May 2021

The Federal Register today published the National Highway Traffic Safety Administration’s proposed rule to repeal the agency’s portions Part 1 of the Trump administration’s Safer Affordable Fuel Efficient (SAFE) Vehicles Rule.

In SAFE 1, NHTSA determined that California’s tailpipe carbon dioxide standards and zero-emission vehicle mandates are “related to” fuel economy standards. Consequently, those policies are preempted under Section 32919(a) of the Energy Policy and Conservation Act.

The SAFE 1 Rule, also known as the One National Program Rule, is available here.

NHTSA’s unnamed proposed rule to repeal the statutory interpretation and regulatory text contributed by the agency to SAFE 1 is available here.

I am not usually a fan of the 9th Circuit, but this case includes a constitutional gem. The court observed that a state policy occurring in violation of a federal mandate is void ab initio (from the moment of its enactment or adoption).

Cabazon Band of Mission Indians v. City of Indio (9th Cir. 1982)