A Seismic Shift in Climate Law

Debbie Sivas: I think the question that will formulate as this works its way through the courts—which it will work its way through the courts—already, groups have announced that they’re going to be challenging this rule. I think the question will be focused not on the sweep of the Clean Air Act more generally, but whether the Clean Air Act covers greenhouse gases and it’s part of that larger sweep. And I just think that’s where we’re going to, where we’re headed.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app, that way you’ll have access to all our new episodes as soon as they’re available, and this is an episode that’s especially hot off the press.

I’m really lucky today to be talking with my colleague Debbie Sivas. Debbie is the Luke W. Cole Professor of Environmental Law here at the law school. She’s also a professor at the Doerr School of Sustainability. She’s the director of our Environmental and Natural Resources Law and Policy Program. She’s the co-director of the Environmental Law Clinic, and she’s a senior fellow at the Stanford Woods Institute for the Environment. So, thanks so much for joining us today, Debbie.

Debbie Sivas: Thanks. I’m happy to be here.

Pam Karlan: Well, I don’t think you’re actually happy…

Debbie Sivas: Yes, not actually happy to be…

Pam Karlan: …to be here. In a sense, because yesterday the Environmental Protection Agency announced a rescission of the Greenhouse Gas Endangerment Finding and motor vehicle greenhouse gas emission standards under the Clean Air Act. This is a huge deal. Indeed, the administration itself is calling it a huge deal. They’re calling it “the largest single deregulatory move in the history of the United States and perhaps, in the history of the world.” So, I think maybe the place to start is to start with under the Clean Air Act, what is an endangerment finding and what happened in 2009?

Deborah Sivas: Sure. I will say that the one thing I agree with is that this is a huge rollback in regulation. So, let’s go back to 2009. The Clean Air Act, which was passed in 1970, originally was focused on traditional local air pollutants. It has a provision related to air pollution emissions from motor vehicles that says that the EPA must look at whether vehicular air emissions cause or contribute to air pollution, which may reasonably be anticipated to endanger public health and welfare. That’s where the endangerment language comes from. In 2009, after a lot of back and forth within the courts, the new Obama administration made a finding about the endangerment finding that determined that greenhouse gas emissions, and that’s carbon dioxide, methane, and a few other pollutants, were in fact endangering public health and welfare. So that’s the original finding back in 2009.

Pam Karlan: So, we had this endangerment finding for certain gases, among other things, that are emitted by cars. I think in the United States, the major source of greenhouse gases is automobiles…

Deborah Sivas: The transportation sector.

Pam Karlan: Right. Planes and trains, buses, and the whole business. The idea was that this endangerment finding would give the government a reason to regulate greenhouse gases. And among other things, it started to regulate car emissions, right?

Deborah Sivas: That’s correct. Of course, we’ve had fuel economy standards for many years, dating back decades. But once the endangerment finding was made, then EPA went forward with really accelerating mileage standards, that is higher miles per gallon, as a result of the endangerment finding. And that has led to, in the vehicle sector, not only internal combustion engines that are more efficient, but also the proliferation of alternatives—particularly electric vehicles and then hybrids—which help to get the fleet-wide mileage standards up.

Pam Karlan: Originally when the Clean Air Act was passed and they were thinking about the health risks from cars, the concern was about people actually inhaling the particulates, right?

Deborah Sivas: That’s correct. Particulate matter, ozone formation—things that led to ozone formation, so yes.

Pam Karlan: There was a direct relationship between the car and what it spews out and that if you breathe it in, bad stuff happens.

Deborah Sivas: Yes.

Pam Karlan: But we now know that greenhouse gases have other effects on people’s health and welfare. Can you give us a sense of the range of those other effects?

Deborah Sivas: Yes, so they’re all around us, right? I think that, apart from the current administration, it is pretty much undisputed that those gases are leading to climate change in ways that are affecting all of us, and the local climate is a manifestation of that. So we’re seeing more hurricanes, more wildfires, more intense wildfires, sea level rise. These are things that are all around us and obviously affect the public health and welfare in ways that are different than breathing in the individual particles.

Pam Karlan: We now have an administration that I think, if I understood from reading the executive summary of the rescission, seems to have 3 or 4 different arrows in their quiver. One seems to be just a doubt about whether climate change is real.

Deborah Sivas: Yes. There was a proposed rule that was put out last September that actually had even more quivers. But they’ve narrowed it down in this new rule—maybe their lawyers thought about what would be the most defensible in court. And so, in the original proposed rule, the administration took on climate science quite directly, and there was a lot of blowback because there were questions about the science that they were relying on. Except at the very fringes, there’s pretty much consensus that climate change is happening. So, they’re kind of making some gestures in this rule, but not relying on attacking the climate science directly. This rule is more focused on some of their legal arguments.

Pam Karlan: Right, and their legal arguments seem to start from the idea that, because in 1969, the kind of harm that Congress was looking at focused on people breathing in little dirty bits of what was coming out of a tailpipe, Congress somehow couldn’t have been thinking about other forms of danger to people’s health.  I saw one estimate that thousands and thousands of people are going to die from smoke from wildfires caused by the increase in greenhouse gases.

Deborah Sivas: Right.

Pam Karlan: But today, people actually are, in a way, breathing in dirty stuff, it’s just that it’s taking 2 or 3 more steps along the way to get from the tailpipe emissions of the car to greenhouse gases and climate change to the stuff they breathe in from a wildfire.

Deborah Sivas: Yes, that’s absolutely right. And there’s a growing science called attribution science, which links the increase in intensity and frequency of things like wildfire directly to climate change. So, you’ve got a two- or three-step process, but people are still being impacted, and probably more so.  I do some work in the wildfire space, and these big fires are probably more dangerous to us than all of the smog that we had in Los Angeles in the ’70s put together.

Pam Karlan: So, the science tells us that it’s still people breathing in stuff, but the administration wants to argue it wasn’t within Congress’s contemplation when they passed something called the Clean Air Act—that they only cared about that first kind of dirty.

Deborah Sivas: I think that’s absolutely what they’re trying to do. And, of course, they’re trying to do it in a slightly more subtle way by going back to some of the recent Supreme Court precedent and weaving an argument that the Court should go back and revisit whether greenhouse gases are even covered by the statute.

Pam Karlan: Looking at cases the Supreme Court has decided recently, you’re referring to at least two of those sets of cases: the Major Questions Doctrine cases, and then the Loper-Bright decision that overturned Chevron. Can you explain a little bit about the Major Questions Doctrine, which has become a general doctrine, but it really almost all of it has come from environmental law cases.

Deborah Sivas: That’s right. So, just to step back, before the endangerment finding happened in 2009, there was a fight in the Supreme Court about whether Congress covered greenhouse gases in the Clean Air Act. There was the Supreme Court case, Massachusetts v. EPA, that said yes, those greenhouse gas pollutants could be covered, and that the EPA needed to consider them in terms of the endangerment finding. And then EPA made the endangerment finding. That related specifically to the vehicle emissions. Then EPA, based on that finding, moved on to stationary sources—things like power plants, industrial facilities—and started looking at regulating those too. In 2015, EPA introduced the Clean Power Plan, which was trying to ratchet down carbon dioxide emissions and other pollutants from power plants. That rule was promulgated and then led, ultimately, to the Supreme Court’s narrowing of pollutants in West Virginia v. EPA— the case that addresses the authority of EPA—articulated the Major Questions Doctrine, where it said if Congress had intended to regulate such a large swath of the economy, it needed to say that very clearly. And the Clean Air Act does not say very clearly that that’s what it intended to do, because again, it was 1970 at the time.

Pam Karlan: The administration’s argument is that we should hear from Congress on this before the agency should move into this new area.

Deborah Sivas: Yes—for all greenhouse gases. Before EPA should do any greenhouse gas regulation, Congress needs to be much clearer that’s what it intended EPA to do under the Clean Air Act.

Pam Karlan: But it seems to me that the Clean Air Act was such a major piece of legislation that it really was Congress saying, “We think the federal government should get into the business of making sure we have clean air.” And it was going to leave it to an administrative agency with some expertise and some science, and a process for thinking these things through. But the commitment would seem to me to be almost in the statute’s title.

Deborah Sivas: Well, right, so we need you to be arguing this case when it works its way to the Supreme Court. So, the Clean Air Act itself was very sweeping new legislation. We hadn’t done anything like that. Little bits and pieces here and there, but not anything that sweeping. And really, I think the question that we’ll formulate as this works its way through the courts, and it will work its way through the courts (already groups have announced that they’re going to be challenging this rule) I think the question will be focused solely on not the sweep of the Clean Air Act more generally, but whether the Clean Air Act covers greenhouse gases and it’s part of that larger sweep.

Pam Karlan: So, before we get to where we’re headed, let’s talk about one other piece of this, which is the Supreme Court’s 2024 decision in Loper Bright [which overturned Chevron]. In 1984, the Supreme Court decided another environmental law case that involved, Chevron against the NRDC, and in that case, the Supreme Court said, when a statute is ambiguous courts should defer to the agency’s interpretation of what its statutes mean, as long as that interpretation’s reasonable. That is, the Court wasn’t supposed to say, “well, what do we think the statute means?” They were supposed to say, “well, what does the agency think the statute means?  And is that a reasonable interpretation of these words that aren’t necessarily entirely determinative or clear?” In Loper Bright, the Supreme Court came back and said, you know, we don’t think that that’s an appropriate thing to do. That is, the courts are supposed to be experts at interpreting what the words in a statute mean. And so the courts, rather than the agency, should determine what those words mean. But at the end of the day, doesn’t Loper Bright mean that the courts are going to decide this issue?

Deborah Sivas: That’s right. That’s how you can think about Loper Bright as applying. The Court said there’s one best interpretation and that’s for the courts to make. And I think the EPA will argue that there is one right interpretation. In 2006 to 2008, under President Bush, the EPA said it didn’t think the statute covered greenhouse gas emissions. And then the Supreme Court in the Massachusetts v. EPA case said, no, it read the statute more broadly to cover greenhouse gas emissions.

But they’ll use the Loper Bright case to say, well, there is only one best interpretation; we think you should rethink what you said in Massachusetts v EPA. That’s clearly where the argument is headed with that question back up to the Supreme Court. Of course, we have a very different court than we did 20 years ago, and I think that the anti-climate policy folks believe they can get a reversal. And we’ve seen, in the last couple of years, the Supreme Court really backtrack on some important decisions.

Pam Karlan: There are two kinds of arguments you might make against what the EPA just did. One is to say they didn’t follow the process—they’re supposed to take public comment, and they’re supposed to respond to it in a variety of ways. So, this would be a procedural objection. The other is a substantive objection, that the bottom line that they reached was arbitrary and capricious and not supported by the evidence. How do you see those two arguments playing out as this decision is appealed?

Deborah Sivas: So, there’s definitely some procedural infirmities that I think can be litigated. I’m not involved in this litigation, but my guess is that that’s one strand that they might try to play out that could delay this taking effect. Someone challenging this might start with the procedural issues, and then ultimately get to the substantive issues. But my guess is that we’re going to see some effort by the EPA to try to get this rocketed up through the courts to the Supreme Court, maybe on the shadow docket, in a way that tries to put that substantive issue front and center, so that you can get a ruling on that. Otherwise, if you’re toiling away on the procedural issues, that could drag out for the next 3 years and we could have a change in administration and reverses the rule back. We’ve seen a lot of that in the last couple of administrations, the yo-yo back and forth.

So, I think the EPA’s really hoping to get that substantive issue up front and to the current Supreme Court so that they rule on it soon.

Pam Karlan: And on the substantive issue, you were saying at the beginning of our conversation that there is a scientific consensus here that greenhouse gases cause these various effects on climate that then cause various things like wildfires and dramatic temperature changes and the like. Is there much disagreement among actual scientists, as opposed to, you know, alchemists and whoever else the administration is consulting with?

Deborah Sivas: No. I think that’s why the EPA’s backed away a little bit from trying to rely on a factual argument around the science, although not completely. So, two things. One is, of course, they drop some notes that we’re not giving up on that argument, we’re just not going to rely on it as the primary basis to support this rule, and we’re really going to rely on the legal arguments. The second piece of it is that backup to the kind of West Virginia, Loper Bright decisions, you should reconsider this rule and the prior ruling and uphold this rule. The backup to that is that EPA is arguing that greenhouse gas emissions from the transportation sector because that’s where the original endangerment finding was made. Though this will affect all climate regulation, but right now it’s just focused on the transportation sector. And what EPA is now saying is that if we decarbonize the entire transportation sector and everything is electrified, that whole sector of the U.S. economy, it will not have a material impact on greenhouse gas emissions and what’s happening with climate change. Therefore, it, it backs up their notion that Congress did not intend to regulate greenhouse gas emissions under the Clean Air Act.

I would note that the word “material impact” is not anywhere in the Clean Air Act. The Clean Air Act says cause or contributes, right? But here, EPA’s saying it won’t materially impact it, because, of course, that’s true in some larger sense. We’re talking about the whole globe and all greenhouse gas emissions, so if you take one sector in one country, it might not have a material impact in the way the EPA is saying it.

Pam Karlan: So, I want to now turn to that part of this new rule that’s about the regulation of the auto industry. This is the one that they’re putting the biggest public face on, which is the rules that they’re getting rid of—the fleet efficiency rules. What happens when you get rid of those rules? What should we expect to start seeing?

Deborah Sivas: I don’t think they’re going to get rid of those rules entirely. I think this is aimed at reducing the stringency of those rules. We’ve had those fuel economy standards in place for decades, and they really ratcheted up starting in around 2017 or so, right? We’ve seen a pretty steep upward curve, and again, that was partly to get the public, consumers, and automakers to think about alternatives to the internal combustion engine. So, I think that what they’re proposing is to really lower those standards, not to do away with them altogether. But it would, in my view, certainly add to what’s already happening in the current administration, which is the backlash to electrification of the transportation sector, particularly electric vehicles, at the consumer level.

Pam Karlan: There was also the executive order telling the military to buy only coal-fired power.

Deborah Sivas: Yes.

Pam Karlan: Coal-fired power plants.

Deborah Sivas: Yes. Craziness. And of course, I don’t think the military could buy enough coal-fired energy because there’s just not that much left in the world. And why is that? In large part it’s because it’s not economically competitive today. That’s the same thing that’s happening in the electrification of the transportation sector—electric vehicles and even hybrids are becoming much more competitive with traditional combustion engines, and in fact, more so. But we’re not doing as good a job at this as, say, China, which has really lowered the prices for electric vehicles. But it doesn’t even make sense from an affordability perspective anymore, let alone an environment/health one. But here we are.

Pam Karlan: Is this going to have any effect on California’s rules? California has its own set of rules that seem designed to really move us away from internal combustion cars over the next decade or so.

Deborah Sivas: It potentially could. The Clean Air Act allowed California to enact more stringent regulations. And EPA has to allow this through something called a waiver. There have been a whole series of waivers granted. Another waiver was rolled back through a Congressional Review Act, so an Act of Congress. That’s in the courts right now. But even assuming that the waiver is dead for now, then California would not have federal authority to go forward with its own rules independently. Then there’s a question of does the Clean Air Act otherwise preempt California standards.

Pam Karlan: If they’re not part of the Clean Air Act, then Congress hasn’t preempted the states from dealing with them and the federal government would have no right to say anything about that.

Deborah Sivas: That is the argument. It’s all going to play out in the courts over the next couple of years. There’s another agency that comes into play—the National Highway Transportation Safety Administration. They regulate mileage efficiency. But those regulations were really designed around efficiency of internal combustion engines and the miles per gallon. California’s vehicle emission standards are really based on how much greenhouse gas you’re emitting, so it’s a different logic. But how do those two interrelate? That’ll be a question of preemption challenge.

Pam Karlan: Is this a harbinger? Do you see the administration making similar rulings across the board, going back on the science and the regulation that has cleaned up our water, for instance? Many American water ways are so much cleaner than they were when the Clean Water Act came in. Do we risk going back to the Pittsburgh-of-the-1950s kind of feeling about the sky, and the Cuyahoga catching on fire?

Deborah Sivas: Well, I don’t know, but if this endangerment finding rollback sticks, that means all of the regulation of industrial facilities for greenhouse gas emissions—power plants, methane from oil and gas fields, and all of that—would also not be regulated under the Clean Air Act. That’s in the climate space, but more generally around water, local air pollution, endangered species, the National Environmental Policy Act, which is the act to disclose whether there are impacts from federally approved or federally funded projects, all of those are seeing simultaneous rollbacks in various ways, some of them probably more drastic than others.

The current administration has basically gutted the National Environmental Policy Act—the basic charter that really started the environmental movement, that says if you’re doing a major federal project, you have to look at the environmental impacts and consider ways to mitigate or find alternatives that lessen those impacts. So, there’s very little public process left and there’s very little opportunity for the public to become engaged in those projects.

We’re seeing tampering with the Clean Water Act. The agency is trying to roll back the definition of what the word waters in the United States means so that it’s more constrained and narrower, so that could affect pollution. It also affects wetlands in a big way. We already have lost about 90 percent of our wetlands, and this could pretty much torpedo the rest of them if what they’re proposing happens.

And then we’ve got the Endangered Species Act. The administration is proposing to roll back the regulations of what constitutes harm to species, something that the Supreme Court blessed decades ago. So, we could also see huge rollbacks there. Yes, this is across every sector.

Pam Karlan: This administration is also rolling back clean energy, aren’t they? Windmills, solar power, electric vehicles and the like.

Deborah Sivas: Absolutely. And of course, wind energy is a particular target of our current president. He doesn’t like wind at all. Most of the tax incentives under the Biden administration’s Inflation Reduction Act have gone away for renewable energy and we’re not going to get subsidies that will promote that sector’s growth.

Some of these industries can begin to stand on their own, and I would say solar is one. But there’s now a very affirmative push to actually kill projects that would, even without subsidies, go forward. Wind is one, because wind is really on the cusp right now of being quite feasible economically. The offshore wind, less so. Solar is more economically feasible, but now you have the administration trying to actively kill solar projects. And one of the things is that a large swath of the West is federal public lands, and that’s where we have these projects and where a lot of the solar has been proposed. The federal government has the ability to quash those projects, which it is now starting to systematically do.

Pam Karlan: Well, you know, it’s like the sun, the wind, the rain, the smoke. It’s just, it’s cold.

Debbie Sivas: That’s great.

Pam Karlan: It’s kind of overwhelming and I, I really appreciate your coming on the show, Debbie, on such short notice. So, I want to thank Debbie Sivas, our guest today.

This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves the show and it helps new listeners to discover us. I’m Pam Karlan. See you next time.