Low Energy Fridays: How the EPA’s Endangerment Finding Became Endangered
As discussed previously, the series of 31 deregulatory actions recently announced by the Environmental Protection Agency (EPA) contains enough content for a month’s worth of Low-Energy Fridays. But, today, we are focusing on one of the more high-profile actions announced: the elimination of the EPA’s so-called “endangerment finding.”
The story began two decades ago during the George W. Bush administration when a group of states sued the EPA for not regulating carbon dioxide and other greenhouse gas (GHG) emissions from new motor vehicles. In court, the EPA argued that it lacked the legal authority to do so, claiming that GHGs did not qualify as “pollutants” under the Clean Air Act. The Supreme Court disagreed, ruling in Massachusetts v. EPA that the EPA did have the authority to regulate GHGs if it determined that they could “reasonably be anticipated to endanger public health or welfare.”
While the ruling did not technically require the EPA to regulate such emissions, the Court did say that the agency would have to make a determination of “whether greenhouse gas emissions contribute to climate change,” and, if so, proceed with appropriate regulations. While not regulating anything itself, the endangerment finding thus became the necessary prerequisite for all subsequent regulations on GHGs issued by the EPA.
The Trump administration’s move to revoke the endangerment finding has drawn significant criticism, including from some right-of-center sources. One scholar at Reason called the attempt “a fool’s errand” and said that “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.” Similarly, another expert wrote that “from both a legal and scientific standpoint, there is no legitimate basis for rescinding the 2009 ‘endangerment finding.’”
From a scientific standpoint, this is correct. It’s important to stress that sustaining the endangerment finding does not require a belief that climate change will end civilization or be otherwise catastrophic. Nor does it require that scientists agree about every aspect of climate change or its likely consequences. It’s not even necessary to show that regulation is capable of solving the problem. All that is necessary under the Clean Air Act is for GHGs to be reasonably shown to pose a danger to public health and welfare. It will be difficult for the Trump administration to sustain a claim that GHGs pose no significant risk whatsoever.
From a legal point of view, by contrast, things aren’t so clear. If Massachusetts v. EPA remains good law, the Trump administration is probably out of luck. Massachusetts v. EPA, however, was a 5-4 decision with a strong dissent by Justice Antonin Scalia arguing that GHGs simply did not fit in the Clean Air Act’s regulatory framework. The membership of the Court has gotten more conservative since then, and, while there are no guarantees in litigation, odds are that if the Supreme Court reconsidered the decision now, it would be reversed.
It’s worth noting that while the endangerment finding allows the EPA to regulate GHGs, in practice this has meant less than one might think. Major attempts to invoke this authority by the Obama, Trump, and Biden administrations have faced court challenges and have never gone into effect.
In discussions on this topic, R Street has continually stressed the need for Congress to act to provide stability and certainty to federal climate policy. And the coming legal battle over the repeal of the endangerment finding is another example of why it is important to involve Congress directly. Given the pervasiveness of GHGs throughout all aspects of life and the economy, it makes more sense for questions on how to address the risks of climate change to be answered by popularly elected representatives, rather than by executive agencies like the EPA.