On August 1, EPA proposed rescinding the Endangerment Finding — the scientific determination that greenhouse gases endanger human health and welfare — threatening the legal foundation for federal climate regulation.
EPA proposes to interpret its own authority narrowly under the Clean Air Act, which would effectively prevent any federal regulation of greenhouse gas (GHG) emissions. EPA also proposes to inject policy considerations into its determination, many of which the Supreme Court already rejected in Massachusetts v. EPA; presents an incomplete picture of the state of climate science; and concludes that the regulation of vehicle emissions would cause more harm than benefits.
EPA now proposes to rescind the 2009 Endangerment Finding based on two distinct rationales as well as the vehicle standards that extend from it. Its first rationale contains a variety of arguments regarding EPA’s authority for making an endangerment finding and efforts to distinguish this proposal from the Supreme Court’s decision in Massachusetts v. EPA. The second is based on the agency’s interpretation of climate science, relying on a recent Department of Energy (DOE) report by five scientists and disregarding the broader scientific consensus on climate change impacts. EPA also includes an alternative proposal to rescind all regulation of GHGs emitted by US vehicles even if the Endangerment Finding remains in place.
Our analysis outlines each of these arguments and assesses the legal risks and gaps in EPA’s proposal. Throughout its proposal, EPA relies on selective parts of the text and regulatory history of the Clean Air Act; misconstrues Supreme Court precedent; and rejects robust, peer-reviewed climate science. The legal risks of finalizing this proposal are considerable. However, if EPA proceeds with its primary proposal to rescind the Endangerment Finding based on its new interpretation of the Clean Air Act and courts uphold it, it will bind future administrations and prevent federal regulation of greenhouse gas emissions from the major US sources.
