In the News

It’s difficult to say whether the Trump administration can legally rescind the California waiver. A report New York University School of Law released Wednesday argued the EPA lacks the legal authority to withdraw the waiver. No president has ever tried. And, according to David Driesen, an environmental law professor at Syracuse University, arguing that the state’s CO2 rules don’t meet the standards set out in the Clean Air Act is “just not a plausible argument.”

An essay by scholars at the New York University School of Law argues that the EPA lacks legal authority to revoke a state’s waiver before it expires. California’s waiver from the Obama administration, negotiated in 2013, is due to last until 2026.

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.

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.

The Clean Air Act’s success reveals the flaws in the standard critique of the administrative state.

As in many other areas, Justice Anthony Kennedy was the swing vote in environmental cases, lining up in the middle of his more reliably conservative and liberal peers. His proposed replacement, Judge Brett Kavanaugh, has exhibited a very clear track record of relative solicitousness to regulated industry and skepticism to environmental interests. As a consequence, we can expect that a Kavanaugh confirmation would usher in a court that is considerably less sympathetic to environmental protections.

Everyone is worried that a scandal-free EPA will more effectively destroy regulation. But this discounts the problems that have plagued the Trump administration’s effectiveness.

If the EPA were to later propose to eliminate co-benefits, “that would be a disastrously wrongheaded policy and one that won’t survive judicial scrutiny,” says director of the Institute for Policy Integrity at New York University, Richard Revesz. “To say the indirect costs of regulation have to be considered, but that the indirect benefits cannot is irrational,” says Revesz. “You could not find a single reputable economist who would say that was a plausible idea.”

Rewriting agency guidelines to ignore co-benefits might sound like a mundane accounting change, but over time it would have grave effects on public health and welfare. This change would make it appear that regulations deliver fewer benefits relative to their costs than they in fact would. This would then make it easier for Pruitt to justify repealing rules, further tilting the scales toward the powerful polluters that he insistently favors—while severely disadvantaging the families and communities that bear the heavy burden of pollution.

Some requirements for expanded training, safety information, compliance audits, investigations of close calls, emergency response coordination, and other provisions at chemical facilities would take effect immediately, Noll said—and companies should prepare. “For the companies that didn’t do that, I think they might be in trouble,” Noll said.