California is in the process of instituting a ban on the sale of gas-powered vehicles by 2035. The proposal follows political goals set by the state’s current governor, Gavin Newsome, and is being developed by the state’s top environmental regulator, the California Air Resources Board. While advocates are touting it as a necessary step to the transition to electric vehicles and other “zero emissions” technologies, critics are rightfully pointing out its flaws and consequences. 

The California ban is likely unconstitutional. First, it could violate the Commerce Clause as it creates unreasonable burdens on interstate commerce, i.e. the manufacture and sale of vehicles. The Supreme Court has long held that the Commerce Clause has been a “self-executing limitation” on the power of States to enact laws which restrict interstate commerce. Second, under the Clean Air Act, California is required to receive a waiver from the U.S. Environmental Protection Agency in order to set its own, more stringent, emissions standards. During the 1970’s when California was working to reduce smog and other particle pollution, the waiver allowed the state to adjust national standards to address local factors that made the smog worse. Mainly, the bowl-like topography of the California coast mixed with the humid and sunny marine environment that effectively traps pollution in the densely populated areas. 

While the waiver made sense for addressing those unique and compelling factors related to particle pollution, the same arguments do not hold true for greenhouse gasses (GHGs). GHGs ultimately rise high into the atmosphere where they become intermingled across the global pool of emissions. They do not linger over or within California in a manner that justifies more stringent actions—like banning gas-powered cars—that go far beyond the nationally set standards. Accordingly, 17 Attorneys General are now challenging EPA’s grant of the California waiver. That case is pending before the D.C. Circuit Court and oral arguments are expected later this year. 

The California ban is also unrealistic. While California has pushed electric vehicles for decades through a variety of tax breaks and subsidies, only 12.5% of drivers own an electric vehicle. This is a higher percentage of drivers compared to other states, but 78% of EV owners also own a second gas-powered vehicle to supplement their needs. Even with major advancements in EV technology, the reality that recharging batteries takes hours, while filling up gas tanks takes minutes, is a leading reason consumers continue to prefer gas-powered cars. EVs are also very expensive with an average cost of $54,000, most Americans cannot afford to pay luxury-level prices. This is especially the case with growing inflation.

Nonetheless, the ban would force car makers to manufacture more expensive, but less desired, cars or pay penalties to the tune of $20,000 per violative vehicle. These added costs will then be spread out across the country ultimately forcing states like Mississippi, Ohio, and Texas to subsidize California’s prohibitive policy.  

The ban will do little for the environment. While marketed as “zero emissions,” electric vehicles have a series of environmental tradeoffs. They require 10 times the amount of minerals in their batteries compared to gas-powered engines and the majority of these minerals come from Chinese controlled mines in Africa that disregard environmental protections and regularly use child and forced labor. Further, more expensive cars mean Americans drive older vehicles longer. This trend can undercut the reach and effectiveness of safety and efficiency improvements that come with newer models. 

Finally, this push towards electric vehicles will require more energy on the grids. California has already struggled to meet current demand and a ban on gas-powered vehicles will only make their grid problems worse. 

Markets free of government manipulation are better suited to determine the pace of technological transitions. This approach avoids the high-cost consequences to consumers or the establishment of rent-seeking industries whose “success” is dependent on taxpayer support and political favoritism.