Ranking Member warns rules will be overturned unless major deficiencies in Trump administration proposal are remedied
Carper also highlights a non-exhaustive list of 10 major deficiencies in the proposal, including the inaccurate assertion that the 'maximum feasible' fuel economy and tailpipe standards can legally be frozen for the better part of a decade; flaws in the legal reasoning used to argue that
Carper writes, "...Your proposal, if finalized, would harm
Carper warns of litigation if the proposal's flaws are not remedied, adding that "...A likely outcome of that litigation is that courts will overturn NHTSA's proposed model year 2021-26 fuel economy standards, leaving no fuel economy standards whatsoever in place starting in model year 2022, and will additionally overturn
In
A copy of the letter can be found HERE https://www.epw.senate.gov/public/_cache/files/e/6/e66d6d50-e3c5-42c1-9663-c1ea1d2215dc/3752E5E73547A5D722D1BEADA0E69405.10.16.2018-cafe.pdf, and the full text of the letter and its attachments is below:
The Honorable
Secretary Acting Administrator
Dear Secretary Chao and Acting Administrator Wheeler:
I write to strongly urge you to reverse course on your August, 2018 proposal to dramatically weaken future vehicle fuel economy and greenhouse gas tailpipe standards. The proposal, which is currently out for public comment, also seeks to remove
As I noted in my May, 2018 correspondence[1] regarding an earlier version of the draft rule that my office received, your proposal, if finalized, would harm
In past months, I have urged you both repeatedly to work to negotiate a 'win-win' solution on federal fuel economy and greenhouse gas tailpipe standards that can be supported by both the automobile industry and the
Regrettably, your proposed vehicle standards do not seem to reflect the almost universally-shared view that a consensus approach is within reach and should be pursued. Moreover, the pending proposal is rife with seemingly unlawful assertions and erroneous assumptions. Specifically, the proposal makes the inaccurate assertion that the 'maximum feasible' fuel economy and tailpipe standards can legally be frozen for the better part of a decade, bases its safety analysis on a model that in no way reflects real-world driving or consumer behavior, artificially inflates the costs and minimizes the benefits of fuel-efficient technologies that are currently being used by automobile manufacturers, and fails to follow statutorily mandated requirements and procedures.
In fact, in comments submitted to the
I have attached a non-exhaustive list of some of the most significant deficiencies in your Agencies' proposal. As you work to evaluate public comments, I want to underscore the consequences that could result if these deficiencies are not addressed in a final rule - which include precisely the sort of litigation and regulatory uncertainty the automobile industry wishes to avoid. Moreover, a likely outcome of that litigation is that courts will overturn NHTSA's proposed model year 2021-26 fuel economy standards, leaving no fuel economy standards whatsoever in place starting in model year 2022, and will additionally overturn
I have spent considerable time over the past year talking frequently and extensively with automobile manufacturers, suppliers, officials representing the
Thank you very much for your attention to this important matter. If you have any questions or concerns, please contact me directly or have your staff contact
Attachment 1
A non-exhaustive list of significant deficiencies in the proposed rules that, if finalized, could leave the rules vulnerable to legal challenge.
1. Freezes the standards for almost a decade: The Energy Policy and Conservation Act, as modified by the Energy Independence and Security Act, requires NHTSA to set the 'maximum feasible' fuel economy standard each year[6].
2. Ignores the statutory requirement to consider the need to conserve energy: The law[8] states that when setting fuel economy standards, the Secretary of Transportation is required to consider "the need of
3. Relies on modeling of driver habits that contains documented errors and yields conclusions which defy common sense, distorts projections of regulatory impact, and lacks credibility. NHTSA is required by law to consider economic practicability when it is setting fuel economy standards.[10] As part of this analysis, NHTSA developed a new and not-yet-peer-reviewed module for predicting consumer behavior. The module essentially assumes stronger fuel economy standards depress new car sales and keep more old cars on the road. Despite repeated corrections by
* According to
* According to
* According to
* The exaggerated estimates of vehicle miles traveled are magnified by a factor called the 'rebound effect,' to which NHTSA attributes 6,340 of the 12,700 additional deaths that would result if the current standards are left unchanged. This factor assumes that because fuel-efficient cars are cheaper to use, people will drive more. The NPRM assigns a value of 20 percent to the 'rebound effect' (meaning 20 percent more driving by consumers in more fuel-efficient vehicles) - twice the value that both
4. Ignores industry data on automobile safety: Safety analysis has always been an important component of the balance that NHTSA seeks to achieve when setting fuel economy standards. Of the 12,700 additional deaths the NPRM states will occur if the currents standards are left unchanged,[16] 160 of them are attributed to 'mass changes'. This means that as vehicles are light-weighted to comply with more stringent standards, NHTSA believes that more people will die as a result of traffic accidents that occur in these lighter vehicles. Although the proposal notes that reducing the mass of light trucks generally improves the fleet's overall safety, it does not note that a recent study disproves[17] the argument that fuel economy standards result in more traffic fatalities in the first place. The proposal additionally fails to incorporate other industry[18] analysis[19] that shows that most of the mass reductions the industry is undertaking to improve fuel economy is being planned to occur in light trucks (which therefore, even by NHTSA's own flawed argument, should be projected to result in an overall reduction in traffic fatalities).
5. The NPRM ignores premature deaths due to increased air pollution that are presented within their own environmental study: Even NHTSA's contorted modeling shows that freezing fuel economy standards would increase air pollution, since vehicles that use more gasoline also emit more toxic air pollutants. Table 4.2.3.1 of the Draft Environmental Impact Statement[20] on the proposed rule shows that there will be as many as 299 premature deaths associated with freezing the standards from MYs 2020-26 by 2050. These additional deaths relative to the current standards are not factored into the total fatalities contained in Table 11-27 of the NPRM, and do not appear to be included in the analysis used to justify freezing the standards.
6. Uses inaccurate and/or disputed cost, technology and compliance data that undermine the statutorily mandated analysis of 'technological feasibility': Another factor that NHTSA is required to consider when setting standards under the law is "technological feasibility."[21] Two years ago, NHTSA claimed there would be nearly
*
*
*
*
*
7. Relying on preemption analysis that has been rejected by courts: The NPRM states that "States may not adopt or enforce tailpipe greenhouse gas emissions standards when such standards relate to fuel economy standards and are therefore preempted under EPCA [Energy Policy and Conservation Act], regardless of whether
8. Unprecedented attempt to revoke
9.
10. NHTSA failed to include a reasonable range of regulatory alternatives as mandated by the National Environmental Policy Act: The range of alternative standards that were analyzed in NHTSA's Draft Environmental Impact Statement depart from past practice, because they do not appear to include a reasonable range of alternative rulemaking options. In fact, none of the alternatives analyzed are more stringent than the current (augural) standards. This also poses a legal vulnerability. In 1981, the
Attachment 2 - Historic Tailpipe Performance of Cars and Trucks (not including advanced technology vehicle, air conditioning off-cycle or other compliance flexibilities)
Tailpipe efficiency improvement for cars and trucks combined
Year
1975 15.3 N/A
1976 16.7 N/A ` 9.15%
1977 17.7 N/A 5.99%
1978 18.6 19.9 5.08%
1979 18.7 20.1 0.54%
1980 22.5 23.1 20.32%
1981 24.1 24.6 7.11%
1982 24.7 25.1 2.49%
1983 24.6 24.8 -0.40%
1984 24.6 25.0 0.00%
1985 25.0 25.4 1.63%
1986 25.7 25.9 2.80%
1987 25.9 26.2 0.78%
1988 25.9 26.0 0.00%
1989 25.4 25.6 -1.93%
1990 25.2 25.4 -0.79%
1991 25.4 25.6 0.79%
1992 24.9 25.1 -1.97%
1993 25.1 25.2 0.80%
1994 24.6 24.7 -1.99%
1995 24.7 24.9 0.41%
1996 24.8 24.9 0.40%
1997 24.5 24.6 -1.21%
1998 24.5 24.7 0.00%
1999 24.1 24.5 -1.63%
2000 24.3 24.8 0.83%
2001 24.2 24.5 -0.41%
2002 24.1 24.7 -0.41%
2003 24.3 25.1 0.83%
2004 24.0 24.6 -1.23%
2005 24.8 25.4 3.33%
2006 25.2 25.8 1.61%
2007 25.8 26.6 2.38%
2008 26.3 27.1 1.94%
2009 28.2 29.0 7.22%
2010 28.4 29.3 0.71%
2011 28.1 29.0 -1.06%
2012 29.9 30.8 6.41%
2013 30.7 31.6 2.68%
2014 30.7 31.7 0.00%
2015 31.4 32.2 2.28%
2016 31.6 0.64%
2017 (prelim) 32.3 2.22%
Average, 2005-2016 2.35%
Average, 2012-2016 2.40%
Source:
[2] https://www.cbsnews.com/news/trump-hopes-to-negotiate-with-california-on-fuel-standards/
[5] See the
[6] 49 U.S.C. 32902(a)
[7]
[8] https://www.law.cornell.edu/uscode/text/49/32902
[9] NPRM, p. 42986
[10] 49 U.S.C. 32902(f) (2007) (discussed in NPRM, p. 42306)
[11] Table II-73 of the NPRM
[12] See for example the
[13] Table VI-88 of the NPRM,
[14] See for example the
[15] See for example the
[16] Table II-73 of the NPRM
[18] http://www.drivealuminum.org/wp-content/uploads/2018/08/Mass-Reduction-Chart.pdf
[19] http://www.drivealuminum.org/wp-content/uploads/2017/10/Ducker-Public_FINAL.pdf
[20] https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/ld_cafe_my2021-26_deis_0.pdf
[21] NPRM, 42306
[22] https://nepis.epa.gov/Exe/ZyPDF.cgi/P100OXEO.PDF?Dockey=P100OXEO.PDF page 13-103
[23]
[24] See for example the
[25] See for example
[26] https://www.gpo.gov/fdsys/pkg/CREC-2007-12-06/pdf/CREC-2007-12-06-pt1-PgH14434-2.pdf. See page 10 for the remarks of then-
[27] https://www.gpo.gov/fdsys/pkg/CREC-2007-12-13/pdf/CREC-2007-12-13-pt1-PgS15385.pdf. See page 2 for the remarks of
[28] https://www.nrdc.org/experts/irene-gutierrez/baseless-threats-californias-clean-car-waiver
[29] https://www.gpo.gov/fdsys/pkg/FR-2009-07-08/pdf/E9-15943.pdf
[30] https://www.eenews.net/stories/1060091981
[32]
[33] See the illustrative discussion in
[34]
[35] https://www.energy.gov/sites/prod/files/G-CEQ-40Questions.pdf
[36]
[37] Calvert Cliffs' Coordinated Committee v.
[38]
Read this original document at: https://www.epw.senate.gov/public/index.cfm/press-releases-democratic?ID=923BE6D2-F6AF-4505-8833-50BD94D68543
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