Can the EPA Finesse the Greenhouse Gas Endangerment Finding?

The agency may be able to adopt a bank-shot strategy to preclude most (but not all) greenhouse gas regulation under the Clean Air Act without contesting basic climate science.

Environmental Protection Agency Administrator Lee Zeldin announced that the agency will consider rescinding the so-called endangerment finding that triggers the regulation of greenhouse gases under the Clean Air Act. In a prior post, I explained why this is a fool's errand, and elaborated on some of the relevant points in this webinar.

My prior comments assumed that the agency was planning to do what Zeldin and others had publicly suggested: Rescind the primary finding that the emission of greenhouse gases "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." Given the precautionary nature of this language, taking this course would have required the Agency to disavow virtually everything it has said in the past 35 years about the potential consequences of climate change, among other things. It would be a morass.

Yet if the EPA's primary goal is to rescind greenhouse gas regulations imposed on stationary sources, and prevent the adoption of new such regulations, it has an alternative approach--an approach that is more of a targeted bank shot than a frontal assault on the endangerment determination and, judging from this E&E News story, it is a potential approach that is getting more attention.

The initial endangerment finding was made under Section 202 of the Clean Air Act, which governs motor vehicles. Under this provision, the EPA is obligated to adopt emission standards for pollutants about which such a finding is made. Other provisions of the Act have similar language, but they are not all the same, and the differences in the language found in different opinions could matter.

Section 231, governing aircraft, has identical endangerment language to Section 202. Section 111, governing stationary sources (including power plants), on the other hand, has slightly different language. Under 111, the EPA is required to adopt regulations for a category of sources if the category:

 causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.

Here, unlike under Section 202 and 231, it is not enough that the emissions in question "contribute" to potentially harmful pollution. The emissions, from the source category in question, must contribute significantly. In other words, even taking endangerment as a given, there are some sources of greenhouse gas emissions that need not be regulated under Section 111 because their contributions to the accumulation of greenhouse gases in the atmosphere is not significant enough to justify action.

What this means is that the EPA could seek to disarm the Clean Air Act's regulatory threat to stationary sources by defining what it means to contribute "significantly" so as to exclude most (if not all) such source categories as those that must be regulated. This is not a sure-fire strategy, as it may be difficult to argue that power plants in particular are not a "significant" contributor to climate change. Power plants are responsible for approximately 30 percent of domestic greenhouse gas emissions. By contrast, most other source categories are far smaller, and would be easier to exclude, particularly if the EPA emphasizes that the significance of a source category's contribution to climate change must be evaluated on a global basis (and the fact that the United States produces a declining share of global greenhouse gas emissions).

The virtue of this approach for EPA is that it does not require contesting basic claims about climate science or reversing the agency's prior interpretation of that science or the meaning of Section 2020. Yet there are risks. One in particular is that it would require the agency to reverse course on what constitutes a "significant" contribution of greenhouse gases. Back in 2021, the Trump EPA said this applied to any source responsible for more than three percent of emissions. The EPA is no longer eligible to receive Chevron deference on the meaning of this statutory language, and its change in position will reduce the amount of respect its new interpretation receives.

We should soon see whether the EPA is going to adopt this more targeted approach to cutting back EPA regulation of greenhouse gases, or whether it will insist on running headlong into the maw of the original endangerment finding. The agency's choice should reveal quite a bit about the extent to which it is prioritizing meaningful and sustainable deregulatory initiatives over blunderbuss, base-pleasing initiatives.

Comments

[Longtobefree]

" . . . taking this course would have required the Agency to disavow virtually everything it has said in the past 35 years . . . "

Ye shall know the truth, and the truth shall set you free.

[Longtobefree]

Or we could just eliminate the EPA and delete everything it ever did.

[Riva]

Finesse? If that means rescind. Sure. I'd prefer, just to be on the safe side, that it be staked through the heart and its ashes be thrown into the sea, at or near an erupting underwater volcano.

[Lee Moore]

As I understand Prof Adler, his theory –

the primary finding that the emission of greenhouse gases "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare"

is that a reasonable expectation of the teensiest bit of endangerment of any aspect of public health or welfare is enough to pull the trigger.

But that kind of finding does not allow us to conclude that reducing emissions can reasonably be expected to benefit public health and welfare as a whole. More CO2 helps crop yields, and higher temperatures reduce deaths from the cold. The apples of CO2 damage have to be weighed against the oranges of CO2 benefits.

So

“Under this provision, the EPA is obligated to adopt emission standards for pollutants about which such a finding is made”

might lead to the conclusion that the emission standard should be to let it rip.

“This is not a sure-fire strategy, as it may be difficult to argue that power plants in particular are not a "significant" contributor to climate change. Power plants are responsible for approximately 30 percent of domestic greenhouse gas emissions.”

As Prof Adler notes, CO2 concentrations are the result of global emissions, not just US emissions. The US’s share of CO2 emissions is about 13%, and the 30% power plant share of that comes to about 4% … of the 4% of global emissions that are down to humans. Is that “significant” ? Pick your judge for your preferred answer.

[Frank Drackman]

If you're exhaling you're contributing 200ml/kg of CO2 per minute,
so stop breathing!!!!
Pope Francis is finally doing something to help peoples (too soon???)
(OK, nit pickers, there is some CO2 production from the "combustion" that takes place in natural decomposition, so he's still contributing a little bit)
Frank/Francis Drackman

[Lee Moore]

I would suggest a more complicated plan. The difficulty in changing the regs now, apart from the inevitable bombardment by lefty judges, is that they can be changed right back by the next Dem administration.

Assuming the GOP in Congress would play along, I think a good scheme would be to promulgate a pile of regulations playing along with the CO2 doom theory, and then having Congress nix them all under the Congressional Review Act. Which has the added benefit of :

(a) not being filibusterable and
(b) preventing substantially the same reg being introduced by a later administration (absent new primary legislation, which is filibusterable.)

[ReaderY]

I think that the abandonment of Chevron will turn out to be more a scalpel than a hatchet. But I also suspect that this is the kind of tumor the court will want to surgically remove. I suspect that long-standing positions adhered to across administrations and based on expertise will continue to get de facto deference. But brand-new positions that are sharp departures from the pass and that are based primarily on changes in political outlook rather than in expert thinking will be special targets for judicial non-deference.

I therefore suspect that the “bank shot” approach, changing the regulation without changing the underlying scientific basis, will run into problems in the courts. Under Chevron it might have been a genius move to advance the administration’s agenda. Without Chevron, maybe not so much.

[Bruce Hayden]

The whole Endangerment finding was based on sciency cargo cult religion. It was based on computer models that always run hot and can’t adequately forecast or hindcast, even using massively fudged input data. Ice is building up in the Antarctic, and Polar Bears are thriving in the Arctic, while crop yields around the world are up, and deaths from weather extremes are down. The Endangerment finding was a joke - but a very expensive one. And, yes, politics, where politicians and their hangers on were lined up to benefit, and benefit they did, by the hundreds of billions, if not trillions, of dollars, under Biden, Pelosi, and Schumer.

[Rossami]

The EPA should disavow virtually everything it's said over the past 35 year about climate change because most of what it said was either flat wrong, grossly exaggerated or based on inadequate science. The only way their claims of the time were legally sustainable was under the extremely deferential approach of Chevron. While their change of heart is now deserving of less legal deference, it's worth noting that a proper review post-Chevron would revoke that historical deference and not merely be applied to their new statements.

But I agree that a full walk-back is not likely to happen. It will probably take another generation for the people who have tied their careers to this extremeism to die off before we can walk back from this paradigm dead-end.

[Brett Bellmore]

After reading your explanation of why backing out of that finding is nearly impossible, I can't help but think that the best approach could be to just argue that, if the Clean Air Act really means THAT, it is so batshit insane as to fail to satisfy rational basis.

And so should either be struck down or given a less insane interpretation.