By requiring that new vehicles sold after a certain date be electric, states can lower drivers’ vehicle operating costs, boost local employment, and lower electric rates. But there’s a widespread perception that states can’t take advantage of these opportunities because a state vehicle electrification mandate would be preempted by federal law.

Not so.

While the Federal Clean Air Act (CAA) prohibits state regulations “relating to” the control of emissions in motor vehicles, and the Federal Energy Policy and Conservation Act (EPCA) prohibits state regulations “related to” fuel economy standards, there is a strong rationale for federal courts to reject preemption of state vehicle electrification mandates.

The Supreme Court has indicated repeatedly that state laws regulating a product or process “upstream” that have an effect “downstream” are not preempted by the federal law. A state law conditioning construction of nuclear power plants on adequate means for storage and disposal of nuclear waste is not preempted by a federal law regulating nuclear plant safety, although its effect is to advance nuclear plant safety. A state ban on uranium mining is not preempted by a federal law on uranium milling and tailing safety, although its effect is to advance uranium milling and tailing safety. Similarly, a state law requiring that cars run on electricity should not be preempted by federal law on emissions and fuel economy standards, although its effect is to reduce emissions and improve fuel economy. Moreover, there is no conflict between a state vehicle electrification law and the purposes of the CAA and EPCA. The purpose of the Clean Air Act is to clean the air. The relevant purpose of the Energy Policy and Conservation Act is to reduce energy demand. Neither statute has a purpose of ensuring that new vehicles have at least some emissions, nor that they continue to use gasoline.

This Article concludes that state vehicle electrification legislation should not be preempted. Neither the CAA nor the EPCA directly regulates how vehicles are powered. Neither statute explicitly prohibits states from mandating electrification of vehicles. And legal precedent limiting regulation of vehicles based on emissions or fuel economy standards has never addressed vehicle electrification mandates.

Further, states have compelling reasons for vehicle electrification mandates that have nothing to do with regulating emissions or improving fuel economy standards. Such reasons may be sufficient to avoid preemption. The Supreme Court’s increasingly preemption-skeptical jurisprudence, as articulated in Virginia Uranium v. Warren, limits courts’ ability to scrutinize state motives in passing vehicle electrification statutes.

Thus, although preemption cannot be dismissed as a concern, the stage has been set for state-based vehicle electrification mandates.