’s announcement will help creates a more sustainable future, meaning all New Yorkers can embrace a lower carbon footprint and healthier places to live and work, as we accelerate toward meeting New York State’s clean transportation goals under the Climate Leadership and Community Protection Act.”
If you’re reading between the lines on all this, you’ll notice that last year’s legislation itself didn’t do anything immediately. It only empowered NYSERDA to create regulations that would detail all of the specifics, and gave them a deadline.
Now, the Governor has ordered to the NYSERDA to basically “hurry up” and get the regulations drafted this year. Her office says that proposing draft State regulations is crucial to further electrifying the transportation sector and helping New York achieve its climate requirement of reducing greenhouse gases 85% by 2050. This would also reduce air pollution, particularly in disadvantaged communities.
DEC says they’re working hard to put new legislation into effect that Governor Hochul signed last year. This will help us transition fully to zero-emission cars and trucks. California’s recent actions have given them the ability to adopt the same regulations (I’ll explain this in a bit), and they are moving quickly to do so.
During the next few months, the state government will provide more information about stakeholder engagement, the public comment period and hearing, and publication of the regulatory proposal on their website (these proposals get published here).
What’s Going Into The Regulations?
The legal situation here gives the state some flexibility in how it drafts its regulations, and based on how federal law works here, we can make some educated guesses. This may seem strange, but to understand what New York can do, we have to look at California.
The Clean Air Act of 1970 is what gave California the authority to regulate emissions. When Congress passed this act, their intention was for the federal government to have control over national emissions levels. The EPA operates within a set of guidelines that allows them to draft these regulations.
The EPA noted that California was already regulating emissions prior to the new law, so they included an exception. This way, states’ rights are respected and California can continue its regulation under request of waiver from the EPA. The EPA must grant this request unless California did the following:
- was arbitrary and capricious in its finding that its standards are, in the aggregate, at least as protective of public health and welfare as applicable federal standards
- does not need such standards to meet compelling and extraordinary conditions
- such standards and accompanying enforcement procedures are not consistent with Section 202(a) of the Clean Air Act
The Clean Air Act doesn’t allow any other state to set its own emissions regulations, but it does allow other states to adopt the same regulations that California does. So, in essence, California’s adoption of rules requiring zero emissions vehicle sales by 2035 opens up an option for New York and other states that adopt California’s rules.
But, there’s still the question of how much of California’s rules New York will adopt. Section 177 of the Clean Air Act does require that any adopted rules be identical to California’s regulations, but doesn’t require other states adopting California’s regs to adopt all of them. Thus, New York has two proverbial buffet lines it can go through, and can pick either federal standards or California standards for different aspects of emissions.
What Will New York Choose?
If New York intended to adopt California’s rules in a complete, verbatim fashion, the state legislature could have easily just said as much in last year’s legislation. It could have been a partial one-page bill that consisted of this sentence: “The State of New York hereby adopts all of the State of California’s emissions standards, and automatically adopts such standards as they are implemented going forward.”
But, they didn’t just mass adopt all of California’s standards, which tells us that they’re probably going to get choosy and picky about what they want on their plate.
This leaves important questions:
- Will they define zero emissions vehicles in the same way California does?
- Will they push hydrogen?
- Will they leave room for plugin hybrids the way even California does? How will they define that?
- Will New York do what some automakers and promise “electrification”, when that could mean anything from a mild hybrid (basically an ICE with a strong starter-motor) to a full BEV?
Plus, if there’s even a hint of difference between New York’s regulations and those of California, there’ll be an opening for anyone who can stand to sue the state. Will the next Republican administration do what Trump did and sue them like he sued California? Will automakers sue them? Will the oil industry convince a Trump-appointed judge that they have standing to sue?
I’m no lawyer, but it seems likely that the process to promulgate state regulations is only going to be the early part of the beginning of the process.
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