EPA Administrator Lee Zeldin has celebrated driving a dagger into the “heart of the climate religion,” but legal analysts say the agency’s move to revoke a landmark climate finding could open industry to a barrage of new legal and regulatory risks.
Courts will have the last say on whether EPA can stop regulating heat-trapping emissions permanently in the wake of last week’s endangerment finding repeal. And if the Supreme Court eventually endorses EPA’s central argument — that Congress never gave the agency authority to regulate climate pollution — the decision could have the unintended consequence of wiping away legal protections for the industries that Zeldin was trying to help.
“Be careful what you wish for,” said Seth Jaffe, an environmental attorney at Foley Hoag LLP.
Voiding EPA’s regulatory authority under the Clean Air Act could give states more latitude to institute greenhouse gas curbs of their own. And large sources of climate pollution, such as power plants and oil companies, have been shielded from federal lawsuits brought by states and other plaintiffs because Congress had entrusted EPA with regulating greenhouse gases. Now that the agency is forfeiting that authority, those safeguards may disappear.
EPA’s apparent goal in undoing the finding was to bar future Democratic administrations from regulating carbon and methane through the Clean Air Act.
To do that, EPA claimed in its repeal that the landmark 1970 law gave it no legal tools to regulate climate-warming pollution because, it said, a clear reading of the statute limits its authority only to tackling pollution that harms public health near the point of its release — not after it enters the atmosphere and affects the climate years later and miles away.
But it’s that authority that has kept some states from imposing regulations of their own. With it gone, lawyers say states could impose a patchwork of rules for motor vehicle greenhouse gas emissions with no waiver from EPA.
EPA claimed that the repeal “does not impact [f]ederal preemption for motor vehicle and engine emission standards.”
But that assertion is destined to be litigated.
“I guess the biggest thing I would say is that the rulemaking is not the final word on what the Clean Air Act means,” said Ann Carlson, director of the Emmett Institute on Climate Change and the Environment at UCLA.
“It’s not surprising that they’re trying to have it both ways, but it’s really going to be up to courts, assuming that some state takes advantage of the legal ambiguity here, or the legal uncertainty about whether they are preempted,” said Carlson, who said states “will have the better argument.”
EPA dismissed those concerns, saying in a statement that “legal experts should read the Clean Air Act before engaging in scare tactics designed to perpetuate unlawful regulations.”
The agency said the Clean Air Act preempts states from adopting or attempting to enforce emission standards for new motor vehicles and engines, “full stop — whether EPA has issued standards for particular emissions or not.”
Jaffe, the environmental lawyer from Foley and Hoag, said he was surprised EPA did not base its repeal in part on a critique of climate science, as it did in its draft last summer. That might have given the Supreme Court an avenue to side with EPA while leaving preemption of state law in place, he said.
“I think they’re just balancing a bunch of priorities they have,” Jaffe said. “Number one priority is to get rid of the endangerment finding. Number two priority is to make it as permanent and as defensible as they can. And only number three is the argument about retaining preemption.”
Legal experts said the repeal could also create an opening for litigants — including state attorneys general — to sue companies for damages linked to their greenhouse gas emissions.
The Supreme Court ruled in 2011 that corporations could not be sued for their climate pollution under federal common law, because Congress had charged EPA with curbing greenhouse gases. Now EPA is contending that the Clean Air Act gave it no such authority.
“I think that this may be the end of displacement,” said David Amerikaner, an environmental attorney with Duane Morris LLP, referring to the idea of preventing lawsuits.
“I think it is a significant risk to industry that not only will they have to fight these lawsuits off, but that they may face verdicts that are, you know, adverse going forward,” he said.
Attorneys cautioned that lawsuits over climate change face challenges that have nothing to do with Clean Air Act displacement, including establishing a causal link between a specific pollution source and tangible impacts from climate change.
Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School, said that an explosion of tort suits “would not be an optimal way of dealing with greenhouse gas emissions and with the problem of climate change, to say the least.”
“The worst version of this is, you don’t have any sensible, comprehensive federal rules, and you have a bunch of chaotic litigation that runs into trouble in the courts,” she said.
Jaffe also expressed skepticism that lawsuits would move the needle on lowering emissions, but added that things could change.
“People thought the same about tobacco cases and gay marriage right cases, that they were dead certain losers, until all of a sudden they weren’t. So there is a cost to EPA to weaken the preemption arguments,” he said.
Eliminating protections?
The preemption argument has been at the heart of efforts by oil and gas companies to dismiss a swath of lawsuits filed against them by dozens of cities, counties and states seeking financial compensation for the costs of climate change.
The companies argue that the lawsuits should be tossed out of state court because the claims are barred by the Clean Air Act. The Supreme Court is poised to decide whether to take up the industry’s latest bid to quash the lawsuits.
Exxon Mobil and Suncor Energy last year asked the justices to review a Colorado Supreme Court decision and find that federal law bars local governments from seeking relief for climate change in state courts.
The city and county of Boulder, which brought the lawsuit, suggested in a November brief to the Supreme Court that the questions raised by the case could change because EPA was looking to repeal the endangerment finding “on the theory that it lacks statutory authority” to regulate greenhouse gas emissions.
Andres Restrepo, a senior attorney at the Sierra Club, which joined 16 other environmental and public health groups Wednesday in a legal challenge to EPA’s repeal of the finding, said the agency now asserts it does not have the authority to regulate greenhouse gas emissions.
“EPA, in our view, is taking this issue and basically eliminating what otherwise would have been a protection for companies against these kinds of lawsuits,” Restrepo said. “That really opens them up to a lot of potential legal liability and creates a lot of uncertainty.”
David Pettit, senior attorney at the Center for Biological Diversity, suggested EPA wants “to have its cake and eat it too.” He said the agency says it does not have the power to regulate greenhouse gas emissions, but also says it has the power to “regulate them, if we want to, that the preemption power still exists.”
But Donald Kochan, a law professor at George Mason University, said it was “wholly unpersuasive” that the repeal would affect the lawsuits. Any court deciding whether a state action or lawsuit is preempted by federal law would look to congressional intent, not executive branch action, he said.
The courts would determine “whether or not Congress has actually snatched up the authority from the states, not whether the agency has chosen to run with the ball,” said Kochan, who’s executive director of the Law & Economics Center at the Antonin Scalia Law School.
He noted that “Congress makes some agency duties mandatory, and some agency duties discretionary. That is, just because an agency has authority doesn’t mean they are under an affirmative duty to exercise the authority they have.”
Yet Amorie Hummel, an attorney with Cozen O’Connor’s environmental and energy practice, said the question is not yet settled. She noted the repeal covers only a narrow section of the Clean Air Act and does not likely negate preemption.
But, she added, EPA has likely “weakened its argument and it’s certainly giving states an argument to make on their own behalf.”
Hummel said the agency appears to be attempting to make a field preemption argument, which holds that federal law covers an area so completely, there is no room for the states.
“The question becomes can you have your cake and eat it too?” she said. “There is air pollution, but not rising to the level where we have the authority to regulate, yet still rising to the level where Congress doesn’t want any state to touch this regulatory area.”
