Maine asks judge to dismiss EV lawsuit that claims state is failing to reach climate goals

Jun. 21—Maine officials asked a state judge Friday to dismiss a lawsuit by environmentalists accusing the state of failing to meet targets to reduce greenhouse gas emissions by not adopting a policy to boost the sales of electric vehicles.

The Department of Environmental Protection is not required by law to adopt a policy expanding electric vehicle use and its "alleged failure or refusal" to adopt the policy is discretionary and not subject to judicial review, the state said in its response to an April 22 lawsuit by the Conservation Law Foundation, Sierra Club and Maine Youth Action.

The response, filed in Cumberland County Superior Court, also said the environmental groups' accusation should be dismissed because the groups failed to demonstrate they have been injured by the state's actions.

In addition, the state said the DEP has not failed to comply with climate change legislation and that the environmentalists' lawsuit asks the court to breach Maine's constitutional separation of powers.

Emily K. Green, senior attorney for the Conservation Law Foundation in Maine, said in a statement that the state "would be better served by spending its time and resources to implement our climate law, rather than attempting to dismiss our lawsuit before we get a day in court."

Environmentalists said in their lawsuit that the DEP and Board of Environmental Protection, which provides oversight of the DEP, are responsible for implementing the state law that requires greenhouse gas emissions to be cut at least 45% from 1990 levels by 2030 and 80% by 2050.

"A mechanism for making sure we get there is what's missing from the state's approach," Green told reporters Tuesday on a conference call. "We're asking the court to push the DEP to put in place that accountability mechanism. We are not telling the state how they must do that."

Advocates are targeting the transportation sector because it accounts for more emissions than electricity, industry, buildings and other sources of pollution.

The Conservation Law Foundation, Sierra Club and Natural Resources Council of Maine petitioned the state last year, urging adoption of California's clean vehicle emissions standards that would ratchet up sales of EVs. The BEP initially approved the higher EV standard in a nonbinding vote in October 2023.

Board members reversed themselves in March, questioning whether the Legislature should instead make the final decision. Republican lawmakers, car dealers and others had criticized state involvement in EV sales, calling it government overreach, and said lawmakers should decide the issue.

Lawmakers and Gov. Janet Mills enacted legislation this spring giving the Legislature the final say on EV policy.

The proposed EV standards would have increased the share of electric and hybrid cars and trucks sold in Maine to 51% of all vehicles in 2028 and 82% in 2032.

The environmental groups have asked the court to order the oversight board to adopt rules that comply with the state's climate law, with a priority for transportation, on or before Nov. 1. They asked the court to order the DEP to adopt EV rules or an alternative rule by the same date. That date is one month before the Dec. 1 deadline for the Maine Climate Council to update the state climate plan.

Advocates say that in the nearly five years since Maine's climate law was enacted and the more than 2 1/2 years since the DEP's legal obligation to enact rules to implement it, the BEP has adopted only two rules aimed at its requirements and not a single rule to scale back pollution caused by tailpipe emissions.

In its response to the environmentalists' lawsuit, the state said even if the BEP had adopted the EV policy, it would have first applied to model year 2028 vehicles.

"There is also no guarantee that vehicle manufacturers would have responded by significantly expanding the availability of zero emission or electric vehicles in Maine promptly, despite regulatory efforts to 'enhance deployment of electric vehicles,' " the state said.

The DEP reported earlier this week that Maine had met its easiest emissions reduction goal, a 10% reduction by 2020, and was 91% of the way toward meeting its carbon neutrality goal by 2045. Maine has met its 10% reduction goal since 2016.

Data through Dec. 31, 2021, show that emissions had rebounded but were still below pre-pandemic levels.

In 1990, Maine produced 31.4 million metric tons of carbon dioxide equivalents. Emissions initially increased, peaking at 37.1 in 2002, before dropping below 1990 levels in 2009.

As of 2021, the last year in the report, Maine's emissions totaled 21.9 million tons — 30% below 1990 levels.

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The state cited its report as it pushed back against the environmentalists' challenge, citing "progress toward meeting the state's greenhouse gas reduction goals."

Members of the Conservation Law Foundation, Sierra Club and Maine Youth Action have not shown their "personal, property or pecuniary rights" have been affected by state environmental policy or that the issues raised in the lawsuit demonstrate a "direct, immediate and continuing impact."

"They simply claim that (the state has) not made enough progress with rulemaking to achieve the next statutory goal in 2030, nearly six years away," the state said.

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