The Volokh Conspiracy
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The EPA Announces a Fool's Errand: Reconsidering the Endangerment Finding
The move is part of a broader suite of deregulatory actions announced by the EPA Administrator, and is likely the least advisable item on the list.
Today Environmental Protection Agency (EPA) Administrator Lee Zeldin announced 31 deregulatory actions it was undertaking to reduce the burden of environmental regulations on the American economy. Many of the announced actions represent efforts to reconsider Biden Administration policies and adopt less burdensome alternatives. "Today is the greatest day of deregulation our nation has seen. We are driving a dagger straight into the heart of the climate change religion to drive down cost of living for American families, unleash American energy, bring auto jobs back to the U.S. and more," Zeldin said in the EPA's release.
One of the more significant actions Zeldin announced is also the most foolish: Reconsidering the EPA's "endangerment finding" with regard to greenhouse gas emissions. Focusing on this finding is understandable, as this finding is what triggers GHG regulation under the Clean Air Act. Yet given the relevant statutory language, trying to undo this finding is a fool's errand that threatens to divert limited agency resources and staffing away from the other announced initiatives.
Under various provisions of the Clean Air Act, the EPA is required to regulate any emissions that "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." In Massachusetts v. EPA, greenhouse gases are air pollutants under some of the Act's provisions, so whether they must be regulated turns on whether GHG emissions "may reasonably be anticipated to endanger public health or welfare." This is not a high threshold to meet, and it is one that GHG emissions easily satisfy (something the EPA has, in effect, conceded for decades).
Note that for purposes of the Clean Air Act, the question is not whether climate change is catastrophic, nor whether climate adaptation is preferable to mitigation, nor whether federal regulation of sector-specific emissions is rational or cost-beneficial, nor whether such regulations represent a serious or rational way to address the threat of climate change. Nor is the question whether the science is unequivocal, nor is it whether there is certainty about the likely effects of increased atmospheric concentrations of GHGs over any given time period. Rather the question is simply whether the EPA Administrator can "reasonably anticipate" that the accumulation of GHG emissions can cause negative effects -- i.e. threaten "public health or welfare." (And note further that "welfare," under the Clean Air Act, is an expansive term explicitly defined to include effects on climate, "economic values," and "personal comfort and well-being.")
What this means is that none of the justifications for reconsidering the endangerment finding in the EPA's press release are remotely relevant to the question at hand, as none address the relevant statutory language which defines and delimit EPA's inquiry. Indeed, the Trump EPA seems to be repeating the same mistake made by the Bush Administration prior to Massachusetts v. EPA when it claimed it could simply decline to regulate GHGs simply because it concluded there were better ways to address climate change than utilizing the Clean Air Act. The Bush Administration was correct as a policy matter, but wrong on the law--as the Supreme Court ultimately concluded. [N.B.: the EPA release quotes Acting OIRA Administrator Jeff Clark who helped spearhead the Bush Administration's failed legal strategy in Massachusetts v. EPA.]
A further obstacle to reconsidering the endangerment finding is that it would effectively require the EPA to repudiate virtually everything it has said about greenhouse gas emissions and climate change for the past several decades--and then convince federal courts that these disavowals represent the sort of reasoned decision-making that courts should uphold. Again, it will not be enough for the EPA to now claim some studies exaggerated risks or reached improper conclusions, for that would not be enough to unring the endangerment bell. Rather, the EPA has to claim--with a straight face--that the Administrator cannot "reasonably anticipate" that anthropogenic GHG emissions do not even "contribute" to any adverse impacts on health or welfare. OIRA's Clark may believe that the endangerment finding should require "a consideration of downstream costs imposed on both mobile sources like cars and stationary sources like factories," but that's not what the Clean Air Act says, nor is it how the statute has been interpreted by the courts.
The Trump Administration is correct that seeking to stabilize atmospheric concentrations of greenhouse gases through the Clean Air Act is costly and unwise. I am long on record calling such policies unserious and destined for failure. But that is largely irrelevant to the legal question before the EPA. Like it or not (and I do not), the Supreme Court concluded the greenhouse gases are pollutants under the Clean Air Act, and the relevant statutory language is highly precautionary and easily triggered. That the result is a raft of costly regulations that increase prices, constrain innovation, and suppress energy use is legally irrelevant.
The bottom line is that if the Trump Administration wants to fully disarm the EPA from climate regulation, it will have to go to Congress. The Clean Air Act may be a poor way to try and adjust the planetary thermostat, but that is the sort of problem that the legislature needs to fix.
Update: This post does not address the claim that the IRA amended the Clean Air Act to cement the EPA's regulatory authority over greenhouse gases. I don't address that point for two reasons. First, endangerment is a separate question from whether greenhouse gases are pollutants under the Act. The latter is a predicate for the former. Second, this common claim about the IRA is not true, for reasons I explained here.
I would also note that those hoping a reconsideration of endangerment prompts a reconsideration of Massachusetts v. EPA should be careful what they wish for. Overturning Massachusetts would vitiate AEP v. Connecticut, and allow nuisance suits against GHG emitters under federal common law.
