by Jon Sanders
Director of the Center for Food, Power, and Life, Research Editor, John Locke Foundation
An unheralded policy change in the recently passed state budget would prevent unelected state bureaucrats from dictating or restricting people’s vehicular choices. Legislators have placed a separation-of-powers roadblock against executive overreach by Gov. Roy Cooper and his administration.
In 2011, the General Assembly passed the no-more-stringent law to keep state environmental agencies from going it alone to impose stricter, harsher, more expensive, and more disruptive environmental regulations than what the federal government already does. It is a good-government measure that upholds the separation of powers. The legislature is the lawmaking body; executive-branch agencies have only limited ability to make rules (which act as laws), and that authority is delegated to them from the legislature to enforce their duly passed laws. The only branch of government that should decide whether to enact stricter environmental laws than imposed by the federal government has to be the General Assembly, and it’s this principle that the no-more-stringent law protects.
Nevertheless, in spelling out their intent to maintain their constitutional authority over environmental lawmaking, the legislature was too precise. The law lists only nine such state agencies that are bound by it, failing to anticipate the insidious “whole of government” approach to dictating environmentalist policies adopted by the administrations of Pres. Joe Biden and Gov. Cooper. (It is to ward off such executive and bureaucratic meddling that Locke has long urged the General Assembly to expand the no-more-stringent law to apply to all state agencies and all policy areas beyond just environmental policy.)
The North Carolina Department of Transportation (DOT) is not listed among those agencies.
On July 10, 2020, Cooper signed a “Memorandum of Understanding” with California Gov. Gavin Newsom to align North Carolina’s regulation of trucks and buses with California’s as well as promote sales of electric vehicles and depress sales of conventional, gasoline-powered vehicles. The supposed rationale was environmental: to reduce greenhouse gas emissions.
Under the Clean Air Act, California is allowed to impose stricter regulations of vehicular emissions than the federal government. Other states are then allowed to adopt and enforce California’s standards. Were North Carolina to adopt California’ standards, however, it would go against the clear intent of the no-more-stringent law.
In his January 7, 2022, executive order stemming from this “understanding,” Cooper’s gambit was to have the DOT essentially put California’s environmental rules into the state’s administrative code. Cooper ordered DOT to develop and implement a “Clean Transportation Plan” to emphasize “near-term action” (i.e., hurry up) for “decarbonizing the transportation sector.” Importantly, Cooper’s order stated:
The Clean Transportation Plan shall include a focus on transitioning Medium- and Heavy-Duty Vehicles to ZEVs, informed by North Carolina’s participation in the Multi-State Medium- and Heavy-Duty Zero-Emission Vehicle Memorandum of Understanding [Cooper’s agreement with Newsom].
This “transitioning” is part of Cooper’s agreement with Newsom, which stated that they “agree to strive to make sales of all new medium- and heavy-duty vehicles in our jurisdictions zero emission vehicles by no later than 2050,” with “adequate progress” ensured by “at least 30 percent” of all new sales being “zero emission vehicles by no later than 2030.” Furthermore, they pledged to make “government and quasi-governmental agency fleets [vehicles]” comprise more and more zero-emissions vehicles.
Cooper’s order called it a “North Carolina Goal” to “Increase the total number of registered, ZEVs [zero-emissions vehicles] to at least 1,250,000 by 2030 and increase the sale of ZEVs so that 50 percent of in-state sales of new vehicles are zero-emission by 2030.”
As the North Carolina State Constitution makes clear, and as the no-more-stringent law upholds in principle, the legislative power of North Carolina is “vested in the General Assembly” — not California, not the governor, and not state agencies beyond their legislatively delegated and limited rulemaking authority.
A provision in the new budget exerts this constitutional authority. On page 373 the General Assembly included a provision to “Prohibit requirements for control of emissions from new motor vehicles.” That provision states:
Notwithstanding any authorization granted under 42 U.S.C. § 7507, no agency of the State, including the Department of Environmental Quality, the Environmental Management Commission, the Department of Transportation, or the Department of Administration, may adopt and enforce standards relating to control of emissions from new motor vehicles or new motor vehicle engines, including requirements that mandate the sale or purchase of “zero-emission vehicles,” or electric vehicles as defined in G.S. 20-4.01. The prohibitions of this section shall not be construed to effect requirements for the vehicle emissions testing and maintenance program established pursuant to G.S. 143-215.107A.”
It contains several noteworthy features:
To strengthen this protection, the General Assembly should expand the no-more-stringent law. Legislators should amend the law to forbid any agency from adopting more restrictive rules than imposed by the federal government without their explicit permission.