ICYMI: Wall Street Journal Editorial Lauds Reconsideration of EPA’s Endangerment Finding, Calling it “Trump’s Biggest Climate Decision”
WASHINGTON – Yesterday, U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the 31 historic actions undertaken by the agency in the most consequential day of deregulation in U.S. history. One of which was the formal reconsideration of the 2009 Endangerment Finding alongside agency partners. Administrator Zeldin affirmed EPA’s commitment to commonsense policies that prioritize the agency’s mission in conjunction with national prosperity, energy security, and the freedom of our people from an agenda that throttles our industries, our mobility, and our consumer choice while benefiting adversaries overseas.
Read the Wall Street Journal Editorial Board’s commentary:
Trump’s Biggest Climate Decision
The EPA moves to reconsider the Biden ‘endangerment’ finding, a crucial step toward more rational energy regulation.
Environmental Protection Agency administrator Lee Zeldin on Wednesday proposed a host of important rule changes. The most important may be his move to reconsider the 2009 so-called endangerment finding that declares greenhouse gases are a pollutant subject to agency regulation. Cue the panic and misinformation campaign.
As a refresher, the Supreme Court ruled in Massachusetts v. EPA (2007) that greenhouse gases qualify as pollutants under the Clean Air Act. The EPA must regulate pollutants that can “reasonably be anticipated to endanger public health or welfare.” No surprise, the Obama Administration in 2009 determined that greenhouse gases do.
The Obama endangerment finding undergirds EPA limits on CO2 emissions from power plants, autos and trucks, as well as methane fees on oil and gas companies, among other rules. The Obama and Biden Administrations have used the finding to bypass Congress to advance their anti-fossil fuel agenda.
Mr. Trump’s first-term advisers considered withdrawing the endangerment finding but were worried about being sued. The Trump EPA merely revised the Obama CO2 regulations to make them less punitive. The Trump Administration was sued anyway. Then the Biden team reversed course and made the Obama rules even more punitive.
The climate lobby now says Mr. Zeldin doesn’t have legal authority to rescind the endangerment finding. But agencies re-examine past decisions all the time. Mr. Zeldin can reconsider EPA’s greenhouse-gas findings in light of new or other evidence.
Most of the science cited in the Obama endangerment finding—e.g., climate change will harm U.S. agriculture and increase the size and frequency of wildfires—is debatable. The finding that U.S. CO2 emissions will directly harm Americans is even more tenuous.
Unlike pollutants explicitly covered by the Clean Air Act, CO2 emissions don’t affect local air quality. Their impact on global temperatures is intermediated by other factors like cloud cover. Curbing CO2 emissions in the U.S. will have scant impact on Americans, especially as India and China emit with abandon.
Justice Antonin Scalia noted as much in his Mass. v. EPA dissent: “Regulating the buildup of CO2 and other greenhouse gases in the upper reaches of the atmosphere . . . is not akin to regulating the concentration of some substance that is polluting the air.” Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito also dissented.
Withdrawing the endangerment finding could tee up a lawsuit that provides the High Court an opportunity to reconsider Mass. v. EPA. Under its major questions doctrine, significant executive actions require express Congressional authority. But Congress never authorized the EPA to regulate CO2 emissions.
Democrats did insert language in several Inflation Reduction Act green-energy spending programs that refer to greenhouse gas emissions as “air pollutants.” Democrats hope doing so will strengthen their hand in a future legal challenge if the endangerment finding were withdrawn or if the Supreme Court revisited Massachusetts v. EPA. But the IRA doesn’t expressly require or authorize EPA to regulate greenhouse gases. Republicans in Congress could also help Mr. Zeldin by using this year’s budget bill to repeal the IRA spending provisions.
Some energy companies warn that withdrawing the endangerment finding could make them vulnerable to lawsuits by states and localities alleging that their emissions cause a public nuisance by contributing to climate change.
But oil and gas producers already face dozens of lawsuits in state courts. In defense they have cited the High Court’s AEP v. Connecticut (2011) ruling that the Clean Air Act pre-empts federal torts against oil and gas companies. Their supposed worry is that AEP will become a dead letter if the endangerment finding is reversed.
But withdrawing the finding wouldn’t change the Court’s fundamental holding that “it is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest” like climate. This is all the more reason why the Obama-Biden EPA power grab endangers the constitutional separation of powers by usurping Congress’s authority.
President Trump isn’t shrinking from legal fights, and scrapping EPA’s endangerment finding is one well worth having.