SB 278 is a danger to Delaware

Air quality in Delaware is among the worst in the nation. In part to improve it, the Delaware Department of Natural Resources and Environmental Control adopted Advanced Clean Car II standards last year. ACCII is a regulation that provides more stringent standards for air quality than those of the federal Clean Air Act. Because manufacturers prioritize orders for EVs in ACCII states, the regulation would make electric vehicles widely available for sale here.

A bill now pending in the state Senate could, if passed, compromise ACCII and have a significant negative impact on sales of electric vehicles in Delaware at a time when we need them most. The bill would limit consumer choice and slow the state’s progress on meeting its targets for reducing emissions of greenhouse gases. We EV advocates don’t like that.

But there is a bigger reason for all Delawareans to object: Senate Bill 278 would give unheard-of legal power to a single group; that power could be wielded well beyond its industry, and it could set a very dangerous precedent for other groups that might seek similar power.

How? The legal mechanism is known as standing. Standing means any party seeking a legal remedy to an adverse situation must show the court that it has sufficient connection to, and harm from, the law or action challenged. Standing can only be granted by a court, and it is not given lightly or arbitrarily.

The great risk of SB 278 is that it would, by law, grant the Delaware Automobile and Truck Dealers Association automatic standing in any legal proceeding, without having to prove harm.

That has never been done in Delaware for a very simple reason: Because it is a powerful and grossly unfair legal advantage that could be wielded in wildly dangerous ways.

Practically applied, SB 278 would allow the dealers association to sue the state on ACCII or other regulations, to sue car manufacturers or distributors that are applying for business licenses in Delaware to keep them out of the local market, to sue current EV-only manufacturers out of the local market or, to extend the rationale, allow the association to join any party’s suit and lend its standing when a lack of standing might otherwise prevent that action from moving forward, whether the action was related to motor vehicle sales or not.

If, for example, a coalition of unhappy citizen groups brought suit against the state over election results, but the court found the coalition had no standing, the association of auto dealers could join the suit and lend its standing so the case could proceed.

To use another example, if a group of neighbors brought suit against a developer who planned to destroy areas of protected woodlands or wetlands to build a parking lot and strip center, the association could intervene on behalf of the developer, though land-use law or development codes have nothing to do with auto sales.

The Delaware Automobile and Truck Dealers Association represents franchises that we recognize as large lots with dozens of cars made and certified service shops, who willingly enter agreements with the manufacturers in good faith.

The association does not represent EV-only makers such as Rivian, Polestar and Tesla, which markets itself from a kiosk in the mall and provides service through small, independent shops. That model is, understandably, a challenge to the existing paradigm, but it does not merit a draconian response.

SB 278 is presented as a technical cleanup or update of franchise law, but don’t be deceived. If the bill were to become law, any policy or program that the Legislature implements to protect air and water quality could be stalled indefinitely through lawsuit after lawsuit if the dealers association doesn’t agree with it.

Worse, this bill would allow dark-money-backed fossil fuel interests to funnel millions of dollars into associations in Delaware to fund lawsuits against the state, car manufacturers, small dealerships or anyone else that upsets the fossil-fuel industry; any program to improve energy efficiency in our homes; any plan for improving transit; any policy that helps us live healthier lives in a cleaner state.

That should worry any legislator who cares about free-market capitalism, our environment or democracy.

I want to believe that neither the sponsor of the bill nor the dealers association intended such a threat, yet SB 278 remains in the system. Whether you see electric vehicles as important to countering climate effects or not, ask your legislator to vote against SB 278. The liberty of all Delawareans is at stake.