The freedom that the Trump administration favours is for advantaged industries to impose numerous premature deaths, hospitalisations and other major harms on the public in pursuit of profit, even when the net cost to society is large.
By Richard L Revesz
A major governmental report released by the Trump administration recently projects enormous damages to communities across the country as a result of climate change. This new volume of the congressionally mandated National Climate Assessment includes more alarming predictions than its predecessors did, and it officially puts the Trump administration on the record about the dire threats Americans face. The report is likely to bolster anticipated lawsuits against the administration over its decision to vastly weaken the nation’s two major climate change regulations, which would limit planet-warming emissions from power plants and vehicles, the largest sources of greenhouse gas emissions. The new report could play a key role in these lawsuits.
The administration lawyers who end up arguing these cases may find themselves turning to Carl Sandburg’s famous advice: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell”. Now that this report is part of the official government record, the administration cannot credibly suggest that climate policies should be weakened. Prepared by dozens of experts and government officials, the assessment predicts hundreds of billions of dollars in damages from storms, crop failures, ruined infrastructure and climate-related deaths and illnesses. Stronger regulations to limit emissions are needed, it says.
With the facts against it, the administration will have to argue the law. But that approach has already led to numerous lost deregulatory cases. At the Institute for Policy Integrity, at the New York University School of Law, a tally of court challenges to Trump-era deregulatory rules is kept. The administration’s record is dismal: It prevailed in two cases and either lost or abandoned its position in 20 others.
So, not only have the facts been against the government’s position. So has the law.
On the power plant emissions rule, the administration’s own analysis shows that its weaker regulatory scheme will be dramatically worse for the public. In fact, the administration’s so-called Affordable Clean Energy Rule is likely to increase overall emissions by creating new loopholes for coal plants to evade air pollution restrictions and operate more frequently. That will cause a significant increase in climate pollution and up to 1,400 additional American deaths per year, according to the government’s projections. The US Environmental Protection Agency (EPA) says that it is exercising its discretion in choosing this rule, which will impose tens of billions of dollars of net harms on the American people. This is a textbook example of “arbitrary and capricious” conduct—exactly what the law prohibits.
In weakening the vehicle emissions rule, the administration relies on economic and legal arguments that don’t stand up to scrutiny. The current standards require automakers to steadily increase the fuel efficiency of new passenger vehicles, limiting climate pollution while reducing consumer fuel costs. The Trump administration has proposed freezing the standards in 2021 and revoking a waiver that allows California to set its own, more stringent vehicle pollution limits, which other states follow.
Officials claim the resulting increases in pollution and fuel costs are justified by supposed safety benefits from rolling back the standards. It assumes that stricter efficiency standards raise the price of vehicles. Standard economic theory predicts that people would then buy fewer cars because each car would be more expensive. But instead, the administration’s faulty analysis leads it, wholly implausibly, to the opposite conclusion: That people will buy more cars, and therefore drive more miles and have more accidents.
Even Andrew Wheeler, the acting EPA administrator whom Trump has nominated for the post, reportedly argued that this justification will fail in court. Yet the administration released the proposal anyway. At the same time, despite a lack of legal authority to do so, the administration has proposed to revoke California’s waiver, a move without precedent. Doing so would trample on the interests of California and other states that have relied on the waiver to set policies for their benefit, and do violence to core principles of federalism. Again, on these issues, the law is against the administration.
So without the facts or law on its side, the Trump administration may have no choice but to “pound the table and yell like hell” when explaining its willful inaction on climate change. It may yell about “freedom”—a rhetorical cover frequently used by administration officials trying to justify efforts to let industry pollute freely, regardless of public health consequences. For instance, Neomi Rao, the regulatory czar nominated to fill Justice Brett Kavanaugh’s federal court seat, wrote recently that the administration’s deregulatory efforts are about “unleashing the freedom of American workers, innovators and businesses”.
The freedom that the Trump administration favours has little to do with what the founding fathers prized. It is a freedom for favoured industries to impose numerous premature deaths, hospitalisations and other major harms on the public in pursuit of profit, even when the net cost to society is large. The Trump administration will have nothing to show for pounding its fists and yelling. Without the facts or the law on its side, these antics won’t be an adequate legal defence for the administration’s choice to undermine the very climate policies its report says are needed to protect Americans.