The Maine Department of Environmental Protection (Maine DEP) has told the Maine Wire that reporting from the Portland Press Herald about a pending emissions mandate is inaccurate.
According to the Maine DEP — and contrary to Wednesday’s report from the Press Herald — Maine lawmakers will not have the opportunity to vote on whether Maine should adopt a set of controversial rules that will mandate electric vehicle sales in Maine.
Deputy Commissioner of the Maine DEP David R. Madore told the Maine Wire that, “regretfully,” the article published by the Press Herald earlier this week “is inaccurate.”
“The Board of Environmental Protection has not asked the legislature to take the issue away from the Board,” Madore said.
The Maine Board of Environmental Protection (Maine BEP) still plans to vote on the set of controversial California-inspired vehicle emissions standards without involvement from elected officials — despite intending to ask lawmakers to revise state statutes so that legislative oversight will be required for these kinds of rules in the future.
Known as the Advanced Clean Cars II Program, the regulations currently under consideration by the Maine BEP would mandate that 51 percent of new car sales would need to be comprised of “zero-emissions” EVs by model year 2028 and 82 percent by model year 2032.
“In fact,” Madore continued, “the Board intends to vote on the proposed rule Chapter 127-A, Advanced Clean Cars II Program, after the public comment period has closed.”
Although the newspaper did accurately report in its initial article that “the BEP will ask lawmakers to revise state law” with respect to rulemaking for vehicle emissions standards, the scope of the Board’s expected recommendation as described by the paper was not reflective of the Maine BEP’s actual intent.
Under the Maine Administrative Procedures Act, agency rulemaking falls into one of two categories: routine technical or major substantive.
While routine technical rulemaking occurs entirely within a department, major substantive rules are subject to the legislative review process, as described under 5 M.R.S. §8072.
Agency rule changes are only categorized as major substantive if lawmakers have passed legislation explicitly deeming them to be.
Although Maine law used to require under 38 M.R.S. § 585-D that rule changes related to vehicle emissions standards — such as the ZEV mandate currently under consideration by the Board — be categorized as major substantive, lawmakers repealed that provision in 2005.
With this portion of the law no longer on the books, the controversial EV mandate was automatically categorized as routine technical when it was taken up by the BEP.
According to Madore, the Board intends to recommend that lawmakers reintroduce such a provision so that future rulemaking on this issue by the agency would be subjected to legislative review — as it once was — but this change would “presumably” not affect the BEP’s authority to adopt the ZEV mandate currently under consideration.
“The Board plans to submit to the Legislature’s Joint Standing Committee on Environment and Natural Resources a report summarizing its activities in calendar year 2023,” Madore told the Maine Wire. “That Report is expected to include a recommendation to the Legislature that it consider revising 38 M.R.S. § 585-D to require that rulemaking proceedings regarding motor vehicle emission standards be legally classified as major substantive rather than routine technical.”
“This presumably would not affect the Board’s current Chapter 127-A rulemaking proceeding,” Madore said.
“Some Board members and some members of the public raised this issue, leading to the anticipated recommendation that the Legislative consider whether any future rulemakings on the subject should be a major substantive rulemaking proceeding,” Madore concluded.
The Press Herald published a second story on the topic Friday, stating that DEP “clarified” their statement to the paper, which was the basis of it’s original story.
This second story noted that Maine BEP’s Executive Analyst William F. Hinkel “said that the board plans to submit a report summarizing its 2023 activities and include a recommendation that the Legislature consider revising state law to authorize lawmakers to rewrite vehicle standards.”
“He did not say that the BEP also would still vote on the proposed rule,” the article states.
“It was a misunderstanding,” Madore told the Maine Wire, “and I appreciate [the Portland Press Herald]’s willingness to set the record straight with today’s story.”
The Maine BEP recently reopened public comment for the Advanced Clean Cars II Program after delaying their scheduled vote on December 21 in response to the deadly and destructive storm on December 18 that caused widespread power outages throughout the state.
The Board will be accepting public comment concerning the proposed ZEV mandate until February 5, 2024 at 5pm.
Written comments can be sent to firstname.lastname@example.org with the subject line “Comment on Chapter 127-A: Advanced Clean Cars II Program (Reposting).”
A second public hearing on the mandate has not been scheduled by the Maine BEP at this time, and the Board has not yet announced the expected date of its vote on the rule change.