Pruitt's Super-Polluting Parting Shot

by Lisa Heinzerling

July 31, 2018

Originally published on The Regulatory Review. Reprinted with permission.

In the fitting last act of his corrupt reign as the Administrator of the U.S. Environmental Protection Agency (EPA), Scott Pruitt handed a gift to companies who profit from producing cheaper trucks by dispensing with modern pollution control equipment. He arranged for political appointees at EPA to issue memoranda that together promised that EPA would not enforce an existing legal limit on production numbers for the super-polluting trucks.

The memos had all the usual eyesores of Pruitt's approach to governing EPA: disdain for the law, dismissal of scientific evidence, scrambled logic, and contempt for the environmental mission intended for EPA. EPA's case for granting amnesty to the super-polluters was so threadbare that the U.S. Court of Appeals for the D.C. Circuit granted an unusual administrative stay of EPA's action while the court was considering a request for a longer stay pending judicial review.

Although Acting EPA Administrator Andrew Wheeler has since taken back Pruitt's parting gift to industry, the episode remains relevant to assessing EPA's modus operandi in the Trump era. The memos initially committing EPA to a policy of non-enforcement were executed by two powerful officials — Susan Bodine and William Wehrum, both lawyers — who still have positions at EPA. Their willingness to pursue this course despite the departure of their disgraced boss bodes ill for their future judgments about law, science, and environmental protection.

Moreover, Wheeler's memorandum withdrawing amnesty for the super-polluting trucks recommits the agency to "expeditiously" finalizing its troubled proposal to revoke a regulation that had at last required modern pollution controls for these dirty trucks.

Some background is necessary to understand the twisted development of Pruitt's parting gift. An Obama-era regulation closed a loophole for "glider" trucks — those with new bodies but old engines, lacking up-to-date pollution controls. The regulation required glider trucks to install the same pollution controls that other heavy-duty trucks must use, while allowing, for several years, small manufacturers and suppliers to continue production at declining numbers. In 2017, the regulation allowed these smaller companies to produce glider trucks up to the highest annual production level they had achieved in the years 2010 to 2014. In 2018 and beyond, the companies were forbidden to produce more than the lesser of 300 vehicles or the highest annual production level in the years 2010 to 2014. Companies that had been producing more than 300 glider trucks per year thus faced a new annual production limit of 300 vehicles.

Regulated parties typically seek to undo this kind of decision by challenging it in court. To prevail in such a challenge, the companies would have needed to show that the Obama Administration had erred in its view of the law or arbitrarily considered the evidence before it. Glider companies, however, did not challenge the loophole-closing rule.

The glider companies had other resources besides law and science at their disposal. After Tommy Fitzgerald, the founder and chief executive officer of Fitzgerald Glider Kits, the largest of the glider truck companies, met directly with Pruitt, several companies petitioned EPA to repeal the loophole-closing rule. Their petition relied on research conducted by Tennessee Technological University, which purported to rebut previous findings that glider trucks emit up to 40 times as much noxious and dangerous pollution as their competitors' trucks. Fitzgerald funded and hosted the research at Tennessee Tech University — a deal sweetened by Fitzgerald's separate provision of housing for a new research institute there. Tennessee Tech has since launched an investigation into potential research misconduct and has asked EPA not to use the study pending the university's review.

After receiving the petition, Pruitt's EPA promptly proposed a rule to repeal the loophole-closing rule. The proposed repeal could serve as a model of administrative incompetence and lassitude — barren of scientific or economic analysis and thin on the law. Even the deregulation-friendly Office of Management and Budget within the White House thought Pruitt had gone too far in issuing a proposal with essentially no analysis, and extracted from him a commitment to undertake further analysis before issuing a final rule. The legal, factual, and analytical shortcomings of the proposal put EPA on a slower track to a final repeal of the Obama-era rule than it had originally anticipated.

No matter. EPA still had a card to play. On Pruitt's final day in office, the agency rushed out a memorandum from William Wehrum, the head of the agency's air office, asking Susan Bodine, the head of the agency's enforcement office, to issue a "no action" memo, reassuring glider companies that EPA would take no enforcement action against them while it finished repealing the Obama-era rule. Wehrum explained that a non-enforcement pledge would act "as a bridge to a rulemaking" and would "preserve the status quo as it was" before the 300-vehicle cap on glider production took effect. The same day, Bodine granted Wehrum's request, producing a "no action assurance" that cited the "profound disruptions" that would ensue if EPA did not give glider companies amnesty for violating the law. She asserted, without elaboration, that her action was "in the public interest."

Neither memo was preceded by public notice or input. Neither acknowledged the serious, indeed deadly, public health risks EPA had relied on in developing the rule the memorandum would allow companies to violate. Neither offered a plausible legal basis for departing from the legal interpretation embodied in that rule. All of this is familiar operating procedure for the Trump EPA.

Two new twists, however, stood out.

First, after conceding how much work remained to be done before it could lawfully repeal the loophole-closing rule in the "no action assurance" memorandum, EPA tried the new tack of simply announcing that it would not enforce the rule.

Courts generally refrain from getting involved with agencies' decisions not to initiate enforcement actions, so perhaps EPA hoped that its paltry explanation and analysis would not draw judicial scrutiny. But agencies cannot be allowed effectively to undo a rule simply by promising industry they will not enforce it; that would make a joke of courts' carefully developed requirements for issuing and repealing rules. Wehrum's admission that non-enforcement was "a bridge to a rulemaking" was a telling sign that wholesale policy change, not individualized enforcement discretion, was his goal.

Second, EPA offered a new take on the refrain — previously used in countless of its proposals to delay Obama-era rules — that halting enforcement was necessary "to preserve the status quo." In the memoranda creating amnesty for super-polluting trucks, EPA sought to return to the state of affairs that had existed before the 300-vehicle cap took effect earlier this year. But the "status quo" included that cap. Wehrum's yearning to "preserve the status quo as it was" simply misunderstood what a status quo is. The Trump EPA has been shamelessly manipulating the status quo baseline in enacting its deregulatory agenda, but Wehrum's creative re-envisioning of the notion of a status quo takes the prize.

All this might be less concerning if these problematic approaches to governing left EPA when Pruitt did. Although Pruitt has resigned, his approach to policy formation apparently lives on. Wehrum and Bodine remain in their powerful posts. And Wheeler, in the same breath as he withdrew their ill-considered memos granting amnesty to super-polluting trucks, vowed to press ahead with revoking pollution limits for them. Perhaps things have gotten so bad at EPA that the American public should rejoice that Wheeler pledged to revoke these limits only "to the extent consistent with statutory requirements and due consideration of air quality impacts."

We will soon see what such a pledge means for Administrator Wheeler.

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Also from Lisa Heinzerling

Lisa Heinzerling is a Professor of Law at Georgetown University. 

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