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The Truck Trailer Manufacturers Association has asked that an appeals court lift a suspension so the association can move forward with its lawsuit seeking to block a Phase 2 greenhouse gas emissions rule provision that would for the first time regulate trailers.
“This case has been in an indefinite abeyance for three years at the request of the agencies, which advised the court that they are reconsidering the rules and that their reconsideration could obviate the need for judicial review,” said a motion filed by the trailer manufacturers with the Court of Appeals for the District of Columbia earlier in December. “But the agencies have made no discernible progress, and there is no prospect of progress in sight.”
The requirement was a provision in the joint Phase 2 Obama-era rule issued by the Environmental Protection Agency and National Highway Traffic Safety Administration.
“The rule for the first time imposes ‘emissions’ and ‘fuel economy’ standards on trailers, which emit nothing and consume no fuel,” the TTMA motion said. In late 2016, the trailer makers association filed a lawsuit attempting to block the rule.
The trailer makers said the NHTSA portion of the rule, which the court has not stayed, takes 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. “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 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.
In their Dec. 3 motion to lift the stay, the trailer manufacturers said that no notice of proposed rulemaking has been issued despite the agencies having published regulatory agendas indicating potential dates for the issuance of a notice of proposed rulemaking, only to push back those dates in the next regulatory agenda.
“In this court, the agencies have filed court-ordered status reports every three months or so which merely repeat that the agencies are ‘assessing next steps,’ ” the motion said. “The status report filed in October 2019 was materially identical to the status report filed in January 2018 and to every other status report.”
For the past three years, FMCSA and NHTSA have sought repeated delays as they worked on a possible repeal or tweak to the rule.
In Dec. 13 court filings, the California Air Resources Board, an intervenor in the case, and EPA and NHTSA said they do 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.”
But in a Dec. 16 filing, the trailer plaintiffs called it “troubling” that the government failed to disclose that it had chastised them for the delay, when it was the government that was responsible by promising it was in the process of reconsidering the rule.
“Federal agencies should not string regulated parties — and this court — along for years with illusory commitments and then blame the regulated industry for not discerning earlier that the agencies were in fact not going to act,” TTMA said.
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