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Written by John Egan for Industrial Info Resources (Sugar Land, Texas)--A momentous environmental fight nearly two decades in the making could be coming to a head as the Trump administration considers a recommendation from the administrator of the Environmental Protection Agency (EPA) about whether to void or modify an agency finding from 2009 that carbon dioxide (CO2) poses a danger to public health.
In one of President Donald Trump's Day 1 executive actions, he instructed the EPA, "in collaboration with the heads of any other relevant agencies, to submit joint recommendations to the Director of Office of Management and Budget on the legality and continuing applicability of the Administrator's (2009) findings, 'Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.' "
The recommendation was due February 19. EPA spokespersons have confirmed to other media outlets that the recommendation was delivered on time, but they would not say what it was.
Although the agency isn't speaking directly about its recommendation, it's possible to make an educated guess about it. On February 4, the agency issued a statement, which was subsequently amplified in an interview EPA Administrator Lee Zeldin gave to Breitbart News (that remains prominently featured on the EPA's landing page).
Zeldin said the agency "is going to aggressively pursue an agenda powering the Great American Comeback" in its first 100 days in office. Echoing the president who nominated him to be administrator, Zeldin said those five pillars of that agenda would be:
Why is the Endangerment Finding So Important?
The Clean Air Act, originally passed in 1970 and updated several times since then, instructed the EPA to regulate pollutants from various sources, including mobile ones, such as vehicles, and stationary ones like power plants. The U.S. Supreme Court, in a 2007 ruling in Massachusetts v. EPA, determined that the term "pollutant" included greenhouse gases (GHGs), which included carbon dioxide (CO2) and methane. The court told the agency it needed to determine whether these pollutants endangered public health and welfare.
In 2009, the EPA said those GHG pollutants did endanger public health. Thus, the must-discussed "endangerment" finding, which is the foundation of numerous energy and environmental rules issued since then under presidents Barrack Obama and Joe Biden. That far-reaching endangerment finding was cited to justify regulating power plant CO2 emissions as well as methane emissions from the Oil & Gas Industry and emissions from internal combustion engines used by cars and trucks.
The Clean Air Act is a science-based regulation, but under certain conditions regulators can perform a cost-benefit calculation. Though there are a few outliers, the scientific community has reached a consensus that the earth is warming, and that man-made emissions of CO2 and methane are the reason for that.
It is not an exaggeration to call the 2009 endangerment finding the foundation of modern U.S. energy and environmental regulation. An opinion from the EPA that that finding was no longer legal and applicable would cut the legs out from under scores of energy and environmental regulations issued since 2009.
Republicans say, "exactly." The "Project 2025" document prepared by conservatives for the second Trump administration called for withdrawing the endangerment finding. In the waning days of the first Trump administration, his EPA made that proposal, but the administration chose not to do that.
What Revising the Endangerment Finding would Entail
Under the Administrative Procedure Act (APA), which governs rulemaking by executive agencies like the EPA, once an agency finalizes a rule, efforts to withdraw or revise it must go through the same time-consuming process used to establish the rule in the first place. That means the administration would have to explain the reasons for the revision, conduct a new regulatory impact analysis on the costs and benefits of the proposed changes and allow the public and affected parties a reasonable amount of time to comment on the draft rule. At that point, the agency will consider the public comments and finalize the new rule.
That process can take months, if not years, and that's before the lawyers get involved. Any effort to weaken or modify the endangerment finding will be met by lawsuits from those concerned about climate change, including experts from academia, state organizations, environmental and public health groups and others. That likely will add years to the process.
The endangerment finding cannot be undone by an act of Congress, as it was issued by an executive-level agency. Trump has vowed to undo the energy and environmental actions of the Biden and Obama administrations, and on some matters, such as federal tax incentives for the purchase or lease of electric vehicles, he could accomplish that through a congressional omnibus budget reconciliation act. That's the preferred means to tackle a wide range of congressional action.
Following the APA and revising the 2009 finding on scientific grounds could be a particularly heavy lift, given the scientific consensus around the dangers of climate change. Environmental lawyers have pointed to what they call the effects of climate change on the ground and across the globe in the form of hotter temperatures, more frequent drought, more intense flooding, fiercer hurricanes and more intense wildfires.
Could the Courts Invoke 'Chevron' or the 'Major Questions' Doctrine?
Last year, the U.S. Supreme Court overturned a longstanding principle that experts at regulatory agencies should be granted deference on complex, technical or scientific matters contained in a rulemaking. The court did not say it was okay to ignore those experts, merely that those experts would not automatically be granted deference.
That decision overturned four decades of practice and precedent within the legal community injecting uncertainty into a wide range of executive-level agency rulemakings past and present. Thousands of cases and court decisions have been based on this deference to experts at executive-level agencies. For more on court's ruling overturning the "Chevron deference," see July 1, 2024, article - Supreme Court Overturns Chevron Case, Curtailing Power of Administrative Agencies.
In seeking to modify or terminate the EPA's 2009 endangerment finding, the courts would be confronted with a broad body of scientific expertise about how CO2 emissions are affecting the atmosphere and the planet. This expertise would come from former EPA experts, academics, scientists, five prior climate assessments issued by the U.S. government and several analyses of the dangers of climate change issued by the U.N. Intergovernmental Panel on Climate Change (IPCC).
In a different ruling against the Biden administration's effort to enact CO2 emissions regulations on power plants, the high court based its decision on a novel argument, called the "major questions" doctrine. Writing for the majority, Chief Justice John Roberts said a regulatory agency needed to have "clear congressional authorization" before it issues a rule with far-reaching economic and social consequences. For more on that issue, see July 1, 2022, article - Supreme Court Kicks Clean Air Case Back to EPA.
While the "major questions" doctrine, which legal critics claim is an invention, was invoked several times against the Biden administration, it does not look like that can be used to trim or turn back the EPA's endangerment finding: In passing the Inflation Reduction Act of 2022 (IRA), Congress defined greenhouse gases as air pollutants in nine different sections of the bill. For more on that, see August 24, 2022, article - U.S. Congress Defines CO2 as Pollutant. That would seem to undercut the high court's ability to invoke the "major questions" doctrine, as congressional intent was made clear in passing the IRA.
What Do Industries Want?
Industries are all over the place on a potential repeal of the endangerment finding. The Oil & Gas Industry is in favor of repealing that finding because it would remove the rationale for federal regulation of methane emissions. Automakers take a different view: Though they may not like federal regulation of tailpipe emissions, they view it as preferable to having no federal emissions standard and instead facing up to 50 different sets of standards set by states.
The electricity industry's largest trade group, the Edison Electric Institute (EEI), shares automakers' concern about the need for a federal standard regulating CO2 emissions from power plants.
In an email to "Inside Climate News," Alex Bond, EEI's executive director of clean energy and environment, wrote, "We have been clear in our position that electric companies need a consistent federal framework in place. Otherwise, we would face a patchwork of state regulations and lawsuits from plaintiffs that could raise costs to customers and impact grid reliability."
Not only that, but withdrawal of the endangerment finding could call into question billions of dollars that electric utilities have invested over the last 15 years to lower CO2 emissions through switching to gas-fired generation or constructing renewable generation. State regulatory commissions allow utilities to recover outlays made pursuant to state or federal law. To the extent that utilities have invested in non-coal alternatives absent state or federal instruction, those outlays may be at risk.
Whatever the EPA recommended about the endangerment finding, and whatever the president ultimately does, this looks to be a full-employment act for the federal energy bar.
Industrial Info Resources (IIR) is the leading provider of industrial market intelligence. Since 1983, IIR has provided comprehensive research, news and analysis on the industrial process, manufacturing and energy related industries. IIR's Global Market Intelligence (GMI) platform helps companies identify and pursue trends across multiple markets with access to real, qualified and validated plant and project opportunities. Across the world, IIR is tracking over 200,000 current and future projects worth $17.8 Trillion (USD).
In one of President Donald Trump's Day 1 executive actions, he instructed the EPA, "in collaboration with the heads of any other relevant agencies, to submit joint recommendations to the Director of Office of Management and Budget on the legality and continuing applicability of the Administrator's (2009) findings, 'Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.' "
The recommendation was due February 19. EPA spokespersons have confirmed to other media outlets that the recommendation was delivered on time, but they would not say what it was.
Although the agency isn't speaking directly about its recommendation, it's possible to make an educated guess about it. On February 4, the agency issued a statement, which was subsequently amplified in an interview EPA Administrator Lee Zeldin gave to Breitbart News (that remains prominently featured on the EPA's landing page).
Zeldin said the agency "is going to aggressively pursue an agenda powering the Great American Comeback" in its first 100 days in office. Echoing the president who nominated him to be administrator, Zeldin said those five pillars of that agenda would be:
- Providing clean air, land and water for every American
- Becoming energy dominant
- Reshoring U.S. auto jobs
- Making the U.S. the AI (artificial intelligence) capital of the world
- Implementing permitting reform that can allow more investment into the American economy
Why is the Endangerment Finding So Important?
The Clean Air Act, originally passed in 1970 and updated several times since then, instructed the EPA to regulate pollutants from various sources, including mobile ones, such as vehicles, and stationary ones like power plants. The U.S. Supreme Court, in a 2007 ruling in Massachusetts v. EPA, determined that the term "pollutant" included greenhouse gases (GHGs), which included carbon dioxide (CO2) and methane. The court told the agency it needed to determine whether these pollutants endangered public health and welfare.
In 2009, the EPA said those GHG pollutants did endanger public health. Thus, the must-discussed "endangerment" finding, which is the foundation of numerous energy and environmental rules issued since then under presidents Barrack Obama and Joe Biden. That far-reaching endangerment finding was cited to justify regulating power plant CO2 emissions as well as methane emissions from the Oil & Gas Industry and emissions from internal combustion engines used by cars and trucks.
The Clean Air Act is a science-based regulation, but under certain conditions regulators can perform a cost-benefit calculation. Though there are a few outliers, the scientific community has reached a consensus that the earth is warming, and that man-made emissions of CO2 and methane are the reason for that.
It is not an exaggeration to call the 2009 endangerment finding the foundation of modern U.S. energy and environmental regulation. An opinion from the EPA that that finding was no longer legal and applicable would cut the legs out from under scores of energy and environmental regulations issued since 2009.
Republicans say, "exactly." The "Project 2025" document prepared by conservatives for the second Trump administration called for withdrawing the endangerment finding. In the waning days of the first Trump administration, his EPA made that proposal, but the administration chose not to do that.
What Revising the Endangerment Finding would Entail
Under the Administrative Procedure Act (APA), which governs rulemaking by executive agencies like the EPA, once an agency finalizes a rule, efforts to withdraw or revise it must go through the same time-consuming process used to establish the rule in the first place. That means the administration would have to explain the reasons for the revision, conduct a new regulatory impact analysis on the costs and benefits of the proposed changes and allow the public and affected parties a reasonable amount of time to comment on the draft rule. At that point, the agency will consider the public comments and finalize the new rule.
That process can take months, if not years, and that's before the lawyers get involved. Any effort to weaken or modify the endangerment finding will be met by lawsuits from those concerned about climate change, including experts from academia, state organizations, environmental and public health groups and others. That likely will add years to the process.
The endangerment finding cannot be undone by an act of Congress, as it was issued by an executive-level agency. Trump has vowed to undo the energy and environmental actions of the Biden and Obama administrations, and on some matters, such as federal tax incentives for the purchase or lease of electric vehicles, he could accomplish that through a congressional omnibus budget reconciliation act. That's the preferred means to tackle a wide range of congressional action.
Following the APA and revising the 2009 finding on scientific grounds could be a particularly heavy lift, given the scientific consensus around the dangers of climate change. Environmental lawyers have pointed to what they call the effects of climate change on the ground and across the globe in the form of hotter temperatures, more frequent drought, more intense flooding, fiercer hurricanes and more intense wildfires.
Could the Courts Invoke 'Chevron' or the 'Major Questions' Doctrine?
Last year, the U.S. Supreme Court overturned a longstanding principle that experts at regulatory agencies should be granted deference on complex, technical or scientific matters contained in a rulemaking. The court did not say it was okay to ignore those experts, merely that those experts would not automatically be granted deference.
That decision overturned four decades of practice and precedent within the legal community injecting uncertainty into a wide range of executive-level agency rulemakings past and present. Thousands of cases and court decisions have been based on this deference to experts at executive-level agencies. For more on court's ruling overturning the "Chevron deference," see July 1, 2024, article - Supreme Court Overturns Chevron Case, Curtailing Power of Administrative Agencies.
In seeking to modify or terminate the EPA's 2009 endangerment finding, the courts would be confronted with a broad body of scientific expertise about how CO2 emissions are affecting the atmosphere and the planet. This expertise would come from former EPA experts, academics, scientists, five prior climate assessments issued by the U.S. government and several analyses of the dangers of climate change issued by the U.N. Intergovernmental Panel on Climate Change (IPCC).
In a different ruling against the Biden administration's effort to enact CO2 emissions regulations on power plants, the high court based its decision on a novel argument, called the "major questions" doctrine. Writing for the majority, Chief Justice John Roberts said a regulatory agency needed to have "clear congressional authorization" before it issues a rule with far-reaching economic and social consequences. For more on that issue, see July 1, 2022, article - Supreme Court Kicks Clean Air Case Back to EPA.
While the "major questions" doctrine, which legal critics claim is an invention, was invoked several times against the Biden administration, it does not look like that can be used to trim or turn back the EPA's endangerment finding: In passing the Inflation Reduction Act of 2022 (IRA), Congress defined greenhouse gases as air pollutants in nine different sections of the bill. For more on that, see August 24, 2022, article - U.S. Congress Defines CO2 as Pollutant. That would seem to undercut the high court's ability to invoke the "major questions" doctrine, as congressional intent was made clear in passing the IRA.
What Do Industries Want?
Industries are all over the place on a potential repeal of the endangerment finding. The Oil & Gas Industry is in favor of repealing that finding because it would remove the rationale for federal regulation of methane emissions. Automakers take a different view: Though they may not like federal regulation of tailpipe emissions, they view it as preferable to having no federal emissions standard and instead facing up to 50 different sets of standards set by states.
The electricity industry's largest trade group, the Edison Electric Institute (EEI), shares automakers' concern about the need for a federal standard regulating CO2 emissions from power plants.
In an email to "Inside Climate News," Alex Bond, EEI's executive director of clean energy and environment, wrote, "We have been clear in our position that electric companies need a consistent federal framework in place. Otherwise, we would face a patchwork of state regulations and lawsuits from plaintiffs that could raise costs to customers and impact grid reliability."
Not only that, but withdrawal of the endangerment finding could call into question billions of dollars that electric utilities have invested over the last 15 years to lower CO2 emissions through switching to gas-fired generation or constructing renewable generation. State regulatory commissions allow utilities to recover outlays made pursuant to state or federal law. To the extent that utilities have invested in non-coal alternatives absent state or federal instruction, those outlays may be at risk.
Whatever the EPA recommended about the endangerment finding, and whatever the president ultimately does, this looks to be a full-employment act for the federal energy bar.
Industrial Info Resources (IIR) is the leading provider of industrial market intelligence. Since 1983, IIR has provided comprehensive research, news and analysis on the industrial process, manufacturing and energy related industries. IIR's Global Market Intelligence (GMI) platform helps companies identify and pursue trends across multiple markets with access to real, qualified and validated plant and project opportunities. Across the world, IIR is tracking over 200,000 current and future projects worth $17.8 Trillion (USD).
