EPA drafts rule to strike down landmark climate finding

Washington Post

6 days ago

The Environmental Protection Agency is proposing to rescind a landmark 2009 legal opinion that greenhouse gas emissions put human health at risk, which underpins many of the government's actions to combat climate change, according to two people familiar with the matter who spoke on the condition of anonymity because the decision was not yet public.
The 'endangerment finding,' which determined that greenhouse gas emissions endanger public health and welfare, provides the legal justification for regulating them under the Clean Air Act.
In March, EPA Administrator Lee Zeldin said the agency would reconsider the finding, among dozens of potential environmental rollbacks announced on what he called 'the most consequential day of deregulation in American history.' Zeldin has previously said he aims to strike a balance between economic concerns and protecting the environment.
'After 16 years, EPA will formally reconsider the Endangerment Finding,' Zeldin said in a statement at the time. 'The Trump Administration will not sacrifice national prosperity, energy security, and the freedom of our people for an agenda that throttles our industries, our mobility, and our consumer choice while benefiting adversaries overseas.'
A decision to completely rescind the endangerment finding is still a draft proposal and could be subject to change, according to the two individuals. The draft would also eliminate all resulting limits on motor vehicle greenhouse gas emissions, according to one of them, with the second person describing this outcome as likely.
A government website lists the title of a document under review with the Office of Management and Budget called 'Greenhouse Gas Endangerment Finding and Motor Vehicle Reconsideration Rule,' but it gives no details on the proposal, which still must be released for public comment before it is finalized.
David Doniger, a senior attorney at the Natural Resources Defense Council, an advocacy group, said the proposed repeal of the endangerment finding is not justified under the law.
'They're trying to completely defang the Clean Air Act by saying, 'Well, this stuff's just not dangerous,'' Doniger said. 'That claim is just mind-bogglingly contrary to the evidence.'
Thomas Pyle, president of the Institute for Energy Research, a conservative think tank, said he fully supports the administration's efforts to review the endangerment finding, saying that Congress never mandated the EPA to take action on the issue and that the agency instead relied on a single ambiguous Supreme Court case.
'It's long since past the time for an administration to review this,' Pyle said. 'Ultimately Congress should have a say when it's all said and done.'
The draft rule largely avoids making scientific arguments about climate change and instead focuses on making legal arguments saying that the agency does not have the basis to act on climate change under a certain section of the Clean Air Act, the two people familiar with the matter said.
Zeldin's EPA has said that the Biden administration did not properly consider all the policy implications. The finding has allowed for seven regulations on vehicle emissions with a cost of more than $1 trillion, according to the EPA.
Richard Revesz, a law professor at New York University and former Biden administration official, said that repealing the endangerment finding is unlikely to hold up in court but that the move will still affect U.S. climate policy until a final judicial decision is made.
'If the endangerment finding fell, it would call into question essentially all or almost all of EPA's regulation of greenhouse gases,' Revesz said.
The endangerment finding was written in response to a 2007 Supreme Court decision saying that greenhouse gases are an air pollutant, essentially requiring the EPA to regulate them, according to legal experts.
The endangerment finding had been updated and expanded since 2009, effectively serving as the government's understanding of the latest climate science, said Joseph Goffman, who headed the EPA's air office under President Joe Biden.
'Withdrawing the endangerment finding is in effect a repudiation of scientific reality,' Goffman said.
Doniger and other people familiar with the matter said that the Trump administration official Jeffrey Clark, acting administrator in the Office of Information and Regulatory Affairs, is the primary architect of the proposed repeal of the endangerment finding.
'Since 2009, I've consistently argued that the endangerment finding required a consideration of downstream costs imposed on both mobile sources like cars and stationary sources like factories,' Clark said in the March statement released by the EPA. 'Under the enlightened leadership of President Trump and Administrator Zeldin, the time for fresh thought has finally arrived.'
As a career attorney in the Justice Department during the George W. Bush administration, Clark worked on the case that eventually resulted in the 2007 Supreme Court decision that prompted the EPA to write the endangerment finding.
'He's trying to get revenge,' Doniger said.