California Governor Bans Internal Combustion Engines, Effective 2035, to Combat Climate Change

Citing the urgency of climate change, California Gov. Gavin Newsom issued Executive Order N-79-20 on Sept. 23, 2020, to dramatically reduce greenhouse gas emissions and "more quickly move toward our low-carbon, sustainable and resilient future."

Key Provisions

The Order sets 2035 for a 100 percent ban on the sale of internal combustion engines for passenger cars and pickup trucks within California, with later target dates for similar bans on the sale of internal combustion engine medium- and heavy-duty trucks, and off-road vehicles and equipment. Used internal combustion engine vehicles may still be sold. The Order supports "zero emissions technologies" such as electric vehicles, and accelerated deployment of affordable fueling and charging options for zero-emission vehicles, particularly in low-income and disadvantaged communities.

The Order next focuses on fossil fuel extraction and refining activities in the state, directing that no hydraulic fracturing permits be issued after 2024 and that state agencies "expedite regulatory processes to repurpose and transition upstream and downstream oil production facilities," and also "manage and expedite the responsible closure and remediation of former oil extraction sites." The Order further directs agencies to assure appropriate decommissioning and remediation activities, and to impose financial bonding requirements to cover anticipated costs. The Order does not impose a deadline for ceasing operations or removing upstream and downstream oil production activities.

The Order concludes with a deadline of Dec. 31, 2020, for the state's primary oil and gas regulatory agency to propose a "significantly strengthened, stringent, science-based health and safety rule" to protect communities and workers from "the impacts of oil extraction activities."

The Order targets only activities that occur entirely within California, such as the sale of internal combustion engine vehicles, and upstream and downstream activities within California. The Order does not target internal combustion vehicles sold in other states or countries, or the continued importation of fossil fuels and products from other states and countries. The Order seeks to further promote investment strategies for clean transit and transportation projects.

Takeaways and Considerations

Gov. Newsom's Order bypasses the California Legislature, which has consistently declined to mandate the phase-out of internal combustion engines or domestic fossil fuel activities. Based on data from the California Air Resources Board (CARB), California's greenhouse gas emissions comprise less than 1 percent of global anthropogenic emissions. Quantities of greenhouse gas emissions from California's forest fires massively exceed greenhouse gas reductions from California's climate change regulatory mandates.

Within California's legal framework, judicial review of executive orders is challenging because the Orders direct future actions by state agencies. This Order also includes as a standard clause that the Order "is not intended to, and does not, create any rights or benefits ... enforceable in law or equity."

Within hours following issuance of the Order, CARB had convened a remote workshop to take public comments on the Order and related CARB regulatory proposals. CARB has consistently interpreted its statutory authority very broadly to adopt as climate regulations and policies what the Legislature has expressly declined to adopt as a statute, such as the mandatory reduction of vehicle use – "vehicle miles travelled" – even for zero-emission vehicles.

Holland & Knight attorneys are active in policy advocacy, permitting, regulation, enforcement and litigation involving energy, transportation and environmental issues. For questions about Gov. Newsom's Order and how it may specifically impact your organization, contact the authors of this alert or another member of Holland & Knight's West Coast Land Use and Environmental Group.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.