The Volokh Conspiracy
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NYT: EPA Embarking on Endangerment Finding Fool's Errand
A new report suggests the Trump EPA is not content with cutting off stationary source regulation of greenhouse gases.
The New York Times is reporting that the Environmental Protection Agency is preparing to propose rescinding the "endangerment finding"--the conclusion that greenhouse gas emissions contribute to climate change and associated risks--as a way of shutting off all regulation of greenhouse gases under the Clean Air Act. I have previously explained why this is a fool's errand that is unlikely to withstand judicial review (while noting the EPA has other options to roll back GHG regulation).
The report is somewhat sketchy on the precise argument the EPA plans to make.
The Trump administration has drafted a plan to repeal a fundamental scientific finding that gives the United States government its authority to regulate greenhouse-gas emissions and fight climate change, according to two people familiar with the plan.
The proposed Environmental Protection Agency rule rescinds a 2009 declaration known as the "endangerment finding," which scientifically established that greenhouse gases like carbon dioxide and methane endanger human lives. . . .
The E.P.A. proposal, which is expected to be made public within days, also calls for rescinding limits on tailpipe emissions that were designed to encourage automakers to build and sell more electric vehicles. . . .
The E.P.A. intends to argue that imposing climate regulations on automakers poses the real harm to human health because it would lead to higher prices and reduced consumer choice, according to the two people familiar with the administration's plan. . . .
In calling to repeal the endangerment finding, the draft E.P.A. rule does not appear to focus on the science or try to make the case that fossil fuels aren't warming the planet.
Instead, it argues that the E.P.A. overstepped its legal authority under the Clean Air Act by making a broad finding that greenhouse gas emissions endanger the public welfare. It makes the case that the E.P.A. administrator has limited power that apply only to specific circumstances.
Not trying to challenge existing climate science directly is wise, for reasons I noted in my initial post on this subject, as it relieves the EPA of the obligation of explaining away decades of the agency's own statements. The EPA still faces a serious problem insofar as it wants to adopt a new interpretation of the relevant Clean Air Act provisions, and reject interpretations long embraced by the agency and federal courts.
Further, insofar as the agency wants to argue that the resulting regulations are unwise or ineffectual, it will be courting even more legal trouble. The relevant CAA provisions (like those at issue in American Trucking) separate the question of whether or not emissions cause or contribute to pollution from the question of what sort of regulations must be adopted. Nothing in the CAA allows the Administrator to forego adopting vehicle emission standards due to concerns about cost or consumer choice. There are strong arguments this is a bad way to approach environmental regulation, as it can obligate an agency to adopt welfare-reducing regulations, but that's a complaint about the Clean Air Act, not EPA regulations, and as such it is a question that needs to be addressed by Congress.
It is also worth noting that automakers are not clamoring for repeal of vehicle emission standards, as they've already designed compliant vehicles. This makes the Administration's prioritization of challenging endangerment and the vehicle emission rules an odd choice, as there are other areas in which deregulatory efforts would be welcomed by the regulated community and would be more likely to unleash investment and innovation.
