In February, the Environmental Protection Agency finalized a regulation rescinding the so-called “endangerment finding”–the finding that the emission of greenhouse gases from mobile sources cause or contribute to air pollution that can be reasonably anticipated to endanger public health or welfare. As expected, environmental groups and blue states have already filed suit challenging the rescission. Some of the suits raise fanciful arguments, while others advance more traditional administrative law claims. The question is now in the courts.
Rescission of the endangerment finding was one of the Trump Administration’s top environmental priorities, but some of us have been skeptical that endangerment repeal does much to advance the administration’s deregulatory priorities (let alone a rational climate policy).
Reviewing the EPA’s final rule and it justification, I believe my skepticism was justified. As I explain in the summer issue of Regulation, the EPA’s move is “a costly, symbolic gesture that will divert administration resources from more meaningful deregulatory initiatives and does nothing to advance a rational climate change policy.”
From the article:
The EPA’s current position is that under the “best reading” of the CAA, Section 202 “does not authorize the Agency to prescribe emission standards in response to global climate change concerns.” I have sympathy for this view, having drafted an amicus brief for the Cato Institute making just this argument. The problem is that the Supreme Court concluded otherwise in Massachusetts v. EPA (2007). The EPA offers other arguments to circumvent this holding, but they are wholly unpersuasive.
Contrary to the EPA’s protestations, the Supreme Court in Massachusetts held squarely that the “EPA has the statutory authority to regulate greenhouse gas emissions from new motor vehicles.” Rejecting the George W. Bush administration’s arguments that Congress had not authorized the EPA to address climate change, the Court declared it had “little trouble concluding” that Section 202 “authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a ‘judgment’ that such emissions contribute to climate change.” So much for the agency’s claim that the statute can be read to preclude EPA regulation “based on global climate change concerns.” . . .
It does not matter if the EPA (again) believes the Massachusetts decision was wrong and the CAA was never meant to apply to greenhouse gases. The Court has given the act a definitive interpretation to the contrary, and the Court rarely reconsiders its own prior statutory interpretations. If the Court got a statute wrong, that is a mistake for Congress to fix.
The EPA tries to claim that intervening Supreme Court decisions, such as Loper Bright Enterprises v. Raimondo (2024) and West Virginia v. EPA (2022), call for a new interpretation of the CAA, but those arguments also fall flat. In Massachusetts the Court found that the statutory text was clear and rejected the argument that it should pause before concluding Congress authorized the agency to regulate the most ubiquitous byproduct of modern civilization (what we would now call a “major question”). Were that not enough, in Loper Bright Chief Justice John Roberts, writing the majority opinion, went out of his way to make clear that the Court’s decision did not “call into question” statutory interpretations reached in prior cases. Rather, he explained, the holdings of such cases, and the conclusions reached about what statutes require or what agency actions are lawful, “are still subject to statutory stare decisis.”
The EPA puts forward some alternative arguments, but I do not find them any more persuasive.
Reading the EPA’s rule, one might conclude that the agency understands its legal arguments are weak so long as Massachusetts v. EPA remains good law, and is hoping the Supreme Court will conclude this decision was wrongly decided and reverse it. I doubt this will happen, but would also suggest that the EPA and endangerment-finding-repeal supporters might not like what overturning Massachusetts could unleash..
Even if there are five votes to revisit Massachusetts v. EPA, those cheering endangerment rescission should be careful of what they wish for. Like it or not, it was the Supreme Court’s conclusion that greenhouse gases are subject to regulation under the CAA that dictated the outcome in American Electric Power v. Connecticut (2011), in which the Court held that federal common law nuisance suits against fossil fuel emitters are displaced by federal statute. As the Court explained in American Electric Power, existing doctrine requires the displacement of federal common law causes of action where Congress has entered the field by enacting a relevant statute. Should the Massachusetts holding be undone, however, placing greenhouse gases and climate change concerns beyond the scope of the law, there would no longer be any basis to bar such suits from federal court. And were Massachusetts to be undone in this manner, it is possible that federal preemption of state greenhouse gas emission standards—such as those sought by California—would be cast aside as well. Congress may have put an end to CAA waivers for California greenhouse gas emission standards for new motor vehicles through the Congressional Review Act, but if greenhouse gas emissions from motor vehicles are no longer subject to CAA regulation, it is not clear why any such waiver would be required, or why such standards could only be adopted by California—though other statutes may still preclude state standards that operate as de facto fuel efficiency requirements.
I conclude:
The legal risks of rescinding the endangerment finding might be justified if there was no other way to scale back federal regulation of greenhouse gas emissions. Yet that is not the case. The endangerment finding itself is no obstacle to the relaxation or rescission of existing greenhouse gas emission regulations, including those imposed on motor vehicles. The relevant statutory text provides ample basis for ending regulation of such emissions from stationary sources, and there are strong legal arguments having nothing to do with endangerment that the EPA lacks the statutory authority to push automakers toward the production and promotion of electric cars. Such deregulatory moves would be quite straightforward, but they do not have the symbolic appeal of rescinding endangerment.
Administrator Zeldin called the endangerment finding “the holy grail of the climate change religion.” It may be more accurate to describe it as the great white whale of the second Trump administration’s EPA.
