improper use of retail-costs as a surrogate lacks a “rational connection” to the record and renders the waiver arbitrary. Motor Vehicle Mfrs. Ass’n , 463 U.S. at 43 (“agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’”) (quoting Burlington Truck Lines v. United States , 371 U.S. 156, 168 (1962)). CARB’s retail cost analysis was also flawed, underestimating expenses (e.g., making incorrect assumptions about the number of batteries equipment requires), and assuming decreasing battery prices, even though prices have gone up (e.g., a leaf blower that cost $1,609 now costs $2,119.97). 12 Significant barriers continue to prevent battery prices from decreasing as CARB predicted. These barriers include geopolitical impacts (including tariffs), overcapacity, future battery metal costs, market competition, and profitability. 13 OPEI is likely to show that EPA’s failure to consider manufacturer costs, lead time, and technological feasibility renders the Notice of Decision unlawful. 14 b. OPEI’s Members Will Incur Irreparable Harm without a Stay. Gas-powered equipment continues to be in strong demand in California. CARB modeling and certification rulemaking estimated small engine-powered equipment sales of two to four million units annually absent the ban. See CARB , Emissions Model for Small Off-Road Engines – SORE 2020 (Sept. 2020) (model year 2024 Lawn & Garden and Light Commercial sector output data, extrapolated); CARB, Notice of Public Hearing to Consider Proposed Mobile Source Certification and Compliance Fees , at 141 tbl. App’n D-2 (Apr. 22, 2021). The annual manufacturing and certification processes for SORE equipment are not nimble. They are slow, resource-intensive, deliberate, and not well-suited for an environment of regulatory uncertainty. For next year’s models, those processes begin now. Once committed, OPEI’s members will not be able to pivot quickly enough to recover their losses if the waiver is rescinded. Declaration of Thomas H. Rugg (“Rugg Decl.”), ¶ 17 (“Manufacturers cannot just flip a switch turning 12 Petition for Reconsideration at 6–9. 13 See, e.g. , Srikant Jayanthan, BriefCASE: Where are EV battery prices headed in 2025 and beyond? , S&P Global (Jan. 8, 2025), https://www.spglobal.com/mobility/en/research-analysis/electric-vehicle-battery- prices-2025-forecast.html; see also Pablo Valerio, EV Battery Price Plunge Fuels Market Surge , EE/Times (Dec. 26, 2024), https://www.eetimes.com/ev-battery-price- plunge-fuels-market-surge/. 14 As noted in OPEI’s Petition for Reconsideration, CARB also unlawfully adopted and enforced amendments prior to EPA’s authorization, a clear violation of Section 209.
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