The gang that couldn't deregulate straight

WASHINGTON -- Public interest groups, state pollution regulators and many automakers are wringing their hands over the Trump administration's campaign to dilute clean-car standards for the 2021-26 model years.

They can relax. This is "The Gang That Couldn't Shoot Straight."

Like the Mafia family in Jimmy Breslin's 1969 novel who bungled one hit job after another, the White House doesn't seem to know how to kill regulations it doesn't like.

The Safe Affordable Fuel Efficient Vehicles Rule will suffer the same fate as other Trump executive orders and agency actions that never see the light of day because of slipshod work controlled by political appointees.

The latest example is the Keystone XL oil pipeline. Days after taking office, President Donald Trump signed an executive order overturning President Barack Obama's decision to deny a permit for the pipeline carrying Canadian oil sands to the Gulf Coast for export. But this month, a federal judge blocked further construction on a key leg, finding that the Trump administration failed to provide a "reasoned explanation" for the move and ignored the effect the project would have on climate change.

Judge Brian Morris of the U.S. District Court of Montana also determined that Trump officials didn't adequately account for how a decline in oil prices might affect the project's viability or study the potential for oil spills. Instead, they simply declared a policy shift toward prioritizing energy security, economic development and infrastructure.

That's because Trump and many underlings have no patience for operating the tedious gears of government, the arduous legwork it takes to justify regulatory changes with broad public impact. They would rather achieve quick political victories in the Twitterverse.

That's not to say that existing rules should never be revisited by a new administration. But for these changes to be legitimate enough to endure legal challenges, they need to be done with the right attention to administrative and technical detail. Under federal law, agencies are supposed to demonstrate that rule changes aren't arbitrary or capricious.

The SAFE rule is failing this test. NHTSA has mostly controlled the process, even though the government's expertise on engines and emissions controls lies within the EPA. By most accounts, that led to flawed analysis, inconsistencies and unsubstantiated assertions to justify the outcome favored by the White House.

The Obama administration had its own political motivations in moving up the timeline for finalizing the 2025 standards, abbreviating a review process that the industry had expected would last another year or more, in order to safeguard its signature environmental policy achievement before Trump came to office.

That effort may be all for naught. But with thousands of pages of supporting analysis, the Obama administration can't be accused of not adequately studying the issue. The Trump EPA and NHTSA took three months from reopening the process to issuing a proposed rule-making.

The court challenges have already begun. 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.

Former EPA officials and environmental groups say the rule-making is riddled with efforts to rig the results. NHTSA's consumer choice model, for example, asserts that the added costs of fuel-saving technologies will motivate people to hang on to older vehicles that lack advanced safety features, even as the fuel savings encourage them to drive more and put them at increased statistical risk of accidents.

It also models national travel rates in the near term that are 20 to 25 percent lower than tracked in official federal data, allowing NHTSA to calculate lower consumer savings under the existing standards, and therefore, lower costs under the rollback.

In one case, NHTSA workers forgot to divide a crucial figure by four, according to The Atlantic magazine.

The EPA's technical staff is frustrated that the agency's leadership rubber-stamped NHTSA's technical work, according to my reporting and other accounts.

Acting EPA Administrator Andrew Wheeler could wind up being the key player in this drama. Trump said last week that he plans to nominate Wheeler to the position on a permanent basis, and a padded Republican majority in the Senate could ease his confirmation path.

Wheeler is a longtime coal and gas industry lobbyist who may agree with the policy change. But he has a history of following proper procedure and legislative mandates. If given time and opportunity, he might be able to rewrite the final rule in a way that passes the legal tests.

That could be a blessing and a curse for critics of the current SAFE proposal.

You can reach Eric Kulisch at

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