Trump mpg proposal faces legal thicket

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Automakers urged to ‘make a deal’ with California

WASHINGTON — For the federal government’s proposed freeze of fuel economy standards to prevail, Trump administration officials will have to win on the legal battlefield.

Already, waves of opponents — from state and local governments, to safety, consumer, energy conservation and environmental interests — are mobilizing for an all-out assault to kill the Trump administration’s proposal, which would reduce the average fuel economy target for cars and light-duty trucks from an estimated 46.8 mpg for the 2025 model year and freeze it at the 2020 level of 37 mpg.

An equally tough skirmish will revolve around the administration’s plan to rescind California’s authority under the 1970 Clean Air Act to set stricter emissions and efficiency standards than federal agencies. Under an agreement engineered by President Barack Obama in 2012, California recognized the federal standard as equivalent to its own.

While automakers pressed the Trump administration for more flexibility under the 2012 agreement, they have voiced concern about a protracted legal battle that would throw product development plans off track or upset the alignment between U.S. and California rules.

Environmental lawyers say the Trump administration could have difficulty convincing judges of its authority to weaken fuel economy standards or the merits of the decision itself. Still, legal gray areas cloud how cases could be decided.

The government “is going to have to justify to a court why it’s changing its position, because the rule was put in place after a robust administrative process and record” showed its benefits, said Cara Horowitz, co-director of the Emmett Institute on Climate Change and the Environment at the UCLA School of law. “It’s often harder to justify a changing of a position than the taking of a position, because you have to overcome the presumption that the rule was right in the first place.”

Attorneys general from California and a dozen states that follow its clean-car program have threatened to challenge the weaker standards. States already are fighting the initial decision to reopen the Obama administration’s determination that the plan’s original feasibility assumptions were appropriate.

One line of attack from clean-car supporters will be that the Obama administration’s rule — finalized in January 2017, a week before President Donald Trump took office, and more than a year ahead of the target date — was legally binding.

“Does the EPA get a second bite at the apple?” said Mark LeBel, a staff attorney at the Acadia Center, a clean-energy advocacy group in the Northeast. “There’s a provision in the regulations that established the standards for a midterm review, but there’s no provision for revisiting a midterm review.”

Under the Administrative Procedure Act, attorneys say, the administration also would have to show that its decision to rewrite the standard wasn’t arbitrary or capricious.

Checking the math

States and interest groups are expected to attack the rule’s rationale by comparing the Trump and Obama administrations’ evidence, aiming to show the decision was politically motivated. The role played by the EPA’s scientific and technical staff will be in the spotlight.

“Courts are generally deferential to agency expertise, but they are looking for things that could qualify as obvious errors or things that smack of motivated reasoning that looks as if the agency isn’t applying expertise in an evenhanded way, but is sort of cooking the books,” LeBel said.

“And the Trump administration has not shown that it’s super thorough when it comes to crossing all its T’s and dotting its I’s.”

Last week, a federal appeals court ordered the EPA to ban a common pesticide associated with developmental disabilities, overruling former EPA chief Scott Pruitt, who rejected recommendations by agency scientists that it be removed from the market.

Internal agency emails published by The New York Timesalso show that EPA political appointees advanced more flexible rules regarding the use of asbestos, a carcinogen, over the objections of EPA scientists.

‘The kitchen sink’

For the proposed fuel-economy rule, stakeholders will use the 60-day public comment period to lay the groundwork for their legal challenges, said Maureen Gorsen, a partner in Alston & Bird’s environmental practice. And groups will coordinate arguments submitted to the EPA and NHTSA.

“We are going to see the kitchen sink,” she said. “They’ll launch everything in that administrative record that they might possibly think they might need in litigation.”

Potential litigants, Gorsen added, will review everything in the record and start prioritizing arguments that are most likely to prevail in court.

How the EPA would go about revoking California’s waiver is unclear. The Clean Air Act doesn’t specify such a process, and it has never been tried. Over five decades, California has received more than 100 waivers. One covers the entire advanced clean-car program, including regulations on tailpipe emissions of particulate matter and greenhouse gases and the zero-emission vehicle mandate.

The EPA is likely to argue that since it can grant authority, it inherently has the power to take it away. The proposal argues that California’s waiver is unlawful because a 1970s energy conservation law that established fuel-efficiency standards reserves those powers for NHTSA.

California gained its waivers on the “compelling and extraordinary circumstances” test because major urban areas have some of the worst smog in the nation and fail to meet EPA standards. The Emmett Institute’s Horowitz said the Trump administration likely will argue that those circumstances no longer exist, if they ever did, and that climate change is not unique to California.

Environmentalists say the state’s long drought and fierce wildfires prove that climate change is having an outsize impact on California.

Horowitz said states and interest groups have a strong case because lower courts have twice rejected the argument that the NHTSA provision bars states from regulating carbon emissions from vehicles.

“I think the Trump administration is going to try and put as high a bar as they can on California and say that unless California itself is solving climate change, then [the regulations] are not doing any good,” LeBel said.

“California will claim they are facing hardships,” he added. “So, they will try to set different standards for each other, and it’s not clear where the courts would come down on that.”

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Automakers urged to ‘make a deal’ with California

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