EPA’s repeal of a monumental scientific finding on global warming in the coming days could close the door on a decade and a half of U.S. climate policy.
The so-called endangerment finding undergirds federal authority to regulate climate pollution. Revoking it would have the immediate effect of sweeping aside two rules meant to lower greenhouse gases from cars and trucks. And it would help clear the way for the Trump administration’s attempts to upend environmental standards for other highly polluting sectors, such as power plants.
Future fallouts from the repeal, which is expected as early as next week, include a potential ruling by the Supreme Court that former EPA officials say would effectively bar any president from issuing a new endangerment finding.
That outcome might drive renewed interest among congressional Democrats to pass a climate bill, if they gain control of Congress, according to some political analysts. It could also push states and the courts into higher-profile roles to address rising temperatures.
Here’s what the repeal could mean for U.S. climate policy.
Regulation
EPA argued in its draft rule proposed in July that the government never had the authority to make industries lower their carbon emissions — because the Clean Air Act applies only to pollution that directly harms people in their communities, not gases that spread globally and don’t endanger people who breathe it in.
If the Supreme Court upholds that position, it could stop future presidents from using a new endangerment finding to address climate change, said Joe Goffman, who served as EPA air chief under President Joe Biden.
“In a theoretical universe, the court could uphold the rule while coming up with its own self-fashioned justification that could leave room for an endangerment finding by a future administration,” he said. “But I think the likelihood of that would be vanishingly small.”
EPA did not respond to a request for comment.
Judicial review of the rollback may take months or years. But the repeal will have immediate effects by negating climate standards for passenger cars and commercial trucks, leaving the highest-emitting U.S. sector unregulated for carbon.
Other climate rules would need to be undone through rulemaking, and the loss of the endangerment finding could make that easier.
“EPA would still have to issue a rule to deal with the Biden [carbon dioxide] standards for power plants,” said Jeff Holmstead, who served as EPA air chief under President George W. Bush. “But it certainly would strengthen the case for doing that.”
In June, EPA proposed scrapping the 2024 rule, which requires certain coal- and gas-fired power plants to capture emissions or shut down.
The agency advanced a novel argument that U.S. power producers — the nation’s second-highest emitting sector — contributed too little to global stores of atmospheric greenhouse gases to warrant regulation.
Now, EPA might need to insert the repeal of the endangerment finding into its rollback of the power plant rule, somehow. The agency could re-propose a draft rule, but that would add time to its accelerated timetable for deregulation.
Edison Electric Institute, which represents investor-owned utilities, has filed comments with EPA urging it to focus its repeal of the power plant rule on a technology argument — that carbon capture systems aren’t commercially mature enough to be used in regulations.
“The upshot is that the utility industry wants to get out from under these de facto technology requirements. And part and parcel of that is that they want the agency to get rid of those requirements with as little legal risk as possible,” said Goffman.
But that relatively limited rulemaking wouldn’t achieve the Trump administration’s objective of preventing future presidents from regulating power plants for carbon.
It remains to be seen what the endangerment finding repeal will mean for EPA’s rules for oil and gas development. The agency has signaled plans to revise — not repeal — standards requiring energy companies to monitor and curb methane leaks.
The oil industry’s lobbying group, the American Petroleum Institute, supports regulating methane as a hedge against state policies and to show global buyers of natural gas that the industry is serious about protecting the environment.
API urged EPA in past comments to “clearly establish in the final rule” that revoking the endangerment finding applies only to regulations for cars and trucks, and not to sectors like oil and gas.
Holmstead said that killing the endangerment finding would not require EPA to repeal the methane standard, even if it cited the finding in the original methane rule.
“I don’t know if the sort of hard-right climate change deniers would then petition for a rulemaking and argue that they have to do it,” he said, adding that EPA could choose not to respond to such a petition.
States
If EPA reverses the endangerment finding as expected and stops regulating greenhouse gases, it could put states in the driver’s seat on climate regulation.
Industry groups don’t savor that outcome. Many have avoided advocating the repeal the endangerment finding out of concern for state-level restrictions and more exposure to nuisance lawsuits — which are currently not allowed because the government has been addressing climate risks through regulations.
Those industry protections could evaporate along with federal rules.
It’s unclear whether removing the finding would allow states like California and New York to introduce their own vehicle rules for greenhouse gases without an EPA waiver — but that question may ultimately be settled in court.
Many legal experts agree that states have the authority to implement stricter-than-federal standards for their stationary sources of pollution, like power plants and factories, even with the endangerment finding in place.
The removal of federal controls may boost state interest in programs like the Northeast’s Regional Greenhouse Gas Initiative, a multistate cap-and-trade program that covers power emissions.
It could also incentivize more Democratic-led states to adopt climate Superfund laws, which allow states to seek compensation for climate damages from high-emitting industries like oil and gas. Illinois just began that process.
The Department of Justice has sued Michigan and Hawaii to scuttle their climate Superfund programs, partly on the grounds that the Clean Air Act covers greenhouse gas emissions.
In a court filing in its case against Hawaii last year, DOJ argued that the Clean Air Act “creates a comprehensive program for regulating air pollution in the United States and ‘displaces’ the ability of States to regulate greenhouse gas emissions beyond their borders.”
If the government stops regulating greenhouse gases, said Meghan Greenfield, a former EPA and DOJ attorney, “I think you could see more laws like that.”
“And I think you could also see more garden-variety, nuisance-type tort lawsuits now that the Clean Air Act doesn’t bar action in that space, or clearly preclude it,” said Greenfield, who is an attorney with Jenner & Block. “The tort lawsuits are probably on a faster track than the statutes.”
EPA, in its draft endangerment repeal, asserted that preemption of state law would remain in effect even if Administrator Lee Zeldin decided that regulation wasn’t needed. It also argued that repealing the finding wouldn’t open the door to nuisance lawsuits against polluting facilities.
The Supreme Court’s 2011 decision in American Electric Power Company v. Connecticut found that federal common law was displaced by the Clean Air Act, and polluters couldn’t be sued for their climate emissions.
While states have the authority to regulate emissions from facilities like power plants that are within their borders, Holmstead questioned whether they would do that at a time of surging electricity costs.
“I think the politics have changed to a significant degree as people are more concerned about reliability and about the cost of energy,” said Holmstead, the air chief under Bush. “I don’t know that a lot of states are going to want to, you know, take aggressive action that’s likely to drive up the cost of electricity.”
Myron Ebell, who led the EPA transition team at the start of the first Trump term, said that state authority to regulate greenhouse gases from the power sector may be limited because of the interconnected nature of the U.S. power grid.
“The flow of electricity is not confined to one state,” he said, adding that the Trump administration had legal options to “go after” states that regulate utilities for carbon.
The future
Travis Fisher, a former Energy Department adviser and now the energy director at the libertarian Cato Institute, said the endangerment finding’s reversal would end an era of “pretty objectively terrible” policies.
“We had the Clean Power Plan 1.0 and then Clean Power Plan 2.0, and they were both really, really awful,” said Fisher, who oversaw a contrarian review of climate science within DOE last year that was extensively cited in the endangerment finding draft repeal.
Others noted that the loss of the Clean Air Act as a regulatory tool could clear the way for other policy responses.
Goffman, the air chief under Biden, said an investment package like the 2022 climate law known as the Inflation Reduction Act was better suited to decarbonize the power sector. Holmstead suggested the government’s loss of regulatory authority could encourage Democrats to collaborate with industry and Republicans on a bipartisan bill.
Greenfield, the former government lawyer, noted that congressional action on climate legislation is remote under Trump.
“But politics change, and I think that in some ways, this could create more motivation to do comprehensive climate legislation in a different sort of way,” she said.
