The Federal Register today published the National Highway Traffic Safety Administration’s proposed rule to repeal the agency’s portions Part 1 of the Trump administration’s Safer Affordable Fuel Efficient (SAFE) Vehicles Rule.

In SAFE 1, NHTSA determined that California’s tailpipe carbon dioxide standards and zero-emission vehicle mandates are “related to” fuel economy standards. Consequently, those policies are preempted under Section 32919(a) of the Energy Policy and Conservation Act.

The SAFE 1 Rule, also known as the One National Program Rule, is available here.

NHTSA’s unnamed proposed rule to repeal the statutory interpretation and regulatory text contributed by the agency to SAFE 1 is available here.

I am not usually a fan of the 9th Circuit, but this case includes a constitutional gem. The court observed that a state policy occurring in violation of a federal mandate is void ab initio (from the moment of its enactment or adoption).

Cabazon Band of Mission Indians v. City of Indio (9th Cir. 1982)

Federal Energy Regulatory Commission’s Proposed Policy Statement on Carbon Pricing in Organized Wholesale Electricity Markets, prepublication version (October 15, 2020)

FERC’s Policy Statement on Carbon Pricing in Organized Wholesale Electricity Markets as published in the Federal Register (October 21, 2020)

The case, called Union of Concerned Scientists v. National Highway Traffic Safety Administration, pits the State of California and its allies (petitioners) against the Trump administration and its allies (respondents). Petitioners are asking the D.C. Circuit Court of Appeals to vacate the administration’s One National Program Rule, which is also Part 1 of the Safer Affordable Fuel Efficient (SAFE) Vehicles Rule.

A joint product of the Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA), the One National Program Rule finalize two actions related to California’s tailpipe greenhouse gas (GHG) emission standards and zero-emission vehicle (ZEV) standards:

  • NHTSA finalizes regulatory text clarifying that the California standards are substantially and directly related to federal fuel economy standards and, thus, are prohibited by the Energy Policy and Conservation Act (EPCA); and,
  • EPA announces its decision to withdraw portions of the Clean Air Act preemption waiver it provided to California in 2013, which had allowed the State to adopt and enforce those standards.

The main briefs filed in the case, as of this week, are:

Final briefs are due on October 27. I will post those after they have been filed.

On September 24, 2020, the House Oversight Subcommittee on Environment held a hearing titled “Climate Change Part IV: Moving Towards a Sustainable Future.” The written statements of the four majority witnesses are posted on the Subcommittee’s Web page but not (as of 12:00 noon 9/25) the written statement of Heritage Foundation statistician and data scientist Dr. Kevin Dayaratna. I am posting it here.


You can watch the entire hearing on YouTube. Dr. Dayaratna’s oral presentation begins at 37:50.


I pose this question because a recent report by the Rhodium Group describes the SAFE rule’s expected 1.5 percent annual increase in average fuel efficiency as a “roll back” from the 5 percent annual increase championed by the Obama administration.

If by “rollback,” Rhodium simply means the SAFE rule standards are less stringent than those advocated by the Obama administration, that’s fine. But if the Obama standards for model years 2022-2025 were not lawfully finalized, then those standards are legal phantoms. That means the SAFE rule would establish first-ever greenhouse gas and fuel economy standards for MY 2022-2025 vehicles. It would not weaken, roll back, or otherwise revise “existing” MY 2022-2025 standards, since those were counterfeit.

Under the October 2012 rulemaking that formalized the Obama-era fuel economy program, the Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA) agreed to undertake a midterm evaluation (MTE), allowing the agencies to adjust their respective standards for MYs 2022-2025 in light of new information regarding technology, compliance costs, fuel prices, consumer acceptance, job impacts, and other relevant factors (77 FR 62628).

This was necessary given the 2012 rule’s “long [14-year] time frame” and NHTSA’s “statutory obligation to conduct a de novo rulemaking in order to establish final standards for MYs 2022–2025.” Moreover, in order to “align the agencies’ proceedings for MYs 2022–2025 and to maintain a joint national program,” EPA and NHTSA committed to “finalize their actions related to MYs 2022–2025 standards concurrently” (emphasis added).

However, the Obama administration flouted those legal commitments soon after Election Day 2016.

When EPA, NHTSA, and the California Air Resources Board (CARB) issued their Draft Technical Assessment Report for the MTE in July 2016, EPA officials told automakers it would issue a draft MTE in mid-summer 2017 and finalize the evaluation by April 1, 2018. That tallied with the official explanation and accompanying chart posted on NHTSA’s Web site in July 2016.

Scrapping those plans without warning, EPA instead published its proposed its final MTE in the Federal Register on December 6, 2016. The comment period closed on December 30, giving the public only 24 days (including Christmas week) to comment on the 268-page proposal and 719-page technical support document (TSD). Despite receiving more than 100,000 comments, EPA finalized the MTE on January 13, 2017, only two weeks after the comment period closed–and one week before Inauguration Day.

There was no statutory justification for the agency’s rush to judgment, since the final determination was not due until April 1, 2018 (77 FR 62787). This was clearly a political rulemaking undertaken to confront the incoming Trump administration with a regulatory fait accompli.

In short, the Obama EPA’s portion of the final midterm evaluation of the MY 2022-2025 standards was arbitrary, capricious, and conducted in bad faith.

Worse, as the Auto Alliance explained in a December 8, 2016 letter to then EPA administrator Gina McCarthy, EPA and NHTSA had not finalized their standards “concurrently,” as required by the agencies’ October 2012 joint rulemaking.

Consequently, the Alliance explained, EPA’s “early action” compelled NHTSA to choose between two unacceptable options: (1) produce an independent evaluation that “may be substantially different and not at all harmonized with EPA’s determination,” or (2) “align itself with EPA’s determination regardless of the existence of facts and analyses that would suggest the need for a different outcome.” Bottom line: “Either way, the process now bears no resemblance to the coordinated effort that was envisioned in the midterm evaluation.”

In a nutshell, EPA’s portion of the Mid-Term Evaluation was a “midnight regulation” rush job–a Self Evaluation in which the agency graded its own handiwork and got an “A.”  NHTSA never completed its portion of the Midterm Evaluation on the Obama administration’s watch.

Thus, the SAFE rule does not “rollback” the Obama administration’s MY 2022-2025 standards because those were legal phantoms. The SAFE rule will simply modify regulatory plans that were not legally executed. In so doing, it will establish MY 2022-2025 standards for the first time.

Updated 5/7/2020

I am posting here a rough English translation of the Dutch Supreme Court’s summary of its 20th December 2019 decision to uphold lower court rulings that the government must reduce the nation’s carbon dioxide emissions 25 percent below 1990 levels by 2020.

The Summary is available here.

As reported in the Washington Post and New York Times, Chapter 29 of Vol. 2 of the 4th U.S. National Climate Assessment claims that unchecked warming could raise global temperatures 8°C by century’s end, which in turn would reduce U.S. GDP by 10 percent.

Those estimates are based on this chart from Hsiang et al. 2017:







The chart shows the probability distribution of global warming projections when the IPCC Fifth Assessment Report’s climate model ensemble, known as CMIP5, is run with the RCP8.5 forcing trajectory.

On average, CMIP5 models hind-cast two to three times more warming in the tropical mid-troposphere during 1979-2017 than actually occurred.








Although often billed as a “business as usual” scenario, RCP8.5 is actually a high emissions scenario. It assumes the kind of forcing trajectory that would emerge if coal scaled up rapidly to provide almost half of global energy from all sources by 2100–a market share not seen since 1940.












In short, the National Assessment ran a group of overheated models with an inflated emissions baseline. Yet, as the chart from Hsiang et al. reveals, even with that biased combo, global warming hits 8°C in only 1 percent of model projections.

Curiously, that’s a detail the National Assessment did not mention. Nor did it point out that even if U.S. GDP in the 2090s is 10 percent lower than it might otherwise be, the economy is still projected to be much bigger than it is today.

Indeed, in 2100, global per capita GDP is projected to be greater and income inequality lower in the IPCC’s fossil-intensive shared socioeconomic pathway (SSP5) than in all other SSPs, including the “green road/sustainable” pathway (SSP1). Here’s the relevant chart from Riahi et al. (2017).








In SSP5, global per capita GDP in 2100 is 10-fold greater than it is in 2000, and wealth is more widely shared than at any time in human history. Predictably, that bit of IPCC-approved “science” is nowhere to be found in the 2018 National Assessment.

You’re government at work.

(Post updated 9/18/2020)

The first chart shows the divergence between models and observations in the global lower atmosphere. The second shows the divergence between models and observations in the tropical bulk atmosphere. Note in both charts there is only one model, the Russian INM-CM4 represented by the purple spaghetti line in the second graph, accurately tracks observations in the tropical troposphere. For clearer images of those figures, click on Link 1 and Link 2.

Cato Institute scholars Patrick Michaels and Ryan Maue recently updated Pat’s chart listing studies since 2011 that estimate lower climate sensitivities than the average sensitivity of both the CMIP5 models used by the IPCC to project climate change impacts and the Row-Baker probability distribution underpinning the Obama administration’s social cost of carbon estimates.

I tried posting the chart but it loses too much resolution. So I am making it available via this link. Enjoy.