The Environmental Protection Agency is trying to end the basic government consensus that climate change hurts human health and the environment, launching what’s likely to become a multiyear legal battle over whether the United States can set limits on greenhouse gas emissions.
EPA Administrator Lee Zeldin announced Tuesday that the agency would be repealing what’s known as the “endangerment finding,” the 2009 conclusion reached during the Obama administration that a combination of greenhouse gases, including carbon dioxide and methane, are contributing to climate change and thus endangering the public.
That conclusion, widely accepted as strong science, is the basis for nearly all federal government climate regulations, including limits on emissions from cars and trucks, power plants and methane leaks from oil and gas drilling.
Without it, the federal government would likely no longer have the power to set limits on the emissions that contribute to global warming.
“The EPA is taking a big gamble on reversing the endangerment finding,” said Dena Adler, an environmental lawyer at New York University School of Law’s Institute for Policy Integrity. “The science has only grown stronger in the intervening years, and the first Trump administration itself rejected a petition requesting it reverse the endangerment finding.”
The Department of Energy simultaneously published a report Tuesday casting doubt on the scientific consensus about the harmful effects of climate change. The report was written over a two-month period by five scientists who are well known for their skepticism about the risks of climate change.
One of the authors, Roy Spencer, wrote two chapters in a recently published Heritage Foundation-backed book titled “Cooling the Climate Hysteria,” while another author, Ross McKitrick, spoke at Heritage’s launch event in May for the book.
Both men attended the Heritage Foundation event during the same period of time they were working on the DOE report. At least four of the other authors of the Heritage book are cited in the report.
The DOE report concluded that carbon dioxide emissions may be “less damaging economically than commonly believed, and excessively aggressive mitigation policies could prove more detrimental than beneficial.”
“We agreed to undertake the work on the condition that there would be no editorial oversight by the Secretary, the Department of Energy, or any other government personnel. This condition has been honored throughout the process and the writing team has worked with full independence,” the scientists wrote in the report.
On Tuesday, the EPA also began the process of nixing the rules limiting how much carbon dioxide cars and trucks can produce, which were first set in 2010. The U.S. transportation industry is by far the largest contributor of greenhouse gas emissions in the country, making up over one quarter of the total, according to EPA data. (Groups like Consumer Reports have found that greenhouse gas limits for cars contribute to greater fuel economy and fuel cost savings over time.)
“In our work so far, many stakeholders have told me that the Obama and Biden EPAs twisted the law, ignored precedent, and warped science to achieve their preferred ends and stick American families with hundreds of billions of dollars in hidden taxes every single year,” Zeldin said in a press release. “We heard loud and clear the concern that EPA’s GHG emissions standards themselves, not carbon dioxide which the Finding never assessed independently, was the real threat to Americans’ livelihoods.
These moves mark the Trump administration’s biggest efforts yet to undermine widely accepted science regarding climate change. While the endangerment finding has been consistently unpopular with conservatives since it was first finalized, the first Trump administration did not even attempt to repeal it.
The EPA administrator at the time, Scott Pruitt, even said during his confirmation hearing: “There is nothing that I know that would cause it to be reviewed.”
If successful, the repeal of the finding and associated regulations would also create massive regulatory upheaval for American companies.
“It is really hard for American companies to compete in the most competitive, 21st-century economic sectors when the rules keep changing. The Trump administration is doing no good by throwing so much disarray into the process,” said Zealan Hoover, a senior EPA adviser during the Biden administration. “It’s really unfortunate from an economic competitiveness standpoint.”
The agency’s decision to repeal the finding will undoubtedly face a stiff battle in the courts. Legal challenges to the endangerment finding have consistently failed since the Supreme Court decided in 2007 that the agency has the authority to regulate these emissions. The Natural Resources Defense Council has already pledged to challenge this EPA rescission in court once it is finalized.
But the court has become significantly more conservative in the intervening years, and three of the justices who strongly dissented at the time remain on the bench: John Roberts, Clarence Thomas and Samuel Alito.
The agency’s primary challenge to the endangerment finding appears to be about the Obama administration’s process in reaching it.
“The EPA no longer believes that we have the statutory authority and record basis required to maintain this novel and transformative regulatory program,” the agency wrote in the text. The rescission frequently cites last year’s Loper Bright Enterprises v. Raimondo Supreme Court decision, which overturned a long-held precedent called the Chevron deference that gave agencies wide latitude to make decisions.
“We can no longer rely on statutory silence or ambiguity to expand our regulatory power,” the agency wrote in the preamble.
Specifically, the EPA is arguing that the Obama administration should have considered the effects of carbon dioxide emissions by themselves, instead of as part of a group of six greenhouse gases that contribute to global warming.
The EPA regularly considers pollutants as part of a larger group, Adler said.
The EPA is also challenging the fact that the Obama administration did not consider the costs of the regulations that stem from the endangerment finding, which the EPA says exceed $1 trillion for the vehicle regulations.
Traditionally, the endangerment finding is conducted separate from the regulations that follow it.
“The endangerment finding itself is saying that this is a pollutant that needs to be regulated, under the Clean Air Act. The regulations that follow are where you do the cost benefit analysis,” Hoover said.
“Courts have made clear EPA cannot weigh policy considerations in an endangerment finding,” Adler said. “It’s absurd legally and factually.”
Should this repeal of the finding prevail at the Supreme Court — a process that could take several years to reach a final conclusion — the country will instead have a patchwork of greenhouse gas emissions rules, depending on the laws of each state and local government.
“I expect that states and cities across the country will try to fill the void created by EPA’s shameful retreat, and the oil and gas industry, facing a patchwork of regulatory regimes, will rue the day it put this awful scheme in motion,” Democratic Sen. Sheldon Whitehouse, the ranking member on the Senate Committee on Environment and Public Works, said in a statement.