55 ELR 10520 ENVIRONMENTAL LAW REPORTER SEPT/OCT 2025
CRIPPLED BY THE CRA?
LAWFUL PATHWAYS TO CALIFORNIA’S
ELECTRIC VEHICLE TRANSITION
by John D. Graham
John D. Graham is Professor of Risk and Policy Analysis at the
Indiana University School of Public and Environmental Affairs.
The state of California has been a regulatory pioneer
of electromobility since 1990, when the California
Air Resources Board (CARB) created its Zero-
Emission Vehicle (ZEV) program. e term “zero emis-
sion” means no pollution from the onboard source of power
in the vehicle.1 To stimulate innovation in these clean pro-
pulsion systems, CAR B required all major automakers
doing business in California to sell a minimum percentage
of ZEVs such as plug-in electric vehicles (PEVs).2
PEV is an umbrella term for battery-electric vehicles
(BEVs), which rely entirely on electricity, and plug-in
hybrid electric vehicles (PHEVs), which make use of both
a gasoline engine and electric propulsion. C ARB favored
1. Jonathan Rice, Zero Emission Vehicle (ZEV): Everything You Need to Know,
ZEV F, https://zevfacts.com/zero-emission-vehicle-zev-everything-you-
need-to-know/ (last visited July 14, 2025).
2. CARB, Zero-Emission Vehicle Program, https://ww2.arb.ca.gov/our-work/
programs/zero-emission-vehicle-program (last visited July 14, 2025).
Author’s Note: The author thanks John Applegate,
Shahzeen Attari, Ernani Choma, E. Donald Elliott, John
Evans, Burney Fischer, Jax Fisher, Art Fraas, John German,
Simon Godwin, James Hammitt, David Konisky, Chang Liu,
Granger Morgan, Paul Noe, Richard Revesz, John Rupp,
Wallace Wade, and Jonathan Wiener for comments on
a previous draft of the Article. The author also had help-
ful conversations with Michael Buschbacher, James Condi,
Gregory Dotson, Daniel Farber, and Ken Gillingham. All
viewpoints and errors are strictly the author’s responsibility.
Through a novel yet controversial application of the Congressional Review Act (CRA), in June the federal
government disapproved the Environmental Protection Agency’s (EPA’s) waiver for California’s 2022 zero
emission vehicle mandate. The state sued to overturn that disapproval, arguing that the federal government
abused its authority under the CRA. This Article argues that California is likely to lose the statutory aspects of
its litigation due to judicial rulings in 2007, when California’s original 2004 climate rule was upheld. It then
argues that the loss will not be crippling because California has other tools at its disposal to accelerate the
transition to electric vehicles. The state can issue a revised rule that is not substantially the same as the one
disapproved by the U.S. Congress, which likely would require the state to win a subsequent lawsuit against
the Trump EPA. A more promising strategy for California is new demand-side policies, such as feebates and
mileage fees with adjustments for fuel efficiency. The Article explains how the state can adopt targeted tax
reforms with only a remote risk of preemption under federal law.
SUMMARY
BEVs over PHEVs. A qualied PHEV must meet stringent
criteria, including 43 miles of all-electric range through
2028 and 70 miles of all-electric range thereafter; even if
those criteria are met, the PHEV earns only pa rtial compli-
ance credit. 3
e ZEV program struggled to achieve meaningful
results until lithium-ion battery (LIB) technology spilled
over from consumer electronics to automotive in 2010.4
e rst modern PEVs were oered by the California
startup Tesla and Nissan, along with BMW, Mitsubishi,
and General Motors Corporation (GM).5 As battery prices
declined almost 80%-90% from 2010 to 2020, the pros-
pects for mass commercialization of PEVs improved.6 e
PEV share of California’s new vehicle market surged from
less than 1% in 2010 to 8.1% in 2020,7 larger than any
3. ese required all-electric ranges are much longer than all the PHEVs cur-
rently on the market in the United States. J D. G, T G
R M P-I E V: P P, I-
, S 48 tbl.2.3 (2021).
4. Virginia McConnell & Benjamin Leard, e California ZEV Program:
A Long and Bumpy Road, but Finally Some Success, R. F
(Dec. 2, 2019), https://www.resources.org/common-resources/california-
zev-program-long-and-bumpy-road-nally-some-success/.
5. G, supra note 3, at 16-23 (Tesla Roadster and Model S, BYD F3DM,
Nissan LEAF, Mitsubishi i-MiEV, Chevrolet Volt, BMW Mini E).
6. Id. at 40-41; Rahul Rao, Chart: Behind the ree-Decade Collapse of Lithium-
Ion Battery Costs, IEEE S (May 26, 2021), https://spectrum.ieee.
org/chart-behind-the-three-decade-collapse-of-lithium-ion-battery-costs.
7. C N C D A, C A O-
(2021), https://www.cncda.org/wp-content/uploads/Cal-Covering-
4Q-20.pdf (2020: BEVs = 6.2%; PHEVs = 1.9%; total = 8.1%).
Copyright © 2025 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, https://www.eli.org
SEPT/OCT 2025 ENVIRONMENTAL LAW REPORTER 55 ELR 10521
other state.8 California policies have been more aggressive
in promoting PEVs than the policies of other states, includ-
ing high-occupancy vehicle (HOV) lane access for quali-
ed PEV owners (which ends in the fall of 2025), a PEV
purchase rebate (2009-2023), and a relatively large net-
work of public charging stations.9 In 2024, approximately
25.3% of new passenger vehicles sold in California were
PEVs, which is only slightly behind the pace set in Europe
and China.10
On September 23, 2020, California Gov. Gavin New-
som, via executive order, instructed CARB to require
100% of new passenger vehicles in 2035 to be zero emis-
sion.11 CARB responded to the executive order with its
most recent ZEV rulemaking in August 2022.12 is bold
regulation is colloquially referred to a s California’s “electric
vehicle mandate” (EV mandate).13 e U.S. Environmen-
tal Protection Agency’s (EPA’s) new carbon dioxide (CO2)
standards for passenger vehicles are likewise sometimes
called—incorrectly—an “EV ma ndate,” although some
automakers will rely predominantly on PEVs to comply.14
8. Zachary Shahan, Top US States for EV Market Share—13 States With
10%+ EV Share, CT (May 14, 2025), https://cleantechnica.
com/2025/05/14/top-us-states-for-ev-market-share-13-states-with-10-ev-
share/. See also G, supra note 3, at 413 g.12.3.
9. California has doubled down on EV infrastructure across the state, ap-
proving a $1.4 billion investment plan that will expand the most exten-
sive charging and hydrogen network in the country. e funds approved
in December 2024 will result in nearly 17,000 new light-duty, passenger
vehicle chargers statewide. Press Release, California Energy Commission,
CEC Approves $1.4 Billion Plan to Expand Zero-Emission Transportation
Infrastructure (Dec. 11, 2024), https://www.energy.ca.gov/news/2024-12/
cec-approves-14-billion-plan-expand-zero-emission-transportation-infra-
structure; Press Release, California Energy Commission, California’s ZEV
Momentum Rolls Into 2025 (Jan. 31, 2025), https://www.energy.ca.gov/
news/2025-01/californias-zev-momentum-rolls-2025.
10. Alejandro Lazo, California’s Surge in EV Sales Has Stalled—So What Happens
to Its Landmark Mandate?, CM (Feb. 6, 2025), https://calmatters.
org/environment/climate-change/2025/02/electric-car-sales-stall-califor-
nia/ (PEV share was 25.3% in 2024, up only slightly from 25.0% in 2023
after three years of explosive growth).
11. Press Release, Oce of Governor Newsom, Governor Newsom An-
nounces California Will Phase Out Gasoline-Powered Cars & Drasti-
cally Reduce Demand for Fossil Fuel in California’s Fight Against Cli-
mate Change (Sept. 23, 2020), https://www.gov.ca.gov/2020/09/23/
governor-newsom-announces-california-will-phase-out-gasoline-powered-
cars-drastically-reduce-demand-for-fossil-fuel-in-californias-ght-against-
climate-change/; California Exec. Order No. N-79-20, Zero-Emission
by 2035 (Jan. 19, 2021), https://ww2.arb.ca.gov/resources/fact-sheets/
governor-newsoms-zero-emission-2035-executive-order-n-79-20.
12. CARB, Public Hearing to Consider Advanced Clean Cars II Regulations:
Final Statement of Reasons for Rulemaking, Including Summary of Com-
ments and Agency Response (Aug. 25, 2022), https://ww2.arb.ca.gov/sites/
default/les/barcu/regact/2022/accii/fsor.pdf.
13. Edmunds, California Mandates Electric Cars for 2035 and Here’s What at
Means, https://www.edmunds.com/car-news/california-mandates-electric-
cars-for-2035.html (last visited July 14, 2025).
14. Candidate Donald Trump mischaracterized that EPA rule as an “EV man-
date.” D’Angelo Gore et al., Trump’s Misleading Claims About Electric Ve-
hicles and the Auto Industry, FC. (Oct. 2, 2023), https://www.
factcheck.org/2023/10/trumps-misleading-claims-about-electric-vehicles-
and-the-auto-industry/. EPA’s CO2 regulations are performance standards
that do not require compliance with a specic propulsion system. Automak-
ers are likely to comply with a mix of technologies such as hybrid-electric
vehicles (HEVs), PHEVs, and BEVs. Multi-Pollutant Emissions Standards
for Model Years 2027 and Later Light-Duty and Medium-Duty Vehicles,
89 Fed. Reg. 27842 (Apr. 18, 2024), https://www.govinfo.gov/content/pkg/
FR-2024-04-18/pdf/2024-06214.pdf.
CARB’s ZEV mandate is also technically a performance standard, but
PEVs are the only feasible compliance technology for the foreseeable future.
On May 20, 2023, CARB requested from EPA a waiver
of federal preemption for its 2022 EV mandate, as required
under the Clean Air Act (CA A). EPA granted CARB’s
request on December 18, 2024, several weeks prior to
the start of the second Donald Trump presidency.15 Had
it been fully implemented, automakers doing business in
California would have been required to supply a minimum
of 35% PEVs in model year 2026, ramping up to 68% in
2030 and 100% in 2035.16
Governor Newsom was arguably leading with his chin,
as there were some potent commercial interests eager to
undermine his initiative: companies that produce and
rene petroleum and petroleum products, compa nies that
produce and rene biofuels, car dealers, and suppliers that
provide parts for gasoline engines and transmissions. e
automakers were generally supportive of a transition to
electried vehicles, but perceived that CA RB’s 2035 man-
date was implausibly stringent.17
e CAA provides California a privileged position
among the air quality programs in the 50 states, because
CAR B is allowed to adopt its own standards for new motor
vehicles if they are more stringent tha n EPA’s national stan-
dards.18 e other 49 states are preempted from regulating
new vehicles, except they may choose to adopt CAR B’s
program instead of the national EPA program. As of late
2024, 17 states had adopted some of CARB’s regulations,
with 14 adopting the EV mandate specically. us, when
President Trump took oce in early 2025, 39.7% of new
passenger vehicles were sold in states that have adopted
California’s EV mandate.19
e Joseph Biden Administration and the U.S. Con-
gress took signicant sca l steps to accelerate the transition
to PEVs, especially in the Ination Reduction Act (IR A)
of 2022. e $7,500 federal consumer ta x credit for quali-
ed PEVs was renewed through 2032, but new restrictions
on eligibility were added for high-income buyers and high-
priced PEVs; additional restrictions apply to vehicles that
are assembled outside of the United States and/or have
Hydrogen fuel cell EVs could contribute to compliance in the future, if a
hydrogen fuel distribution is developed and if the prices of hydrogen fuel
cell vehicles decline rapidly. CARB once had a strong interest in hydrogen
fuel cell EVs, but that interest faded. G, supra note 3, at 125-26 (his-
tory of California’s hydrogen fuel cell initiative).
15. Press Release, U.S. EPA, EPA Grants Waiver for California’s Advanced Clean
Cars II Regulations (Dec. 18, 2024), https://www.epa.gov/newsreleases/
epa-grants-waiver-californias-advanced-clean-cars-ii-regulations.
16. In 2035, all new passenger vehicles sold in California must have plug-in
capability, though up to 20% may be qualied plug-in HEVs. Press Release,
CARB, California Moves to Accelerate to 100% New Zero-Emission Vehi-
cle Sales by 2035 (Aug. 25, 2022), https://ww2.arb.ca.gov/news/california-
moves-accelerate-100-new-zero-emission-vehicle-sales-2035 (up to 20% of
vehicles may be PHEVs in 2035; at least 80% must be BEVs).
17. Grant Schwab, Top Auto Lobby Warns States of “Unachievable” California
Emissions Rules, D N (Dec. 11, 2024), https://www.detroitnews.
com/story/business/autos/2024/12/11/auto-lobby-ghts-california-regs-
alliance-automotive-innovation-carb-emissons-trump-tesla/76925216007/.
18. On the history of California’s special position in the CAA, see John D. Graham,
Clean Air: Controls on Cars, Trucks, and Fuels, in F Y U.S. E-
P A: P, R, O-
83, 85-86 (A. James Barnes et al. eds., Rowman & Littleeld 2021).
19. CARB, States at Have Adopted California’s Vehicle Regulations, https://
ww2.arb.ca.gov/our-work/programs/advanced-clean-cars-program/states-
have-adopted-californias-vehicle-regulations (last updated Apr. 2025).
Copyright © 2025 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, https://www.eli.org
