Biden Makes A Last Big Push To Keep Trump From Killing The Electric Car

President-elect Donald Trump is vowing an all-out assault on President Joe Biden's efforts to make electric vehicles the new king of the American road.

But an eleventh-hour decision by Biden will make it harder for Trump to kill those EV dreams.

A waiver that the U.S. Environmental Protection Agency granted Wednesday morning will allow California to carry out the country’s most ambitious EV mandate, one aimed at banning sales of new cars and light trucks running on gasoline and diesel fuel by 2035. Eleven other Democratic states have also signed on to California’s standard — a combined market force that electric vehicle supporters hope will prod the auto industry to continue pouring money into battery-powered cars, regardless of Trump's wishes.

Trump has already vowed to undo California's electric vehicle rules, similar to his effort five years ago to stop the state from imposing car and truck pollution standards more stringent than the federal government's. But the waiver granted Wednesday has a durable legal foundation that could make it a near-immovable object for the Trump administration for at least a couple of years, experts say. In the meantime, automakers will likely have to make investments in EVs that they could be loath to undo.

Biden’s late call is also the starting gun for a new conflict that may be a prominent storyline of Trump’s second term: an epic states’ rights battle between the new president and Democratic Gov. Gavin Newsom, who has vowed to "future-proof California in every way, shape or form.”

Upon Trump’s inauguration, the conflict transitions from “Biden versus Trump to Trump versus [Gavin] Newsom,” said Barry Rabe, a professor of environmental policy at the University of Michigan.

One irony of the 2024 election is that while Trump and other Republicans railed at what the president-elect called Biden's "insane electric vehicle mandate,” they might have been focused on the lesser threat.

GOP ire centered mainly on EPA's rules limiting greenhouse gas pollution from cars and trucks, which the Biden administration finished earlier this year. Those rules don’t technically mandate anything, although their requirements are so strict that there’s essentially no way for automakers to comply without having half their car sales be electric by 2032. Nationwide, EVs were almost 10 percent of vehicles sold through June of this year, according to industry data. In California, sales stood at almost 27 percent.

Now that Trump is about to gain the power to reverse those EPA rules, automakers are pointing to California as the entity that will cause them more immediate pain.

The California rule, completed in 2022 by the state’s Air Resources Board, is “an actual electrification sales mandate and ultimately a ban on the sale of new gas-powered vehicles,” the auto industry’s main lobbying group, the Alliance for Automotive Innovation, said in a statement last week. The group also called the rules “an unaccountable, unachievable regulatory wormhole.” But as a result of the EPA waiver, California has a federal green light to go ahead.

“The ‘California’ issue will dominate electrified vehicle policy (and politics) in the year ahead,” the group added.

Can't be waived aside

The waiver is bound to be controversial in the Trump 2.0 years because electric vehicles have become such a high-profile cause on both sides.

Democrats from Biden on down generally consider the EV an indispensable tool to fight climate change and compete with China. (The transportation sector is the United States' biggest producer of planet-warming gases.) And from Trump on down, Republicans characterize the Biden years as an era of EV overreach, when Washington spent money fruitlessly and piled on too many regulations in support of a product that American motorists don't want.

In addition to EPA's regulations, Biden's agencies have also wielded a thicket of loans, grants and tax credits to push automakers to produce more electric vehicles, make their components in the United States and encourage consumers to buy them. On Monday, for example, the Energy Department closed a $9.6 billion loan for a joint venture between Ford and a South Korean company to build three battery plants in Tennessee and Kentucky.

In this superheated atmosphere, California's ability to get waivers from federal air pollution rules, created in 1970 by the Clean Air Act, is likely to spark even more conflict than it did when Trump revoked it in his first term.

It took a while for the Trump administration to get around to revoking an earlier, 2013 California standard in his first term, proposing action in August 2018 and finalizing it in September 2019. EPA is likely to move faster this time around, but it's unlikely Trump can simply sign an order undoing the newest waiver — and it’s unclear whether such an order would hold up in court.

That's because Trump's previous effort relied on a novel legal argument that the mid-1970s law creating federal fuel economy standards bars states from implementing their own fuel economy rules. The first Trump administration argued that California was effectively imposing fuel economy rules by regulating vehicles' greenhouse gas emissions.

Making the same kind of legal assault on the new California waiver would probably require Trump's appointees to issue a new regulatory proposal, take public comment and go through other bureaucratic steps, a process that usually takes a year or longer and would surely be followed by a couple of years of litigation.

Then again, Trump's demonization of electric cars is far more central to his platform than it was during his first term, when his main energy policy was an unsuccessful effort to preserve coal as the nation's top electricity source. At virtually all of his campaign rallies in the 2024 campaign, Trump dedicated some time to casting aspersions on electric cars' performance and raging against EV regulations — notwithstanding his avid support from Tesla CEO Elon Musk.

Trump even singled out EVs for condemnation last year in his Christmas Day greeting on his social media network Truth Social. In the post, Trump castigated the "THUGS we have inside our Country who, with their Open Borders, INFLATION, Afghanistan Surrender, Green New Scam, High Taxes, No Energy Independence, Woke Military, Russia/Ukraine, Israel/Iran, All Electric Car Lunacy, and so much more, are looking to destroy our once great USA," adding: "MAY THEY ROT IN HELL. AGAIN, MERRY CHRISTMAS!"

Hallowed history

Asked whether the newest California waiver could stand the tests of Trump, experts interviewed for this article all pointed to the long history of the state's waivers from federal rules — a history that also makes it one of the most durable guardrails in environmental law.

The waiver is “a hallmark of how we’ve done environmental regulation in the country for 50 years,” said Nick Nigro, the founder of the EV data-analytics firm Atlas Public Policy.

California’s unique authority to set its own stricter-than-federal tailpipe emissions standards is the centerpiece of the state’s efforts to shift away from fossil fuels and combat climate change. But the state doesn’t have blanket authority to set its own course — its power hinges on EPA approval of waivers that allow state officials to enforce their own rules under the Clean Air Act.

The waiver system originated after Congress established the Clean Air Act as the nation’s overarching pollution control policy. California, which had already developed its own pollution regulations in the 1960s and at the time had the worst air quality in the country, was given a carve-out to “address compelling and extraordinary circumstances.” Other states can also adopt all or portions of California’s regulations — and 11 blue-state governments have already signed on to its EV sales mandate.

Though California has made progress, the state’s expansive transportation sector and a valley topography that traps pollutants like smog have kept it well out of compliance with federal air quality standards.

California air regulators argue that regions like Southern California — home to nearly 24 million people — simply can’t reach federal compliance without drastic emissions cuts from sources such as cars, trucks, trains and ships. Staying out of compliance could allow EPA to withhold critical federal highway funding, as the Trump administration threatened to do in 2019.

“The ability for California to move as fast or faster than the federal government is supremely important” because it remains the most polluted state in the country, said Ray Minjares, a vehicles expert at the nonprofit International Council on Clean Transportation. “California is forced to innovate and forced to move faster than anyone else, and it’s been that way since the 1950s before we even had a clean air program.”

The waiver has played a dual role in Washington’s approach to vehicle emissions.

One effect has been California's history of resisting efforts by Republican presidents to water down pollution rules. “The waiver has historically been very important to maintaining progress on air pollution when past Republican administrations have stalled federal standard setting for cars and trucks,” said Jody Freeman, a professor of environmental law at Harvard Law School, in an email.

The other impact has been that California creates anti-pollution goalposts for Democratic administrations in Washington to hit. Because other states can join California’s waiver, it has a way of becoming the de facto standard. Rabe, of the University of Michigan, called it “leveraged federalism.”

Whatever happens with the waiver under Trump, the years of uncertainty around it will probably see automakers continue to produce EVs on California’s schedule. The carmakers face financial penalties if they don’t meet the sales goals.

If it takes until 2027 for Trump to roll back the waiver — two years into his term — each automaker will be required by that model year to have electric vehicles make up 43 percent of the cars and light trucks it sells in California and its companion states. Two years after that, Democrats could be back in power in Washington.

None of this makes California's new requirements easy or even practical to meet, critics in the auto industry argue.

“Achieving the mandates will take a miracle,” the Alliance for Automotive Innovation said.