An Obama-era regulation that limits sales of high-polluting trucks is safe—at least for now—after the D.C. Circuit told the Environmental Protection Agency to continue enforcing the regulation.
Former EPA Administrator Scott Pruitt, on his last day in office earlier this month, issued a memo assuring the truck industry that the agency would stop enforcing a sales cap on certain diesel freight trucks with repurposed engines. Pruitt’s unexpected and highly unusual non-enforcement memo drew an immediate lawsuit from environmental groups, who asked the D.C. Circuit on July 17 to vacate it. A divided panel of the court granted a stay the next day, telling the EPA that it had to keep enforcing the regulation while the court considered an emergency motion from the environmental groups.
But the EPA, now led by acting administrator Andrew Wheeler, has reversed course. Wheeler, seemingly concerned about the potential for an adverse ruling on the merits from the D.C. Circuit, told the agency’s staff on Thursday (July 26) that he is abandoning Pruitt’s non-enforcement plan.
That means that, at least for the time being, the agency will continue enforcing the sales cap on trucks known as “gliders,” which use an old, repurposed engine inside a new truck body to avoid emissions standards for new vehicles. They emit much higher levels of soot and nitrogen oxide than trucks with new engines—so much so that environmentalists have dubbed them “super-polluting trucks.” In 2016, as part of a Clean Air Act regulation, the EPA under President Obama imposed a cap on the number of such trucks that could be sold.
Wheeler told his deputies that—in light of the D.C. Circuit lawsuit, among other factors—he decided that the regulation did not pose problems that were “extraordinary” enough to justify the non-enforcement order that Pruitt issued on his way out the door amid numerous corruption scandals. Wheeler wrote:
After further consideration of the No Action Assurance and information before me, including the administrative and judicial petitions and motions, and the application of agency guidance regarding no action assurances to these particular facts, I have concluded that the application of current regulations to the glider industry does not represent the kind of extremely unusual circumstances that support the EPA’s exercise of enforcement discretion. I am therefore withdrawing the July 6, 2018, No Action Assurance.
Legal experts told the Washington Post that Pruitt’s non-enforcement memo, if the agency had tried to defend it, would have been on shaky legal ground. The agency, in withdrawing the memo so quickly after a legal challenge, may have been concerned about an adverse ruling restricting its ability to issue other non-enforcement measures in the future.
But a bigger-picture battle remains over the fate of the glider-truck regulation. In November 2017, the EPA issued a proposed rule seeking to fully repeal the regulation, including its provisions intended to eventually subject gliders to the same pollution controls as new trucks.
That proposal remains pending, but its future is unclear. Part of the proposal relies on a Tennessee Tech University study that found that gliders emitted equal amounts of pollution, or in some cases less pollution, compared to trucks with new engines. But the university has disavowed the study after it was revealed that Fitzgerald Glider Kits, the nation’s largest manufacturer of glider trucks, sponsored it. The researcher even used a Fitzgerald facility to conduct the study.
Prior EPA models concluded that gliders emit 20 to 40 times more pollutants than trucks with new engines.
Here is the D.C. Circuit’s July 18 order in Environmental Defense Fund v. EPA, in which Judges Rogers and Wilkins, over a dissent from Judge Griffith, granted an administrative stay of Pruitt’s non-enforcement memo:
Here is the July 26 memo from Wheeler rescinding Pruitt’s memo:
