When Andrew Wheeler stepped into the role of acting administrator of the Environmental Protection Agency last summer, the prevailing narrative was that he would bring calm after the storm of Scott Pruitt’s never-ending ethical scandals and frantic, if largely ineffective, deregulatory efforts. Wheeler was supposed to be “cannier,” “more disciplined,” and, ultimately, “more effective” than Pruitt had been at pursuing a deregulatory agenda. Where Pruitt’s sloppy efforts were repeatedly defeated in court, many thought Wheeler would fare better, thanks to his reputation as a more careful leader.
Wheeler now has several months as acting administrator under his belt, and the Senate will soon vote to confirm him as permanent EPA administrator. But from the evidence so far, it seems that Wheeler’s quiet effectiveness has not materialized, and his EPA is still plagued by the same institutional pathologies that characterized Pruitt’s tenure (though not the same ethics violations). Under Wheeler, the EPA is still putting the environment and Americans’ health in peril by working to erase or weaken major environmental rules. And these moves remain legally vulnerable, as they lack the requisite analysis and justification demanded by courts. The problems ailing Wheeler’s EPA are the exact same problems that ail most other parts of the Trump administration, and so far, there is no clear remedy is in sight.
Three of the EPA’s most recent proposed rules, all put forward under Wheeler’s leadership, target key greenhouse gas regulations from the Obama administration. Their serious shortcomings illustrate the problems that continue to plague the EPA. First, in replacing the Clean Power Plan, which sought to reduce the greenhouse gas emissions of existing power plants, with the Affordable Clean Energy Rule, the EPA uses problematic legal claims in an attempt to justify a policy that makes Americans significantly worse off. In making the change, the EPA claims that the Clean Power Plan relied on a legal interpretation that was inconsistent with the Clean Air Act. But this interpretation, far from being an invention of the Obama administration, had been followed by prior administrations of both parties, including the George W. Bush administration. More shockingly, under the EPA’s own analysis, its proposed change would significantly increase greenhouse gas emissions, lead to up to 1,400 additional American deaths each year, and impose billions of dollars of net harms on the American people. An agency choosing to impose net harms when it is not constrained by statute to do so is the very embodiment of “arbitrary and capricious” conduct, legally prohibited by the courts, but the EPA is currently arguing that it can exercise its discretion to replace the Clean Power Plan.
Second, Wheeler’s proposed rollback of the Obama administration’s limitations on methane emissions from oil and gas installations is not supported by any analysis at all. The previous EPA’s limitation was constructed after careful analysis showing that the methane controls on these installations had positive net benefits for society. Now, the agency claims that these estimates “may have been overestimated” without attempting any effort to quantify the supposed overestimation. Conclusory assertions of this type cannot substitute for the analysis required by the courts.
And, third, the proposed rollback to the standards limiting the greenhouse emissions of vehicles is based on an analysis that is so flawed that it defies common sense. The standards put in place by the Obama administration require automakers to steadily increase the fuel efficiency of new passenger vehicles through 2025, limiting climate pollution and reducing consumer fuel costs. In contrast, the Trump administration has proposed freezing the standards at 2020 levels, claiming that the resulting increases in pollution and fuel costs are justified by safety benefits from rolling back the standards. To try to demonstrate these alleged safety benefits, it assumes first that stricter efficiency standards raise the price of vehicles. Standard economic theory predicts that if car prices rise, people would then buy fewer cars. But instead, the administration’s faulty analysis leads it, wholly implausibly, to the opposite conclusion: that people will buy more cars and drive more miles, and therefore have more accidents. The analysis is also riddled with mathematical errors—at one point the authors of the report forgot to divide by four! Significantly, all of the mistakes and flawed analysis seem to have been biased toward making the proposed rule seem more justifiable. Problems of this sort, if uncorrected, would almost certainly lead to defeat in the courts. If they are corrected, the safety justification for the proposal would collapse like a house of cards.
These three proposed rules all exemplify the kind of legally vulnerable rationales that contributed to the court defeats of many of Pruitt’s deregulatory actions. But, of course, these serious analytical shortcomings cannot be laid at Pruitt’s feet. Shortly after Pruitt’s resignation, I wrote that his failures in the courts could be tied to five pathologies, embedded not only at the EPA but also throughout much of the Trump administration. Though Pruitt, with his sloppiness and haste, demonstrated some of the worst symptoms of these pathologies, Wheeler’s continuing problems highlight that the source of the illness runs much deeper.
One major pathology that seems to continue at Wheeler’s EPA is extreme ideological leadership of the agency, which can lead to one-sided information serving as the basis for decisions. Not only does that often cause the quality of decision-making to suffer, but courts, which look to see if agencies have considered all relevant sides of an issue, might reject an agency’s justification for a policy if it contains major gaps or biases in its analysis. This pathology appears to be present behind each of the proposals discussed above.
Another continuing pathology is the significant influence regulated industries have had in shaping the analysis justifying proposed rules. Trade associations and other interest groups tend to be dominated by their most extreme members and are likely to provide agencies access to only selective information, biased toward the outcome for which they are lobbying. For example, the Alliance of Automobile Manufacturers, the trade association representing manufacturers of cars and light trucks sold in the United States, pushed the EPA to take the extreme measure of completely rolling back vehicle emissions standards for model years 2022 through 2025, despite the fact that several prominent members, like Honda and Ford, advocated for a more moderate approach.
The Trump administration operates somewhat differently from prior administrations in that it often gives allies more than what they requested. This is what happened with the vehicle emissions standards—while the car companies had pushed for less strict standards and additional flexibility, they also wanted to preserve a single, nationwide set of standards. The Trump administration, by pushing the extreme approach of a complete rollback, risked fracturing the national car market, with California (and many states that followed California’s lead) planning to enforce their own stricter rules. By proposing a rule more extreme than what the car companies had asked for—or, at least, picking one of the most extreme from the proposals that had been suggested without considering other contextual information—the administration may have, in fact, made the situation significantly worse for car companies by requiring them to comply with two different sets of rules in the future, as well as risking the regulatory uncertainty of a protracted legal battle with California.
Wheeler seems to have avoided some of Pruitt’s worst missteps: He has not demonized EPA career employees, as Pruitt had. And there are no indications in the public record that Wheeler has aspirations for another political post, as Pruitt was rumored to have held, which might have explained why he promoted short-term boldness over careful, durable work.
Even if Wheeler isn’t as bogged down by the same problems that plagued his predecessor, those issues still pervade the rest of the Trump administration, to such an extent that they may hamstring Wheeler. One striking example of this can be found in the analysis of the new car fuel economy standards rule discussed above: The EPA staff (and apparently Wheeler himself) had reportedly identified some of the flaws in the economic modeling and mathematical errors. But the National Highway Traffic Safety Administration ignored these concerns to propose the rule anyway, along with the error-filled analysis. This type of politically motivated, short-term strategy of frantic but legally compromised activity may well suit the Trump administration in the run-up to the 2020 presidential election. Indeed, a vigorous show of deregulatory passion may help the administration persuade its supporters in the regulated community to maximize their financial support for the campaign. But ultimately, this kind of policymaking is unlikely to survive judicial scrutiny.