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Federal Register / Vol. 86, No. 247 / Wednesday, December 29, 2021 / Proposed Rules
and will continue to grow, and nuclear energy made up the remaining 20%.48
DOE should consider whether, in light of the required statutory factors, using a fossil-fuel only efficiency term is appropriate. DOE should also determine how, in light of the statutory scarcity, value, and conservation considerations, fuel sources such as wind and solar should be treated in terms of generation efficiency.
Other real-world changes since 2000
should also inform the agencys regulations. For example, data on the harms of fossil-fuel driven climate change, on the scale of petroleum consumption by regulated vehicles, and on the projected fleet share of EVs, have all changed over the past twenty years.
DOE should ensure that its regulations are based on the best available data fitted to the required statutory considerations.
DOE Should Update Its Regulations To Comport With the Required Statutory Factors and To Support the Goals of DOTs CAFE Program
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Existing regulations are arguably inconsistent with DOEs statutory mandate. The statute provides that EV
CAFE values should be based on the statutory factors at 49 U.S.C. 32904. But current regulations are actually based on the existing regulatory approach at 49 U.S.C. 32905 for determining the petroleum-equivalent fuel economy of alternative gaseous fueled vehicles. 49
The result is that the magnitude of the PEF is primarily driven by the 1/0.15
multiplier applicable to those vehicles rather than being driven by the considerations mandated for EVs.
To illustrate, the value of the PEF
currently attributable to the Section 32904 EV factors is only 12,307 Wh/
gal.50 But with the addition of the Section 32905 multiplier, the PEF
becomes 82,049 Wh/gal.51 In practical terms, the EV fuel economy used for CAFE compliance is seven-fold higher due to the inclusion of the Section 32905 multiplier. So, for example, for the bestselling 2021 Tesla Model Y
Standard Range RWD measured at 260
Wh/mile,52 the CAFE value under DOEs current treatment of the Section 32904 factors alone would be 51 mpg,53
48 Id.
49 65

FR at 36987.

50 Id.
51 Id.
52 DOE, Compare Side-by-Side for 2021 Tesla Model Y Standard Range RWDhttps
www.fueleconomy.gov/feg/Find.do?action=sbs&
id=43880 last visited October 6, 2021.
53 Updating the underlying data from the 2000
rule values and reconsidering the appropriate application of the statutory factors in light of
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but with the multiplier the same vehicle is imputed a 315 mpg value for CAFE
compliance purposes.54
The entire delta from 51 mpg to 315
mpg is virtual. It does not reflect any efficiency characteristic of the EV or of the national electricity generation system, nor does it reflect any discretionary adjustment tied to the relevant statutory factors. Because CAFE
is a fleet average standard,55 the virtual increase in EV fuel economy far above the average means that automakers do not need to improve the fleet efficiency of their below-average ICEVs nearly as much to comply with the standard. And NHTSA is constrained from fully compensating for the virtual increase because the statute prohibits NHTSA
from considering the fuel economy of EVs when determining what average standard is maximum feasible for a model year.56
If the 1/0.15 multiplier was accounting for a real-world improvement in fuel conservation or had the effect of causing net improvements in real-world fuel efficiency, then the multiplier might be more defensible. But DOE justified its inclusion primarily on the basis of affording similar treatment to EVs as gaseous fueled vehicles.57 As a purely legal matter, this justification is questionable, as the statute expressly provides for different treatment between these types of vehicles.58
DOE should holistically review its approach to calculating the PEF to ensure its regulations comport with the relevant statutory language. For example, the statute provides that DOE
should account for the need of the United States to conserve all forms of energy. 59 But current PEF regulations do not appear to meaningfully address the need for national scale energy conservation, with DOE only citing this consideration in passing as a justification for including the accessory factor in the PEF
equation.60 It is not plausible that Congress intended the sweeping current circumstances and program goals will likely increase this value.
54 These values come from dividing the PEF in Wh/gal by the EPA-measured combined electrical energy consumption value in Wh/mile. See 10
CFR part 474, App.
55 49 U.S.C. 32902.
56 See 49 U.S.C. 32901a1, 8, 32902h.
57 65 FR at 36987.
58 Cf., e.g., Russello v. United States, 464 U.S. 16, 23 1983 Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.
cleaned up.
59 49 U.S.C. 32904a2Biii.
60 65 FR at 36987; cf. 59 FR at 5338.

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direction to consider the need of the United States to conserve all forms of energy to be satisfied merely by minor PEF adjustments for the minority of electric vehicles . . . in colder climates that may be equipped with petroleum-powered cabin heaters.61
Particularly given the ongoing and increasing threat from fossil-fuel-driven climate change, DOEs regulations should more meaningfully address the need to conserve all forms of energy.62
DOE should also work with NHTSA
to ensure PEF regulations further the goals of the CAFE program. By way of illustration, DOE historically suggested that EV CAFE values should be high to help with early commercialization of EVs.63 But that idea originates from now obsolete language in the 1979 Chrysler Corporation Loan Guarantee Act that directed DOE to evaluate whether including EVs in CAFE would have such an effect.64 The agency reported to Congress that the EV CAFE provision was not effective at incentivizing early commercialization,65 and when Congress consolidated the CAFE
program in title 49 in 1994, it did not include that language from the Chrysler Loan Act.66 In any event, any consideration of extra-textual incentives must not undermine the CAFE
programs overarching goal of fuel conservation for all light-duty vehicles.67
The early commercialization of EVs has already occurred and EVs comprise a significant and increasing share of new motor vehicle sales each model year.68 DOE should account for these changed circumstances, and work with 61 Compare 49 U.S.C. 32904a2Biii with 65
FR at 36987.
62 As another example, the statute contemplates that the procedure for calculating the PEF might be different across various classes of electric vehicles, 49 U.S.C. 32904a2B, but DOE has only issued regulations equally applicable to all classes of EVs. DOE should consider whether it is appropriate to differentiate among different classes of EVs for purposes of calculating CAFE values.
63 64 FR at 37906.
64 Id.; compare Public Law 96185 181 with 183.
65 DOE, Electric and Hybrid Vehicles Program, 11th Annual Report to Congress at 30 March 1988.
66 See Public Law 103272 1a; e, 108 Stat.
745 July 5, 1994.
67 Ctr. for Biological Diversity v. NHTSA, 538 F.3d 1172, 1195 9th Cir. 2008 quoting Ctr. for Auto Safety v. NHTSA, 793 F.2d 1322, 1340 D.C. Cir.
1986.
68 E.g. The White House, Press Release, FACT
SHEET: President Biden Announces Steps to Drive American Leadership Forward on Clean Cars and Trucks Aug. 5, 2021 President Biden Outlines Target of 50% Electric Vehicle Sales Share in 2030
. . . ., available at https www.whitehouse.gov/
briefing-room/statementsreleases/2021/08/05/factsheet-president-biden-announces-steps-to-driveamerican-leadership-forward-onclean-cars-andtrucks/.

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