At the beginning of his term, President Joe Biden stated that his administration had a goal of installing at least 500,000 EV chargers in the transportation refueling system across the United States to lower the carbon footprint of the transportation system.

To meet that goal, the Biden administration has been pursuing an aggressive regulatory agenda to reduce carbon emissions in the transportation sector. The administration has also been pursuing an expedited transition to a net-zero vehicle profile through incentives included in the Infrastructure Investment and Jobs Act (IIJA) (also known as the Bipartisan Infrastructure Law) and the Inflation Reduction Act for EVs and EV charging infrastructure, along with regulatory proposals, such as EPA’s tailpipe emissions rulemakings on light-duty vehicles and medium- and heavy-duty vehicles. While the regulatory rulemakings have not been finalized, funding has begun to be released from the incentive programs, including the National Electric Vehicle Infrastructure (NEVI) program.

The NEVI program was created and included in the $1.2 trillion bipartisan infrastructure bill, which was passed by Congress and signed into law by President Biden in November 2021. The NEVI program will allocate $7.5 billion for EV charging projects and to establish an interconnected network to facilitate data collection, access and reliability of the EV charging network. There are two groups of funding: The first is the NEVI formula program for the states, and the second is a $2.5 billion grant program to help fund EV charging projects along designated alternative fuel corridors. The goal of these two programs is to create a nationwide, interconnected network of DC fast-charging stations along federally designated alternative fuel corridors.

During the IIJA legislative process, NACS supported the statute and worked to make sure language was included that ensures that convenience and fuel retailers would have access to these incentives. Ensuring this program encouraged private sector investment and a competitive market and level playing field for EV charging were top priorities for NACS.

As part of the NEVI program implementation, states had to submit their plans for approval on how they would spend and distribute these funds, and they will have to submit updated plans annually. All state plans were approved for the initial round in 2023.

These state plans varied and took many approaches to expand EV charging station networks. Some states took a traditional, competitive RFP approach with a large number of recipients. Other states had a single application approved for funding. Some states focused on larger businesses, with broader sites receiving funds, and other states had a mix of large and small business operators based on their sites win funding. As part of the criteria to determine who would receive funding, businesses that had amenities such as bathrooms and food service or that were open 24/7 were rated positively. And in some states, limits on profits are being considered if a business receives NEVI funding.

Also included in the IIJA was language to encourage states to look at their electricity rates for transportation and to address potential obstacles for private sector investment, such as unfair rates and extra fees, including demand charges. Again, state actions were varied. Some state public utility commissions are looking at alternative rate structures for electricity being used to charge EVs, with some states specifically looking at ways to address demand charges. Meanwhile, other states took a cursory approach with little change.

Throughout the implementation process, whether it has been the state implementation plan process, public utility commission proceedings or state legislative proposals for modernizing the electricity market and the role of investor-owned utilities in expanding the EV charging network, NACS has been closely monitoring this effort. NACS has also been looking at whether or not the legislative intent and guardrails to ensure private sector investment and competition are being met.

NACS, as a founding member, has been working through the Charge Ahead Partnership on much of this work, and where appropriate, has sent joint industry letters. NACS will continue to keep a close eye on this program and work to ensure the convenience and fuel retailing industry has the opportunity to compete and offer EV charging to its customers.

If you are interested in learning more about what’s happening with the NEVI program in your state, you can go to the Federal Highway Administration’s website at www.fhwa.dot.gov and go to the Bipartisan Infrastructure Law section. In addition, the Charge Ahead Partnership is another valuable resource to learn about what is going on with creating a competitive EV charging market. Information can be found at www.chargeaheadpartnership.com.

Keep an Eye Out for More Regulatory Rules Soon

In January, the U.S. Department of Labor (DOL) released its new rule governing independent contractor status and, at publication time, is tentatively scheduled to release its final rule governing overtime exemptions sometime in February. These are just two of the myriad regulations we are likely to see released by the Biden administration before July. The DOL has almost three dozen rules listed in the “proposed rule stage,” according to the latest Unified Agenda of Regulatory and Deregulatory Actions. Other agencies—such as the Department of Interior and the EPA—have dozens more pending. Many of those won’t directly affect the convenience retailing industry, but some will.

This kind of rush to finalize new rules in, potentially, the final year of an administration is nothing new. Every four years, we tend to see an increase in the pace of significant rulemakings out of Washington in the first half of the year or so. The reason has to do with the Congressional Review Act (CRA). The CRA allows Congress to vote to nullify regulations if such a resolution of disapproval is acted on within a 60-consecutive-legislative-day window after the rule is released. The law was created in 1996 but was only successfully used once prior to 2016. In the last eight years, Congress has successfully nullified 19 more regulations. The majority of those happened following President’s Trump inauguration in 2017.

The 60-consecutive-legislation-day window is the real driver of the timing. If that clock has not expired before the end of a Congress, the next Congress gets an additional window of time within which to file such a resolution. Because both chambers are scheduled to be out of session for the entire months of August and October, rules must be finalized before some time likely in May or June to avoid running out the clock during the 118th Congress.

With the possibility of changes in the White House and in Congressional majorities on the table, the Biden administration wants to avoid having that clock running out.