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Proposed Amendment to New York's Low Emission Vehicle Greenhouse Gas Standards

2019 02 04 Blog Post #40 - LEV GHG wheely-406925_640 pixabay.jpg

While the current Administration in Washington is taking steps to roll back environmental progress, for example, by weakening greenhouse gas (GHG) emission rules, by abandoning more stringent emissions standards on passenger automobiles, and by permitting energy companies to avoid monitoring and restricting methane emissions, who will address unresolved problems associated with air pollution and climate change?

States like California and New York are spearheading the charge to tackle global climate change. For instance, the New York State Department of Environmental Conservation (DEC or State) is responding to these environmental concerns by proposing an amendment to New York's low emission vehicle GHG standards. The DEC considers these amendments an "emergency measure" to address climate change, GHG emissions, low emission vehicles (LEVs), and recent actions of the current Administration's Environmental Protection Agency (EPA).

Why is the DEC Proposing these Amendments?

First, it's important to understand the relevant recent actions by EPA. In August 2018, the EPA proposed the so-called "Safer Affordable Fuel-Efficient (SAFE) Vehicles" Rule. When finalized, SAFE would amend existing Corporate Average Fuel Economy (CAFE) and tailpipe carbon dioxide emission standards for model years 2021 through 2026 passenger cars and light-duty trucks. This means that the EPA has changed its position that emission standards (for vehicles model years 2022 through 2025) were feasible at reasonable cost, using technologies that were available as of the time of its 2012 rule. Instead, the EPA proposed to freeze the standards as of 2020 (see Federal Register No. 2018-16820, 83 FR 42986, Aug. 24, 2018).

EPA's pull-back pushed New York State to propose its own revisions to the GHG emission standards for LEVs.

DEC's actions are prompted by its legal obligation (under the federal Clean Air Act) to regulate and mitigate criteria pollutant and GHG emissions from mobile sources in order to safeguard the health of residents and protect the State's environment

To that end, New York adopted California's LEV GHG standards over a decade ago, and has revised them over time. There is still room for improvement. Several areas of the State do not meet federal health-based national ambient air quality standards (NAAQS) for ground-level ozone and so have been categorized as "non-attainment" areas. As DEC's emergency adoption and notice for the proposed rule provides, the State's "[f]ailure to maintain the most stringent vehicle emissions standards possible will be detrimental to the public health and general welfare of New Yorkers." (See New York State Register, Volume XLI, Issue 2, Jan. 9, 2019).

So, What is New York Proposing?

Simply put: the DEC is proposing to require cleaner California certified vehicles and engines to be sold in New York, and to amend its rules to also incorporate California's latest revisions to its LEV III GHG program. California's revisions, proposed by the state in August 2018, clarify the "deemed to comply" provision for automobile model years 2021 through 2025. The "deemed to comply" provision in New York's rules currently allows vehicle manufacturers to demonstrate compliance using federal GHG emission standards in lieu of California's more stringent standards. With the proposed rule, New York seeks to distance itself from the federal government and adopt California's standards into its existing LEV GHG III program.

These changes apply both to individual vehicles purchased by consumers, and fleet vehicles purchased by businesses and government agencies in New York. The amendment may impact businesses involved in manufacturing, selling, leasing, or purchasing passenger cars or trucks. According to DEC, these proposed amendments will not result in any additional reporting requirements for dealerships other than the current requirements to maintain records demonstrating that vehicles are California-certified, which has been the case for more than two decades already.

As the DEC declared, when it comes to protecting the public from air pollution, "time is of the essence." With this emergency adoption and proposed rule, New York State is making clear that it will not idly sit by while the federal government decides to roll back progressive rules intended to lower GHG emissions from vehicles.

A public hearing on this emergency adoption of California's LEV GHG standards is taking place on March 11, 2019 at the DEC offices in Albany, and comments are due to DEC by March 18, 2019. For more information on the public hearing and how to submit comments, click here.

Call the attorneys of Periconi, LLC at 212-213-5500 for more information about this emergency adoption and proposed rule, or if you believe these amendments will impact your business.

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