The Endangerment Finding

Rescinded - But the Day Is Young

1

The EPA is perfectly entitled to scale back existing climate regulations. There is a plausible argument that it should scale back some of those regulations.

But the EPA’s rescission of the endangerment finding, as it is called, appears highly likely to be struck down in court (point 11, below, contains a qualification).

Let’s see why. We’re going to get into some pretty technical issues - but they’re not all that technical.

2

A key provision of the Clean Air Act, and the most relevant one, says this:

The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.

So we have to ask (first) whether greenhouse gases count as “any air pollutant.” If they do, we have to ask (second) whether the administrator can reasonably find that greenhouse gases do or do not “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”

3

Are greenhouse gases pollutants, within the meaning of the Clean Air Act? That is not a new question. Not close. The Supreme Court answered it in 2007. Here’s what it said:

Because EPA believes that Congress did not intend it to regulate substances that contribute to climate change, the agency maintains that carbon dioxide is not an “air pollutant” within the meaning of the provision.

The statutory text forecloses EPA’s reading. The Clean Air Act’s sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical … substance or matter which is emitted into or otherwise enters the ambient air … .” §7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.” Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical … substance[s] which [are] emitted into … the ambient air.” The statute is unambiguous.

That’s basically it. True, the Court was not unanimous. Justice Scalia wrote a powerful and spirited dissent, arguing that the term “air pollutant” is, in fact, ambiguous, and that under the Chevron decision (now overruled), the Court should defer to the agency’s interpretation. (We’ll return to that.)

4

In the aftermath of the Court’s decision, the EPA issued its endangerment finding, to the effect that greenhouse gases, in the administrator’s “judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”

The date: December 15, 2009. You can find the document here: https://www.epa.gov/sites/default/files/2021-05/documents/federal_register-epa-hq-oar-2009-0171-dec.15-09.pdf

(Note: I was Administrator of the Office of Information and Regulatory Affairs at the time.)

5

The endangerment finding has been challenged in court on multiple occasions, and none of the challenges has succeeded.

The Supreme Court has shown no interest in revisiting its 2007 decision.

The first Trump administration did not revisit the endangerment finding.

6

As of this writing, we have the EPA’s press release, but not the formal document rescinding the endangerment finding. The press release is the closest thing we have to a formal justification - but of course it is just a press release, so it must be taken with many grain of salt. Still, it’s what we have.

The press release says this:

The agency concludes that Section 202(a) of the CAA does not provide statutory authority for EPA to prescribe motor vehicle and engine emission standards in the manner previously utilized, including for the purpose of addressing global climate change, and therefore has no legal basis for the Endangerment Finding and resulting regulations. EPA firmly believes the 2009 Endangerment Finding made by the Obama Administration exceeded the agency’s authority to combat “air pollution” that harms public health and welfare, and that a policy decision of this magnitude, which carries sweeping economic and policy consequences, lies solely with Congress. Unlike our predecessors, the Trump EPA is committed to following the law exactly as it is written and as Congress intended—not as others might wish it to be.

Fair enough. But the Supreme Court rejected that argument, in unambiguous terms, in 2007. The Court emphasized “the law exactly as it is written and as Congress intended.” That’s what Mass. v. EPA rested on.

Maybe the Court was wrong, but it’s the law.

7

Return to the italicized passage immediately above, and in particular to this: a policy decision of this magnitude, which carries sweeping economic and policy consequences, lies solely with Congress.

That claim is a clear reference to the Major Questions Doctrine, which says that “unheralded” and “transformative” agency decisions must be made by Congress, not the executive. Fair enough, once more.

But but but but: Mass. v. EPA, in 2007, was written with close reference to the very case that announced the Major Questions Doctrine, FDA v, Brown & Williamson (2000)! So in 2007, the Court did not think that the MQD, as it is called, denied the EPA authority over greenhouse gases.

The reason: According to the Court, the Clean Air Act, and hence Congress, explicitly and unambiguously gave EPA the relevant authority. What the MQD means is that agencies cannot exercise unheralded and transformative authority unless Congress clearly gives them that authority. In Mass. v. EPA, the Court concluded that the relevant provision of the Clean Air Act (drum roll please) “is unambiguous.”

(True, the Major Questions Doctrine is more vigorous now than it was back in 2007.)

8

You might be thinking this: The current Supreme Court would not have decided the issue in Mass. v. EPA the way the 2007 Court did back in 2007. That might well be right. In 2007, the Chief Justice and Justices Thomas and Alito dissented; maybe Justices Kavanaugh, Barrett, and Gorsuch, or two of the three, would have joined them.

But there is a difference between these two questions: (1) What would the current Court do, if it confronted the Mass. v. EPA question as a matter of first impression? (2) What will the current Court do, if asked to overrule Mass. v. EPA?

Could five justices decide to overrule Mass. v. EPA? It’s possible. The Court does not like to overrule its statutory decisions, but it’s happened. Will it happen here? That’s unlikely. (How unlikely? Unlikely.)

9

There is a wrinkle, and it’s fun. Chevron, as noted, was overruled (in Loper Bright), so a core argument of the dissenters, way back in 2007, is no longer available. The argument was that the word “pollutant” is ambiguous, so the EPA could go either way. At first glance, and putting Mass. v. EPA and respect for precedent to one side, the Court would now, under Loper Bright, have to decide the issue itself: Are greenhouse gases pollutants, or not?

Actually there are two wrinkles, and that is just one. The second is that under Loper Bright, courts cannot “defer” to agency interpretations, which is what Justice Scalia urged, back in 2007. But under Loper Bright, courts can recognize that some broad terms, like “reasonable,” are delegations to the agency. Maybe “pollutant” is a broad term that counts as a delegation.

Maybe. But you’d have to overrule Mass. v. EPA to say so.

10

(This is 10! Lots of headings here. Thanks for your indulgence, if you have made it this far. I am actually trying to be brief. Failing, I know.)

It is sometimes said that lawyers say, “if you don’t have the law on your side, argue the facts; if you don’t have the facts on your side, argue the law.” I have never heard a lawyer say that, but it’s reasonable.

In its press release, the EPA argues the facts as well as the law:

The Endangerment Finding was a legal prerequisite used by the Obama and Biden Administrations to regulate GHG emissions. In the 16 years since the Endangerment Finding, many of the predictions and assumptions used to justify the rule did not materialize. Using the same types of models utilized by the previous administrations and climate change zealots, EPA now finds that even if the U.S. were to eliminate all GHG emissions from all vehicles, there would be no material impact on global climate indicators through 2100.

Okay then. A court could accept Mass. v. EPA and also uphold the rescission of the endangerment finding, on the ground that the EPA administrator reasonably found that “in his judgment,” greenhouse gas emissions just do not “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”

Here’s the problem. Under the Administrative Procedure Act, any finding to that effect cannot be arbitrary or capricious. It’s true that the United States is just one contributor to greenhouse gas emissions. It is also true that such emissions, from motor vehicles, are just one of U.S. contributors to U.S. emissions. But is it reasonable, in the sense of not arbitrary, to say that such emissions, from motor vehicles, do not even “contribute to” air pollution "that “may reasonably be anticipated to endanger public health or welfare. (Note the “may reasonably be anticipated to” and the “or”!)

That is a very difficult proposition to defend.

11

One more time: As of this writing, the actual rescission of the endangerment finding does not appear to be available.

Still, as of this writing, the rescission seems more likely than not to be struck down. It is a close analogue to the Biden administration’s school loan forgiveness program, struck down by the Supreme Court (https://www.supremecourt.gov/opinions/22pdf/22-506_nmip.pdf): A pretty reckless exercise of executive authority, judged to be unlawful by the most reasonable lawyers inside and outside the executive branch.