Copyright 1999 Federal News Service, Inc.
Federal News Service
FEBRUARY 10, 1999, WEDNESDAY
SECTION: IN THE NEWS
LENGTH:
1915 words
HEADLINE: PREPARED TESTIMONY OF
SAM
KAZMAN
THE COMPETITIVE ENTERPRISE INSTITUTE
AND CONSUMER ALERT
BEFORE THE HOUSE COMMITTEE ON APPROPRIATIONS
SUBCOMMITTEE ON TRANSPORTATION
SUBJECT - FUNDING FOR THE NATIONAL
HIGHWAY TRAFFIC
SAFETY ADMINISTRATION'S NEW-CAR FUEL ECONOMY PROGRAM
BODY:
SUMMARY
NHTSA has been engaged in
administering the CAFE program (49 U.S.C. 32901, et seq.) for nearly a quarter
of a century. During that time, the agency has consistently failed to adequately
address the issue of CAFE's adverse effect on auto safety. Peer-reviewed
research indicates that, through its downsizing effect on passenger cars, CAFE
is responsible for 2,000 to 4,000 additional traffic deaths.yearly. Despite
:this, and despite federal court rulings on the arbitrariness of its approach,
NHTSA refuses to admit that CAFE kills anyone.
Until NHTSA changes its
approach to this issue, the current appropriations freeze on CAFE
standards should remain in force. INTRODUCTION
On behalf of the
Competitive Enterprise Institute and Consumer Alert, I wish to thank this
Subcommittee for this opportunity to testify. CEI is a nonprofit organization
dedicated to advancing private solutions to regulatory issues, in areas ranging
from environmental protection to health and safety. Consumer Alert is a
nonprofit membership organization devoted to protecting and expanding consumer
choice in the marketplace. Both CEI and Consumer Alert have been involved in the
issue of CAFE for over a decade.Based upon NHTSA's public record in
administering CAFE, it is clear that this agency has simply refused to properly
assess the human impact of that program, in terms of the relationship between
CAFE-induced downsizing and passenger car crashworthiness. This view is
confirmed by the rulings of two federal appellate courts. Until NHTSA remedies
this course of conduct, Congress should continue to prohibit any expenditure of
funds by the agency for raising the CAFE standards.
I.
GIVEN NHTSA'S FAILURE TO ASSESS THE ADVERSE SAFETY EFFECTS OF ITS CAFE PROGRAM,
A CONTINUATION OF THE CONGRESSIONAL FREEZE ON CAFE IS FULLY WARRANTED
One of
the most solidly established relationships in traffic safety is the connection
between vehicle size or mass and crashworthiness. Countless studies demonstrate
that larger cars are generally safer than similarly equipped smaller cars. in
every crash mode, ranging from rollovers to single-car impacts to multiple car
collisions.
NHTSA itself has recognized this relationship: "The increased
risks for small car occupants who are in collisions with larger cars are easily
recognized. But, it is also true that even in single vehicle crashes, there is
increased risk of serious injury or death." NHTSA, Small: Car Safety In The
1980's at 59 (1980). There are two basic reasons for this: smaller cars have
less "survival space" for their occupants, and they have less physical structure
to "absorb and manage crash energy and forces" in the event of a collision. Id.
at 64.
CAFE forces carmakers to utilize a variety of strategies and
technologies to increase their fuel economy. One of their major means of
compliance has been through vehicle downsizing.In NHTSA's words, the "most
obvious method for improving fuel economy is to make the passenger automobile
lighter." NHTSA, Final Rule, 42 FR 33,534, 33,537/3 (i.e., column 3 on page
33,537) (1977).
Moreover, even after downsizing has taken place, CAFE forces
carmakers to keep their cars smaller arid lighter than they otherwise would be;
that is, to avoid adding head room or trunk space to their models in response to
consumer demand. Any steps to "upsize" vehicle models would mean that
countermeasures would be required to offset the impact on fuel economy.
For
this reason, there is an inherent conflict between vehicle safety and CAFE. This
is a conflict which NHTSA recognized long ago. As the agency stated when it
first began to consider CAFE standards: "With these smaller and
lighter vehicles joining an increasing number of heavy trucks and older, heavier
cars already on the road, the risk of death and serious injury will increase
markedly." NHTSA, Traffic Safety Trends and Forecasts 2 (1981).
But when it
came to publicly assessing CAFE's impact on safety, NHTSA faced a serious
problem. As an agency whose primary mission is safety, NHTSA could not easily
admit that its CAFE program increased traffic deaths. And so NHTSA chose,
instead, to avoid the issue. In one CAFE rulemaking after another, the agency
refused to admit that any of its individual fuel : economy standards had any
safety consequences whatsoever. It took this course not only when it raised the
standards, but even when it lowered them. For example, in its model year 1986-89
CAFE rollback, NHTSA extensively described the various benefits of lower
CAFE standards on the economy, and on consumer choice. But when
it came to safety, the agency refused to admit that there was any benefit
whatsoever:
"While the agency recognizes the relationship between safety and
vehicle size and weight, in a crash, it nonetheless concludes that CAFE
standards in the range of 26.0 mpg to 27.5 mpg need not have a
significant effect on safety." 51 FR 35,612/3 (1986).
Independent analysts,
on the other hand, took a far different view, and some were able to actually
calculate the magnitude of CAFE's lethal effects. A 1989 Harvard-Brookings study
estimated that the 27.5 mpg CAFE standard was responsible for a
500 pound drop in the average weight of a new car, and that this translated into
a 14-27 percent increase in occupant fatalities-2,200 to 3,900 additional
traffic deaths per year. R.W. Crandall & J.D. Graham, The Effect of Fuel
Economy Standards on Automobile Safety, 32 J. Law & Eton. 97, 109-16 (1989).
NHTSA's position, that CAFE had no safety impact, required it to engage in
some exceptionally tortured reasoning. NHTSA denied that CAFE had any effect on
car size, even though its own annual reports to Congress described how CAFE was
forcing carmakers to use lighter materials. NHTSA argued that its crash tests
demonstrated that both large and small cars could perform equally well, even
though its crash test reports stated the opposite in boldfaced warning:
"Large ears usually offer more protection in a crash than small ears. These
test results are only useful for comparing the performance of cars in the same
size class." NHTSA, Testing How Well New Cars Perform In Crashes (undated;
approx. 1985).
In short, NHTSA refused to allow facts to obstruct its
campaign to whitewash CAFE.
II. TWO FEDERAL COURTS HAVE FOUND NHTSA'S
TREATMENT OF THE CAFE SAFETY ISSUE TO BE INADEQUATE CEI and Consumer Alert
finally sued NHTSA, arguing that the agency had failed to consider the safety
issue in promulgating its CAFE standards. In 1992, a federal
appeals court agreed and overturned the agency's claims.
CEI and
Consumer Alert v. NHTSA, 956 F.2d 321 (D.C. Cir. 1992) (Attachment A hereto).
The court ruled that NHTSA's failure to assess CAFE's lethal effects was an
"attempt to paper over the need to make a call. We cannot defer to mere
decisional evasion." 956 F.2d at 323. Using exceptionally harsh language, the
court found that NHTSA had "fudged the analysis.., and, with the help of
statistical legerdemain, made conclusory assertions that its decision had no
safety cost at all .... The people petitioners represent, consumers who do not
want to be priced out of the market for larger, safer cars, deserve better from
their government." Id. at 324.
As described above, one of NHTSA's defenses
was that downsizing was not an important means of CAFE compliance and that, even
if consumers could not find affordable domestic large cars, they could always
turn to foreign cars. The court rejected this argument as a "lame claim"; given
the high prices of large foreign cars, it found NHTSA's argument about their
availability to be "in the spirit of Marie Antoinette's suggestion to 'let them
eat cake'." Id. at 325 & n.1. It concluded with these words:
"When the
government regulates in a way that prices many of its citizens out of access to
large-car safety, it owes them reasonable candor. If it provides that, the
affected citizens at least know that the government has faced up to the meaning
of its choice. The requirement of reasoned decisionmaking ensures this result
and prevents officials from : cowering behind bureaucratic mumbo-jumbo." Id. at
327.
Because NHTSA had illegally refused to confront the CAFE-safety issue,
its decision was remanded. For the first time in CAFE's history, a fuel economy
standard had failed to pass judicial review.
The court's ruling, however,
did not lead NHTSA to alter its basic approach of exonerating CAFE. After more
than a year of reconsideration, NHTSA finally developed a new rationale for its
claim that CAFE has no safety effects whatsoever. Among its new arguments for
the notion that CAFE has no downsizing effect was this unbelievable line of
reasoning: "the size and weight of many other products, ranging from SLR cameras
to computers, was reduced during the same period ...."58 FR 6946/1 (1993).
NHTSA was thus claiming, in total seriousness, that size trends for objects
that consumers carry around their necks or place on their desks were somehow
indicative of what might happen to car size in the absence of CAFE. At the same
time, of course, such non-portable objects as new homes and television sets were
increasing in size; given NHTSA's desperation to justify CAFE, however, this was
irrelevant.
CEI and Consumer Alert sued NHTSA once again. This time we did
not succeed; a new panel of judges upheld NHTSA's decision, noting the high
degree of deference to which agency rulemaking is entitled. CEI and Consumer
Alert v. NHTSA, 45 F.3d 481 (D.C. Cir. 1995). Nonetheless, even this panel
pointed out that the agency's approach to the CAFE size-safety issue was
questionable; in its words, "NHTSA's failure to adequately respond to the
Crandall and Graham study is troubling ...."Id. at 486.
In the years since
that decision, new evidence has continued to support the size-safety
relationship. See, for example, NHTSA, The Effect of Decreases in Vehicle Weight
on Injury Crash Rates (Jan. 1977). NHTSA, however, has not changed its approach
to CAFE in the slightest. Yet CAFE's lethal toll continues to mount yearly; by
our estimates, in 1996 there were an additional,2700 to 4700 traffic deaths due
to CAFE's downsizing effects. J.C. DeFalco, CAFE's "Smashing Success"--The
Deadly Effects of Auto Fuel Economy Standards, Current and Proposed (CEI, 1997)
(Attachment B). If CAFE had been set at the 40 mpg level advocated by some, that
death toll would been even higher--3900 to 5800 deaths. Id.
Moreover, the
public's current lack of knowledge of these lethal effects is the key to the
modest public support that CAFE currently enjoys. A recent CEI poll demonstrates
that, once the public is informed of CAFE's actual impact on safety, support for
CAFE plummets from its current modest level of 51 percent down to a mere 19
percent. CEI, National Environmental Survey, Questions 34-37 (Jan. 1999)
(Attachment C).
The public does not know the facts about CAFE. One of the
prime reasons for that lack of knowledge is NHTSA's decades-long campaign,
described above, to avoid any serious assessment of this issue. Until NTSA
changes its approach and confronts this issue, the current appropriations freeze
should be continued.
DISCLOSURE OF FEDERAL GRANTS AND CONTRACTS
The
undersigned hereby certifies that neither he nor CEI nor Consumer Alert has
received any federal grant or contract, or subgrant or subcontract, during the
current fiscal year or during either of the two preceding fiscal years.
END
LOAD-DATE: February 11, 1999 
