EPA will release a draft rule Tuesday afternoon that strikes at the heart of its own authority to regulate climate pollution.
Administrator Lee Zeldin, Energy Secretary Chris Wright and other Trump administration officials will travel to an Indianapolis truck dealership to roll out a proposal to kill the 16-year-old scientific finding that set the stage for greenhouse gas emissions rules under the previous three administrations.
The draft rule to upend the so-called endangerment finding will be released jointly with the proposed reversal of Biden-era tailpipe emissions rules for light-, medium- and heavy-duty cars and trucks. The latter proposal may focus only on rescinding the limits for carbon emissions and not criteria pollutants.
The endangerment finding provided the legal bases for those vehicle climate regulations — as well as rules to limit climate pollution from fossil fuel power plants and gas wells.
The 2009 finding holds that heat-trapping emissions endanger public health and welfare by driving climate change. The Trump administration’s ambitious bid to remove it aims to make similar regulations more difficult — or even impossible — in the future, taking EPA out of the business of addressing climate pollution unless Congress passes a new law.
That outcome depends on how the courts rule on EPA’s action once it becomes final. But the Supreme Court has grown more conservative in recent years, thanks overwhelmingly to the three justices nominated by President Donald Trump.
“What they hope for is a binding legal outcome that would preclude, either explicitly or effectively, future regulation of greenhouse gasses under the Clean Air Act,” said Joe Goffman, former President Joe Biden’s EPA air chief, at a briefing last week.
EPA and the Trump White House have offered few details about how they plan to attack the endangerment finding. But a passage from the proposal’s executive summary — which circulated before the proposal’s release — indicated the administration would focus most heavily on defining EPA’s statutory authority as too narrow to support the endangerment finding or the regulations that followed it.
The section of the Clean Air Act that the Obama EPA relied on in writing the original finding, the summary said, “does not authorize the EPA to prescribe emission standards to address global climate change concerns.”
The passage goes on to provide an even bolder “alternative” argument that the Obama administration “unreasonably analyzed the scientific record” and that EPA has ignored scientific developments in the years since that “cast significant doubt on the reliability of the findings.”
“Lastly, we propose to repeal all [greenhouse gas] emission standards on the alternative basis that no requisite technology for vehicle and engine emission control can address the global climate change concerns identified in the findings without risking greater harms to public health and welfare,” the passage concludes.
EPA’s draft rule is expected to propose a wide slate of arguments for throwing out the finding. One likely target is the Obama administration’s decision to jointly consider all six “well-mixed” greenhouse gases — a class of pollutant that includes carbon dioxide and methane — in evaluating whether climate emissions endanger public health and welfare.
Another potential argument is that EPA should have considered the emissions from each sector in isolation to determine whether they alone drive harmful warning.
Such arguments likely aim to artificially minimize danger from a source category’s emissions by bisecting the emissions into smaller and smaller segments and then concluding that regulating them wouldn’t make a difference, said Meghan Greenfield, a partner at Jenner & Block.
“If you applied the same construct that they’re applying here to greenhouse gasses, even to conventional pollutants, you could well come up with the answer that nothing should be regulated,” Greenfield said.
The role of science
EPA may also argue that the 2009 finding relied on the courts affording it broad deference in interpreting statutory language. The Clean Air Act and its amendments don’t list greenhouse gases explicitly.
The Supreme Court issued an important decision last year that severely curtailed the degree of deference afforded to agency interpretations of vague language.
“There is a compelling argument that the major questions doctrine by itself would prohibit the EPA from regulating greenhouse gases,” said Daren Bakst, director of the Center for Energy and Environment at the Competitive Enterprise Institute, a libertarian think tank.
“The doctrine says that when an agency seeks to answer questions of vast economic and political significance, the agency must point to clear congressional authorization to answer such questions,” he said.
The circulated passage from EPA’s proposal also targets climate science and regulatory costs. But those are not offered as the main arguments that the proposal asks the courts to consider when reviewing the agency’s bid to repeal the endangerment finding.
Some conservatives who have long advocated that EPA get rid of the endangerment finding have expressed disappointment that the agency appears to be leaning so heavily on legal arguments.
One such conservative advocate — who spoke on the condition of anonymity to discuss private conversations — said administration officials had recently assured them that the proposal now raised more questions about science than earlier drafts. The person, who disputes the scientific consensus that human emissions drive global warming, said that Wright was responsible for those changes.
Diana Furchtgott-Roth, director of the energy, climate and environment program at the Heritage Foundation, said EPA must deal head-on with the original finding’s assessment that greenhouse gases are responsible for warming that endangers the public. The Heritage Foundation spearheaded the Project 2025 conservative blueprint that aligns with many of the administration’s policies.
“They’ll have to make a new finding to say that greenhouse gases don’t contribute to dangerous air pollution,” she said. “Otherwise, it won’t survive judicial review.”
But Eric Groten, a senior partner at the Vinson & Elkins law firm, argued that EPA would be on “much safer legal footing” if it focuses more on what he said were legal liabilities in the original finding. Those weaknesses, he said, included EPA’s assertion that determining that greenhouse gases contribute to climate change was a sufficient basis for regulating those those gases wherever they were found instead of only in cases where those restrictions would make a difference.
The 2009 finding, he said, “took ‘An Inconvenient Truth’ and published it in the Federal Register.”
“I think that was a has been a legal mistake on EPA’s part,” he said.
The original finding paved the way for regulation of a range of passenger cars in model years 2012 through 2016. Vehicle emissions broadly contribute more greenhouse gases than any other U.S. sector.
