ISN'T CONGRESS SUPPOSED TO PASS LEGISLATION?

I could set this post to a Sixties rhyming chant: Two! Four! Six! Eight! Smash the Administrative State!  We've already called attention to the overreach.  "The Environmental Protection Agency allocation tsar recently set hand and seal to ukases requiring multiple changes in the personal automobiles and in the commercial trucking business."

In the Jarrett regency, if one lodge of unelected bureaucrats gets to issue ukases, they all do.

A federal district court in Texas has concluded that the Department of Transportation (DOT) exceeded its statutory authority when it adopted a rule establishing a greenhouse gas (GHG) performance measure for federally funded highways. Under the rule, states were required to measure highway-related greenhouse gas emission, set targets for GHG emission reductions, and track progress toward such targets. The state of Texas objected to the rule and filed suit.

This rule has a long history. The DOT first adopted a GHG performance measure for highways in 2016, at the end of the Obama Administration. The Trump Administration rescinded this rule in 2018, concluding the DOT lacked authority to adopt a GHG-based performance measure under the relevant statute and was bad policy. After President Biden took office, the DOT reversed course again, proposing a revised GHG highway performance measure in 2022 and finalizing the rule in 2023.

Once the rule was promulgated, Texas promptly filed suit, arguing that the rule exceeded the scope of DOT's statutory authority, is arbitrary and capricious, and violates the federal government's spending power. Last month, Judge Wesley Hendrix sided with Texas, solely on statutory interpretation grounds.

Good. The challenges to EPA ukases are still being drafted.

Even better, the judge issued his ruling without having to tackle either Major Questions or Chevron deference.

While Texas sought to buttress its arguments with the Major Questions Doctrine, the court saw no need to do anything more than conduct a traditional statutory analysis, albeit one that relies upon the foundational premise that agencies only have that authority affirmatively delegate to them (a premise I have encouraged; e.g. here and here). As Judge Hendrix explained in a footnote: "because the statutory language itself makes clear that the DOT lacked authorization to promulgate the 2023 Rule, the Court need not resolve whether the issue presented constitutes a 'major question.'"

Texas also argued that insofar as the Department of Transportation sought to impose unrelated conditions on the receipt of highway money, it could raise constitutional concerns (an issue I discussed in this article with Nathaniel Stewart), but again Judge Hendrix saw need to reach that issue.

Judge Hendrix also ordered a nationwide vacatur of the Department of Transportation's rule, as he was required to due under Fifth Circuit precedent.

The new rules on fuel economy in personal automobiles are also well worthy of scorn here and challenges in court.  The Jarrett regency's "if you like your motor-car, you can keep your motor-car" ought to be scoffed at each day, and that government turfed out in November.

In 2013, then-President Barack Obama earned himself the “lie of the year” after he had repeatedly assured Americans, "If you like your health care plan, you can keep it."

That simply wasn’t true, and the rollout of Obamacare (Affordable Care Act) caused millions of people to receive cancellation notices. The government’s intrusion into the private health insurance market had major consequences, and many Americans weren’t happy about it.

More than 10 years later, President Joe Biden is driving major disruptions in another major U.S. industry: automobiles.

Unlike his former boss, Biden’s not even bothering to promise the American people that if they like their car, they can keep it.

Biden, however, also is not being upfront with the public about what his new Environmental Protection Agency rule actually means.

Our Progressive Betters are apparently leery of doing their usual "It's for Your Own Good, Deplorable" scolding, preferring to engage in Clintonian parsing.

The Biden administration and defenders of the policy argue that the EPA’s regulation is “not a ban” on gas-powered cars, since carmakers are not prohibited from producing gas-powered vehicles. Instead, automakers are required to meet a government-mandated “average emissions limit” across their entire vehicle line, to force them to produce more EVs and fewer gas-powered cars.

It’s a clever ruse in that it allows the Biden administration to use regulatory power to force automobile manufactures off of gas-powered vehicles while denying that they are banning them.

Whatever one chooses to call the regulation, its purpose is clear.

“Make no mistake,” the Wall Street Journal noted. “This is a coerced phase-out of gas-powered cars.”

This might be music to the ears of those who see fossil fuels as evil, but economics and history suggest the White House’s plan to force Americans off of gas-powered cars could be a disaster.

It's a coerced phase-out, indeed, and it's typical of the way the so-called progressives push Normals around.

Biden, through regulatory decree, is trying to force a dramatic change that most Americans don’t fully understand yet and very well may not want.

Rather than go through Congress, where a robust public debate could take place, Biden quietly did it through the rule-making process.

“It’s politically deceptive in a way that is all too typical of the Biden administration in a lot of different areas,” says Meigs of the Manhattan Institute. “They have opted to make major policy changes out of sight of the average voter.”

If Biden doesn’t want us to keep our beloved gas-powered cars, then he should just say so. The American people deserve to know what a future with Biden at the wheel really looks like.

It's supposed to be a beautiful transition.  Pay no attention to the poop on the streets of San Francisco or the tent cities in Chicago's parks or the open season on passengers in New York's subways.  Not that reality ever matters to Our Progressive Betters.  They're Better People, and they Care More, and they Know Better.

Forcing US automakers to expand their least-profitable autolines is backward economics. It puts automakers at risk, not to mention their workers and shareholders.

The higher profits automakers are reaping from gas-powered vehicles isn’t an accident. It’s a signal that consumers prefer them at the prices being offered, and heeding consumers is what separates capitalism from the failed collectivist systems of the past.

Moreover, I can't help but wonder whether Elon Musk isn't waiting to unleash an antitrust suit. Seriously.  There are no internal combustion powered Teslas.  There are internal combustion powered Fords.  Isn't the use of profits from one line of business to support price wars in another unreasonable predatory pricing?  Every time, though, the latest incarnation of dirigisme is different.  "This kind of central planning failed miserably in the 20th century. Don’t expect it to be any different this time around."  It won't be.  "This week, the federal government released new rules that would cut the number of gas-burning cars sold over the next decade. While drafted with good intentions, the move could very well backfire."  The worst of outcomes are oft-times the consequence of the best of intentions.

We cannot have an end to Chevron deference soon enough.

And yet the EPA's new rule not only deprioritizes hybrids, but it may very well skew the market against them. "The EPA's insistence on mandating EVs, to the exclusion of other alternatively-fueled vehicles, greatly reduces consumer choice," the NADA wrote. "This policy will likely cause manufacturers to produce fewer of these alternative vehicles and will increase their cost, thereby dissuading consumers from considering their purchase."

While a switch from gasoline to a more environmentally friendly source of energy is laudable, even perhaps necessary, the transition should be driven by the free market. Implementing a mandate based on an arbitrary timeline is destined to fail, especially since the mandate ignores that hybrids offer a plausible intermediate technology.

Yes, it is the nature of trade associations to push for more time, and for regulatory leniency.  And yet, the transition away from fossil fuels might make more sense if that Hotelling price pattern manifested itself in crude oil: so far it has not.  Nor has even this interventionist government proposed to add a carbon tax and further markets in carbon credits in preference to these bans they claim are not bans.  I'll let Ross Clark offer the closing argument.

I have nothing against electric cars, which have already found a niche as city cars for people with the good fortune to have private driveways. If battery technology develops to the point at which electric cars can travel 500 miles on a single charge and take 10 minutes to recharge they will start to sell themselves, without motorists being forced to buy them through government mandates.

Indeed, that will be the point at which I will happily dump my diesel and go pure electric. But the promotion of electric cars over the past few years has been a triumph of hype over reality – which not even Elon Musk has been able to overcome.

EVs have been pushed at us on a promise that they have been unable to fulfil. A surge in interest from wealthy people who like to show off their environmental credentials was mistaken for an inexorable market trend towards EVs. As it happens, the share of the market held by pure electric cars has stalled at around one in six.

The result has been an awful lot of burned fingers – and not just among motorists. Western governments continue to try to subsidise their way to a native mass-market in EV battery production, when it is quite clear that China has cornered that market and it is not coming back. It isn’t big battery plants that Europe should be investing in, but research and development facilities where we can work on better battery technology. If successful, they can be licensed around the world.

Unfortunately, Western policy on decarbonisation seems to be driven more by emotion than cold, hard reasoning. Much of it has been based on the fantasy that all you need to do is to set a few targets and affordable technology will magically appear in order to help you reach those targets – and that it will be the countries who are the fastest movers in setting targets who will benefit.

Apparently it isn't sufficient for people to understand that emotion-based, if-it-feels-good policy making never works; every few years they have to try it and get smacked around by reality.