By election-time 2025, EV mandates in Canada, the United States, and Europe may well be gone, or at least watered down
The language of law must not be foreign to the ears of those who are to obey it
Billings’ Learned Hand
For those for whom the mere mention of anything legalese is cruel and unusual punishment, let me apologize. Profusely. Were it not for an extremely important, but much-ignored, missive from Reuters last week, I, too, would avoid all things constitutional as forcefully as warm beer and tight stockings. Delving into the language of lawyers, as it turns out, makes Bernoullian physics seem simple and straightforward in comparison.
Why it’s such a threat
California has the unique right to set its own emissions standards thanks to a waiver first granted by the Environmental Protection Agency (EPA) more than 50 years ago. And contrary to some of what you might have read, the original waiver was granted by an act of American Congress, not just an administrative decision made within the offices of the EPA.
Equally problematic is another challenge to the EPA’s authority called West Virginia v. EPA. In the simplest of terms, the precedent in question – rendered in 2022 — re-establishes what is being called the “major questions” doctrine. According to Reuters, the ruling states all agencies — and, more specifically, the EPA — “require explicit congressional authorization before regulators can take consequential actions on issues of vast importance and societal impact.” In other words, unless Congress has passed a statute specifying an explicit action, an agency — the EPA, in the case of West Virginia — is not allowed to make “major” decisions on its own.
The circumstances of the West Virginia case are similar enough — though admittedly not identical — to the waiver that grants California the right to its own emissions standards. The problem — and why you should be reading this with more interest than most legal gobbledygook — is that were the EPA’s right to grant California a waiver to be rescinded, the decision would be incredibly far-reaching. Industry-altering, in fact.
Not only would California’s right to ban ICEs be questioned, but the 13 states that have been allowed to emulate Cali’s regs — another part of the waiver that surely irks SCOTUS’ conservative majority — will have to eliminate their EV mandates as well. And the only way they would be allowed to reinstate them is if the House of Representatives and the Senate — not to mention a future President Trump — agree to allow California to reinstate its emissions rules. That’d be virtually impossible now, and if Trump is elected — or rather when he is, if you watched the presidential debate — the chances of legislating any pro-EV bill, let alone one that favours giving the EPA and California more powers, is about as likely a Putin holding free and fair elections in Donetsk.
Were the EPA’s right to grant California a waiver to be rescinded, the decision would be incredibly far-reaching—industry-altering, in fact
It’s also worth noting that California’s impact on emissions regulation extends beyond the borders of the United States. Quebec, the first Canadian province to legislate a ZEV mandate, literally copied California’s law, save for the translation of English to French and conversion of its numerals to metric, in the original writing of its law. Many others have followed a similar pattern. It’s no exaggeration to claim Sacramento is quite literally the spiritual home of EV mandates.
Why they may well lose
First, a caveat: I am not a lawyer. Anything I say beyond this point is the interpretation of opinions by real legal beagles. That said, having now read countless analyses and having sought as much legal counsel as a Luddite can be expected to grasp, a few issues stand out.
In that all-important West Virginia ruling — overturning regulations which sought to limit the emissions from coal-fired power plants — the EPA sought to first force the industry to be more more efficient in its use of coal (which the Supremes seem to have no problem with). The agency also sought, however, to force a shift from coal-fired energy generation to cleaner renewable energy, specifically wind and solar energy.
This last is the issue the Supreme Court seems to find contentious, saying a sector-wide shift from one energy source to another was beyond the EPA’s purview, and that such “major questions” required “clear congressional authorization” to enact.
If I am reading this right — and please heed the caveat starting this section — the Supremes said EPA could and should be allowed to regulate any BESR improvements to the existing technology (in this case, coal-fired plants) but, in its determination, the agency had moved beyond the scope of its powers in insisting on a new generation of technologies (renewables) that have not been mandated by a specific congressional dictate.
That would seem to imply, if it were applied to auto emissions, that the EPA could regulate improvements to the existing technology (namely various forms of internal-combustion, probably including hybrids and plug-in hybrids) but could not mandate a wholesale switch to battery-powered electric cars (in other words, a mandate banning internal-combustion engines).
But, according to Reuters, this is exactly what the Diamond plaintiffs — and now Ohio — have argued in their filing: “The waiver and authority claimed here are the key parts of a coordinated agency strategy to convert the Nation from liquid-fuel-powered vehicles to electric vehicles.” More specifically, say those fighting such generous readings of the Clean Air Act, section III (d) does not grant the authority to remake energy markets. To a layman — at least this layman — forcing cars from internal-combustion to battery power would seem as much a transgression of that “major questions” doctrine as trying to coerce the end of coal in favour of solar power.
How California could prevail
Again, please note this coming from an engineer-cum-journalist and not a lawyer. That said, one argument making the rounds is that the EPA is just arguing for a more “modern” interpretation of the law rather than making a strict enforcement of the existing statute. The Clean Air Act was first signed into law more than 50 years ago, and it’s been ages since American politicians have agreed on anything that would update its ability to address the latest attempts at regulating all tailpipe emissions.
But, while that certainly may sound logical — not to mention, given the havoc being wrought by climate change, beneficial — it doesn’t seem as if the current Supremes are apt to heed such an appeal. More likely, they’d posit that it is up to Congress to specifically affirm that it wants California’s waiver — originally granted to minimize criteria emissions (smog) — to be allowed to not only regulate greenhouses gasses, but also to evolve into its current form as de facto ban of the existing technology, namely vehicles powered by internal-combustion engines.
The Supreme Court’s determination would seem to imply, if it were applied to auto emissions, that the EPA could regulate improvements to the existing technology, but not mandate a wholesale switch to battery-powered electric cars
There is also the possibility that the Supreme Court simply decides to not hear the case, the most common cause of such rejections being that the plaintiffs have no “standing” to move the case forward. Standing is an ambiguous finding that means the person bringing the suit forward must show they’ve been harmed by the action being questioned. Its interpretation is broad enough that one suspects it’s trotted out whenever the Supremes simply don’t want to adjudicate a specific case.
And, considering that one of the prongs the conservative plaintiffs are looking to exercise is the “equal sovereignty” issue, it would seem to me that it will be incumbent on California to convince the Supremes that it deserves special attention, just as it did back in 1967 when the waiver was first written into the Clean Air Act.
The threat to Canada’s ZEV mandate
California’s is not the only march to electric vehicles under threat. Closer to home, the threat to Canada’s federal electric-vehicle mandate is political, not legal. It is, for instance, virtually certain that, if elected — and judging from recent polls, that, too, falls into the category of more “when” than “if” — Pierre Poilievre will trash the EV “sales targets” set to come into force in 2026. What comes after is unknowable since, as much as the Conservative Party has dictated what it will not do — continue any of Justin Trudeau’s policies — it has not said much about what it will do.
In it, I advised him to simply change the current mandate from requiring the sale of only pure plug-ins; to the sale of anything electrified. That would show at least some measure of compromise while still opening the door for regular hybrids — the unsung heroes of electrification, and once again immensely popular amongst consumers — to be sold past 2035. I won’t pretend he will heed the advice — or even read it — so what comes after his (again, all but affirmed) election is anybody’s guess. But it’s almost dead-nuts certain the current ZEV regulations will not survive as currently penned.
Europe’s commitment to EVs is being challenged, too
Even the greener-than-thou European Union is facing headwinds in its EV mandate scheme. The big winner in the recent E.U. Parliamentary election were the (semi-)right-wing European People’s Party (EPP). Their 188 seats don’t constitute an outright majority (the pan-European Parliament has 720 seats) but their influence is undeniable, especially since the president of the European Commission, Ursula von der Leyen, is a member of the group.
It is virtually certain that, if elected, Poilievre will trash EV ‘sales targets’—what comes after is unknowable since, as much as the Conservative Party has dictated what it will not do, it has not said much about what it will do
The ZEV mandate as political theatre
It shouldn’t be lost on anyone that the threat to EV mandates in Canada and the E.U. is pure power politics. On the other hand, one can easily make an excellent argument that America’s current Supreme Court — an august body that once purported to be apolitical — is more than a little partisan. What is certain is that right-wing parties — ascendant now in the U.S., Canada, and, to a lesser degree, in Europe — have seemingly made the rejection of electric vehicles a bedrock policy.
Nowhere is that more obvious than those supposedly United States of America. Trump makes no bones regarding his antipathy for electric vehicles, his campaign’s national press secretary, Karoline Leavitt, telling Politico back in March that “On day one of the Trump administration, not only will Crooked Joe’s electric-vehicle mandate be terminated, but any Biden waiver allowing gasoline-powered cars to be outlawed will be immediately revoked.”
Even more concerning for waiver supporters, says Legal Planet, is the Heritage Foundation’s Project 2025. A 900-page political playbook “with a ‘plan to dismantle the U.S. government and replace it with Trump’s vision’ if he is elected,” one of its cornerstones is attacks on the section — 209(b) — of the Clean Air Act that permits the California waiver. Its strategy, says Legal Planet, is for Trump “to simply decline to grant any future waivers to the State of California.” And, should that face legal challenge, the report’s back-up recommendation is that a Trump-controlled Congress simply amend the statute to repeal section 209(b) altogether.
What happens moving forward
There’s little doubt that EV mandates — and, a subject I have not discussed here, subsidies — are under greater threat than at any time in their short history. As I said, Canada’s is almost certainly to be reversed. But in the grand scheme of things, as much as it may pain us to hear, our market is so small that any decisions, political or legal, north of the 49th parallel don’t matter. No matter what Canada does — maintain our ZEV mandate or revoke it — automakers are not going to change their global initiatives based on our rules.
Even less influential will be any provincial mandates. Quebec appears ready to ban all cars other than full electrics powered by batteries or hydrogen fuel cells. According to a new draft under its Environment Quality Act, hydrogen-fuelled ICEs, synthetic fuels, and even PHEVs will be banned come January 1, 2035. I suspect that, in global headquarters around the world, no one is paying the prospect any attention at all.
Nor do recent developments in the E.U. appear game-changing. The European market may be big enough for automakers to alter their EV plans, were legislation to be dramatically altered, but the E.U. is most likely to simply broaden its ZEV eligibility rather than fully revoke it. While significant, that, too, would not be catastrophic.
What does matter — and a whole heckuva lot — is California’s ability to set its own standards and the right for other states to follow its lead. Were its EV mandate revoked, there’s little question the speed of any transition to EVs in America would slow down beyond the already reduced pace we’ve seen for the last 12 months.
Now throw in a similar situation in Canada and some ambiguity as to whether ICEs are truly banned in the E.U. and you have a markedly different marketplace facing the automakers that had previously been asked — nay, told — to transition to an all-electric future. In other words, much of the world’s — certainly the West’s — transition to zero-emission vehicles rests on whether a single clause in a bill written some 57 years ago remains intact.
The point I’m sure you’re thinking I took too long to make is that, between the Supreme Court and an impending Trump presidency, California’s exceptionalism is not something EV advocates can take for granted any longer.
Author’s Note: For what it’s worth, Motor Mouth has never been a fan of ZEV mandates. No politician — and most certainly not these Trudeau-led Liberals — are learned enough to make such technological choices. Indeed, ZEV mandates would seem nothing more than the simplification of a truly complex issue that politicians might grasp (and, of course, be able promote in a 15-second sound-bite). As has long been the case, Motor Mouth believes the government’s role is in building infrastructure, not limiting consumer choices. In other words, no mandates and no consumer incentives. Instead, all that effort and money should be put into supporting things like home and public charging stations, or wirelessly charged roadways, enhancing consumers’ choices when they next shop a new car.
That said, I am more than a little ambivalent at even the remote possibility that EV mandates could be rescinded. Their alternative — tailpipe emission standards — have proven even more difficult for our elected representatives to understand and regulate with anything approaching effectiveness. If that’s not direct enough, let me say it this way: politicians have, to date, been to stupid to craft any rules for automobile tailpipe emissions that automakers haven’t been crafty enough to circumvent. The only benefit — and I do mean only — of a zero-emission vehicle mandate is that it is simple to write, even simpler to measure, and manageable, even for the most bumbling of political hacks, to enforce.
As for the opposite side of the coin — those rejoicing that, with ZEV mandates under attack, perhaps electric vehicles will slink back to the laboratories and test grounds they inhabited before Elon Musk got religion — I’d suggest you cool your jets. Even if ZEV mandates are rescinded, electric vehicles will continue to sell, albeit in fewer numbers, or at least at a slower pace of growth. If incentives are rescinded as well — as is almost surely the case if/when Trump and Poilievre are elected — that rate of growth may diminish further. But electric vehicles are now part of the automotive landscape. They may not be for me. They may not be for you. But they are capable mobility solutions for more than a small minority of the motoring public. ZEV mandates disappearing is unlikely to change that.
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