by Elea Castiglione
Photo courtesy AdobeStock
On February 12, the Environmental Protection Agency announced that it was eliminating the 2009 Endangerment Finding, which has formed the foundation of climate regulation in the U.S. for the past 16 years. The Endangerment Finding determined that greenhouse gas (GHG) emissions endangered public health and welfare, and regulations grounded in the finding range from vehicle tailpipe emissions to GHG emissions from power plants. The announcement sets up a legal battle over the EPA’s authority to regulate greenhouse gas (GHG) emissions from mobile and stationary sources.
“The Endangerment Finding is central to the federal government’s ability to regulate climate pollutants under the Clean Air Act, so the Trump Administration’s decision to finalize the repeal is extremely significant,” explained Sarah E. Light, the Mitchell J. Blutt and Margo Krody Blutt Presidential Professor and Professor of Legal Studies & Business Ethics at the Wharton School.
The Background
In 2007, the Supreme Court of the United States determined in Massachusetts v. EPA that the Clean Air Act, which requires Congress to regulate “any air pollutant” that can “reasonably be anticipated to endanger public health or welfare,” allows the Environmental Protection Agency (EPA) to regulate greenhouse gases (GHGs).
What the Repeal Does
The Trump Administration’s argument to repeal the Endangerment Finding doesn’t try to refute decades of science proving GHGs cause climate change, rather that the Supreme Court erred in its decision in Massachusetts v. EPA, and the Clean Air Act did not explicitly give EPA the authority to regulate GHGs.
“Massachusetts v. EPA is good law, and if the court respects its prior precedents, then it’s hard to square what the Trump administration is doing with Massachusetts v. EPA. I don’t think it’s a sure thing that the court will side with the Trump administration,” Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science and Director of the Penn Program on Regulation, explained.
Next Steps
According to Prof. Light, “The next steps I would expect would be immediate litigation challenging the repeal in Court. It is not clear to me that the repeal will withstand legal scrutiny.”
State attorneys general from California, New York, Connecticut, and Massachusetts and other states along with environmental groups such as the Natural Resources Defense Council have announced that they will challenge the rescission. When the case is appealed to the Supreme Court, the administration is hoping that the conservative-dominated court will overturn precedent set in Massachusetts v. EPA— issuing a devastating and permanent blow to U.S. climate policy.
A judicial review of the decision will take months or years. But before that, climate standards for passenger cars and commercial trucks will be negated immediately. “By the terms of the final rule that was issued, pretty much all the mobile source regulations dealing with greenhouse gases are rescinded,” Prof. Coglianese said. Other regulations that reduce GHG emissions from vehicles through fuel economy standards are not undermined, though the administration does have proposed rules that could roll back fuel economy standards in the future. The Department of Transportation’s authority to regulate fuel economy on the basis of oil conservation is not undermined, and the EPA can regulate other emissions from vehicle tailpipes that harm human health, like nitrogen oxides.
“We should expect to see in the coming weeks and months, EPA proposing or issuing final rules, maybe even direct final rules, saying ‘now that we’ve revoked the endangerment finding, various regulations dealing with stationary sources and greenhouse gases will also need to be revoked,’” Prof. Coglianese continued. Stationary sources include fossil-fueled power plants and factories.
What Can Be Done at Present
According to legal experts, even if courts affirm that current laws do not enable the federal government to regulate GHGs, states and private parties can continue to set their own GHG regulations. “The whole idea of a federal government preempting state climate legislation or state common law is premised on the federal government doing something on climate change,” Prof. Coglianese explained. “And if the EPA is declaring that it no longer has any authority to do that, well, then it’s open season for pro- environmental legislators in litigants at the state level around the country,” he continued. In the absence of the Endangerment Finding, communities impacted by climate change may have new legal pathways to seek remedies for past harm to their health, welfare, and land.
Without the Endangerment Finding, regulating the drivers of climate change in the U.S. becomes vastly more difficult. But even without federal leadership, states, cities, and communities can continue to take action to combat climate change.
Penn students across all schools can incorporate climate education into their coursework through classes on public health, sustainability, environmental stewardship, clean energy, policy, and climate solutions. Courses for undergraduate and graduate students can be found through Penn Climate’s curated directory of climate-related courses. Stay in touch with Penn Climate for more opportunities to engage with global, national, and local climate issues right here on campus.
For More Information
Listen to the podcast, “The Endangerment Finding and the Future of EPA’s Authority,” produced by Penn’s Kleinman Center for Energy Policy: https://kleinmanenergy.upenn.edu/commentary/podcast/the-endangerment-finding-and-the-future-of-epas-authority/