Plan to Ax GHG Endangerment Finding Stirs Uncertainty: Explained

The Trump administration is forging ahead with eliminating landmark legal language about the dangers of greenhouse gases, a move that would upend almost two decades of federal climate progress.

The Environmental Protection Agency’s proposed revocation of the 2009 endangerment finding faces formidable hurdles. But if successful, the administration would create an easier path for its Clean Air Act deregulation agenda.

The finding establishes that six greenhouse gases and their emissions from motor vehicles endanger public health and welfare. Without that legal language in place, advocates warn climate regulation will take a massive step backward.

Public comments on the proposal have flooded in, the majority from clean air, environmental, and public health advocates who lambaste the thought of losing pivotal climate legal language.

Critics are also honing in on an underlying Department of Energy climate report, which justifies the proposal by attempting to discredit longstanding climate science.

Environmentalists sued the EPA and Department of Energy in August over the report, claiming that it was drafted in secrecy to justify the revocation. The DOE confirmed in a brief filed Sept. 4 that the contested Climate Working Group has been dissolved, rendering challenges against it moot.

The defendants and their challengers will meet Thursday in a motion hearing to determine whether the DOE and EPA can continue to rely on the report.

Here is what to know about the endangerment finding, why the EPA is trying to do away with it, and what could come next.

What is the endangerment finding?

It’s actually multiple findings in one that laid the foundation not only for EPA tailpipe emissions standards, but also sweeping federal climate regulation.

Before the endangerment finding was created, the agency was taken to court in Massachusetts v. EPA over its claim in the late 1990s that it didn’t have the authority to regulate new vehicle greenhouse gas emissions.

The case eventually made it to the US Supreme Court, where justices ruled in 2007 the EPA can regulate greenhouse gases as “air pollutants” under the Clean Air Act. The decision directed the EPA administrator to determine whether such emissions from vehicles posed a danger and to regulate them if so.

Fast-forward to the Obama administration, during which the EPA created the 2009 endangerment finding. It said two key things:

• “Current and projected concentrations of the six key well-mixed greenhouse gases—carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride—in the atmosphere threaten the public health and welfare of current and future generations.”
  
• “The combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution that threatens public health and welfare.”

What happens without it?

The proposed rollback is in keeping with comments EPA Administrator Lee Zeldin has made about President Donald Trump’s deregulation push, including proposals to scrap mercury and carbon rules to drive “a dagger straight into the heart of the climate change religion.”

That comment came in an announcement rescinding mercury and power plant carbon emissions rules, both of which—along with other potential rollbacks—would more easily stick through future administrations if the endangerment finding is no longer in place.

An even greater hurdle to reinstating the finding could come if court brawls over the planned rescission open up the high court’s Massachusetts v. EPA decision to reassessment. If greenhouse gases are no longer determined to endanger public health and welfare, it could be argued that they don’t need to be regulated.

What does industry say?

Industry sentiments on the Trump administration’s revocation plan are mixed.

Some oil and gas advocates and smaller auto manufacturers have praised the decision to revoke the EPA finding, citing their support for deregulation.

Others, including larger-scale stakeholders and industry groups, are concerned that the inevitable long legal battle over the revocation will only result in prolonged regulatory uncertainty—which could affect their bottom line and international competitiveness.

“If US policy diverges sharply from global norms, US suppliers may fall behind and become out innovated by foreign competitors who are building to stricter global standards,” according to public comment from Jennifer Lewis, vice president of regulatory affairs for MEMA, The Vehicle Suppliers Association.

What’s next?

There is still time to submit public comment on the EPA’s endangerment finding proposal. Given the overwhelming response that came in during four days of public hearings, the deadline was extended to Sept. 22.

If the proposed rule is finalized, green groups and Democratic states will likely be ready to fight back with a deluge of lawsuits challenging the revocation’s legality.

“Two decades ago, my office led the fight to compel the EPA to protect the American people from the proven dangers of greenhouse gas emissions,” Massachusetts Attorney General Andrea Joy Campbell (D) said during the four-day virtual public comment hearing. “We’re going to keep holding EPA accountable. Climate change is real, and it is here.”