When EPA Administrator Lee Zeldin announced last week that his agency would move to repeal the foundation of EPA’s climate regulations, he claimed it would provide a boon to U.S. industry and eliminate $1 trillion in “hidden taxes.”
But analysts and legal experts are less sure. They warn that EPA’s efforts to kill the so-called endangerment finding instead could expose a broad range of industries to more lawsuits — as well as encourage Democratic-led states to bolster their own climate laws.
It’s a “very high-risk strategy,” said Jonathan Adler, a law professor at William & Mary Law School.
Eliminating the endangerment finding has been “something of a white whale” for conservative groups, he added. “And I think that’s shortsighted. I think that it’s likely to not produce the effects they want and could even backfire.”
Since 2009, EPA’s endangerment finding has served as the legal predicate for greenhouse gas regulations under the Clean Air Act. It underpins standards for pollutants such as carbon and methane that drive climate change.
High-emitting industries, especially those that sell or rely upon fossil fuels, often have opposed those rules — particularly those drafted under Democratic administrations.
For the Trump administration, reversing the endangerment finding would ease EPA’s task of undoing Biden-era rules and free the agency from any obligation to replace them. The move — if the courts uphold it — also would make it harder for a future administration to impose climate regulations without new action by Congress.
Zeldin said in an interview last week on Fox News that the scientific finding — and the regulations it has supported for nearly two decades — relied on authority Congress never delegated to EPA.
“An agency like EPA can’t just decide on our own that we are going to get creative with law, and where there’s a vacuum and missing language, we’re just going to make it up ourselves,” he said.
But removing the endangerment finding carries risks for the same companies that Zeldin expects to benefit from its repeal.
For one, it could encourage Democratic-led states to do more to regulate carbon-heavy industries within their borders, such as power plants and oil companies.
There may also be an opening for states to regulate greenhouse gas emissions from motor vehicles without EPA’s permission. The Clean Air Act specifies that states need an EPA waiver to do so, but it’s up for debate whether a waiver would be necessary if the endangerment finding goes away.
The Biden administration granted California a waiver to implement tougher-than-federal vehicle emissions rules. Litigation is ongoing about whether the Trump EPA can rescind it.
But states such as California might make the case that EPA’s refusal to address climate pollution frees them from the obligation to secure a waiver, said Ann Carlson, director of the Emmett Institute on Climate Change and the Environment at UCLA.
“I think there’s an argument — although it’s by no means a slam dunk — that if the administration is convinced that there’s no endangerment and no need to regulate, that that could free up states to regulate, and that would not require a waiver,” she said.
Adler said revoking the endangerment finding for greenhouse gases would weaken any claims that states can’t or shouldn’t regulate climate pollution because the federal government is doing so.
But he said those arguments weren’t legally sturdy, except for motor vehicles and a handful of other sectors. The endangerment finding’s removal would have a more consequential impact, he said, on a 14-year-old precedent that has stopped federal tort suits against carbon-polluting industries.
States and citizen groups already can sue polluters under state common law — usually seeking monetary damages for climate impacts such as wildfires and sea-level rise.
But a 2011 Supreme Court case — American Electric Power Co. vs. Connecticut — barred plaintiffs from suing climate polluters under federal common law, because greenhouse gas pollution was covered by the Clean Air Act. The statute “displaces” common law, the high court said.
Now, arguably, it wouldn’t.
“There’s a lot of concern in industry about how reversing the endangerment finding could open the door to more litigation and lawsuits,” said Jeff Holmstead, a partner with Bracewell LLP who represents industry clients.
“I just think there’s a lot of concern that that would eliminate one of the best defenses that the defendants have had,” he said.
This is not a new industry concern. The Edison Electric Institute, which represents investor-owned utilities, filed an amicus brief in the landmark West Virginia vs. EPA case three years ago urging the court not to side with Republican-led state litigants in deciding that EPA lacked the legal authority to regulate greenhouse gas emissions under the Clean Air Act.
Upending that authority, EEI argued “could fatally undermine the Clean Air Act’s displacement of federal common law tort actions against electricity providers, clean water utilities, and other greenhouse gas emitters.”
EPA’s plan to repeal the endangerment finding attempted to preserve the Clean Air Act’s jurisdiction over climate pollution — and thus its “displacement” of federal common law — even as the proposal argued greenhouse gases didn’t deserve to be regulated.
But Carlson of UCLA said the proposal as written would make it far easier for litigants to argue that Clean Air Act displacement of federal common law no longer exists.
The effect, she said, would be to “open up some new litigation opportunities for those groups that are seeking to hold big emitters accountable under federal common law.”
Holmstead noted that federal tort suits can be broader than state suits — which consider only climate impacts experienced within specific states.
Federal tort suits could take a broader view of climate effects and could result in courts issuing injunctions that require companies to slash their emissions, either by operating their facilities less or adopting other pollution control measures.
That’s a concern that EEI raised in its West Virginia vs. EPA filing, too.
Absent EPA’s regulatory authority, it warns, “‘regulation’ of electricity generation to control such emissions could occur via injunction and at the whim of the plaintiffs’ bar, without regard to costs, technological feasibility, or effects on the Nation’s electricity and water supplies.”
The exact contours of those pollution abatement schemes are unclear.
But Carlson said the loss of Clean Air Act displacement that could result from the endangerment finding’s repeal would bring court-mandated climate policy one step closer.
“What does the remedy look like if you sue the power industry for its emissions? Do you impose a cap-and-trade program? Do you require each power plant to reduce its emissions?” she asked. “That gets into really complicated questions.”
