On February 12, President Trump and EPA Administrator Lee Zeldin announced the repeal of the climate change “Endangerment Finding” that the Agency made in 2009 under the Clean Air Act. In the press release accompanying the announcement, Administrator Zeldin referred to the Endangerment Finding as the “‘Holy Grail’ of the ‘climate change’ religion” and the press release described its “elimination” as “the single largest deregulatory action in U.S. history.”

We asked Stanford Professor of Practice David J. Hayes to explain the context and importance of the EPA’s disavowal of the Endangerment Finding and its potential ramifications on the regulation of greenhouse gases in the United States and the U.S. government’s response, more generally, to climate change. 

Can you provide some background on how the Clean Air Act approaches the regulation of greenhouse gases as a form of air pollution and the role of an Endangerment Finding in that process?

Yes. The background is important. The story starts with the question of whether greenhouse gas emissions qualify as “air pollutants” under the Clean Air Act. In the seminal 2007 Supreme Court case of Massachusetts v. EPA, the Court concluded that the answer to that question is a clear” yes” insofar as the Act defines “air pollutants” broadly to include “any air pollution agent or combination of such agents . . . which is emitted into or otherwise enters the ambient air.” The Court squarely rejected the Bush Administration’s argument – made now again by the Trump Administration – that Congress only intended the Clean Air Act to cover emissions that have “local” (not global) impacts. (In addition, in the years since the original debate, there is no longer any question that climate-infused extreme weather events are having devastating consequences at the local level—as well as on the global level.)

That definitive ruling cleared the way for EPA to actuate Section 202(a) of the Clean Air Act, which states that EPA “shall” regulate “air pollutants” from “mobile sources” (new cars and trucks) if the EPA Administrator makes an affirmative Endangerment Finding or—in the parlance of the statute – if the Administrator concludes that the air pollutants “in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”

Given the strong evidence that climate change was already impacting U.S. public health and welfare in 2009, it was not surprising that the Administrator produced a voluminous, heavily-annotated Endangerment Finding which concluded that greenhouse gas emissions from automobiles could contribute to the endangerment of public health or welfare

Given this history, what is the basis for the current EPA Administrator’s repeal of the Agency’s 2009 Endangerment Finding?

The Agency is making both legal and science-based arguments that the Endangerment Finding should be repealed.

Facing a particularly hard road on the science side, it is not surprising that EPA is trying to discredit the 2009 Endangerment Finding on legal grounds. The Agency begins by audaciously asserting that it can ignore the Supreme Court’s prior ruling that greenhouse gases “unambiguous[ly]” satisfy the definition of air pollutants under the Clean Air Act. Rather than follow the law, EPA is again claiming without textual support that the Clean Air Act only applies to “local” air pollution—an argument that the Bush Administration made and that the Court squarely rejected in Massachusetts v. EPA. The Agency apparently wants a redo, but with today’s Supreme Court.

Scratching for additional legal arguments, EPA argues that automotive emissions do not “cause or contribute to” health or welfare harms, despite the reality that they do, and in significant quantities. Indeed, the transportation sector’s carbon dioxide emissions constitute the largest source of greenhouse gases in the nation. EPA also asserted in the draft rule that the 2009 Endangerment Finding was flawed because it did not make “standalone” findings for carbon dioxide and other greenhouse gases, even though the statute does not require it and EPA has bundled pollutant groups in other Clean Air Act regulatory contexts. Finally, EPA tries to make a case that explicit Congressional approval under the “Major Questions Doctrine” is needed before any regulatory activity involving greenhouse gases and mobile sources can be undertaken, based on an unsupportable supposition that even a limited restriction on carbon dioxide emissions would somehow  constitute an enormous and transformative expansion in EPA’s regulatory authority. Come on!  EPA has effectively worked with industry to clean up tailpipe emissions of all sorts over the past 50 plus years.

As for the merits, the EPA has a very steep hill to climb to find scientific support for the Administrator’s Endangerment un-Finding that greenhouse gas emissions from the automobile sector may not reasonably be anticipated to endanger public health or welfare. The announcement baldly asserts that “many of the [climate change] predictions and assumptions used to justify the [2009] rule did not materialize.”

But there is powerful evidence in the record to the contrary from the National Academies of Science, Engineering and Medicine and many other prominent scientists showing that climate change indicators have strengthened in the past 16 years, and to the extent some of the predictions did not materialize, it can be credited to efforts to combat climate change during that time—including through the Endangerment Finding.  And a court already has ruled that a heavily-criticized DOE report cited in support of the draft rule was prepared without public input by hand-picked climate skeptics in violation of the Federal Advisory Committee Act.

Remarkably, in the final rule released on February 13, EPA has abandoned the full-throated attack in its draft rule on the Agency’s 2009 science-based conclusion that greenhouse gases from cars endanger health and welfare. The final rule includes an about-face admission that it is no longer basing its repeal of the 2009 Endangerment Finding on a “new” Endangerment Finding. The Agency is putting all of its eggs in a single basket—its weak assertion that “the EPA lacks statutory authority to resolve these questions.”  See the Final Rule on pp. 10-11. https://www.epa.gov/regulations-emissions-vehicles-and-engines/final-rule-rescission-greenhouse-gas-endangerment .

What is the practical impact of the repeal of the Endangerment Finding? Does this rule negate all use of the Clean Air Act to regulate greenhouse gas emissions?

Technically speaking, the Endangerment Finding repeal only applies to mobile sources in the transportation sector. But the 2009 Endangerment Finding also provided the basis for EPA’s regulation of power plants and stationary sources and EPA’s regulation of methane emissions from the oil and gas industry. As a result, if it were to stand, EPA’s repeal of the Endangerment Finding would essentially sideline all greenhouse gas regulatory activity pending a reversal of the finding by a subsequent Administration. As it is, the Trump Administration has taken separate actions to negate other climate rules issued by the Biden Administration, while simultaneously mounting broad, aggressive attacks on clean energy investments that do not emit climate-harming greenhouse gases. The net effect is an enormous shift away from clean energy and pollutant regulation that’s already in place, toward dirty and more polluting activity.

Will the Endangerment Finding repeal be appealed, and potentially overturned through litigation?

Yes, and yes. But it is unlikely that a challenge to the rule would bring near-term relief.  Litigation in other related Clean Air Act rulemakings have taken literally years to resolve. In this case, however, EPA will likely try to get the case up to the Supreme Court as quickly as possible and before the president leaves office.

David J. Hayes has focused his career on energy, environmental and natural resources matters. He most recently served in the White House as Special Assistant to the President for Climate Policy. Prior to working for President Biden, Hayes was Executive Director of the State Energy & Environmental Impact Center at the NYU School of Law, where he worked with state attorneys general on climate, environment and clean energy initiatives. Hayes is a former Distinguished Visiting Lecturer at the Stanford Law School; a former Fellow at Stanford University’s Precourt Institute for Energy and Woods Institute for the Environment; the Senate-confirmed Deputy Secretary and Chief Operating Officer at the U.S. Department of the Interior for Presidents Barack Obama and Bill Clinton; and Chairman of the Board of the Environmental Law Institute. Between his stints in government, he was a partner and Global Chair of the Environment, Land and Resources Department at Latham & Watkins. Hayes is a graduate of the University of Notre Dame and Stanford Law School.