Trailer Manufacturers Can Proceed With Phase 2 Greenhouse Gas Suit
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The U.S. Court of Appeals for the District of Columbia has lifted a stay of a Truck Trailer Manufacturers Association lawsuit seeking to block a Phase 2 greenhouse gas-emissions rule provision that would for the first time regulate trailers.
TTMA made the request to lift a suspension of the lawsuit, first filed in December 2016, claiming the case has been languishing despite promises by the Environmental Protection Agency and the National Highway Traffic Safety Administration to review the Obama-era rule.
In its motion last month to move forward with the case, the trailer makers said the two agencies have made “no discernible progress” with “no progress in sight” toward tweaking, repealing or leaving in place the joint rule.
A three-judge panel agreed, scheduling all parties and intervenors to file their final briefs by June 2.
The appeals court’s order will require the trailer makers to file their brief by Feb. 10, the federal agencies’ brief by March 31 and intervenors’ brief by April 21. The trailer makers will then have a response brief deadline of May 12.
The rule for the first time imposes “emissions” and “fuel economy” standards on trailers, which TTMA said emit nothing and consume no fuel. The rule is set to go into effect Jan. 1, 2021.
“Trailers are highly customized and are ordered months in advance because they are built to order, meaning that TTMA’s members will begin taking orders for 2021 in the coming months,” TTMA said in its motion. “TTMA’s members need to know whether the rule will apply to the trailers they sell for the 2021 model year, and they cannot realistically continue to wait for the agencies to engage in the rulemaking that has been promised since 2017.”
The 2016 Phase 2 medium- and heavy-duty truck GHG rule gave trailer makers four full years of “regulatory lead time,” but the agencies’ “indefinite delays” already have eliminated three of the four years that Congress mandated, TTMA said.
Despite a court requirement that the agencies file status reports every three months, the trailer makers claim the reports merely repeated that the agencies are ‘assessing next steps.’ ”
“The status report filed in October 2019 was materially identical to the status report filed in January 2018 and to every other status report,” TTMA’s motion said.
In a Dec. 13 court filing, the California Air Resources Board, an intervenor in the case, and EPA and NHTSA said they did not oppose the trailer makers’ motion to lift the abeyance.
“But briefing should proceed in the ordinary course, and the court should adopt our more reasonable proposed schedule,” the regulators said. “Trailer petitioner has given no good reason to rush. Part of the challenged rule has already been judicially stayed. And if trailer petitioner needs more interim relief to avoid prejudice, it could request a stay of other parts of the rule pending a merits decision.”
In court documents, CARB and the two agencies said the court should reject TTMA’s proposed briefing schedule, which it said is extremely compressed, giving the agencies just 30 days to file their responsive brief — half the 60 days given to EPA in typical petitions for review.
The regulators added, “And this is not a typical case: It involves a major rule jointly promulgated by EPA and NHTSA. To prepare their joint brief, the agencies will need to coordinate their responses, and to complete review and approval within EPA, NHTSA and two divisions of the Justice Department.”
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