September 23, 2019

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Major Automakers Negotiate Emissions Agreement-in-Principle with California

In advance of the Trump Administration’s plans to move forward with less-restrictive standards for light duty vehicles, four major automakers have negotiated an agreement–in-principle with the California Air Resources Board (“CARB”) to provide an alternative approach to reducing greenhouse gas emissions and improving fleet fuel economy. The terms of the private deal with California may provide a template for avoiding a major potential split in standards applicable to the U.S. market – the California versus the federal – and the uncertainty of extended litigation over the issue of the extent of California’s authority to promulgate auto emissions standards without Environmental Protection Agency (“EPA”) approval.

Under the agreement, Ford, Honda, BMW of North America, and Volkswagen Group of America have committed to reducing their vehicles’ average emissions by 3.7% year over year through Model Year 2026 (inclusive of several major new accounting flexibilities outlined below), ultimately reaching the adjusted equivalent of roughly 51 mpg fuel efficiency. By comparison, the EPA’s proposed Safer Affordable Fuel Efficient Vehicles (“SAFE”) Rule – slated for finalization later this year – would freeze the standard at 36.9 mpg for Model Years 2020 through 2026.

The CARB agreement would provide significant new flexibility while, at the same time, providing additional regulatory support in the market to electric and hybrid vehicle manufacturers. For example, the agreement would extend the availability of “advanced technology multiplier” credits which would provide further competitive incentives for the development of electric and other low-emissions vehicles. The multipliers, currently set to expire after Model Year 2021, allow manufacturers to count the sale of each electric, plug-in hybrid electric, fuel cell, and compressed natural gas vehicle as more than one vehicle in their fleet compliance calculations. The agreement would extend the multipliers through Model Year 2024, providing double credit for battery and fuel cell electric vehicles, and 1.6x credit for plug-in hybrid electric vehicles. Perhaps just as significantly, participating automakers would (1) be excused from accounting for “upstream” emissions in their compliance calculations, and (2) would be eligible for up to an additional 5 grams per mile of credits for “off cycle” emission reduction measures.

Significantly, the agreement is voluntary, and for the moment, does not contemplate a CARB rulemaking. While the participating automakers have committed to recognizing California’s authority to regulate their compliance with the agreement, that would not address the issue of whether the twelve CAA § 177 “me too” states that follow California standards would be in a position to adopt and enforce a similar scheme without the legal predicate of an enforceable rulemaking.

The agreement, nonetheless, has the potential to impact a large percentage of the U.S. auto market. The four automakers represent approximately 30% of vehicle sales nationwide. Given that market share and the compliance flexibilities CARB has made as part of the agreement-in-principle, it will likely place pressure on other large automakers to consider joining the agreement and expanding its reach.

© 2019 Beveridge & Diamond PC

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About this Author

Jessalee Landfried, Environmental regulatory lawyer, Beveridge Diamond Law Firm
Associate

Jessalee Landfried maintains a general regulatory and litigation practice, with a particular focus on air, climate, and product regulation matters. Jessalee regularly counsels clients in the energy, tech, and chemical sectors on a variety of programs and compliance issues arising under the Clean Air Act, and on domestic and international product regulatory regimes including the RoHS and REACH directives. In addition to her regulatory practice, Jessalee represents clients in litigation arising under a broad range of federal and state environmental statutes. She also...

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Anthony Michaels Environmental Attorney Beveridge Diamond
Principal

Anthony provides successful resolution of complex environmental disputes.

Anthony represents clients as lead counsel in high-stakes environmental litigation in federal and state courts and before arbitrators, with a focus on pesticides and biotechnology and mobile-source air matters. In each case, he identifies and implements a strategy designed to achieve the client’s business goals in a timely and cost-effective manner, whether through a favorable judicial ruling, negotiated settlement, or regulatory solution. 

Anthony employs a balanced and principled approach to complex environmental litigation, marshaling groups of stakeholders and scientific experts, and fostering productive working relationships with regulators and others to achieve the favorable resolution of the specific dispute while furthering the client’s broader objectives.

Examples of his work include:

  • Bringing, defending, and intervening in litigation to defend client products and regulatory approvals and invalidate illegal regulations.
  • Defending clients in EPA enforcement actions.
  • Advising clients on the regulatory requirements governing the distribution and sale of pesticides and other products.
  • Working with technical experts to prepare substantive comments on regulatory proposals.
  • Preparing and advising on the terms of commercial agreements relating to intellectual property and related matters central to clients’ freedom to operate.
  • Representing data owners in complex arbitration matters to secure the compensation owed by competitors for reliance on pesticide data, with arbitration awards and settlements totaling over $20 million in 2018 alone.

Anthony has served as co-chair of the Firm’s Appellate Litigation practice group and has argued cases before state and federal courts posing a variety of complex issues of administrative and environmental law.

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Thomas Richichi Litigation Attorney Beveridge & Diamond
Principal

Tom has 30 years of experience litigating in state and federal trial courts.

He has served as lead counsel in numerous cases at the appellate level, with representations including arguments before the various federal circuits and the United States Supreme Court. Tom's experience includes matters involving environmental, international, transportation, human health risk, and consumer products issues. He has served as lead counsel on numerous complex litigation and enforcement matters involving private parties, state and federal agencies, and the U.S. Department of...

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Daniel B. Schulson, Environmental Attorney, Beveridge & Diamond Law Firm
Associate

Daniel Schulson applies rich and diverse experience gained from working in the Office of General Counsel at the U.S. Environmental Protection Agency (EPA) to clients’ challenges on a broad array of issues. He assists clients with many aspects of environmental and administrative law, including compliance counseling, permitting, due diligence, audits, commenting on agency rulemakings, administrative enforcement defense, and litigation. 

Examples of Mr. Schulson’s experience include:

  • Negotiating favorable...
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Joshua Van Eaton Energy Attorney
Principal

Josh helps clients resolve high-stakes compliance, enforcement, and litigation matters.

He brings the perspective gained from a distinguished U.S. government service career to provide clients with strategic counsel on air, water, and waste issues with a focus on mobile source emissions. He also litigates those matters and advises on proactive environmental compliance strategies.

Prior to joining Beveridge & Diamond, Josh served as Senior Trial Attorney in the Environmental Enforcement Section of the Environment and Natural Resources Division (ENRD) of...

202.789.6033