Gutting Fuel Efficiency and States’ Rights: The Trump EPA’s Unsafe SAFE Vehicles Rule

On October 26, 2018, the comment period ended for a new rule that guts U.S. fuel efficiency standards for vehicles. If the final rule resembles the proposed rule, the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (SAFE Vehicles Rule) will lock in old fuel efficiency standards, reversing Obama Administration regulations mandating increased efficiency. Specifically, the “preferred alternative” expressed by the Trump Administration’s EPA is to keep 2020 standards for both passenger vehicles and light trucks through 2026, replacing current regulations that required enhanced efficiency during the six-year period. Further, the rule proposes to remove California’s existing authorization to regulate carbon emissions from cars, preempting both California’s regulation and other states that have adopted standards identical to California’s.

This blunt about-face in fuel efficiency regulation is deeply problematic for several reasons. First, the deceptively-titled rule, which claims to be based on new information, makes questionable assumptions in concluding that reversing fuel efficiency requirements will save more than 12,000 lives. For example, it relies on exaggerated assumptions about the “rebound effect”—where people drive more because they can go farther on one gallon of gas, thus offsetting efficiency gains and causing more accidents because people are driving more.  Not only is the veracity of this claim arguable, it overlooks the fact that eliminating fuel efficiency standards means that more residents could die right now as a result of non-carbon air pollution from cars—pollution that already causes approximately 53,000 U.S. premature deaths annually.  Further, cars are the largest source of greenhouse gas emissions in the United States, thus having substantial climate impacts.  Rolling back fuel efficiency gains could stall essential research and development,  which will have immediate and potentially cascading future effects if we hope to mitigate climate change.

Preemption of California’s regulation of vehicle efficiency to limit greenhouse gas emissions is equally problematic. Here, an administration allegedly in favor of states’ rights has decided that California’s regulations—in addition to other states’ identical regulations—are unrealistic. In the rule the administration claims that Congress intended to preempt California’s regulations through federal statutes despite two existing federal court decisions to the contrary. Specifically, the rule claims that it eliminates “California’s regulation of fuel economy pursuant to Congressional direction” (emphasis added). To the contrary, Congress expressly included a waiver provision in the Clean Air Act that allows the EPA to grant California the power to regulate emissions from cars, which the EPA did for greenhouse gas emissions from cars. The fact that the most feasible and effective way to limit greenhouse gas emissions from cars is through fuel economy standards—standards also regulated under other federal acts—should not prevent California from regulating greenhouse gases under this waiver.

Congress allowed the EPA to grant California a waiver from federal preemption in the auto pollution context—and to allow other states to adopt regulations identical to California’s—for good reason. Parts of California, like Los Angeles, historically suffered from deeply dangerous levels of air pollution, and the region still struggles to limit this pollution. Congress through the waiver provision thus allowed California to continue its ahead-of-the-curve regulation of auto emissions, and the state’s technology-forcing initiatives have helped drive important innovation in electric vehicles and have caused some efficient technologies, like hybrids, to now be commonplace. The administration, though, insists that it knows best, and that federal, regressive regulations should preempt state initiatives. Technology-forcing regulations like California’s are not always effective, as many economists and political scientists have noted. Yet California’s vehicle regulations have continued to spur certain critical developments in the U.S. vehicle fleet, and a federal decision to preempt these standards is merely a politicized move to preempt state independence and innovation.

The SAFE Vehicles rule is, in summary, decidedly unsafe—subjecting U.S. residents to more air pollution and carbon emissions, needlessly curbing state initiatives, and slowing critical momentum in auto efficiency.

An End for a Rare, Biased Penalty

Last week, the Washington Supreme Court unanimously struck down the death penalty, finding it unconstitutional due to racial bias and arbitrariness. We should pause to consider how the same reasoning in the Justice’s thoughtful opinion, extends to the death penalty in the rest of the country. It is rarely used, racially biased and arbitrary when it is imposed, and its time has come.

Twenty states have now abolished the death penalty. Death sentences and executions were already quite rare in Washington state. There had been only a handful of death sentences in recent years. Still more troubling, when death sentences were imposed, factors like race mattered. The Chief Justice, Mary Fairhurst explained that: “The death penalty is unequally applied — sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant.”

The Justices cited a statistical analysis by University of Washington researchers, who showed that jurors were three times more likely to sentence black defendants to death than white defendants. Tellingly, the Washington case was brought by Allen Gregory, a black man sentenced to death for the murder of a white woman. The Justice said that where “race distinguishes the cases” the death penalty is “clearly impermissible and unconstitutional.” They also emphasized how “random imposition of the death penalty,” “geographic rarity,” delays, and wrongful convictions all fed into their concerns.

The U.S. Supreme Court does have important death penalty cases before it this term, and while those Justices may not arrive at the same place anytime soon, the same arbitrary and invidious factors identified in Washington State also play an outsized role in American death sentences in general. Death sentences have sharply declined across the country since 1999. Rather than hundreds of death sentences a year, we now see just a few dozen sentences per year. Among the thousands of murders committed each year, these death sentences are as rare as hen’s teeth. It is just a few scattered counties across the country, mostly large and densely populated ones, that still impose death sentences. This is true even in states like Texas that used to dominate capital punishment. The preferences of a handful of prosecutors are all that is now left of the death penalty.

Race plays an outsized role in who gets sentenced to death. My colleagues and I found that death sentences are far more common in counties that have large black populations. Counties with more white victims of murder have far more death sentences. It is a white lives matter effect. We could find no statistical connection between murder rates involving black victims and death sentencing. Race plays an even greater role in the small minority of death row inmates who face an execution.

Meanwhile, innocent prisoners continue to be walked off of our death rows, including twenty freed by DNA tests, and over a hundred more exonerated by other evidence. Botched executions continue to result in uncertainty about whether any ultimate punishment will be carried out; Washington had a moratorium on executions in place for years. Shoddy defense lawyering results in grave errors that result in reversals post-conviction. Increasingly, victims speak out that the death penalty, with multi-million-dollar trials, years of appeals, and constant media attention, does not serve justice for them. For all of those reasons, in states like North Carolina, where I live, the death penalty remains on the books, but death sentences are almost never imposed anymore.

Washington’s Attorney General Bob Ferguson commented that “the criminal justice system will be stronger without capital punishment.” I believe that he is right to point this out, and to point to a larger problem than just our system of capital punishment. We need to look at other types of sentencing and incarceration practices that are similarly arbitrary and biased.

The end of the death penalty, in Washington state and beyond, is just the beginning.

Brandon Garrett is the L. Neil Williams Professor of Law, at Duke University School of Law. He is the author, most recently, of “End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice.”

Advancing a Left-Liberal Jurisprudence

This blog first appeared in Take Care.

Win elections.  That’s been a constant refrain among many progressives who’ve been watching (and lamenting) the Court’s—really, the entire federal judiciary’s—shift further to the Right.  Win at politics, and you can win the courts.

But winning elections isn’t enough.  Progressive majorities need to be willing to invest significant political capital in judges who are committed to a left-liberal jurisprudence—and, as importantly, who are willing to expound their constitutional theories on and off the bench.

Such an investment cannot be assumed.  President Barack Obama was (by my lights rightly) criticized by David Fontana and Micah Schwartzman, among others, for making rather cautious appointments of older, quite moderate judges to the federal courts of appeals in particular.

Fontana and Schwartzman were worried principally that Obama wasn’t seeding a SCOTUS farm team.  But there’s another, more direct concern.  The federal courts of appeals are often the final word on many questions of law.  Thus the dearth of bold, progressive defenses of the administrative state, gun control, affirmative action, reproductive rights, anti-discrimination laws, and voting rights has unduly cramped—and asymmetrically cropped—our constitutional horizons.

We need a coherent strategy to change that.  A big part of that strategy is thinking ahead to future nominations.  But we must also think about current judges and providing them with occasion and reason to embrace and amplify progressive constitutional theories.  At least four significant benefits would follow from these combined efforts.

First, vision and message.  Judges are uniquely situated to elucidate a constitutional vision that is sensitive to the times—and to the needs of those most dependent on the law’s protections.  Bold progressive judges can articulate just that kind of vision.  Even more, they can revive the powerful, often-forgotten message that courts can be agents of justice and, as Daniel Hemel recently put it, “bulwarks of democracy.”  It is hard to win any argument or persuade any adversary—let alone rally a political base—when judicial vision and messaging lack ambition and urgency.

Second, cover and legitimacy.  Judges can vouch for academics and advocates who propound left-liberal constitutional theories and who, moreover, are potential judicial timber.  When, as has often been the case, moderate (center-left) judges keep those academics and advocates at some distance, it becomes easier to readily and credibly dismiss those groups as outside of the jurisprudential mainstream—radicals shouting into the wind.  To borrow Jack Balkin’s phrasing, their ideas remain “off the wall.”

This is a particular shame right now, given the exciting and generative work on economic inequality, equal protection, and progressivism advanced by a new generation of constitutional theorists—and given the trenchant and creative advocacy of relative newcomers such as the Constitutional Accountability Center and Protect Democracy alongside old stalwarts like the ACLU.

Going forward, much can be borrowed from the conservative playbook.  Right-leaning judges often give considerable credence to the ideas and projects of conservative academics and movement lawyers.  They therefore lend legitimacy to many of those scholars and advocates, thus ensuring them a place in the constitutional mainstream.

Progressives are, in many respects, where the conservatives were in the 1960s and 1970s.  We thus likewise need to do more to integrate the realms of progressive judges, academics, and movement lawyers.  National ACS Conventions and other such splashy events that spotlight a couple of high-wattage judges are surely nothing to sneeze at.  But, in truth, integration of this sort requires retail connections—that is, broader, more frequent, and more workaday judicial engagement with innovative academic theories and advocacy projects. The result, one hopes, is to get those ideas “on the wall.”

Third, transformative dissent.  Given the current composition of the courts, progressive judges may be lone voices of dissent, not just today but also for the foreseeable future.  Yet forceful and forward-thinking articulations of contrary constitutional visions are essential.  They are essential if for no other reason than to serve as reminders (especially to young lawyers) that there are other powerful and eminently reasonable constitutional philosophies.  Dissents of this sort can galvanize young lawyers who, in time, can convert those dissents into majority opinions.

Here too there’s a conservative model to follow:  William Rehnquist.  At the beginning of his time on the Court, then-Associate Justice Rehnquist did a great deal to earn the moniker, “the lone dissenter.”  He certainly kept the fire warm for young conservatives back in the day when the Court was still leaning in the left-liberal direction; and, as those conservatives rose to positions of power and prominence, so did the vision that Justice Rehnquist outlined.  By the end of his time on the Court, Rehnquist wasn’t just Chief.  He was also the leader of a Court majority shaped and inspired by quite a few of those dissents.

Fourth, a critical mass.  When Democratic presidents appoint mostly late-career moderates, they avoid many difficult confirmation battles and controversies.  But the more those presidents (and their allies in the Senate) rely on “safe” appointments, the more they will find themselves boxed in—for any nominee who doesn’t fit that “safe” profile becomes much easier to reject out of hand as dangerously outside of the judicial mainstream.

This may be the one of the enduring lessons of Goodwin Liu’s failed nomination to the Ninth Circuit.  Many Republican Senators opposed Liu, raising objections principally to his left-liberal constitutional scholarship.  Liu ultimately withdrew his name from consideration, effectively lending credence to those insisting Liu’s constitutional vision was indeed out of step—and perhaps cementing a pernicious precedent against which to measure (and bar) other would-be progressive nominees.  More fervent White House support for Liu might have resulted in his being confirmed—and, just as importantly, created a counternarrative in which his jurisprudence is within the mainstream.  What’s more, the confirmation of judges like Liu (and, say, Caitlan Halligan and Victoria Nourse) would have made it even harder for Senators to oppose more anodyne, center-left jurists like Merrick Garland.

Again, there is a conservative counterexample: Brett Kavanaugh.  It took almost three years for Kavanaugh to be confirmed to the D.C. Circuit.  But President George W. Bush remained steadfast in his support.  As a result of that initial, protracted, and of course successful confirmation battle, Kavanaugh was well positioned to be appointed to the Court by the next Republican president.  One could imagine an alternative world in which Obama re-nominated Liu (say, after the Senate eliminated the filibuster for appellate judges), thereby laying the foundation for the latter’s elevation to the Supreme Court by a President Elizabeth Warren or Kamala Harris in 2021.

*          *          *

It is true that these four reasons may not convince everyone.  Some progressives understandably feel unease and ambivalence about courts; such unease reportedly contributed to Obama (and, perhaps, Bill Clinton) not wishing to invest too heavily in potentially transformative judicial appointments.  But part of that unease is, quite possibly, a bit of a self-fulfilling prophecy.  The absence of powerfully progressive courts may make some doubt the value of powerful courts in the first place.  And the absence of a strong progressive constitutional jurisprudence may make us less enthusiastic, less convinced by, and less open to the possibility of courts playing an important, facilitative role in the democratic project.

Remember, too: hewing to the approach taken by recent Democratic presidents has done little, perhaps nothing, to dislodge courts from their central role in our constitutional order.  Yet it has done a great deal to marginalize left-liberal jurisprudence.  We continue down that path at great peril.

Reforming State Judicial Selection

At a time when many people are concerned about the lasting impact of the broken U.S. Supreme Court confirmation process, state supreme courts are facing their own legitimacy crisis. High-cost state supreme court elections are increasingly the norm across the country and place substantial pressure on judges to rule in favor of wealthy and powerful interests when deciding cases. Similar pressures exist in states that use a political process to determine only whether a sitting judge should serve an additional term. With this in mind, the Brennan Center for Justice at NYU School of Law released Choosing State Judges: A Plan for Reform, a report urging states to depoliticize their systems for choosing judges to safeguard public confidence in the courts.

The culmination of a three-year research project, the Brennan Center report calls for the replacement of state supreme court elections with a publicly accountable appointment system, and—regardless of whether a state uses elections or appointments—the elimination of reselection pressures by the adoption of a single, lengthy term for state supreme court justices.

The Brennan Center’s recommendations follow research showing that million-dollar judicial races are increasingly the norm, and dark money spending—the source of which remains anonymous—flows freely in state supreme court elections. During the 2015-2016 cycle, there were more $1 million-plus supreme court races than ever before. As a result, the number of states with sitting justices who had been through a $1 million race rose from seven in 1999 to 20 in 2017, when one-third of all elected justices sitting on the bench had run in at least one $1 million race. And this spending concerns both the public and judges themselves: polls show that nearly 90 percent of voters believe that campaign cash affects courtroom decisions, and nearly half of state court judges believe the same.

And while debates about state judicial selection often focus on how judges first reach the bench, how judges stay on the bench may pose the most substantial threat to judicial independence. Indeed, extensive evidence, including two reports by ACS, suggests that when sitting justices go through a political process to retain their position—election by voters or reappointment by a governor—they respond to political pressures by ruling more often against criminal defendants and in favor of their donors and political party. As noted by retired Alabama Supreme Court Chief Justice Sue Bell Cobb, “Judges would have to be saints to ignore the political reality. And judges aren’t saints.”

States must consider how to safeguard the independence of state courts, particularly as the new U.S. Supreme Court may make state courts increasingly essential protectors of fundamental rights. To that end, Choosing State Judges: A Plan for Reform outlines best practices for states seeking to lessen the role of politics in the selecting, and reselecting, of judges:

  • The 38 states that have elections or retention elections for state supreme court justices should eliminate them.
  • States should adopt a publicly accountable appointment process where an independent, bipartisan commission vets candidates and creates a shortlist for appointment by the governor.
  • Those commissions should have transparent procedures and clear criteria for vetting candidates, and their membership should be bipartisan, adopted by diverse stakeholders, and include non-lawyers.
  • Justices should serve for a single, lengthy “one and done” term rather than face elections or a political reappointment process to retain their seats.

Even before a state undertakes a wholesale shift in how it selects justices, there are steps states can take to mitigate the political pressures on courts, such as adopting a more accountable process for interim appointments, strengthening rules for when judges must step aside from cases involving major campaign supporters, and adopting public financing for judicial races.

State supreme courts already play a powerful role in American life. Ninety-five percent of all cases are filed in state courts, and state supreme courts are generally the final word on interpreting state law. As a result, state courts are the courts the public is most likely to interact with, and are capable of having a profound impact on laws related to everything from reproductive rights, to environmental regulations, to partisan gerrymandering. The recommendations outlined in Choosing State Judges: A Plan for Reform can help states insulate these decisions from political pressures and wealthy interests, and preserve the public’s confidence in them.

Process Counts: Leveling the Regulatory Reform Playing Field

This blog is part of the blog symposium published in conjunction with a new ACS issue brief: Reforming “Regulatory Reform”: A Progressive Framework for Agency Rulemaking in the Public Interest. View the other blogs in the symposium by Lisa Heinzerling, Adam Zimmerman, Dan Farber, and Rena Steinzor.

At least since the Reagan Administration, opponents of regulation have taken the lead in waving the banner of “regulatory reform.” Indeed, less than a month into his first term, President Reagan launched the modern era of White House regulatory oversight explicitly “in order to reduce the burdens of existing and future regulations.”

As it happens, if one’s predominant aim is less regulation, then efficacious paths to “reform” are both manifold and obvious: Multiply procedural obstacles. Increase the number of “veto-gates.” Intensify judicial review. It might even be demanded, however incoherently, that two rules be put on the chopping block for every new rule proposed. Or a ceiling might be imposed on the gross aggregate costs to be imposed by new regulations—without taking into account the value of any offsetting benefits.

It is for this reason that Dan Farber, Lisa Heinzerling and I found ACS’s challenge – to reimagine regulatory reform through a progressive lens – to be both irresistible and daunting: irresistible because the pursuit of reform should not be one-sided, but daunting because the routes to better regulation, rather than less regulation are simply harder to map.

In many respects, administrative law is already sharply focused on the public values that progressives have historically pursued in the administrative state. In terms of process, we prize:

  • Evidence-based decision making;
  • Government transparency and accountability;
  • Inclusive opportunities for public input and the representation of affected interests; and
  • Fairness in regulatory enforcement.

These goals should be well-served, in principle, by the existing statutory requirements that guide notice-and-comment rulemaking, a process disciplined by judicial review to insure both legal compliance and policy making that is supported by sound public reasoning. In the portion of our paper to which I most contributed—the portion on internal agency process—I took our challenge to be refining, rather than wholly redesigning existing mechanisms.

For example, with regard to public participation, it would be helpful to make the public comment period not just more inclusive, but more meaningful for the agency. Our suggestion is thus to have agencies engage in a conscious exercise to plan the comment process for significant rules. Agencies should “ seek to identify those groups of individuals most likely to be interested in or affected by a forthcoming rule, the subset of those individuals most likely to face barriers to participation in the rulemaking, and the forms of outreach and engagement most likely to yield additional information that could be of genuine use to the agency.” As the White Paper mentions, there exist numerous models of public participation that may be better suited to both agency needs and genuine engagement than the one-way process of dropping comments in the agency’s electronic “suggestion box.” Better targeted and more deliberative efforts could yield insights that are more useful for the agency and a deeper sense of civic participation for an often alienated public.

Both the quality of public participation and the success of evidence-based policy making can also be enhanced through more thoughtful and extensive use of advisory boards. We urge agencies not to follow the EPA’s recent and misguided lead in trying to remove from its advisory boards those scientists who are also federal grantees. University-based experts are invaluable advisors in many regulatory contexts and are needed to balance participation by those who receive financial support from regulatory industries.

To promote more transparent regulation, we believe Congress should amend the Administrative Procedure Act to make sure the public has access to the ex parte contacts that may prove relevant to a rulemaking. Congress should require that ex parte contacts whether in the form of written statements, documentary information, or summaries of oral contacts be docketed, including all such contacts made after the formal close of the public comment period for any particular rule. The aim should be to avoid an unaccountable system in which the public docket omits key information that has influenced agency outcomes without being subject to public vetting.

We also think there is room for more public initiative in identifying potential regulatory improvements, whether in the form of entirely new rules or amendments to existing regulations. We endorse the recommendations of the Administrative Conference of the United States that agencies simplify and regularize their procedures for receiving and processing public petitions for rulemaking. As we observe, “[t]he petitioning process could prove a significant tool for progressive reform if the process were more widely appreciated and pursued not just by ‘sophisticated stakeholders, but also by community groups and engaged citizens generally.”

Process re-design inevitably poses a conundrum for progressives, who traditionally focus more organizing attention on substantive outcomes, rather than procedures. “Clean air” and “worker safety” are more powerful rallying cries than “amend the Administrative Procedure Act.” I am conscious also that the reforms I have catalogued will absorb resources of already underfunded agencies and may prolong the regulatory process without guaranteeing yet greater public health and safety, freedom from discrimination, sound environmental stewardship, and the like.

Yet our democratic commitments necessarily entail process commitments, too. And on this point, we ought to take a lesson from the Reagan Administration. When President Reagan issued Executive Order 12,291, there was some grumbling among conservatives who bemoaned his decision to expend significant political capital on the general architecture of regulatory policy making rather than campaigning for a rewrite of the Clean Air Act or the Endangered Species Act or any of the other statutes that industry would like to see gutted. Yet the Reagan order, updated by the Clinton Administration, has proven the most consequential institutional innovation in federal regulation in the last half century. The point is: process counts. We should make it count in the public interest.