Pruitt’s Successor Wants Rollbacks, Too. And He Wants Them to Stick.

Source: By Coral Davenpor, New York Times • Posted: Monday, July 30, 2018

Andrew Wheeler, the acting head of the Environmental Protection Agency, is moving more slowly to cut regulations than his predecessor, Scott Pruitt.Pete Marovich for The New York Times

WASHINGTON — In his first three weeks on the job, Andrew Wheeler, the acting head of the Environmental Protection Agency, has sought to halt two major efforts by his predecessor, Scott Pruitt, to roll back environmental regulations, arguing that the policies are legally vulnerable, according to people who have heard his reasoning.

Mr. Wheeler’s actions signal a strategic shift at the E.P.A., an agency at the heart of President Trump’s push to strip away regulations on industry. Under Mr. Pruitt, who resigned July 5 under a cloud of ethics investigations, the agency pushed for ambitious but fast-paced rollbacks of environmental rules. At least a half-dozen of those have been struck downby federal courts.

Mr. Wheeler, a former coal lobbyist who served as Mr. Pruitt’s deputy, has brought a more disciplined approach to dismantling environmental rules. It is an approach that may take longer, but it may be more effective in standing up to the inevitable legal challenges.

Prof. Richard L. Revesz, an expert in environmental law at New York University, said Mr. Wheeler was “trying to be more careful and less sloppy” than his former boss. “By taking time to improve the quality of the legal justifications, Wheeler may ensure that E.P.A. won’t be subject to losing on certain types of policies,” Professor Revesz said.

On Thursday, Mr. Wheeler reversed Mr. Pruitt’s final policy, a regulatory loophole that would have allowed more highly polluting trucks on the nation’s roads. Mr. Pruitt’s quickly executed and unorthodox move — in which he told manufacturers that the agency would not enforce a cap on what are known as “glider” trucks, essentially vehicles with older and less efficient engines installed — had already been temporarily blocked by a federal appeals court.

Mr. Wheeler appeared to concede that it was unlikely to withstand legal challenge.

Behind the scenes, Mr. Wheeler has clashed with other top administration officials as the White House prepares to unveil one of Mr. Trump’s most consequential proposals, which would undo a major Obama-era environmental rule and let cars emit more planet-warming greenhouse gas emissions.

Mr. Pruitt had signed off on the plan, but Mr. Wheeler fears that its legal and technical arguments are weak and that it will set up the Trump administration for an embarrassing courtroom loss, according to interviews with 11 people.

A draft of the plan obtained by The New York Timesproposes permitting more carbon dioxide pollution from cars and light trucks while challenging the right of California and other states to set their own, more restrictive state-level pollution standards.

The 701-page draft, which was written by a team led by two Transportation Department officials, Jeffrey A. Rosen and Heidi King, asserts that the stricter Obama-era pollution rules are too costly. It also says the rules would lead to nearly 12,903 more deaths in road accidents from drivers in cars built through 2025 because, it says, more fuel-efficient cars are less safe since they are lighter.

But the plan’s release has been delayed by what one person familiar with the talks called “a nuclear war” between Mr. Wheeler on one side and Mr. Rosen and Ms. King on the other.

Mr. Wheeler has sharply questioned the analysis of the auto fatality numbers, saying that if they are proven faulty, that will undermine the legal case for the rollback, according to people who have heard him make that argument.

The Obama administration’s analysis concluded that, over the lifetime of the regulations, there would be 107 fewer auto fatalities than if the rules had not been implemented. Chet France, a former E.P.A. staff member who worked on that analysis, said that it may be difficult for the Trump administration to make its case by disproving the Obama-era fatality numbers, which were peer-reviewed by several panels of experts.

While people familiar with the talks described a feud between Mr. Wheeler and Mr. Rosen over how to proceed, Mr. 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.”

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

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 miles per gallon, thus lowering oil consumption and greenhouse-gas pollution and representing the largest move by the United States to combat global warming.

The Trump administration’s “preferred option” for weakening the rule would allow mileage standards to rise as scheduled until 2020, at which point the standard would freeze at about 37 miles per gallon.

The proposal would also challenge the authority of California and other states to set their own, tougher standards. 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 American car market in two, with one set of regulations for the federal government and a different set of regulations for California and the other states that follow its standard. That would set up a legal battle that would quite likely reach the Supreme Court.

Both Mr. Trump and Mr. Pruitt appeared to relish the political prospect of a legal fight with California. Mr. Pruitt, who shared Mr. Trump’s antipathy for 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 Mr. Wheeler stepped in, 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, even some auto executives have also asked Mr. Trump to pull back from such an aggressive rollback, fearing that the lawsuits it will create could lead to years of regulatory uncertainty.

But Mr. 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. With the retirement of the Supreme Court Justice Anthony M. Kennedy, who often served as a swing vote on the court, Mr. Trump has nominated a judge to succeed him, Brett Kavanaugh, who is considered more reliably conservative.

Mr. Rosen, a lawyer whose former clients have included General Motors and Hyundai, served as general counsel for the Transportation Department during the George W. Bush administration, where he was known as an opponent of efforts to combat climate change and regulate auto pollution. The plan would strip away regulations that he has fought for years.

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

Jody Freeman, a professor of environmental law at Harvard and a former adviser to President Barack Obama, noted that previous efforts to pre-empt such state-level authority have failed. “We’ve never seen a state-level waiver being revoked, and it’s not clear how that would work,” Ms. Freeman said.

Once the rule is made public, the E.P.A. and Transportation Department will take public comments before revising it and publishing a final rule this year. People who have spoken with Mr. Wheeler say they expect to see his more cautious approach reflected in a final rule that is less radical but more legally defensible.

And they note that even as on Thursday Mr. Wheeler walked back Mr. Pruitt’s move not to enforce pollution rules for “glider” trucks, he also wrote a memo saying that he intended to revisit the policy.

“He didn’t say, I’m abandoning this whole effort,” Professor Revesz said. “The last sentence of his memo is essentially saying, ‘We’ll still proceed full steam ahead.’ He’s just going to find a way to proceed more cautiously. His style is different, but ultimately he’s pursuing the same aim.”

A version of this article appears in print on , on Page A1 of the New York edition with the headline: Pruitt Successor Tempers Mode For Dismantling E.P.A. Policies. Order Reprints| Today’s Paper| Subscribe