Alice Kaswan

Volume 71, Issue 5, 1177-1206

The Trump Administration has been rolling back environmental and other regulations at a rapid rate. Each time, they are called upon to interpret their authorizing statutes. As they reverse previous administrations’ regulations, how do their new interpretations address the statutes’ fundamental objectives? In this Essay, I assess one part of the National Highway Traffic Safety Administration (NHTSA)’s and Environmental Protection Agency (EPA)’s rollback of clean car standards: a regulation stating that the Energy Policy and Conservation Act (EPCA) preempts California’s trailblazing controls on vehicles’ greenhouse gas emissions. I argue that the agency preemption analysis gave insufficient attention to Congress’s explicit statutory purposes, largely ignoring EPCA’s energy-conservation goals and the Clean Air Act (CAA)’s and California’s environmental goals. This lack of fidelity to the statutes’ fundamental purposes and values has significant consequences. From a systemic perspective, unmoored from the statutes’ core purposes, the agency is freely pursuing an anti-regulatory agenda that runs contrary to congressional intent. From an environmental standpoint, the rule compromises the nation’s capacity to curb greenhouse gas (GHG) emissions from and promote essential technological innovation in the transportation sector, the nation’s largest GHG emissions source.