The Volokh Conspiracy
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The Trump EPA's Plan to End Greenhouse Gas Emission Regulation from Stationary Sources
Instead of making a headlong rush at the endangerment finding, the Administration is adopting a more targeted deregulatory strategy.
A draft of the Environmental Protection Agency's proposed regulation to undo the Biden Administration's regulations governing greenhouse gas emissions from power plants is undergoing White House review. If finalized, this rule would end EPA regulation of greenhouse gases from power plants, and put on ice greenhouse gas regulation of other stationary sources under the Clean Air Act.
The EPA is not seeking to undo the Biden power plant rules by challenging the EPA's 2009 endangerment finding. Though urged by some, this would have been foolhardy. Rather, according to this New York Times report, the EPA appears to be taking a more strategic approach along the lines of what I suggested in this post last week.
From the NYT story:
In its proposed regulation, the agency argued that carbon dioxide and other greenhouse gases from power plants that burn fossil fuels "do not contribute significantly to dangerous pollution" or to climate change because they are a small and declining share of global emissions. Eliminating those emissions would have no meaningful effect on public health and welfare, the agency said.
The key word in the statutory language is "significantly." The EPA is not claiming that climate change does not pose a threat, nor is the EPA claiming that greenhouse gases do not contribute to climate change. Rather, the EPA is saying that fossil fuel-fired power plants in the United States to not contribute "significantly" to global greenhouse gas concentrations in the atmosphere.
In proposing to lift regulations on power plants, the E.P.A. points to the fact that the U.S. share of global power sector emissions represented about 3 percent of worldwide greenhouse gases in 2022, down from 5.5 percent in 2005. So, it argued, even if American power plants erased all their greenhouse gases from the power sector, the risk to public health would not be "meaningfully" improved.
As global climate change is a global concern--and is driven by global concentrations of greenhouse gases in the atmosphere, it does not matter that power plants are a large share of domestic emissions. And, as U.S. emissions decline as a share of global emissions, the significance of domestic power plants will decline over time.
If the EPA goes ahead with this approach, the final rule will certainly be challenged. A key question in such litigation will be whether reviewing courts accept the EPA's definition of what it means for a category of sources to contribute "significantly" to a type of air pollution. Absent Chevron deference the EPA's interpretation of the the statutory language will not carry much wait, but courts may be convinced that this is nonetheless a question upon which courts should respect agency expertise and accommodate the EPA Administrator's exercise of discretion. But as noted above (and as I told the Times), if the EPA is successful with such a rule, it will effectively end the regulation of greenhouse gases from stationary sources under Section 111 of the Clean Air Act.
