Delaware Adopts California’s Zero Emission Vehicle Standards Through 2032, Avoiding Complete Phase Out of Sale of Certain Gasoline and Diesel-Powered Vehicles

January 18, 2024
Stephen D. Daly, Esq. and Richmond L. Williams, Esq.
MGKF Special Alert - 2024 Delaware Forecast

As reported in last year’s forecast, Delaware had initiated the regulatory development process to adopt California’s zero-emission vehicle standards, known as “Advanced Clean Car II” (ACC II), under the Clean Air Act. On December 1, 2023, DNREC published its final regulation adopting the ACC II program effective through 2032. This program is designed to reduce criteria pollutant and greenhouse gas emissions from light and medium duty vehicles. According to DNREC, the regulations require automakers to deliver an increasing number of zero-emission vehicles (ZEVs) for sale in Delaware.  Starting with model year 2027, 43 percent of new cars and trucks sent to Delaware for sale will be ZEVs.  The percent increases to 82 percent in 2032.  DNREC proposes that the regulations will expire in model year 2033.   

The final regulation was the result of an extensive public comment process.  A public hearing was held on April 26, 2023, with over 250 virtual attendees.  DNREC also received 2,469 written public comments.  Public commenters raised concerns about limiting consumer choice of vehicle, affordability of ZEVs, fueling infrastructure, environmental justice, and access to ZEV charging stations. 

In his Order approving the final regulation, DNREC Secretary Shawn Garvin acknowledged the concerns of the public commenters but responded that the phase out of sales of light and medium-duty gasoline and diesel-powered cars in favor of ZEVs would occur gradually.  Nevertheless, the final regulation differed from the proposed regulation in that the final rule adopts the ACC II program only through 2032, thereby avoiding the requirement in California’s ACC II requiring that ZEVs become 100 percent of new vehicles sales by 2035.  While a state like Delaware that chooses to adopt California’s mobile source emission standards under the Clean Air Act cannot adopt different standards from California, DNREC has taken the position that it need not adopt the entire phase out contemplated by the ACC II program, although whether this is consistent with the Clean Air Act is a potential open issue. 

The Secretary further explained in his Order that there are federal tax credits and rebates available for ZEV purchases, including a rebate of up to $2500 from DNREC.  Further, with significant federal funding through the Bipartisan Infrastructure Bill and the Inflation Reduction Act, Delaware is actively working to expand charging infrastructure to support ZEV use in the state, with a special interest in serving rural communities, disadvantaged communities, and those who live in multi-unit dwellings.