The Dangers of Pursuing the Endangerment Finding

The Biden Administration sought to make the “climate crisis” an overriding priority for the nation. During his first week in office, President Biden issued an Executive Order adopting “a whole of government approach to put climate change at the center of our domestic, national security, and foreign policy.” Under this EO, every federal agency was instructed to make combating climate change a part of its mission.

Immediately upon assuming office, Donald Trump reversed course, rescinding Biden Administration EOs, declaring a national energy emergency, and instructing federal agencies to repeal regulations and pursue policies “to unleash America's affordable and reliable energy and natural resources.”

In March, Environmental Protection Agency Administrator Lee Zeldin announced a suite of 31 deregulatory actions designed to undo many of the environmental regulatory initiatives adopted by his predecessor, with a specific focus on climate change. “We are driving a dagger straight into the heart of the climate change religion to drive down cost of living for American families, unleash American energy, bring auto jobs back to the U.S. and more,” Zeldin declared.

In the months since, the EPA has sought to fulfill Zeldin’s promise, rescinding grants to climate-oriented nonprofits and proposing the repeal of greenhouse gas regulations under the Clean Air Act, including controls on power plant emissions and motor vehicles. On June 11, for instance, the EPA proposed repealing the Biden Administration’s “Clean Power Plan 2.0” regulations that would have imposed strict limits on greenhouse gas emissions from coal and natural gas power plants.

Zeldin’s most ambitious undertaking in this regard may also be the most legally vulnerable. On July 29, the EPA proposed to not only repeal regulations limiting greenhouse gas emissions from new motor vehicles, but also to rescind the so-called “endangerment finding”—the legal predicate for nearly all of the EPA’s greenhouse gas regulations under the Clean Air Act. In this regard, the EPA is not seeking merely to undo regulations from the Obama and Biden administrations. It is also seeking to make it more difficult for future administrations to put such regulations back in place unless and until the EPA is instructed to do so by Congress. This is a high-risk strategy.

Under Section 202 of the Clean Air Act, the EPA Administrator is required to set motor vehicle emission standards for “any air pollutant . . . which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Different provisions of the Clean Air Act impose similar requirements for regulating other emission sources (with some potentially important qualifications discussed below). The George W. Bush Administration had concluded that greenhouse gas emissions are not “air pollutants” for purposes of the Act, but this interpretation was rejected by the Supreme Court in Massachusetts v. EPA (2007). Under the Obama Administration, the EPA subsequently concluded that greenhouse gases contribute to climate change, and that climate change “may reasonably be anticipated to endanger public health or welfare,” triggering the promulgation of regulations on motor vehicles and other sources. At the time, most commentators recognized this was the inevitable consequence of the Massachusetts decision.

The primary reason it is difficult to undo the endangerment finding is that the statutory standard is so easy to meet. For purposes of the Act, the question is not whether climate change is catastrophic, nor whether climate adaptation is preferable to mitigation, nor whether federal regulation of sector-specific emissions is rational or cost-beneficial, nor whether such regulations represent a serious or rational way to address the threat of climate change. Nor is the question whether the science is unequivocal, nor is it whether there is certainty about the likely effects of increased atmospheric concentrations of greenhouse gas emissions over any given time period. Rather, the question is simply whether the EPA Administrator can “reasonably anticipate” that the accumulation of greenhouse gases in the atmosphere can have negative effects on health or welfare—effects which the Act defines to include the impact on climate, “economic values,” and "personal comfort and well-being.”

While the EPA suggests that a less-alarmist interpretation of existing climate science is one reason to undo the endangerment finding, relying upon a draft report prepared for the Department of Energy, its primary argument is that the Clean Air Act “does not authorize the EPA to proscribe emission standards to address global climate change concerns.” The problem is that this argument is almost certainly foreclosed by Massachusetts v. EPA, which expressly concluded that the Act “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.” The EPA suggests one way to address this constraint is to note that domestic motor vehicle emissions are a small (and shrinking) share of global emissions, but Section 202 of the Clean Air Act (unlike some other provisions of the Act) conspicuously lacks any requirement that motor vehicle emissions contribute significantly to the problem.

In its proposed rulemaking, the EPA tries to argue that intervening Supreme Court decisions counsel a reconsideration of what the Clean Air Act means. Under these decisions, most notably West Virginia v. EPA and Loper Bright Enterprises v. Raimondo, the EPA argues that the Clean Air Act should not be interpreted to grant the EPA authority to regulate greenhouse gas emissions to control climate change. Were it a matter of first impression, this argument would have substantial force (especially before the current court), but that is not where we are. The Massachusetts decision may have been wrong (as I believe it was), but it nonetheless represents the Court’s authoritative interpretation of what the Clean Air Act provides on this point, and the Supreme Court rarely reconsiders its prior statutory holdings.

Generally, statutory holdings are rarely overruled. Stare decisis, the principle that prior Court precedents should be followed and respected, is particularly strong in statutory cases because if the Court misinterprets a federal statute, Congress retains the power to overrule the Court by revising the statute. Thus, it is not enough to argue that a prior Court decision misinterpreted a statute. Erroneous constitutional holdings, on the other hand, can only be reversed by a constitutional amendment if left uncorrected by the Court. For this reason, the expansive Article III standing holding of Massachusetts v. EPA (which helped spur state attorney general litigation) is far more vulnerable than its interpretation of the Clean Air Act.

The Court’s intervening decisions upon which the EPA seeks to rely are not much help. That the EPA no longer enjoys Chevron deference does not matter because the Court in Massachusetts concluded that the Clean Air Act’s text was clear. The Court also rejected the argument that the decision to regulate the most ubiquitous byproduct of modern civilization (what we would now call a “major question”) is not something to be inferred from ambiguous text. Were all that not enough, in Loper Bright Enterprises, Chief Justice Roberts went out of his way to make clear that the Court’s decision did not “call into question prior cases that relied on the Chevron framework.” 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.”

That the attempt to overturn the endangerment finding without an assist from Congress may be quixotic, does not mean the EPA’s other climate deregulatory efforts are likely to fail. Take, for example, the repeal of the Biden Administration’s power plant standards. These regulations were promulgated under Section 111 of the Clean Air Act. This section contains endangerment language much like Section 202, but with one crucial difference.

Under Section 111, the EPA is only required to set standards for emission sources that “cause or contribute significantly” to applicable air pollution. Citing this language, the EPA notes that power plants are a relatively small (approximately 3 percent) and ever-shrinking share of global greenhouse gas emissions. This contribution, the EPA argues with some plausibility, is not a “significant” contribution requiring regulation. Thus, the EPA’s attempt to eliminate greenhouse gas emissions for power plants (and some other sources) rests on stronger ground than the attempt to undo the endangerment finding.

The Trump Administration’s effort to stop California from tightening vehicle emission standards and requiring greater electric vehicle production is also on firmer legal footing, as Congress passed a resolution repealing the EPA waiver California needs to regulate greenhouse gas emissions from automobiles. California is challenging this action in court, but it is unlikely to be successful. There are also powerful arguments that, even if the endangerment finding is not repealed, the EPA can avoid tightening existing motor vehicle emission standards any further, as well as that Section 202 of the Clean Air Act cannot be used to impose a de facto requirement that automakers produce and sell electric vehicles.

Trying to use the Clean Air Act to address climate change has never been a good idea. The Act was drafted to address local and regional air pollution problems, such as soot and smog, not to adjust the planetary thermostat. More broadly, centralized regulation is not a sensible strategy for pursuing decarbonization. But such broad policy judgments are properly the domain of Congress, not the EPA, the executive, or even the courts. Insofar as the Massachusetts decision put climate policy on an unwise course, it will likely take legislation to undo it.

Administrator Zeldin has referred to the endangerment finding as “the holy grail of the climate change religion.” Perhaps so. But recall that in the Arthurian legend, only the purest of heart and soul may reach the grail. Accordingly, it may take a purer legal strategy, and one that relies upon Congress, if the endangerment finding is to be undone.

Jonathan H. Adler is the Tazewell Taylor Professor of Law at the William & Mary Law School.