Top Trump officials clash over plan to let cars pollute more

Andrew Wheeler, the Environmental Protection Agency's acting administrator, addresses staff at the administration's headquarters in Washington, July 11, 2018.
Andrew Wheeler, the Environmental Protection Agency's acting administrator, addresses staff at the administration's headquarters in Washington, July 11, 2018. –Pete Marovich/The New York Times

WASHINGTON — Senior administration officials are clashing over President Donald Trump’s plan to roll back a major environmental rule and let cars emit more tailpipe pollution, according to 11 people familiar with the confrontation, in a dispute over whether the proposal can withstand legal challenge.

The rollback, one of the most consequential proposals of the Trump administration, not only would permit more planet-warming pollution from cars, it would also challenge the right of California and other states to set their own, more restrictive state-level pollution standards.

On one side is the Environmental Protection Agency’s acting chief, Andrew Wheeler, who has tried to put the brakes on the plan, fearing that its legal and technical arguments are weak and will set up the Trump administration for an embarrassing courtroom loss. Wheeler inherited the proposal from his predecessor, Scott Pruitt, who resigned July 5 under a cloud of ethics investigations.

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On the other side are top officials at the Transportation Department, Jeffrey A. Rosen and Heidi King, two of the proposal’s chief authors.

Rosen, a former George W. Bush administration official known for his zeal to undo federal regulations, is pushing the controversial proposal on the expectation that by the time any challenge makes it to the Supreme Court, the court’s makeup will be more friendly to a conservative, anti-regulatory policy, according to individuals familiar with his thinking.

Rosen and King have also justified their proposal with a new analysis concluding that the stricter Obama-era pollution rules would lead to thousands of deaths in road accidents. They argue that more fuel-efficient cars are less safe because they are lighter.

The plan’s official release has been delayed by what one person familiar with the talks called “a nuclear war” between Wheeler on one side and Rosen and King on the other. Wheeler has sharply questioned the auto fatality numbers and fears that if they are proven faulty, that will undermine the legal case for the rollback, according to people familiar with his argument.

This report is based on interviews with five people who are either former employees of the two agencies or former Trump administration officials, as well as six industry lobbyists and others close to the negotiations.

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For now, the White House is siding with Rosen. Trump is expected to announce the proposal next week.

California has a waiver under the 1970 Clean Air Act to set its own air pollution regulations, and a dozen other states follow its lead. If the Trump administration loosens federal pollution rules, California has vowed to stick with its own stricter standards and to sue the administration.

That fight could, in effect, split the U.S. car market in two and would set up a huge legal battle that is likely to reach the Supreme Court.

The proposal, which is to be jointly released by the EPA and the Transportation Department, was largely completed in May. It was sent by both agencies to the White House for review, after which it was expected to be published in June or early July in the Federal Register, a major step in formalizing a new regulation.

The details of the proposal are largely similar to those in a draft version described by The New York Times in April, according to people who have seen the plan. After its publication, the administration will take public comment before potentially revising and releasing its final plan, expected this year.

While the 11 people familiar with the talks described a bitter feud between Wheeler and Rosen over how to proceed, Wheeler described the negotiations between the agencies as “business as usual.”

“This assertion of a ‘nuclear war’ is categorically false,” he said in a statement. “Our efforts with DOT have been reflective of a robust and constructive interagency process that the American people expect — and deserve — when agencies are proposing rules of such consequence.”

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A Transportation Department official, who spoke on condition of anonymity because he was not authorized to speak on the record, said the staffers “have worked amicably” on a proposal “that will aim to save lives, preserve consumer choice and improve the economy.”

Under the Obama-era rules, automakers would be required to nearly double the fuel economy of passenger vehicles by 2025, achieving an average of about 54 mpg, thus lowering oil consumption and greenhouse-gas pollution and representing the largest-ever move by the United States to combat global warming.

The Trump proposal contends that those rules are too costly and would lead to the production of lighter cars more likely to result in deadly accidents. The Trump proposal, according to who have seen it, lays out several options for weakening the standard.

The Trump administration identifies as its “preferred option” one that would most dramatically weaken the rule: It would allow mileage standards to rise on the schedule laid out in the Obama rule until 2020, at which point the standard would freeze at roughly 35 mpg. The proposal would also challenge the authority of California and other states to set their own, tougher standards.

Both Trump and Pruitt, when he led the EPA, appeared to relish the prospect of a legal fight with California. Pruitt, who campaigned against government regulations, was prepared to sign off on the proposal despite the concerns of his staff about its legal vulnerability, according to people familiar with the negotiations.

But since Wheeler, who was Pruitt’s deputy, stepped in as the acting head of the EPA, he has raised concerns about the legality of the proposal as it is written, according to at least four people familiar with the matter. Privately, some auto executives have also asked Trump not to pursue such an aggressive rollback of regulations, fearing that it could lead to years of regulatory uncertainty.

During his tenure, Pruitt pushed out numerous proposals to roll back environmental regulations. At least a half-dozen have been struck down by courts.

Three people close to Wheeler said he wanted to avoid rolling out a major policy that could be legally vulnerable. But Rosen, the deputy secretary of the Transportation Department, is confident that the proposal will stand up to legal challenge in part because of the changing makeup of the Supreme Court, according to a half-dozen people familiar with his thinking.

Rosen, a lawyer whose former clients have included General Motors and Hyundai, served as general counsel for the Transportation Department during the Bush administration, where he was known as an opponent of efforts to combat climate change and regulate auto pollution. People familiar with Rosen’s thinking say he now sees an opportunity to strip away regulations that he has fought for years.

“The thinking is, whatever they do to relax the standards, California will sue. So why not go for the whole thing?” said Myron Ebell, who led the Trump administration’s EPA transition team.

With the retirement of Supreme Court Justice Anthony Kennedy, who often served as a swing vote on the court, Trump has nominated a judge to succeed him, Brett Kavanaugh, who is considered more reliably conservative. “They may well feel emboldened by the fact that Kennedy is retired, and they will likely see more conservative justices,” said Jody Freeman, a professor of environmental law at Harvard and a former adviser to President Barack Obama.

However, Freeman noted that previous efforts to pre-empt such state-level authority have failed, a fact that also concerns Wheeler, according to people familiar with his thinking. “We’ve never seen a state-level waiver being revoked, and it’s not clear how that would work,” Freeman said.

Along with Rosen, King, the deputy administrator of the Transportation Department’s National Highway Traffic Safety Administration, backs an analysis showing that the Trump proposal would save lives in car accidents. Her analysis shows that the Obama rules would lead to as many as 12,000 more traffic fatalities.

By contrast, the Obama administration’s analysis of the same rules concluded that, over the lifetime of the regulations, there would actually be 107 fewer auto fatalities than if the rules had not been implemented.

“Every analysis that we did — and we spent millions on doing these complex analyses — showed that, if anything, there could be an improvement in safety in more fuel-efficient vehicles,” said Chet France, a former EPA staffer who worked on the Obama analysis.