Many clean energy and climate action advocates were deeply concerned by the U.S. Supreme Court decision in West Virginia v. EPA, which struck down the never-implemented Clean Power Plan to regulate greenhouse gas emissions under the Clean Air Act.
But developers of and advocates for cleaner emission school buses said the decision is highly unlikely to have any impact on the EPA’s Clean School Bus program. And they said they don’t expect a chilling effect on the growth of the clean school bus sector in general, as it is driven by robust market forces and state-level programs largely unaffected by the Supreme Court decision.
The decision does not actually prevent the EPA from regulating greenhouse gas emissions from power plants or other sources. Rather, experts describe it as severely limiting the ability of agencies like the EPA to promulgate “unheralded” regulations that go beyond what Congress has specifically authorized. The Clean School Bus Program is unlikely to need new rules made in the way that the Clean Power Plan necessitated new interpretation of the Clean Air Act, a crux of the Supreme Court ruling.
“We do not think it will have any impact on the Clean School Bus program for a variety of reasons,” said Susan Mudd, a senior policy advocate for the Environmental Law & Policy Center. “The decision was really about [limiting the] delegating authority [of] agencies for adopting rules, not so much about appropriations. Congress laid out enough detail and was very explicit about setting out money to transition the nation’s school bus fleet. And happily, we hear there are applications coming in from almost every state.”
The Supreme Court invoked a once-obscure legal concept known as the “major questions doctrine,” which has been more frequently cited since the Trump administration’s conservative appointments to the Court.
“The doctrine, as now outlined in the West Virginia v. EPA case, allows courts to step in and overrule scientific and expert regulatory rules,” explained Jaron Goddard, a clean energy lawyer with the Energy & Climate Solutions group at law firm Wilson Sonsini Goodrich & Rosati in Los Angeles and former counsel and climate staffer for U.S. Sen. Patty Murray.
“In the past, the Court adhered to doctrines that gave some deference to agency scientists and experts who are responsible for implementing legislation like the Clean Air Act,” Goddard continued. “This current Court has used the major questions doctrine to strike down Occupational Safety and Health Administration rules when it ordered large employers to require vaccination or undergo frequent testing during the coronavirus pandemic.”
Experts say the West Virginia v. EPA decision could cause agencies to hesitate on taking regulatory action, “in part because the opinion provides very little detail about how a court would decide if an agency exceeded its authority under the major questions doctrine. It leaves lower courts with confusion,” Goddard commented.
But experts don’t think the decision or the doctrine will impact the Clean School Bus Program, and Goddard noted that the program is unlikely to trigger lawsuits or other reasons for uncertainty.
“It’s probably unlikely EPA will issue a rulemaking for this program,” said Goddard. “It’s not as common to see notice-and-comment regulations for federal grant programs like you do with the Clean Air Act, so, it’s probably even less likely you’d see any type of court challenge to the Clean School Bus program.”
Tim Reeser, CEO of electric drivetrain manufacturer Lightning eMotors, said he thinks the decision could “actually accelerate” clean school bus rollout.
“What the Supreme Court said was we want the EPA to focus on things that are congressionally authorized and mandated rather than ancillary projects,” he said. “The Clean School Bus Program is congressionally mandated. Money is set aside. This gave the edict to EPA to focus on this particular project that was very recently passed.”
While debate is highly politicized about the Supreme Court decisions and climate-related issues like the West Virginia case, Reeser and others said they don’t see the same polarization around clean buses.
“There are some of these things like electric school buses that go beyond the politics of greenhouse gas emissions or climate change,” he said. “Many people see the school bus mandate for electrification as [more] about student health and air quality around the schools. And it turns out electric school buses are much cheaper to operate long term. It is good business for everyone.”
Reeser noted that states like Colorado and California were incentivizing electric school buses well before the Clean School Bus Program or the Supreme Court decision, and states are likely to continue taking the lead on helping districts transition their fleets. Colorado created a $65 million school bus grant while the new California state budget includes a new $1.5 billion program in addition to an alphabet soup of grants available.
California also joins New York with the most aggressive mandates in the nation that all school buses must be powered by battery electricity by 2035. Meanwhile, Maryland will require all new school bus purchase by electric starting in three years.
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Reeser said their market looks “bullish,” and noted Lightning eMotors’ recently announced partnership with Collins Bus, expanding Type A electric school bus offerings to include the GM 4500 chassis in addition to the Ford E350.
Electric buses are indisputably cleaner at the tailpipe for the students they serve and communities they pass through. But the big picture portrays electric buses as being only as clean as the generation of the electricity that powers them. If the Supreme Court decision were to have a significant impact on the country’s generation mix, it could theoretically reduce the environmental benefit of electric buses. Increasing electricity prices could also make electric buses less attractive.
But energy experts expect the country’s electric generation to keep decarbonizing, as coal plants close for economic reasons, wind and solar are increasingly deployed, and the grid gets “smarter” and more efficient with more energy storage, meaning less energy needs to be generated. High natural gas prices and other factors have driven some utilities to recently announce that coal-fired plants will stay online longer than previously expected, but experts generally say that won’t stop the overall shift to clean energy at comparable prices.
“At least 30 states including Washington, D.C., and Puerto Rico have really strong Renewable Portfolio Standards,” setting clean energy goals, noted Goddard on local governments setting their own energy goals. “You marry that with the fact that the economics of coal and natural gas are just not there They’re more expensive and getting more so in comparison with renewables. I think you’re only going to see increasingly renewable generation deployed, which will be further encouraged by the passage of the Inflation Reduction Act.”