How the Clean Air Act paves the road to expanding electric vehicle chargers

The transition to electric vehicles is a critical part of the global fight against climate change. But while national sales have surged in the last several years, limited charging infrastructure remains a massive barrier to the transition to electric vehicles. The nation’s foremost air pollution statute offers a potential solution. 

According to a recent study, nearly half of car shoppers say they wouldn’t buy an electric car due to range anxiety, the concern that their car will run out of battery power before they can reach a charger. And while the federal government has poured money into EV charging infrastructure, private companies are unlikely to build chargers unless they’ll see a return on investment from EVs already on the road. This creates a classic chicken-and-the-egg problem: We need charging infrastructure to encourage EVs, but we need EVs on the road to justify investing in more chargers.

Thankfully, the Biden administration could resolve this impasse by deploying the same tool past administrations have used to pave the way for the next generation of motor vehicle technology: Section 211(c) of the Clean Air Act.

To start, we need to recognize the limits of federal incentives.

President Biden has rightfully made charging infrastructure a central piece of his clean energy agenda, including providing $7.5 billion for EV chargers — the largest ever federal investment — through the recently-passed Inflation Reduction Act. In February of this year, the administration announced new standards for the Made-in-America National Network of electric vehicle chargers, which will consist of 500,000 electric vehicle chargers along highways throughout the nation. Due to these investments, companies including BP, GM, Tesla and Hertz have committed to expand their network of public charging ports in the next two years.

But despite the administration’s efforts, charging infrastructure appears likely to remain insufficiently built out—especially if ambitious projections in EV uptake are realized.

This isn’t the first time the auto industry has faced a problem like this. In the 1970s, policymakers were grappling with how to encourage the adoption of catalytic converters, a then-novel (and now-ubiquitous) technology that dramatically reduces pollution from vehicle exhaust. But catalytic converters require the use of lead-free gasoline, at the time rarely offered at the nation’s gas stations.

To solve this problem, the Nixon administration turned to Section 211(c) of the Clean Air Act. The provision authorizes the EPA to “control” the manufacture and sale of any motor vehicle fuel if the resulting emissions will endanger public health or welfare. In this case, the EPA invoked 211(c) to “control” the availability of leaded gasoline by requiring gas stations of a certain size to sell unleaded gasoline too. After a federal court upheld the regulation, the availability of unleaded fuel surged — and along with it, the use of catalytic converters.

By the same logic, the Biden administration could invoke Section 211(c) to require certain gas stations to install EV fast chargers: because gasoline emits various criteria pollutants, the EPA could “control” its sale by requiring stations to offer a safer alternative: EV charging.

While imposing the regulatory burden on individual gas stations (likely of a certain size or strategic characteristic) would most closely track the Nixon-era precedent, the statute plausibly allows the EPA to target other entities involved in the sale of gasoline. For example, the agency could direct its EV charging requirements not at individual stations but at the multinational franchisor brands — Shell, BP, Sunoco, etc. — that dominate the market.

And, given EV charging times, it may make sense to physically locate chargers outside of traditional gas stations, which sometimes lack the physical footprint or transmission capacity to host EV chargers. Under Section 211(c), EPA could likely draft a rule so that targeted firms could comply by financing the construction of EV chargers in partnership with local grocery stores or other nearby facilities that may prove a more natural fit for EV charging. It could also probably require that chargers installed pursuant to this authority use standardized plug types or accept universal forms of payment, unlike the closed networks of companies like Tesla.

As charging infrastructure remains a critical bottleneck to widespread adoption of electric vehicles, the Biden administration should consider using this overlooked tool — and ultimately hasten the transition to an electric vehicle future.

Will Dobbs-Allsopp is director of Strategic Initiatives at Governing for Impact.