A Notice of Proposed Rulemaking was published in the District of Columbia Register for a 30-day public notice and comment period on December 9, 2022, at 69 DCR 014969. The public comment period ended on January 9, 2023, and DOEE virtually held a public hearing on January 9, 2023. In response to the Notice of Proposed Rulemaking, DOEE received three comment letters—one from Children’s Environmental Health Network, one from Sierra Club, and one from Valero. No comments were received at the public hearing. A summary of the comments received on the proposed rulemaking and DOEE’s response to those comments can be viewed in the Final Rulemaking (70 DCR 016673).
Summary of Final Rulemaking
Repeal of 20 DCMR §§ 905 through 916
This rulemaking repeals current Sections 905 through 916 of Title 20 because these sections are no longer applicable as of December 31, 2006. Prior to repeal, Sections 905 through 914 implemented provisions of the Clean Fuel Fleet (“CFF”) Vehicle Program and Alternative Fuels Incentives Amendment Act of 1994, effective November 4, 1994 (D.C. Law 10-201; 20 DCMR § 905 et seq.), Section 915 implemented the National Low Emission Vehicle (“NLEV”) program, and Section 916 implemented the Heavy-Duty Diesel Engine Emission (“HDDE”) standards.
On February 11, 2000, the District finalized the NLEV regulations at Section 915 (47 DCR 886, Feb. 11, 2000). When the District submitted the NLEV regulation as a Phase II Ozone Attainment State Implementation Plan (“SIP”) revision, the District withdrew its submission of the District’s SIP for CFF (adopted on May 15, 1995) because an equivalency analysis indicated that benefits from the District’s participation in the NLEV program would offset emissions reductions from the CFF Program. Therefore, Sections 905 through 912 are no longer applicable. The NLEV program extended through model year 2006. After model year 2006, Federal Tier 2 Phase 2 (tailpipe and fuel) standards went into effect; therefore the requirements of Section 915 are no longer applicable. Finally, DOEE is repealing Section 916 because it applied to HDDE standards for model years 2005 and 2006, and the requirements of 20 DCMR § 916 are no longer applicable.
Adoption of 20 DCMR §§ 905 through 913
The Director of DOEE adopts these regulations pursuant to the requirements of Section 2 of the Clean Cars Act of 2008, effective May 13, 2008 (D.C. Law 17-151; D.C. Official Code § 50–731). Section 2 of the Clean Cars Act, D.C. Official Code § 50–731, requires the District’s adoption of California’s vehicle emissions standards and compliance requirements. The California Advanced Clean Cars 2 (“ACC 2”), as adopted through this rulemaking, sets standards and compliance requirements for vehicles model year 2027 and beyond that are bought, sold, and registered in the District of Columbia. Section 209(b) of the Clean Air Act (“CAA”), 42 U.S.C. § 7543(b), permits the state of California to implement its own standards for motor vehicles if they are at least as stringent as the federal standards and a waiver is received from the Administrator of the Environmental Protection Agency.[1] The California Air Resources Board (“CARB”) requested EPA grant a waiver for ACC 2 on December 20, 2022, pursuant to Section 209(b) of the CAA.
While the District’s adoption of California’s regulation will take effect upon publication of this notice in the District of Columbia Register, these emissions standards will become enforceable in the District only after California’s waiver receives United States Environmental Protection Agency (“EPA”) approval.
Major vehicle manufacturers, including Ford[2], General Motors[3], Honda[4], and Toyota[5] have made statements or spoken in support of the adoption of ACC 2. District residents are already accruing savings in refueling costs from electrification.[6] Electric vehicle prices continue to decrease over time and EPA projects that when considering all of the economic incentives available the average electric vehicle will cost $400 to $4,000 less than a gasoline equivalent by 2032. Even greater cost savings occur when the maintenance and fuel savings of approximately $10,000 that the average owner will save over eight years of ownership are considered.[7]
EPA proposed emissions standards for light-duty vehicles and Class 2b and 3 (“medium-duty”) vehicles that would reduce harmful air pollutant emissions starting with model year 2027.[8] However, DOEE is adopting California’s more stringent vehicle emission standards in accordance with Section 2 of the Clean Cars Act of 2008, D.C. Official Code § 50–731.
Discussion of Public Comment
A Notice of Proposed Rulemaking to adopt ACC 2 was published in the District of Columbia Register for a thirty (30) day public notice and comment period on December 9, 2022, at 69 DCR 014969. The public comment period ended on January 9, 2023, and DOEE virtually held a public hearing on January 9, 2023. The Department received three (3) comment letters on this rulemaking, from Children’s Environmental Health Network, Sierra Club, and Valero. No comments were made at the public hearing. Two (2) of the commenters submitted letters in support of the rulemaking and therefore require no further response.
A third commenter expressed concerns that DOEE lacks the legal and legislative authority to adopt California’s ACC 2. The District of Columbia Air Pollution Control Act of 1984, effective March 15, 1985 (D.C. Law 5-165; D.C. Official Code §§ 8-101.05 and 8-101.06) authorizes the Department to “[a]dopt air pollution control standards, require and issue permits, and establish any other program necessary to regulate sources of air pollution emissions in the District”, “[a]dopt ambient air quality standards”, and “[a]dopt standards governing emission of nuisance air pollutants likely to injure public health or welfare or interfere with reasonable enjoyment of life and property.” Additionally, the Clean Cars Act of 2008 requires the District’s adoption of the California standards. Specifically, Section 2(1) of the Clean Cars Act of 2008, D.C. Official Code § 50–731(1), states that the Mayor:
“[s]hall establish and maintain a low-emissions vehicle program by adopting California emissions standards and compliance requirements applicable to vehicles of model year 2012, and each model year thereafter, pursuant to section 177 of the Clean Air Act, approved August 7, 1977 (91 Stat. 750; 42 U.S.C. § 7507).”.
Further, Section 177 of the CAA authorizes any State with an approved non-attainment SIP to choose between accepting the federal standards or adopting the California emission standards for motor vehicles to meet the National Ambient Air Quality Standards (“NAAQS”). 42 U.S.C. § 7507. The District is designated as nonattainment for the 2015 Ozone NAAQS[9] and has an approved SIP.
The commenter also argued that DOEE does not have the authority under Section 177 of the Clean Air Act, 42 U.S.C. § 7507, to adopt the California standards until the California standards receive a waiver from the Environmental Protection Agency. However, the commenter’s interpretation of Section 177 is overly broad. As the U.S. Court of Appeals for the Second Circuit explained in Motor Vehicle Manufacturers Association of the United States, Inc. v. New York State Department of Environmental Conservation,
“[W]hat is the waiver a precondition to—DEC’s adoption of the LEV plan or DEC's enforcement of the LEV plan, or both. The most sensible response, it appears to us, is that the waiver is a precondition to enforcement of the standard that has been adopted. In other words, it is sensible for DEC to adopt the standards prior to the EPA’'s having granted a waiver, so long as the DEC makes no attempt to enforce the plan prior to the time when the waiver is actually obtained.”
Motor Vehicle Manufacturers Association of the United States, Inc. v. New York State Department of Environmental Conservation, 17 F.3d 521, 533-34 (2nd Cir. 1994).
Therefore, DOEE has legal and legislative authority to adopt ACC 2 and to do so in advance of EPA issuing a waiver. DOEE did not make any changes to the rulemaking in response to this comment.
The commenter also stated that the District’s transportation sector decarbonization planning should embrace all available technologies to reduce greenhouse gas (“GHG”) emissions. Firstly, the District is limited under Section 177 of the CAA only to adopting the standards as adopted by California and does not have the authority to alter them to include different requirements for various technologies. Additionally, adopting the ACC 2 program reduces GHG emissions in accordance with the District’s GHG reduction targets established in the Clean Energy DC Plan[10], and the District’s Climate Commitment Act.[11] Vehicle emissions constitute twenty-one percent (21%) of the District’s GHG emissions, and these amendments improve air quality by reducing vehicle GHG emissions.[12] Further, as noted above, District law requires that the District adopt the California emissions standards. Therefore, DOEE did not make any changes to the rulemaking in response to this comment.
No comments were received objecting to including this rulemaking in the District’s State Implementation Plan (“SIP”). In accordance with Section 172(c) of the Clean Air Act, the District will submit the rulemaking to the United States Environmental Protection Agency (EPA) for approval as a revision to the District’s SIP. 42 U.S.C. § 7502(c).
Updates in Final Rulemaking
In the final rulemaking DOEE removed the following language from Section 905.1, “that have a production period beginning no less than two years after the effective date of this regulation” and clarified in 905.1 that the applicable model year is 2027 for 20 DCMR §§ 905 through 913. DOEE updated the model year to 2027 in 20 DCMR §§ 905.1, 906.2, and 912.1.
DOEE made technical changes to Sections 912.2(a), 912.2(c), 912.3(f), and 999. These changes were made to align the regulation with current rulemaking standards regarding the use of numbers in text. In Section 999, where references are made to sections of applicable California regulations, the language was amended to use full citation format to avoid confusion. No substantive changes were made. Finally, in Section 999, amendments were made to remove excessive definitions and abbreviations that are used and defined in the incorporated California regulations.
[1]California, Massachusetts, New York, Oregon, Vermont, Virginia, and Washington have finalized the regulation for model year 2026. Colorado, Delaware, Maryland, New Jersey, and New Mexico have finalized the regulation for model year 2027. Maine and Rhode Island have proposed the regulation for model year 2027.
[2]Ford Media Center, Ford Statement on Proposed Advanced Clean Cars II Regulations In California (Aug. 24, 2022), https://media.ford.com/content/fordmedia/fna/us/en/news/2022/08/24/ford-statement-on-proposed-advanced-clean-cars-ii-regulations-in.html.
[3]Jim Motavalli, Do California’s Zero Emission by 2035 Rules Go Far Enough?, AUTOWEEK (Aug. 25, 2022), https://www.autoweek.com/news/industry-news/a40993559/california-zero-emission-by-2035-rules-passed/.
[4]Honda, Statement on California Mandate for 100% EVs by 2035 (Aug. 25, 2022), https://hondanews.com/en-US/honda-corporate/releases/release-1503019bd8a757ea08267d7944099b3a-statement-on-california-mandate-for-100-evs-by-2035.
[5]David Shepardson, Toyota recognizes California authority to set vehicle emissions standards, REUTERS (Aug. 23, 2022), https://www.reuters.com/business/sustainable-business/toyota-recognizes-california-authority-set-vehicle-emissions-standards-2022-08-23/.
[6]Cohen. Michael. Washington Post. “Is it cheaper to refuel your EV battery or gas tank? We did the math in all 50 states.” (August 8, 2023) https://www.washingtonpost.com/climate-environment/interactive/2023/electric-vehicle-charging-price-vs-gasoline/.
[7] US EPA. “Multi-Pollutant Emissions Standards for Model Years 2027 and Later Light-Duty and Medium-Duty Vehicles Draft Regulatory Impact Analysis.” (April 23, 2023) https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey= P10175J2.pdf.
[8]88 Fed. Reg. 29184, May 5, 2023
[9] 83 Fed. Reg. 25776, June 4, 2018
[10] Available at https://doee.dc.gov/cleanenergydc.
[11] Available at https://code.dccouncil.gov/us/dc/council/laws/24-176.
[12] Available at https://doee.dc.gov/service/greenhouse-gas-inventorieshttps://doee.dc.gov/service/greenhouse-gas-inventories.