EPA Greenhouse Gas Endangerment Review Risks Preemption Defenses

An EPA recommendation to cut the legs from greenhouse gas regulations potentially bolsters groups involved in court battles with energy companies over climate change, if the action survives legal scrutiny.

Environmental Protection Agency Administrator Lee Zeldin reportedly recommended a reconsideration of bedrock language that establishes greenhouse gases as a threat to public health. If that language is successfully removed, it would serve to undercut federal preemption claims used by oil and gas companies for years to defend against climate lawsuits.

Overturning the agency’s earlier conclusion, known as the endangerment finding, would “significantly strengthen the argument that state tort actions are not preempted because EPA would be pulling itself out of the business of regulating greenhouse gases,” according to Yale Law School professor Doug Kysar.

The EPA established the finding—which says certain greenhouse gases pose a danger to public health—after the 2007 US Supreme Court decision in Massachusetts v. EPA, which held that greenhouse gases are regulatable pollutants under the Clean Air Act.

That decision opened the legal door for federal regulation of the climate effects of carbon and other emissions, but it also helped energy companies argue that climate tort suits and, most recently, state climate Superfund laws, don’t hold water because regulation of greenhouses gases is a federal issue, not one for local courts.

“I know that industry groups have been asking the Trump folks not to reverse the endangerment finding,” Bracewell partner Jeff Holmstead said in an email. “There is great concern that reversing the finding would open the door to a lot more nuisance lawsuits—and it would eliminate one of the best arguments that oil companies have used to get lawsuits against them dismissed.”

An EPA spokesperson said the agency is in compliance with Trump administration executive orders.

“President Trump’s day one Executive Order, ‘Unleashing American Energy,’ gave the EPA Administrator a 30-day deadline to submit joint recommendations to the Director of OMB, in collaboration with the heads of any other relevant agencies, on the legality and continuing applicability of the 2009 Endangerment Finding,” the spokesperson said.

‘Knucklehead Move’

The more than two dozen tort lawsuits at issue are being waged by cities, counties, and states across the US against oil and gas companies, using a variety of claims from public nuisance to state fraud violations. Industry associations also just recently launched legal brawls against state efforts to hold companies financially liable for climate mitigation under their versions of federal Superfund law.

Companies have worked for years to convince judges that the Clean Air Act—thanks to the endangerment finding—preempts these types of claims, and have been successful in some local courts in having the cases dismissed in whole or in part.

The specter of a climate tort case advantage certainly looms for court-watchers, industry, and attorneys—but that relies entirely on the outcome of what would be a steep uphill legal battle for the Trump administration.

Revoking the finding would be “a knucklehead move” that would be immediately challenged in court, meaning folks may not be able to rely on any potential advantage for long, according to Michael Gerrard, head of Columbia University’s Sabin Center for Climate Change Law.

And any fight waged by the EPA is even harder now that the US Supreme Court has done away with greater agency deference under the Chevron Doctrine.

“It would take Chevron deference on steroids to respect a Trump EPA finding that greenhouse gases pose no endangerment,” Gerrard said.

Legal Strategies

Holmstead said there are several ways the administration could overturn the finding if they wanted to, though some would be more feasible than others.

Going after longstanding precedent in Massachusetts v. EPA is a long shot, and pushing for a new endangerment finding is slightly more plausible, but still doubtful, University of California Berkeley law professor Dan Farber said in an email.

“It seems to me that the motivation for recommending reconsideration is more ideological than strategic,” he said. “Trying to overturn the science behind the climate finding is a fool’s errand.”

Targeting the longstanding science behind the greenhouse gas pollution link to climate change is a strategy “entirely divorced from reason,” Union of Concerned Scientists senior analyst Julie McNamara said.

“For EPA to justify any such action, it would have to do so in defiance of the facts, of the science, of all evidence,” she said.

But Zeldin could find a solution within Trump’s term with an early start of rewriting rulemaking through the time-consuming notice-and-comment process, analysts with Clearview Energy Partners said in a report issued Wednesday.

“Downsizing efforts could exacerbate existing constraints on staff bandwidth, but the agency might opt to hedge its bets by initiating one or several write-it-again rulemakings in parallel nonetheless,” the report said.