The Safe Vehicles Rule: How the Trump Administration's Course Change on Vehicle Emissions Reflects a Larger Policy Shift Away from Environmentally Friendly Regulations

• Publication year: 2019

The SAFE Vehicles Rule: How the Trump Administration's Course Change on Vehicle Emissions Reflects a Larger Policy Shift Away from Environmentally Friendly Regulations

Meghan Claiborne

THE SAFE VEHICLES RULE: HOW THE TRUMP ADMINISTRATION'S COURSE CHANGE ON VEHICLE EMISSIONS REFLECTS A LARGER POLICY SHIFT AWAY FROM ENVIRONMENTALLY FRIENDLY REGULATIONS

Meghan Claiborne^*

"[A] stable climate system is quite literally the foundation of society, without which there would be neither civilization nor progress."¹

In his first two years as President, Donald J. Trump has focused on a systematic dismantling of the American regulatory framework, with environmental regulations coming under particularly fierce attack. This article reviews the President's recent withdrawal and replacement of fuel emissions regulations, and how this decision represents a more general adoption by the Trump Administration of the antiquated notion that economic prosperity and environmental regulation cannot exist harmoniously in modern society.

On August 2, 2018, just shy of the one-year anniversary of the Trump Administration's withdrawal of the United States from the Paris Climate Accord,² the U.S. Environmental Protection Agency (EPA) and U.S. Department of Transportation's National Highway Traffic Safety Administration (NHTSA) released a notice of proposed rulemaking—the Safer Affordable Fuel-Efficient Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (SAFE Vehicles Rule).³ The purpose of the SAFE Vehicles Rule is "to correct the national automobile fuel economy and greenhouse gas emissions standards to give the American people greater access to safer, more affordable vehicles that are cleaner for the environment."⁴ The direct effect of the proposed rule is to scrap Obama-era standards that were put in place to gradually raise average fuel economy for passenger cars and light trucks under test conditions from 37 miles per gallon in 2020 to 50 miles per

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gallon in 2025.⁵ By contrast, the new SAFE Vehicles Rule freezes the average fuel economy level standards indefinitely at the 2020 levels.⁶

To understand the full impact of this proposed rule requires going back to 1970 with the passage of the Clean Air Act of 1970 (the "Act").⁷ The Act established, for the first time, a national system of air quality standards and represented a major shift in the collective view away from the previous misconception that environmental protection and economic success could not be compatible. Paul G. Rogers, Chair of the House Subcommittee on Health and the Environment during the Act deliberations, characterized the Act as a signal from Congress in its "firm belief that economic growth and a clean environment are not mutually exclusive goals."⁸

Another significant effect of the Act was the granting to California of the right to seek a waiver of federal air quality standards to enact its own, stricter standards—a hard fought for exception that recognized California's ongoing battle with dire environmental issues and previously enacted pollution regulations. This right to seek an amendment, which was later expanded to apply to other states in 1977, is currently codified as 42 U.S.C. § 7543.⁹

Fast forward to 2007 and the passage of the Energy Independence and Security Act of 2007 which required the Department of Transportation (DOT) to set corporate average fuel economy (CAFE) standards at a "maximum feasible level" for new cars and trucks .¹⁰ The new CAFE standards, finalized in October 2012, steadily increased the average fuel efficiency requirements for new passenger vehicles for model years 2017-2025.¹¹ The CAFE increases were split into two phases: the first phase included final standards for model years 2017-2021 to increase fuel efficiency standards to 37 miles per gallon. The second phase set "augural" standards for model years 2022-2025 to increase fuel efficiency from 37 to 54.5 miles per gallon, and was to be finalized in future

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rulemaking.¹² The CAFE standards were part of a coordinated effort between NHTSA and the EPA specifically requested by the Obama Administration (the "National Program") to "respond to the country's critical need to address global climate change and to reduce oil consumption".¹³ As part of the National Program, the EPA was to set greenhouse gas emissions standards for model years 2017-2025 consistent with both phases of CAFE standards to allow automobile manufacturers to "continue building a single light-duty national fleet that satisfies all requirements under both programs."¹⁴

The EPA and NHTSA, along with the California Air Resources Board (CARB)—responsible for promulgating California's stricter regulations pursuant to California's Act waiver—agreed to conduct a midterm review by 2018 to assess whether second phase augural standards for model years 2022-2025 needed to be adjusted. On January 13, 2017, during the final week of the Obama Administration, the EPA, DOT, NHTSA and CARB issued a final determination following the midterm review (the "Final Determination").¹⁵ By the EPA's own estimates in the Final Determination, the CAFE phase two augural standards were projected to reduce major greenhouse gas emissions by 540 million metric tons, reduce American oil consumption by 1.2 billion barrels and save consumers nearly $100 billion in fuel costs.¹⁶ The EPA further found that the existing model years 2022-2025 standards would "have no adverse impact on automobile safety."¹⁷ The EPA concluded that the phase two CAFE standards were reasonable, feasible for automakers to meet and would go into force without modification.¹⁸

On February 21, 2017, in response to the Obama Administration's Final Determination, the Auto Alliance sent a letter to Scott Pruitt, then-Administrator of the EPA, requesting the EPA to withdraw the Final Determination for a number of reasons, including because "[i]f left unchanged, [the CAFE phase

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two] standards could cause up to 1.1 million Americans to lose jobs due to lost vehicle sales."¹⁹

Shortly thereafter, on March 22, 2017, the EPA issued a Notice of Intention to reconsider the Final Determination of the phase two CAFE standards,²⁰ and on April 13, 2018 the EPA withdrew the Obama Administration's Final Determination in favor of resuming the midterm evaluation.²¹ California, along with 16 other states and the District of Columbia, filed suit in the United State Court of Appeal for the District of Columbia seeking to set aside the EPA's withdrawal of the Final Determination.²² This litigation is currently ongoing.

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