EPA Administrator Lee Zeldin says any new regulations to curb greenhouse gas emissions will have to wait on Congress. But lawyers and policy experts contend a climate-conscious president already has ample legal authority to cut emissions without congressional action.
The back and forth comes after EPA repealed the scientific finding underpinning its climate rules in February. Zeldin told a major energy conference in Houston last week he won’t be scouring the legal code for new authorities to regulate climate pollution.
“What I’m not going to do is look at a law and say, ‘Well, the law doesn’t say I can’t, so I guess that means we can,’” he said in remarks at S&P Global’s CERAWeek conference.
If Congress wants EPA to regulate those emissions, he said, it would have to “introduce a bill, have a debate, have a vote, amend federal law, and we’ll do it.”
EPA’s repeal of the so-called endangerment finding for greenhouse gases dealt a body blow to the legal authority that three presidents used to curb climate pollution from cars, power plants and petroleum development.
If it holds up in court, it will mean that planet-warming pollution can’t be regulated directly under the Clean Air Act — except perhaps in a few areas, like methane emissions from oil and gas operations.
But former Biden administration officials, policy and legal experts contend that an incoming president who prioritized climate action could strengthen existing energy efficiency and air pollution standards that would also slash greenhouse gases.
Those other laws are already on the books and don’t depend on EPA’s finding that greenhouse gases endanger public health and welfare.
“I think the statutory authority to lower costs for households, families and businesses through energy efficiency has never rested on the endangerment finding or the Clean Air Act,” said Mark Kresowik, senior policy director at the American Council for an Energy-Efficient Economy.
Congress authorized energy efficiency standards for appliances, vehicles and homes under the Energy Policy Act of 2005 and the Energy Independence and Security Act. The Energy Policy Act and EISA passed with bipartisan support and were signed into law by then-President George W. Bush, a Republican.
“They’re all geared towards helping people save energy and save money,” Kresowik said. “That has an ancillary benefit of reducing climate pollution.”
The 2005 law tightened efficiency standards for appliances and federal buildings. EISA, enacted in 2007, contains provisions requiring the Housing and Urban Development and Agriculture departments to set efficiency criteria for new housing they support through loans and grant programs.
Kresowik said that similar requirements could be applied to the approximately 80 percent of new homes that receive some form of support from the federal government, including federally backed loans and mortgages. In addition to HUD and USDA, the Federal Housing Finance Agency, the Department of Veterans Affairs and other agencies have legal authority to introduce similar requirements under various laws.
The pair of energy laws also expanded to 60 the list of appliances that the Energy Department is required to regulate for efficiency. EISA also set a schedule for updating those standards on an ongoing basis as new technology becomes available and cost-effective.
DOE ignored those deadlines during Trump’s first term, said Andrew deLaski, executive director of the Appliance Standards Awareness Project.
“We have seen a pattern here where administrations that do want to address emissions have advanced cost-effective standards and those that don’t see climate as a problem don’t,” he said. “This has been a really effective tool for both reducing costs for consumers and reducing emissions.
An analysis by ASAP last year found that the next round of updates to existing product standards could reduce greenhouse gas emissions by about a billion metric tons total by 2050. That is roughly equivalent to the annual emissions of 233 million cars, according to EPA’s greenhouse gas equivalencies calculator.
Zeldin focused on tailpipe standards during an appearance at the POLITICO Pub during CERAWeek. He said he would “regulate the heck out of greenhouse gas emissions standards for light-, medium- and heavy-duty vehicles” if only Congress would enact a statute requiring EPA to do so.
But the two Bush-era energy laws are also stocked with regulatory authorities that the Obama and Biden administrations used to decarbonize cars and trucks, and a future administration could use them to do the same.
EISA — which was enacted the same year as the landmark Supreme Court decision that forced EPA to consider regulating climate pollution — significantly tightened vehicle fuel economy standards and required the Department of Transportation to continually make them more ambitious..
Ann Carlson, who served as chief counsel and then acting administrator for the National Highway Traffic Safety Administration under former President Joe Biden, said the 2007 energy law gave the agency broad leeway in setting standards for heavy-duty trucks in particular, opening the door to rules that would nudge the shipping industry toward electrification.
“There are not a lot of restrictions,” said Carlson, who is now director of the Emmett Institute on Climate Change and the Environment at UCLA. “So that’s a place where there’s very good congressional delegation to the agency to issue pretty strong fuel efficiency standards, and a new administration can come in and do that.”
Additionally, she said, a climate-conscious future administration could cut carbon by advancing serious policies to tackle other pollutants. States could do the same. California will likely need to seek a Clean Air Act waiver from EPA to electrify its vehicle fleet in order to deal with the Central Valley’s persistent ozone problems. EPA could grant it without grappling with climate change at all.
“There’s no question that EPA has the authority to regulate conventional air pollution, and that’s very strong authority,” Carlson said.
“If you electrify for air pollution reasons, you have a very nice ancillary benefit of reducing greenhouse gas emissions,” she added.
