EPA’s repeal of a keystone climate determination didn’t attack science.
The final revocation of the so-called endangerment finding for greenhouse gas emissions instead offered a battery of legal arguments for why the Obama administration wrongly concluded 17 years ago that climate pollution is a public danger and should be regulated under the Clean Air Act.
The final rule was posted in the dead of night Thursday hours after EPA Administrator Lee Zeldin said the rollback was “about restoring the rule of law, a fundamental principle of our great Republic.”
The finding has allowed EPA to regulate pollution that drives climate change under three presidents — including, in his first term, President Donald Trump.
But Zeldin blamed “unelected bureaucrats” for using it to expand Clean Air Act authority into “something it was never meant to be,” trampling the will of Congress and the U.S. economy in their zeal to combat warming.
As the dust settles on Thursday’s announcement, here is what did and didn’t make it into the final endangerment finding repeal.
About that $1.3 trillion in savings …
Trump and Zeldin touted major regulatory and consumer savings from the repeal when they rolled it out Thursday. “This action will eliminate over $1.3 trillion of regulatory costs,” Trump said.
What he didn’t mention is that, according to EPA’s own analysis, those savings are more than wiped out by the costs that will come from repealing all vehicle standards.
The cost-benefit analysis tucked into EPA’s final rule backs up the $1.3 trillion savings, a figure that covers impacts through 2055. It’s made up of savings in two areas: Almost $1.1 trillion from reduced costs for new vehicles, and another $200 billion in savings related to reduced electric vehicle purchases and charging infrastructure.
But a numerical table within the rule includes costs that the president didn’t mention. Specifically, it projects more than $1.4 trillion in costs through 2055 related to increased fuel purchases, vehicle repair and maintenance, insurance, traffic congestion and noise. (Electric vehicles require less maintenance than internal combustion engines.) EPA attributed a further $40 billion in costs to less energy security, increased refueling time and “drive value.”
Overall, that means the $1.3 trillion in savings is swamped by almost $1.5 trillion in costs — and that’s without considering either climate costs or public health impacts from increased emissions over the coming decades, a figure that would likely be quite large.
EPA included several alternative analyses that tweaked assumptions and changed the figures.
For example, assuming lower fuel prices over the coming decades than those currently projected could lead to a net savings of $250 billion. And limiting the calculation to include only the first 2½ years of fuel purchased — a figure EPA said comes from studies that suggest “buyers do not fully value the future fuel cost savings from improved fuel economy” — bumps that up to almost $800 billion.
The agency also opted not to finalize a sprawling and novel analysis of consumers’ alleged preference for internal combustion engine vehicles that it included in last summer’s draft rule. That proposal — labeled Appendix B — argued that vehicle buying patterns reveal a preference on the part of car buyers that could result in old gas-guzzling vehicles remaining on the road for additional years as consumers try to avoid purchasing electric cars.
Records from the draft rule’s review showed that the appendix — which consumed 30 pages of the 63-page regulatory impact analysis — was inserted by the White House’s regulatory office during the last days of the draft’s review.
No science
EPA is not revoking the finding based on any critique of the science that led the Obama administration to conclude that greenhouse gases endanger public health and welfare. That’s the statutory threshold that allows the agency to regulate.
That’s a change from the July draft, which made liberal use of a Department of Energy “review” of climate science penned by five contrarian scientists who had been handpicked by Energy Secretary Chris Wright and, emails show, charged with furnishing EPA with a scientific record for its repeal.
But that project has become mired in legal challenges, and the so-called Climate Working Group has been disbanded. Critics filled EPA’s docket during its public comment period for the draft last fall with critiques of its science-based arguments. The most powerful of those was an assessment by the National Academies of Sciences, Engineering and Medicine — which provides the federal government with independent advice on scientific matters.
That 135-page report by the National Academies concluded that the science linking emissions to public harm had strengthened since the 2009 endangerment finding was issued. The U.S. “faces a future in which climate-induced harm continues to worsen and today’s extremes become tomorrow’s norms,” it warned.
Environmentalists argued that EPA could suffer in court if it failed to grapple with such dire warnings from one of the nation’s preeminent scientific organizations. The agency appeared to heed that warning, stating in a footnote that “in light of concerns raised by some commenters” it would not rely on the DOE working group or its report.
The repeal, it said, “is a matter of statutory interpretation, not scientific analysis within the NAS’s purview,” the rule said.
Legal arguments
The rule offers a grab bag of legal interpretations for why the Clean Air Act does not accommodate greenhouse gas regulations.
The rule makes three major conclusions: that greenhouse gases are not “air pollution” because under the law that term covers only pollution that has local or regional effects; that an endangerment finding should be issued only alongside the standards it will trigger, bringing cost into consideration; and that determining climate change overall is a threat “cannot be severed” from considering causation or contribution, which covers the argument that U.S. emissions from any one sector are too small a slice of the global pie to justify regulating.
New U.S. motor vehicles in model years 2027 through 2032, for example — the rules for which are repealed in the same action that undid the finding — would contribute only a tiny fraction of a degree to global temperatures and thus not “materially further public health or welfare.”
The rule also argues that the Obama administration erred in considering all six “well-mixed” greenhouse gases together for the purposes of determining endangerment.
Severability
EPA is hedging against judicial scrutiny by declaring that if the courts side with it on any one of those legal justifications, that should be enough to uphold the repeal.
Individually, the three are “independent conclusions that stand on their own,” EPA says. “If any basis is determined in the course of judicial review to be invalid, that partial invalidation will not affect the other bases, and the EPA intends the remainder of this final action stand on the remaining basis or bases.” That means the agency says if even one of its arguments is upheld, the whole repeal stands — although that’s for the courts to determine.
And if all of those justifications are struck down, EPA says “the futility” of regulating greenhouse gas emissions given the global nature of the phenomenon would support repeal “even if there were an adequate legal basis to retain the Endangerment Finding.”
Political messaging
EPA’s primary task in finalizing the rescission was to anticipate legal challenges and get it ready to withstand judicial review. Much of the agency’s deregulatory agenda now depends on the U.S. Supreme Court signing off on the endangerment finding repeal.
But there were political messages scattered between the legalistic arguments.
EPA’s analysis of future gasoline and diesel prices included a “fuel price sensitivity assessment,” because the other fuel price models fail to “take into account the policies being implemented by President Trump that are intended to drive down the price of gasoline and diesel,” according to the rule’s regulatory impact analysis.
That “low oil price” case caused a decrease of $0.73 per gallon of gas and $1.19 for diesel compared with the Energy Department’s reference case.
In addition, EPA speculated that the repeal could mean more hiring and higher pay for autoworkers and employees in other regulated industries, although the agency admitted that it’s impossible to monetize that expectation with precision.
“While we cannot quantify the impacts on employment due to the uncertainty, removing significant costs on companies allows for increased capital that can be utilized to hire more employees and/or increase wages,” the agency said.
