Why Trying to Undo the Endangerment Finding Is A High-Risk (and Low-Reward) Deregulatory Strategy

EPA Administrator Lee Zeldin says the Endangerment Finding is the "holy grail" of climate policy. Perhaps it's really they great white whale.

Environmental Protection Agency Administrator Lee Zeldin is pursuing an aggressive strategy to reduce the burden of environmental regulation on the American economy. In line with the Trump Administration's Executive Orders, he is emphasizing deregulatory measures relating to energy development and consumption, with a particular focus on climate change. As I have noted before, some parts of this deregulatory agenda are more legally defensible than others.

My latest Civitas Outlook column focuses on Zeldin's effort to roll back EPA climate regulation, and where the EPA may face difficulty.

Zeldin's most ambitious undertaking in this regard may also be the most legally vulnerable. On July 29, the EPA proposed to not only repeal regulations limiting greenhouse gas emissions from new motor vehicles, but also to rescind the so-called "endangerment finding"—the legal predicate for nearly all of the EPA's greenhouse gas regulations under the Clean Air Act. In this regard, the EPA is not seeking merely to undo regulations from the Obama and Biden administrations. It is also seeking to make it more difficult for future administrations to put such regulations back in place unless and until the EPA is instructed to do so by Congress. This is a high-risk strategy. . . .

The primary reason it is difficult to undo the endangerment finding is that the statutory standard is so easy to meet. For purposes of the 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 greenhouse gas emissions over any given time period. Rather, the question is simply whether the EPA Administrator can "reasonably anticipate" that the accumulation of greenhouse gases in the atmosphere can have negative effects on health or welfare—effects which the Act defines to include the impact on climate, "economic values," and "personal comfort and well-being."

While the EPA suggests that a less-alarmist interpretation of existing climate science is one reason to undo the endangerment finding, relying upon a draft report prepared for the Department of Energy, its primary argument is that the Clean Air Act "does not authorize the EPA to proscribe emission standards to address global climate change concerns." The problem is that this argument is almost certainly foreclosed by Massachusetts v. EPA, which expressly concluded that the Act "authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a 'judgment' that such emissions contribute to climate change." The EPA suggests one way to address this constraint is to note that domestic motor vehicle emissions are a small (and shrinking) share of global emissions, but Section 202 of the Clean Air Act (unlike some other provisions of the Act) conspicuously lacks any requirement that motor vehicle emissions contribute significantly to the problem.

In its proposed rulemaking the EPA tries to argue that intervening Supreme Court decisions counsel a reconsideration of what the Clean Air Act means. Under these decisions, most notably West Virginia v. EPA and Loper Bright Enterprises v. Raimondo, the EPA argues that the Clean Air Act should not be interpreted to grant the EPA authority to regulate greenhouse gas emissions in order to control climate change. Were it a matter of first impression, this argument would have substantial force (especially before the current court), but that is not where we are. The Massachusetts decision may have been wrong (as I believe it was), but it nonetheless represents the Court's authoritative interpretation of what the Clean Air Act provides on this point, and the Supreme Court rarely reconsiders its prior statutory holdings.

While many critics of the endangerment finding want to focus on climate science, it is worth noting that the primary arguments the EPA put forward in its proposed rulemaking are legal, not scientific. The EPA references the recent Department of Energy Climate Working Group report that critiques prior National Climate Assessments and presents a less alarmist view of climate science, but the EPA (correctly) recognizes that it is the legal issues here that will (and should) predominate.

Speaking of the Climate Working Group, it is apparently no more. After the initial report was released and put out for public comment, environmentalist organizations sued, claiming DOE violated the Federal Advisory Committee Act (FACA), and asked a court to enjoin the federal government from relying upon the report in any form. While it was unlikely a court would embrace this extreme remedy, it appears concerns about FACA compliance going forward convinced DOE to disband the working group, and that is what the Energy Secretary did. Going forward, this may make it more difficult for the EPA to rely upon the group's work in the endangerment finding repeal rulemaking, as it was only a draft report, and it is not clear how it will be revised in response to public comment if the working group no longer exists.

My Civitas Outlook column concludes:

Administrator Zeldin has referred to the endangerment finding as "the holy grail of the climate change religion." Perhaps so. But recall that in the Arthurian legend, only the purest of heart and soul may reach the grail. Accordingly, it may take a purer legal strategy, and one that relies upon Congress, if the endangerment finding is to be undone.