As directed in President Biden’s Executive Order 13990 on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” and in response to requests by states and other stakeholders, the US Environmental Protection Agency (EPA) is seeking public input on its reconsideration of the Agency’s 2019 action titled The Safer Affordable Fuel-Efficient Vehicles Rule Part One: One National Program Rule (SAFE-1) for the purposes of rescinding the action taken by the prior administration. (Earlier post.)

The purpose of this Notice of Reconsideration is to seek comment on a number of issues in the 2019 SAFE-1 action including:

• Whether it was proper for EPA to reconsider a previously issued CAA waiver.

• Whether EPA’s action to withdraw California’s waiver in consideration of EPCA preemption was appropriate.

• Whether the SAFE-1 interpretation of the CAA that enabled EPA to withdraw California’s waiver was appropriate.

• Whether the SAFE-1 interpretation of CAA section 177 that could disallow other states’ ability to adopt California GHG emission standards was appropriate.

The agency will hold a virtual public hearing on 2 June, and the public comment period on the Notice of Reconsideration will be open until 6 July.

EPA will be taking a separate action to reconsider the previous administration’s final rule titled The Safer Affordable Fuel Efficient (SAFE) Vehicles Final Rule for Model Years 2021-2026 (SAFE-2). EPA plans to propose this rule in July 2021.

Background. The SAFE-1 action withdrew the 2013 Clean Air Act (CAA) waiver that had allowed California to enforce its greenhouse gas (GHG) standards for cars and light-duty trucks and its zero-emission vehicle (ZEV) sales mandate. SAFE-1 also interpreted the CAA as not allowing other states to adopt California’s GHG emission standards. The Federal Register notice seeks public input on whether EPA should rescind the SAFE-1 action.

In January 2013, EPA granted California a waiver of CAA preemption to enforce its GHG standards and ZEV mandate contained in its Advanced Clean Cars (ACC) program for light-duty vehicles. California is the only state that may receive a waiver of CAA preemption of emission standards for new motor vehicles, although other states may adopt California’s standards.

On 29 September 2019, EPA and the National Highway Transportation Safety Administration (NHTSA) jointly issued the SAFE-1 rule. In it, NHTSA interpreted fuel economy preemption under the Energy Policy and Conservation Act (EPCA) to include state GHG emission standards and ZEV mandates. EPA withdrew the portions of the ACC waiver related to GHG standards and the ZEV sales mandate in consideration of NHTSA’s EPCA preemption as well as a reinterpretation of the CAA waiver requirements. EPA also provided an interpretation of the CAA that would preclude other states from adopting California’s GHG emission standards.