Pennsylvania-based and family-owned trucking company H.R. Ewell, along with other industry players, has filed a lawsuit in the U.S. Court of Appeals for the Ninth Circuit against the Environmental Protection Agency (EPA) over its decision to grant a waiver allowing the California Air Resources Board's (CARB) "Omnibus" Low-NOx Regulation for heavy-duty commercial trucks to take effect. The U.S. Ninth Court of Appeals
[Related: EPA grants California waiver for low NOx Omnibus regulation]
The Pacific Legal Foundation is representing H.R. Ewell, along with fellow petitioners that include the Western States Trucking Association, California Asphalt Pavement Association, California Fuels and Convenience Alliance, New York Construction Materials Association, and the Associated General Contractors of New York State.
CARB's "Omnibus" Low-NOx reg drastically cuts NOx and particulate matter (PM) emissions standards, and includes new requirements for test procedures, regulatory useful life, and emissions warranties. The rule built upon the EPA's own heavy-duty NOx regulation, which was finalized in 2022 for the 2027 model year.
“Our Revolution was fought to throw off a faraway government — in which we had no representation — but the federal government cheated off King George’s homework when it created the Clean Air Act,” said Luke Wake, an attorney at Pacific Legal Foundation. “Forcing businesses to submit to rules written by California bureaucrats 3,000 miles away is blatantly unconstitutional and allows the federal government to escape accountability for the fallout. We are asking the court to strike down this regulatory scheme because California shouldn’t be enabled to create federally enforceable standards.”
1970's Clean Air Act allows California to set and enforce its own emissions standards in place of those from the EPA. California must first apply for a waiver and the EPA must grant it, but only if California has reasonably determined its standards are more stringent than the EPA's regulations. Also, California must specify extraordinary conditions to justify its higher standards. In this case, the state argues that climate change justifies increased emissions standards.
And here's the kicker: after receiving the EPA's waiver, California's emissions standards become part of the Clean Air Act, which gives other states the option of adopting California's regulations.
In the case of the Omnibus rule, seventeen states, including the District of Columbia, have adopted California's standards. The plaintiffs' suit argues this forces "nearly 40% of the country to comply with regulations that neither the federal government nor their own state legislatures had any say in creating." In other words: only Congress can make federal law, not state or local governments.
The petition, which can be read here, seeks to declare the EPA's waiver as unlawful.
For its part, CARB claims its projections for low NOx standards will provide protection for communities at higher risk of NOx pollution that mixes in the atmosphere to form smog, a known contributor to chronic health issues including cancer, asthma, and other respiratory illnesses.
