The Trump administration is attempting to unmake virtually all climate US regulations in one fell swoop.
At an Indiana truck dealership on Tuesday, the Environmental Protection Agency (EPA) unveiled a proposal to rescind the 16-year-old landmark legal finding which allows the agency to limit planet-heating pollution from cars and trucks, power plants and other industrial sources.
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“The proposal would, if finalized, amount to the largest deregulatory action in the history of the United States,” said the EPA administrator, Lee Zeldin.
The agency’s primary argument for reversing the so-called “endangerment finding” claims the Clean Air Act gives the EPA the authority to regulate only emissions that locally threaten health. Officials also laid out an “alternative” justification for the move, which experts say relies heavily on climate denialism.
Once the proposal is published in the Federal Register, the EPA will open a public comment period. Once it finalizes the rule, it will face an array of legal challenges. But if the rollback prevails, it would leave the EPA without any authority to regulate greenhouse gas pollution amid ever-compounding evidence that a swift reduction in these emissions is needed to avert catastrophic global warming.
“The importance of the endangerment finding can’t be overstated,” said the renowned climate scientist Michael Mann. “It’s been the primary tool that we have had to actually regulate carbon emissions and meet our obligations under various global agreements to address the climate crisis.”
What is the administration doing?
The endangerment finding, enshrined in 2009, found that greenhouse gases pose a threat to human health. It followed a 2007 supreme court ruling which found such gases were pollutants covered by the Clean Air Act.
The finding has long been a target for elimination by climate deniers. Democratic administrations used it and “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”, according to Zeldin.
The proposed undoing of the finding followed Trump’s January executive order on “Unleashing American Energy”, which directed the agency to submit a report “on the legality and continuing applicability” of the endangerment finding.
It comes as part of Trump’s “drill, baby, drill” agenda, which aims to boost already booming fossil-fuel production. Along with the scrapping of the endangerment finding, the EPA said it will kill off regulations limiting pollution coming from cars and will stymie a rule that curbs the amount of methane, a potent greenhouse gas, spewing from oil and gas drilling operations.
Officials have laid out an array of legal justifications for the rollback. The main one rests on the idea that the Clean Air Act provides authority to regulate “air pollution that endangers public health or welfare through local or regional exposure” – but not emissions that warm the planet.
Zealan Hoover, former senior adviser to the EPA administrator, said that argument does not pass muster.
“The Clean Air Act requires the EPA to regulate any air pollution that may reasonably be anticipated to endanger public health or welfare,” he said. “The Trump administration is staking out the extreme position that climate pollution does not harm the physical or financial health of Americans. That flies in the face of decades of scientific research and the firsthand experience of millions facing sea level rise, extreme heat, floods and fires.”
The EPA is also using the so-called “major questions doctrine” as an argument for the rollback, said Michael Gerrard, a professor of environmental and energy law at Columbia Law School and faculty chair of Columbia’s Earth Institute. Embraced by conservative justices, it says congressional authorization is needed for action on issues of broad importance and societal impact.
“They’re saying that, regardless of what the text of the Clean Air Act may say, the endangerment finding is so economically and politically significant that the EPA can’t issue it without explicit congressional authorization,” said Gerrard.
In a 150-page report also published on Tuesday, the Department of Energy (DoE) also laid out a separate argument for the move, which attempts to undercut the scientific consensus on the climate crisis. Experts say it relies on misleading scientific claims, such as the idea that carbon is beneficial for agriculture, which downplays research suggesting climate-driven extreme weather damages crop yields, and the debunked idea that extreme cold is more dangerous than extreme heat.
Reached for comment, a Department of Energy spokesperson, Ben Dietderich, said: “This report critically assesses many areas of ongoing scientific inquiry that are frequently assigned high levels of confidence – not by the scientists themselves but by the political bodies involved, such as the United Nations or previous presidential administrations.”
The UN and the US have regularly convened top scientists to produce scientific climate reports, which warn that urgent action to curb emissions is needed. Last week, the secretary general of the UN, António Guterres, gave a speech in which he said the world is on the brink of a breakthrough in the climate fight and fossil fuels are running out of road.
What could the impact of the Trump administration’s move be?
In its proposal, the EPA claimed eliminating US carbon pollution “would not have a scientifically measurable impact” on the global climate, on public health.
But by warming the planet and increasing the likelihood of extreme weather events like wildfires and floods, greenhouse gas emissions pose grave threats to society, said Mann.
“It isn’t remotely credible to argue that carbon pollution isn’t a major, if not the greatest, threat now to human health,” he said.
With the proposed change, “the EPA is telling us in no uncertain terms that US efforts to address climate change are over”, said Abigail Dillen, president of the environmental legal non-profit Earthjustice.
“For the industries that contribute most to climate change, the message is: pollute more,” she said. “For everyone feeling the pain of climate disasters, the message is: you’re on your own.”
Though the rollback aims to create a regulatory environment friendly to fossil fuels, it could, ironically, also threaten oil companies’ attempts to fend off lawsuits aiming to hold them accountable for the climate crisis. To fight some challenges by cities and states, companies have argued that because the EPA regulates greenhouse gases under the Clean Air Act, those suits should be void. Throwing out EPA’s ability to regulate those emissions could leave energy companies open to further challenges.
“I know that industry groups have been asking the Trump folks not to reverse the endangerment finding,” Jeff Holmstead, of the oil and gas law firm Bracewell, told E&E News in February.
What happens next?
Zeldin’s proposed rulemaking on the endangerment finding initiated a 45-day comment period, when the public will be able to weigh in on the proposed change.
“EPA will then have to respond to the comments, make any necessary changes, and issue the rule in final form,” said Gerrard, of Columbia.
The final rule is expected to be met with an onslaught of lawsuits, which will go to the DC federal appeals court. The losers of those cases – either the government or the challengers – are expected to take them to the supreme court.
Shaun Goho, legal director at the pollution-focused nonprofit Clean Air Task Force, said the proposal was “unlawful”.
“Greenhouse gas emissions endanger public health and the climate, and the Clean Air Act mandates that EPA regulates harmful air pollution,” he said.
Some experts are confident the challenges will be successful. But Gerrard says he is not so sure.
“The US supreme court, with its 6-3 conservative majority, has issued a series of decisions in the past three years cutting back on federal environmental regulations,” he said. “So I’m concerned.”
Asked about experts concerns about the health-harming impacts of greenhouse gases, the EPA said its proposal “is primarily legal and procedural”.
“The endangerment finding is the legal prerequisite used by the Obama and Biden administrations to regulate emissions from new motor vehicles and new motor vehicle engines,” a spokesperson said. “Absent this finding, EPA would lack statutory authority under [the Clean Air Act] to prescribe standards for greenhouse gas emissions.”
The spokesperson said “many of the predictions made and assumptions used” for the endangerment finding “did not materialize”. However, scientists have in recent decades produced many new findings showing greenhouse gases are dangerous.
