Maine’s Attorney General Responds to Environmental Groups’ EV Lawsuit

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In late March, the Maine Board of Environmental Protection (BEP) voted to reject a citizen-proposed electric vehicle mandate. This decision, now the subject of a lawsuit by environmental groups, was made in the context of a 2019 law that set greenhouse gas emission goals for the state, the first of which is to be carried out by 2030. 

Under this law, the state of Maine is responsible for passing legislation that moves the state toward those goals. However, no specific legislation or timeline to reach those goals is required. Although the legislature has now stopped the BEP from passing unilateral EV rules, environmentalist groups have sued the BEP to force them to pass the EV rules anyway. Recently, on June 21, the Attorney General’s Office issued a response brief highlighting many problems with the suit, most of which Maine Policy Institute pointed out a month ago.

This lawsuit was first filed in April by the Maine Sierra Club, Conservation Law Foundation, and Maine Youth Action, and while it makes seven separate legal claims, they are all slightly altered versions of two arguments. The first is that the BEP failed to act by refusing to pass this specific electric vehicle mandate, and the second is that the agency’s broad failure to pass stricter emissions reduction rules violates the 2019 law establishing future greenhouse gas emission goals for the state.

The AG’s counter-filing correctly identifies several flaws with the plaintiffs’ arguments and the suit itself. For the first argument, the state highlights that the EV mandate is only one of many rules that could potentially help Maine reach the law’s climate goals, and the law does not require the goals to be reached through specific rules. Additionally, the specific action being considered is not a final agency action, but rather an inaction. The board did not issue any final actions on the rule for or against it and simply refused to consider it after widespread public backlash. Therefore, judicial review to force further consideration of the rule is inappropriate.

As for the second argument, the first statutory emissions goal is 2030, which is nearly six years away. Considering that Maine’s emissions are already declining and the BEP has passed other rules affecting emissions, the claim that the board isn’t taking action is entirely unfounded. 

In addition, the Maine BEP’s powers in this area are now subject to legislative approval before EV mandates can take effect due to a new law passed by the Legislature this year. Therefore, judicial action forcing of EV mandates would be a separation of powers issue because a court would be acting legislatively by forcing the state to adopt the EV rules. 

There are even more issues with the suit generally. Just as Maine Policy guessed he would one month ago, AG Aaron Frey raised the questions of both standing and ripeness. The alleged injuries are primarily things such as allergies and weather patterns, which are neither currently caused by the BEP’s actions, nor specifically hurting the plaintiffs more than anyone else. That means the injuries are not concrete or particularized, and courts require both before they hear a case. The only specific injury the plaintiffs allege is lack of business at EV-dependant businesses, and they can’t even prove the rules would have caused an increase of interest.

As for ripeness, the emissions goals set by the state are not current or imminent, and neither is the weather that these rules are allegedly able to stop. Thus, with such chronologically distant and hypothetical injuries occurring, the case is not “ripe” enough for a court to hear. The plaintiffs will suffer no real and immediate harm if the court does not rule for them. Therefore, the court has yet another reason not to allow this case to proceed.

The court will likely review the allegations under the standard from Livonia v. Town of Rome (ME, 1998), which requires examining the complaint in the “light most favorable to the plaintiff” because they are currently deciding whether to allow the case to proceed at all. Despite acknowledging this highly pro-plaintiff standard, the AG felt in his recent filing that the court should rule for dismissal, and I agree. If the court does dismiss the case, all I have to say is, “I told you so.”