most SORE uses, that is not true for commercial uses. EPA recognized in its December 2024 joint report with the Department of Energy (“DOE”) that commercial equipment is not electrified to the same extent as residential equipment and will, for the foreseeable future, continue to depend on sustainable liquid fuels. 6 Given these limitations, the lead time provided for manufacturers to comply with California’s new regulations is insufficient. It takes approximately four years for a new battery source to reach the marketplace, assuming it is feasible . 7 In this case, even if CARB had provided four years, the technology does not yet exist to meet the “basic market demand” of many users, and it is impossible to predict when or if electric-powered solutions will be available for the full range of SORE-powered equipment. 8 EPA acknowledged as much in the joint report it issued with DOE. 9 • EPA’s Cost Analysis Is Flawed In its Decision Document, EPA acknowledged that the relevant “costs” to consider under the CAA are the “costs of compliance for such manufacturers, i.e., costs that pertain to the manufacturers’ development and application of requisite technology to comply with the emissions standards.” 10 EPA further recognized its “duty” to consider such costs, and that considering other costs is inconsistent with the CAA. 11 Although Section 209(e)(2)(A) of the CAA, see 42 U.S.C. § 7543(e)(2)(A), mandates consideration of manufacturer compliance costs and evidence of those costs was in the record, EPA did not consider them. Therefore, EPA failed to address an “important aspect of the problem” with CARB’s proposed regulations, in violation of the CAA. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983); see also Ohio v. EPA , 603 U.S. 279, 294–95 (2024) (“an agency cannot simply ignore an important aspect of the problem.”) (internal quotation and citation omitted). This failure to consider cost data and EPA’s 6 EPA & DOE, A Market and Technology Assessment for Off-Road Vehicle & Equipment Energy and Emissions Innovation, at 35 (Dec. 2024) (“December 2024 Report”), available at https://www.energy.gov/sites/default/files/2024-12/doe-eere- market-technology-assessment-offroad-vehicle-equipment-energy-emissions- innovation.pdf (“Emissions reduction is expected to be a continuation of [the electrification] trend, with the notable exception of commercial-use equipment.”). 7 OPEI Comments at 17-18 (July 28, 2023) (attached hereto as Exhibit M) (“OPEI 2023 Comments”). 8 Id. at 34. 9 December 2024 Report at 35, 40–42 (noting that commercial users will continue to need gas-powered equipment options into the foreseeable future and “current battery technology is not sufficient for long-duration equipment operation[.]”). 10 Decision Document at 55. 11 Id. at 56, 70.
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