How does powertrain legislation evolve in changing times?

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Legal expert Alex Geisler discusses the role of powertrain legislation in the adoption of plug-in and battery electric vehicles.

By common consent, the earliest form of powertrain was the horse, hence the term ‘horsepower’. After the horse was the ox. With this solution came the earliest form of powertrain legislation, namely the 10 Commandments, specifically number 10, which expressly forbids me from coveting my neighbor’s ox. Today, powertrain options range from highly covetable muscle cars to unappealing EVs. As ever, the legislation is well intentioned, but still somewhat imperfect.

It’s perfectly legal, at least for now, to own and drive an ancient 5-liter car, with all the associated atmospheric emissions. The legislators’ approach is to discourage rather than prohibit. Mostly, this involves tax. As an example, the emissions charge I pay to drive into London depends on what car I’m in.

So, what are governments doing to promote the adoption of PHEVs and EVs? Early legislation was aimed at OEMs not consumers, and it involved emissions testing regulations. I’ve been a critic of NEDC, WLTP and even RDE, but if nothing else they attempt to provide comparative data for consumers to discriminate between manufacturers. Beyond that, there is no actual encouragement to consumers to adopt clean air technology. Does a man with a love of cars truly desire a Kia Niro? Of course not – but if the legislation means it’s free in the form of a company car, he may well choose it. 

But if it’s not free, is legislation effective in driving growth? Generally, not. As well as range anxiety, which we’ll come to, savings in running costs are outweighed by the high acquisition price. Besides, it turns out that many hybrids have a worse environmental impact than conventional fuel-only cars. New data from Green NCAP now includes PHEVs, and it turns out that the expected emissions benefits aren’t there.

This really shouldn’t surprise us. It is entirely logical that carrying a heavy lithium-ion battery system will add weight, and that added weight will increase fuel consumption. Nor should we be shocked to learn that many users drive long distances using the fuel engine, and that others don’t recharge as often as OEMs may recommend. The popular Mitsubishi Outlander is picked out for criticism as a heavy vehicle with a limited range, which is reported to perform worse on CO2   emissions than 11 gasoline and diesel models. The Green NCAP study also found several gasoline and diesel cars that performed better in clean air rankings than the Kia Niro Hybrid and Toyota Prius. 

Still, let’s be generous and call the earliest legislation a well-intentioned failure. Belatedly perhaps, governments have now understood that to promote PHEVs and EVs, they will need to address range anxiety. After all, you can make it free for me to drive an EV into London, but if I have no confidence it’ll get me back home, I won’t be doing it.

The UK took a pioneering stab at this in 2018 with the Automated and Electric Vehicles Act 2018. Part 1 gained attention, at least in the legal press, because it created a legal liability theory and an associated role for insurers. In contrast, Part 2 rather slipped under the radar, and it deals with infrastructure. At least, it’s supposed to. It says that regulations may come into force, or they may not. If so, they may impose standards on charging point operators, and may require sharing of information about where they are. But that’s all about regulating an infrastructure that doesn’t fully exist yet.

Meanwhile in the USA, the Senate is also proposing legislation aimed at promoting EVs. The strategy is focused on government agencies and their employees. Under the inventively titled CHARGE (Charging Helps Agencies Realize General Efficiencies) Act, the administration would hand out a card to agency staff to use to pay to recharge their EVs. The answer to range anxiety is infrastructure, not legislation about infrastructure. As ever, the law is an ass that no one would covet.

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About Author

Alex Geisler is team lead of the Transportation, Automotive & Logistics Group at Duane Morris law firm. He is regularly retained by OEMs, Tier 1s and Tier 2s, test facilities and engineering companies.

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