Dear President Trump,
We the undersigned respectfully request that the Environmental Protection Agency investigate the possibility that the executive power of your office has been unconstitutionally limited due to a recent judicial settlement negotiated by the Obama administration and Volkswagen (VW).
On October 25th, a U.S. District Court in California entered a consent decree to partially resolve multiple claims against VW for the company’s installation of “defeat devices” designed to cheat air quality rules in more than 500,000 vehicles sold in the U.S. The consent decree remedies a number of legitimate claims, providing relief for car owners, the state of California and the Federal Trade Commission. But the settlement also includes a dubious stipulation that VW work with the EPA to invest $1.2 billion to foster electric vehicle infrastructure.
This $1.2 billion investment in electric vehicles has no basis in the Clean Air Act. Instead, its origins can be traced to a failed legislative proposal by your predecessor. In his 2011 State of the Union address, President Obama promised to put one million electric vehicles on the road by 2015. To this end, the White House twice requested federal spending to support increased usage of zero-emissions vehicles. Both times, Congress refused. Having been twice spurned by lawmakers, the Obama administration leveraged the VW settlement to achieve what it couldn’t get from Congress. In so doing, the Obama administration committed your administration to implement his unsuccessful legislative agenda.
Under the terms of the settlement, your administration’s involvement in the implementation of the electric vehicle infrastructure investment is pervasive. By February 22nd, VW is required to submit a draft investment plan to the EPA. Then, VW and the EPA are supposed to engage in extensive discussions, after which the company would submit a final plan to the EPA for review. Subsequent to EPA review and approval of the investment plan, VW is required to submit annual investment proposals, which are subject to agency approval. The agency is required to impose financial penalties if the company fails to comply with any EPA-approved measure.
Plainly, oversight of the VW plan would require significant EPA resources, and this commitment intrudes on your office’s Article II responsibility to execute the laws. The Obama administration is not constitutionally permitted to use judicial settlements to exercise the discretionary authority of future presidents.
EPA’s extensive involvement in the electric vehicle infrastructure plan also would infringe on Congress’s constitutional prerogatives. Congress has neither delegated authority nor appropriated funds to the EPA to administer a $1.2 billion investment scheme in electric vehicle infrastructure. As such, any EPA oversight of the electric vehicle investment plan represents an end-run around Congress’s lawmaking power.
In light of these serious constitutional concerns, we request the following:
1) The EPA should promptly investigate how much of the agency’s resources have been spent or will be spent on overseeing the electric vehicle infrastructure component of the partial settlement reached with VW; and,
2) The EPA should reassess its underlying commitment and authority to oversee VW’s electric vehicle infrastructure plan.
If the results of this investigation lead your administration to have second thoughts about the settlement, we note that the consent decree includes a severance clause which would allow the parties to remove the electric vehicle investment without disrupting consumer relief. The $1.2 billion would instead be deposited into the U.S. Treasury.
Competitive Enterprise Institute
American Energy Alliance
Chief Government Affairs Officer,
Americans for Prosperity
Energy & Environment Legal Institute
President & CEO,
Frontiers of Freedom
Institute for Liberty
National Center for Public Policy Research
Taxpayers Protection Alliance