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Addressing Climate Change through Federal Fleets

By John Ryan*

On January 27, 2021, just a week after his inauguration, President Biden signed the “Executive Order on Tackling the Climate Crisis at Home and Abroad,” number 14008 (“EO 14008” or the “Order”).  The 15-page order contains many policy goals and lays the groundwork for a climate-conscious executive branch. EO 14008 works in tandem with Executive Order 13990 which intends to undo most of the regulation and executive action of the Trump Administration. EO 14008 also sets out the Biden administration’s climate goals. The Order seeks to “put the United States on a path to achieve net-zero emissions, economy-wide, by not later than 2050.”[1] While EO 13990, addressing Trump rollbacks of regulations, will likely have a more immediate tangible effect, EO 14008 could still have a large impact.[2]  

The Order, among other things, creates a new White House Office for Domestic Climate Policy and makes clear that the United States will engage in international climate change discussions.[3] It also orders draft action plans from the head of each agency, asking them to assess vulnerabilities and the potential for “using the purchasing power of the Federal Government to drive innovation.”[4]

Use of The Federal Government’s Buying Power 

Biden aims to make an impact with this executive order using a compelling medium: money. Similar to President Obama’s executive order addressing climate change (Executive Order 13693),[5] EO 14008 uses the Federal Government’s discretionary spending to encourage innovation and fund green initiatives “by providing an immediate. . . source of product demand.”[6]

In Section 205, Federal Clean Electricity and Vehicle Procurement Strategy, the Order sets a goal to have clean and zero emission vehicles for Federal, State, local, and Tribal government fleets.[7] Directed by these goals, the National Climate Advisor must develop a plan for achievement and if necessary “recommend any additional legislation needed to accomplish these objectives.”[8] Here I will discuss the options Biden has to address vehicle fleets. 

Fleets

Each year the Federal Government spends around $4 billion on its fleet, and states spend approximately $2.5 billion.[9] A policy of achieving net-zero emissions in their fleets would have a substantial effect on emissions. [10]While the goal of having a zero emissions fleet as stated in the EO probably does not carry the force of law, Biden may have other avenues for achieving this goal.[11]

Federal Fleets

Standards for federal executive agency fleet vehicles are statutorily addressed under the Energy Independence and Security Act of 2007 (EISA) in Title 49.[12] EISA directs the Federal Government to purchase low greenhouse gas emitting vehicles, with various exceptions.[13] However adherence to these standards is varied by agency.[14]Acting within a statutory grant, Biden may be able to issue a stricter standard on federal fleet vehicles.[15]

Title 49 requires the President to prescribe fleet average fuel economy regulations for automobiles purchased by executive agencies.[16] The statute mandates that the federal fleet average fuel economy standard set by the President be “at least the greater of” 18 mpg or the corporate average fuel economy (CAFE) standard set by the Secretary of Transportation.[17] The Secretary is empowered, under the same title, to prescribe that fuel economy standard for vehicles manufactured in the United States.[18] Current federal regulation dictates that executive agency fleets abide by the Department of Transportation (DOT) standard.[19] The DOT, in developing their CAFE standard, is bound by Title 49. Title 49 dictates that in 2021, the fuel economy standard set by the Secretary “shall be the maximum feasible average” for that model year.[20] In a regulation promulgated by the Trump administration the maximum feasible average is an increase of 1.5% per model year for 2021-2026.[21] This rule is a significant reduction from the 5% increase imposed by Obama in a 2012 regulation.[22] The Secretary of Transportation under Biden[23], may be able to override the Trump administration’s 1.5% and replace it with a higher standard.[24] Given the statutory principle of “maximum feasible average” it is unlikely, but ultimately unclear whether the Secretary can issue a standard requiring zero-emissions vehicles in an effort to regulate federal fleets.[25]

Biden may, however, be able to address the federal fleet directly. The standard the President sets under Title 49 must only be “at least” greater than the CAFE Standards.[26] This mandate from Congress may provide the necessary statutory authority for a future Executive Order to set a very high standard for federal fleet vehicles that can only be met by zero emissions vehicles. .[27] This is probably Biden’s best potential avenue for achieving a zero emissions federal fleet. Since there is no legislative authorization besides the one found in Title 49 allowing the President to set a fuel economy standard, it is unclear whether Biden may direct executive agencies to buy electric or net zero vehicles unrelated to their compliance with the Title 49 Standard.[28]

Beyond setting a requirement, individual agencies can elect to purchase zero emissions vehicles as offered by the GSA.[29]  Biden, as Chief Executive, can also compel agencies to purchase zero emissions vehicles.[30]The administrator of the GSA ultimately has the last say as all non-tactical vehicle purchasing is required to be run through the GSA. [31]

State & Local Fleets

The Order also calls for state and local governments to have zero emissions fleets. Current statute does not give Biden authority to direct state fleet purchasing.[32] State fleets enjoy far less federal regulation but are still regulated under the Environmental Policy Act of 1992 (EPAct 1992).[33] This act mandates 75% of state motor vehicle purchases must be alternatively fueled vehicles (AFV’s). EPAct 1992 also applies generally to private fleets, so it is unlikely to be successfully challenged under an anti-commandeering claim.[34] EPAct 1992 does not provide much flexibility for Biden to direct State Fleet purchasing, but he may have other avenues to influence states. 

Biden may be able to influence state purchasing indirectly. In 2007, EISA added to EPAct and directed the Department of Energy to assign credit values to various categories of electric vehicles.[35] States may apply these credits towards their total required compliance of 75% AFV’s.[36] EISA further directs the DOE to “allocate credit in an amount to be determined by the Secretary.”[37] By assigning certain credit values to zero emissions vehicles the Department of Energy, under Biden, potentially could influence State purchasing. 

Consequently, legislative action is likely required to achieve nationwide zero emission fleets at the state and local government levels. While some states have their own programs, many have little policy governing emissions of fleet purchases and are bound only by EPAct 1992.[38]

Conclusion

Executive Order 14008 sets out commendable and laudable goals but does not rest on any clear legal authority to enforce them. While Biden has a much greater potential to impact federal fleet emissions, without legislative action Biden’s authority to impose a zero-emissions fleet requirement for state and local fleets is lacking. 

*John Ryan is a Junior Editor with MJEAL and a member of the class of 2023.


[1] Exec. Order No. 14,008, 86 Fed. Reg. 7619 (Jan. 27, 2021). 

[2] Exec. Order No. 13,990, 86 Fed. Reg. 7037 (Jan. 20, 2021) 

[3] Exec. Order No. 14,008, supra note 1, at 7621.

[4] Id.  

[5] Exec. Order No. 13693, 80 Fed. Reg. 15871 (Mar. 19, 2015) 

[6] Exec. Order No. 14,008, supra note 1, at 7625.

[7] Id.

[8] Id.

[9] Federal Fleet Open Data Visualization, Gen. Serv. Admin., https://d2d.gsa.gov/report/federal-fleet-open-data-visualization (last visited Apr. 4, 2021); State and Local Policy Database, Am. Council for an Energy-Efficient Econ.,https://database.aceee.org/state/fleets (last visited Apr. 4, 2021). 

[10] How Zero Emission Vehicles Can Support Governments to Achieve a Green Recovery, Climate Group (Sept. 3, 2020), https://www.theclimategroup.org/our-work/news/how-zero-emission-vehicles-can-support-governments-achieve-green-recovery.

[11] Steven Ostrow, Enforcing Executive Orders: Judicial Review of Agency Action Under the Administrative Procedure Act, 55 Geo. Wash. L. Rev. 659. 661 (1987) (“Courts ordinarily dismiss suits to compel federal agencies to comply with executive orders, usually because the executive order did not expressly or impliedly confer a cause of action.”). 

[12] 49 U.S.C. § 32917. 

[13] 42 U.S.C. § 13212.

[14] Regulations for Emissions from Vehicles and Engines, Env’t Prot. Agency, https://www.epa.gov/regulations-emissions-vehicles-and-engines/federal-fleets-using-low-greenhouse-gas-emitting-vehicles (last visited Apr. 4, 2021). 

[15] 49 U.S.C. § 32917. 

[16] Id.

[17] Id.

[18] 49 U.S.C. § 32902. 

[19] 41 C.F.R. § 102-34.55.

[20] 49 U.S.C. § 32902. 

[21] The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks, 85 Fed. Reg. 24174, 24175 (Apr. 30, 2020). 

[22] 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards, 77 Fed. Reg. 62624, 62627 (Oct. 15, 2012). 

[23] See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2251 (2001) (“a statutory delegation to an executive agency official . . . usually should be read as allowing the President to assert directive authority”).

[24]See The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks, 85 Fed. Reg. at 24181 (discussing direction from President Trump as reason for reconsideration of previous rule).

[25] See e.g., Jody Freeman, The Obama Administration’s National Auto Policy: Lessons from the “Car Deal”, 35 Harv. Env’t L. Rev.343, 353 (2011) (noting that “While Congress has specified the factors, it has left to NHTSA the discretion to weigh and balance them” in assessing maximum feasible average). Compare Center for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1195 (9th Cir. 2008) (stating EPCA “gives NHTSA discretion to decide how to balance the statutory factors” considered in determining maximum feasible average), with Center for Auto Safety v. Nat’l Highway Traffic Safety Admin., 793 F.2d 1322, 1340 (D.C. Cir. 1986) (“[A] standard with harsh economic consequences for the auto industry also would represent an unreasonable balancing of EPCA’s policies.”).

[26] 49 U.S.C. § 32917. 

[27]Ostrow, supra note 11, at 663 (“When the President issues an executive order pursuant to a specific grant of statutory authority, he exercises legislative authority delegated to him by Congress.”).

[28]Lisa Manheim & Kathryn A. Watts, Reviewing Presidential Orders, 86 U. Chi. L. Rev. 1743, 1769 (2019) (discussing limited amount of guidance for judicial review of presidential orders). 

[29] Gen. Serv. Admin., GSA Fleet Vehicle Purchasing Guide 29-34 (2019), https://www.gsa.gov/cdnstatic/GSA_Fleet_Vehicle_Purchasing_Guide_5-2019.pdf.

[30] See Eloise Pasachoff, The President’s Budget as a Source of Agency Policy Control, 125 Yale L.J. 2182, 2188 (discussing the President’s ability to further policy via budget process).

[31] 41 C.F.R. § 101-26.501 (2021). 

[32] See https://epact.energy.gov/key-federal-statutes, which lists the statutes governing state fleets.

[33] 42 U.S.C. § 13257.

[34] This provision of the EPAct 1992 has gone unchallenged since its enactment, so I cannot say unconditionally that it is constitutional, but legislation like the Clean Air Act being constitutional gives a level of comfort here. 

[35] 42 U.S.C. § 13258.

[36] Id.

[37] Id.

[38] Am. Council for an Energy-Efficient Econ., supra note 9. 

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