Here's Why California’s Executive Order Banning Gasoline-Powered Car Sales Is Deeply Flawed

California Governor Gavin Newsom just signed an executive order essentially banning the sale of all but electric and fuel cell cars by 2035. And as California goes, so, often, go New York, New Jersey, Massachusetts and a few other states. But does an executive order really mean anything? Is this legally binding? Does anyone out there know a lawyer?

“It’s borderline worthless,” said a lawyer we know, who demanded anonymity. “He knows he’s not going to be around to deal with enforcing it, I don’t think anyone’s going to take it seriously for now.”

So does it really mean no internal combustion in the Golden State? Well, the Golden State has been anti-smog for decades. After Richard M. Nixon signed the Clean Air Act into law in 1970, California asked if it could make laws even more strict than the Clean Air Act to govern emissions within its borders. That dispensation was granted and California has been orbiting its own moon ever since. The state has required ever-stricter emissions guidlelines, all of which have had engineers at car companies around the world pulling out their hair.

Anyone remember the 1990 ZEV mandate? The California Air Resources Board (CARB, get it?) said then that an increasingly larger percentage of new car sales had to be zero-emissions vehicles: 2 percent by 1998, five percent by 2001, 10 percent by 2003, etc. Dealers challenged the mandate in court and diluted it somewhat as a result, but the general direction toward world-leading cleaner emissions in the state never really faltered. The governor’s executive order is just the latest milestone along the way to what the State officially demands is 1.5 million zero-emission vehicles by 2025. Newsom also signed a non-binding agreement with several other countries to be 100-percent carbon neutral by 2040.

So Wednesday’s executive order is just the latest line delivered in a long passion play. While the exact goal may or may not be reached, that is the direction the state is trending, whether or not internal-combustion car sales are really outlawed in 15 years.

Or, as our lawyer friend said:

“An executive order by a state governor is more akin to a policy statement directing agency action, especially with an issue contemplating potential enforcement 15 years in the future. In that time it would have to be backed up by state legislation or agency rulemaking, which in California's case would be achieved through CARB. In this case, his order is really directing CARB to take up the issue and pass agency rules in that time. But by itself, since we're not facing enforcement next week, the enforceability of this executive order is not exactly going to be tested.

“If executive orders had the same enforceability as state statutes, why even have a state legislature at all? Note as well that this executive order is aimed at something in 2035, not next year or next week. Now, if that order had been issued to be implemented next Monday, would that executive order be obeyed by car dealers or automakers shipping cars to California at the moment, and would they be breaking the law at that point? What does that say about the extent of a governor's power to enforce executive orders? It really bets on them being realistic and not being ignored by everyone.

“Having said that, I don't think Newsom would have to worry about enforceability in 2035 -- by that time he won't be in office and CARB would have its own rules in place.”

That’s true. With or without term limits Newsom will be long gone by 2035. Heck, most of us will be long-gone by 2035. That’s 15 years into the future. Does anyone remember what then-governor Arnold Schwazenegger signed 15 years ago? Well, he did create the Hydrogen Highway (Executive Order (EO) S-07-04), still sputtering along with 41 stations up and down the state. And there are a few Toyota Mirais and other H2 fuel cell vehicles. So maybe an executive order can get somewhere.

And you might be surprised by some who are looking forward to Newsom’s 2035 edict.

“I'm actually in favor of it,” said Beau Boeckmann, president of Galpin Motors, 11 dealers strong in Southern California and for many years the world’s largest Ford dealer. “I grew up in the San Fernando Valley in the 1970s. With the bad smog and asthma and all of those things, I can't stand pollution.”

Boeckmann is looking forward to the Ford Mustang Mach-E and electric F-150, pointing out the Mach-E's performance and the electric F-150's torque.

“I do think it might signal to some of the manufacturers that are on the fence that it's time to get off the fence.”

What he sees as necessary to EVs' success is an exciting lineup of vehicles.

“There's a little bit of the chicken and the egg thing, because the demand won't be there unless you have an exciting, exciting vehicle.”

Earlier EVs that were just converted gasoline vehicles built in small numbers to meet government demand, so-called “compliance vehicles,” won’t cut it.

“There was no demand for compliance vehicles, all these gasoline cars that they stick a battery in and they go less than 100 miles. No, there was not a demand for that. Is there a demand for an exciting vehicle like a Mach-E? Yes.”

So maybe an electric future won’t be all that bad. In fact, it might be thrilling, if you buy the right car. Check back in 15 years, I’ll do a followup story.