Energy development will likely land one bird on the Endangered Species list
The distraction of Pruitt’s scandals is gone but that won’t make deregulating any easier at EPA
Now that Scott Pruitt's scandal-ridden tenure has ended, there are those who might like to think that the Environmental Protection Agency will be able to move past the distractions and roll back major environmental regulations successfully. But Pruitt's time as EPA's administrator was marked by more than just scandals. He also lost in court repeatedly when his deregulatory efforts were challenged.
His successor will face similar obstacles because the policies that the Trump administration is trying to undo brought enormous benefits to the American people. Acknowledging the truth - that the deregulatory actions will cause significant harms and are being undertaken merely to please political supporters - is not a viable political or legal strategy.
So, Pruitt's successor will have to continue to do what Pruitt did: mangle the economic analysis supporting the repeals, to try to show that they are beneficial when in fact they clearly are not. Even without Pruitt's ethical cloud hanging over these efforts, the agency is likely to continue encountering difficulties in the courts.
The agency's first round of court losses began last summer, in connection with efforts to delay or suspend several environmentally protective rules. The courts have struck down rules suspending restrictions on methane emissions at oil and gas facilities, limits on pesticide use, and restrictions on formaldehyde emissions in composite wood products. In each case, EPA flouted procedural requirements and never explained the justification for forgoing the rules' benefits.
Now that EPA is focusing on actual repeals instead of just delays, the agency faces even bigger hurdles. Pruitt began the process of rolling back three major rules - standards cutting vehicle emissions; the Clean Power Plan, which would limit carbon dioxide emissions at existing power plants; and the Clean Water Rule, which clarifies wetland protection.
All three measures, promulgated by the Obama administration, were vilified by President Trump himself, both on the campaign trail and after his election. The next EPA administrator will almost certainly continue Pruitt's work targeting these rules. But all three included detailed economic findings that show the rules would have provided significant benefits to the public. The law requires EPA to explain the decision to forgo those benefits in the planned repeals, and no new administrator can do this without twisting reality and pretending those benefits don't exist.
In proposing to roll back vehicle-emissions standards, EPA has opted to withdraw a policy that would have led to enormous environmental benefits along with billions of gallons of fuel savings (and huge cost savings) for American consumers. To support the reversal, the agency had to rely on distorted truths, claiming that new facts supported the reversal. But these new facts actually point in the opposite direction.
For example, EPA claimed that fuel prices have dropped since EPA last looked at the standards late in the Obama administration and that consumers might purchase fewer clean vehicles as a result, potentially making it harder for automakers to meet the standards. But this is untrue - fuel prices are rising.
EPA also claimed that consumers prefer to buy SUVs and other larger vehicles and that this will make it harder for manufacturers to sell enough efficient vehicles to meet the standards. But that is not how the regulation works. When consumers buy more SUVs, the standards adjust to become more lenient. EPA also claimed that the standards will make vehicles less affordable for low-income buyers and that this will make it more difficult for auto manufacturers to sell more cars. But a recent study (cited by EPA in the withdrawal) shows that higher emissions standards have not affected the price of lower-cost vehicles.
The proposal to repeal the Clean Power Plan suffers from similarly serious defects. The agency must provide a justification for foregoing the tens of billions of dollars of health and environmental benefits that would have been produced by cutting air pollution at hundreds of old power plants around the country.
Not able to provide a credible explanation, the EPA proposal downplaying the rule's huge benefits through accounting tricks while ignoring the falling costs of compliance. EPA's new math still works only if the agency ignores altogether the Clean Power Plan's reductions of dangerous particulate-matter emissions, which kill thousands of Americans each year and lead to heart attacks, strokes, and asthma episodes. But ignoring those emissions contravenes longstanding agency practice under administrations of both parties and flies in the face of established science and economics.
The proposed repeal of the Clean Water Rule is also plagued with major analytical problems. Here too, EPA has fudged the numbers, throwing out data on the rule's benefits for irrigation, cleaner drinking water, and flood prevention by claiming that underlying studies are too old, while continuing to use studies of a similar vintage to show the cost savings of the repeal.
Also, EPA had previously found that the rules governing wetlands before the Clean Water Rule were inadequate, contradictory, and confusing. Now the agency proposes to return to that regime without providing any explanation for how the confusing system meets the requirements of the Clean Water Act.
Any hopes that the rollbacks may go more smoothly with Pruitt gone are likely to be in vain. Erasing these rules cannot look justifiable unless EPA mangles the economics. And that strategy is unlikely to get a welcome reception in the courts. The fact that Trump promised to repeal the rules in campaign speeches does not mean his administration can simply wipe them away without meeting the well established requirements of the law - whether or not the agency can avoid future scandals after Pruitt's departure.
Bethany A. Davis Noll is an attorney at the Institute for Policy Integrity.
Richard L. Revesz is a professor and dean emeritus at the New York University School of Law.