NHTSA's CAFE Preemption Proposed Rule

On April 22, 2021, the National Highway Traffic Safety Administration (NHTSA or the Agency) released the CAFE Preemption Proposed Rule (Proposed Rule), which would repeal the Trump Administration’s Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One (SAFE I). In this portion of the SAFE Vehicles Rule, NHTSA and the Environmental Protection Agency (EPA) argued that the Energy Policy and Conservation Act (EPCA) preempted state authority to establish tailpipe greenhouse gas (GHG) standards. In that rule, EPA also revoked a waiver that EPA had previously extended to California, under Section 209 of the Clean Air Act, to regulate motor vehicle emissions through GHG emission standards and a zero emission vehicle (ZEV) mandate.

In the Proposed Rule, NHTSA states that it has significant concerns that the regulations finalized in SAFE I likely exceeded the Agency’s rulemaking authority. The Agency believes that withdrawing and repealing these regulations and statements is appropriate to reaffirm the proper scope of NHTSA’s preemption authority and to remove the uncertainty created by SAFE I. If finalized, the Agency believes that this proposal would restore a “clean slate” for the Agency’s position on EPCA preemption. The Proposed Rule does not directly state that California has explicit authority to set GHG motor vehicle standards, nor does it reissue the waiver necessary under the Clean Air Act for the state to enforce those standards.