Trump's Legal Challenges to the California Car Deal

by Daniel Farber | September 09, 2019

Originally published on Legal Planet.

Prompting rage by President Trump, California and several carmakers entered into a voluntary agreement on carbon emissions from new cars that blew past the administration's efforts to repeal existing federal requirements. Last week, the Trump administration slapped back at California. Although there's been a lot of editorializing about that response, I've seen very little about the legal dimensions of the administration's actions. I'd like to shed a little bit of light on those.

The administration took two separate actions. First, the Department of Transportation and EPA sent a letter arguing that California's action appeared to violate the federal statutes governing CAFE (fuel efficiency) and emissions standards for new vehicles. Second, the Justice Department opened an antitrust probe of the car companies themselves. How strong are the government's legal positions?

Let's start with the DOT/EPA letter. The Clean Air Act and the CAFE statute both contain provisions that preempt state law. Under the provision in the Clean Air Act, states may not "adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines." California currently has an EPA waiver of this provision, which EPA is now attempting to withdraw. Under the CAFE provision, a state may not "adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for ...

Get Ready for Phase 2 of the Deregulation Wars

by Daniel Farber | August 05, 2019
Originally published on Legal Planet. The first phase of Trump's regulatory rollbacks has been directed against Obama's climate change regulations. Those deregulatory actions will be finalized soon. What happens next will be in the hands of the courts. But the Trump EPA is now beginning a new phase in its attack on environmental regulation. Having tried to eliminate climate regulation, its next move will be an attack on basic protections against air pollution. The Clean Air Act, the federal air ...

Cost-Benefit Analysis According to the Trump Administration

by Rena Steinzor | July 23, 2019
Originally published by The Regulatory Review. Reprinted with permission. As the United States slogs through year three of a deregulatory implosion, one truth has become clear: As practiced by the Trump administration, cost-benefit analysis has become a perversion of a neutral approach to policymaking. To be forthright, I was never a fan of the number crunching. I thought it created the false impression that numerical estimates were precise, drastically understated benefits, buried controversial value judgments behind barricades of formulas, and ...

The Coming Decline of Anti-Regulatory Conservatism

by Joel Mintz | July 23, 2019
Originally published by The Regulatory Review. Reprinted with permission. When it comes to the need for federal regulation, the American political system is currently deeply divided along ideological and partisan lines. This division has a number of causes, but a good part of the division can unquestionably be attributed to what Professor Thomas McGarity has referred to as the anti-regulatory "idea infrastructure" and the "influence infrastructure" constructed by conservatives in the early 1970s and continued thereafter—ideas intended to block and ...

The Hill Op-ed: Trump Trashes the Natural World and Calls It 'Environmental Leadership'

by Joel Mintz | July 17, 2019
This op-ed was originally published in The Hill. In a recent speech, President Trump touted what he described as "America's environmental leadership" during his presidency. He claimed that over the past two-and-a-half years, his administration has been "a good steward of public land," reduced emissions of greenhouse gases, and successfully promoted clean air and water.  His claims are Orwellian in scope and mendacity. Even the most cursory examination of the Trump administration's environmental record reveals an appalling litany of irresponsible, anti-environmental ...

Op-Ed Shines Light on Trump EPA's Efforts to Re-Rig Cost-Benefit Analysis for Polluters

by James Goodwin | July 02, 2019
Last night, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum – both former industry lobbyists – will kick off the EPA's agency-wide effort to overhaul how it conducts cost-benefit analysis for its pending rules to ensure that this methodology remains heavily biased in favor ...

Pollution Bursts and Public Health

by Daniel Farber | June 13, 2019
Originally published on Legal Planet. When a facility installs and operates the required pollution control equipment, we normally think of the pollution problem as solved. But there still may be bursts of pollution associated with start-up, shut-down, accidents, or external events. A recent study of pollution in Texas shows that these events have substantial health impacts, involving significant deaths and overall costs of about a quarter billion dollars a year in that state. Ironically, the study comes out at the ...

Updates on the War on Science

by Daniel Farber | June 10, 2019
Originally published on Legal Planet. The Trump administration's hostile attitude toward science has continued unabated. The administration has used a triad of strategies: efforts to defund research, suppression of scientific findings, and embrace of fringe science. Budget. The administration continues to favor deep cuts in research support. Its initial 2020 budget proposal calls for a 13 percent cut to the National Science Foundation, a 12 percent cut at the National Institutes of Health, and elimination of the Energy Department's research support ...

CPR Member Scholars Feature Prominently in this Year's Duke Administrative Law Symposium

by James Goodwin | May 20, 2019
The annual Duke Law Journal Administrative Law Symposium has long served as one of the most prestigious fora for cutting-edge administrative law scholarship. This year's event, which featured the leadership and contributions of six CPR Member Scholars, was no exception. Each symposium is built around a theme, and this year's topic was "Deregulatory Games," which examined how the Trump administration's aggressive and often bizarre assault on our system of regulatory safeguards has tested the long-standing doctrines, norms, and institutions of ...

CPR Scholars and Staff Call on EPA to Abandon Proposed Attack on Mercury Rule

by James Goodwin | April 18, 2019
One of the most successful environmental regulations in U.S. history is under attack from the Trump EPA – and its demise might be accomplished by shady bookkeeping. That is the conclusion of comments filed by Center for Progressive Reform Member Scholars and staff on April 17. Since it was issued in 2011, the Mercury and Air Toxics Standard (MATS), which establishes rigorous technology-based standards to limit hazardous air pollution from fossil-fueled power plants – has reduced electric utilities' emissions of ...

OMB Leveraging the CRA to Add to Its Oversight of Independent Regulatory Agencies

by Bill Funk | April 16, 2019
Last week, the acting director of the Office of Management and Budget (OMB) issued a memorandum to all agencies regarding compliance with the Congressional Review Act (CRA). This memo supersedes one issued in 1999 and pulls independent regulatory agencies – specifically designed by Congress to be less prone to political interference than executive agencies – into a far more centralized CRA review process. The CRA requires federal agencies to send newly adopted rules to the House and Senate before the ...

CPR Member Scholars to EPA: Clean Water Rule Rollback Based on Bad Law, Weak Science

by Matt Shudtz | April 15, 2019
The federal Clean Water Act has been a resounding success as a tool for restoring our nation's waterways and preserving wetlands and other vital components of our ecosystems. But that success depends, in part, on restricting development in ecologically sensitive areas. That's why the Trump administration has proposed to narrow the scope of the Clean Water Act's protections. Not by amending the law, mind you – that wasn't possible when Republicans controlled both houses of Congress, much less now. Instead, ...

What Else Should Congress Investigate?

by Daniel Farber | April 12, 2019
Originally published on Legal Planet. Every day, it seems that there is a headline about some investigation involving campaign finance violations, the White House, or the actions of some foreign power. Perhaps that's all the bandwidth that Congress has. But there are other areas calling out for inquiry. Here are just a few: CAFE Standards. The car industry asked for delays and modifications in fuel efficiency standards. The administration came back with a drastic rollback that went far beyond what ...

Economists vs. Environmentalists: Time for D├ętente?

by Daniel Farber | April 09, 2019
Originally published on Legal Planet. Cost-benefit analysis has long been the target of environmentalist ire. But one lesson of the Trump years has been that economic analysis can be a source of support for environmental policy — it is the anti-regulatory forces who have to fudge the numbers to justify their actions. Most energy and environmental economists are aghast at Trump's assaults on climate change regulations — many of them would instead favor stricter regulation over the status quo. Maybe ...

Shackling EPA Risk Assessment

by Daniel Farber | April 01, 2019
Originally published on Legal Planet. EPA pollution regulations are based on an assessment of the risks posed by pollutants. This can be a complex scientific judgment. The Clean Air Scientific Advisory Committee (CASAC), the agency's scientific advisory board, is pushing for major changes in the way that EPA approaches this analysis. The effect would be to make it much harder for EPA to prove that a risk exists. Currently, risk assessment is based on a "weight of the evidence" approach ...

Trump on the Environment: A Study in Falsehood

by Daniel Farber | March 29, 2019
Originally published on Legal Planet. The Washington Post has a list of false statements by Trump, which turns out to be searchable by topic. They've found, "In the first eight months of his presidency, President Trump made 1,137 false or misleading claims, an average of five a day." As of March 17, he was up to 9,179 false statements. There were 200 false statements about the environment – that's about one every four days, which compares favorably to the number ...

Some Recusal Rules of Thumb for Recently Confirmed Judge Rao

by James Goodwin | March 25, 2019
During her confirmation hearing, Neomi Rao – then the administrator of the White House Office of Information and Regulatory Affairs (OIRA) and President Trump's pick to fill Justice Kavanaugh's vacant seat on the U.S. Court of Appeals for the D.C. Circuit – attracted a lot of controversy. Much of it surrounded the outrageous student newspaper commentaries she wrote as an undergrad, in which she casually passed judgment on date rape victims and the scourge of creeping multiculturalism. Now that Rao ...

Public Interest Community Calls on EPA Administrator to Halt Dangerous 'Benefits-Busting Rule'

by James Goodwin | March 19, 2019
Today, the Center for Progressive Reform and 46 other environmental, labor, and public health organizations sent a letter to Environmental Protection Agency (EPA) Administrator Andrew Wheeler calling on him to withdraw the agency's pending "benefits-busting" rule. Wheeler was recently confirmed as the official agency head, and, as the letter notes, he can begin his tenure on the right track by abandoning this dangerous rulemaking. The proposal is a vestige of the disastrous Scott Pruitt era that would radically overhaul how the ...

Trump's Legal Challenges to the California Car Deal

Farber | Sep 09, 2019 | Environmental Policy

Cost-Benefit Analysis and the Next President

Farber | Sep 06, 2019 | Regulatory Policy

Clearing the Air

Farber | Aug 26, 2019 | Environmental Policy

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