Federal greenhouse gas rules repeal sparks legal challenges

On Feb. 12, the U.S. Environmental Protection Agency announced that it had finalized the recission of the 2009 Greenhouse Gas Endangerment Finding in what an EPA news release called “the single largest deregulatory action in U.S. history.”

The announcement rescinded the 2009 finding, which identified six greenhouse gases as posing a danger to public health: Carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. Per the EPA’s final order, the recission of the finding will be effective April 20.

“As a result of these changes, engine and vehicle manufacturers no longer have any future obligations for the measurement, control and reporting of [greenhouse gas] emissions for any highway engine and vehicle, including model years manufactured prior to this final rule,” the EPA said in a statement.

The agency further said that the recission of the endangerment finding is consistent with “the best reading of” the Clean Air Act, which the EPA said does not authorize the agency to regulate greenhouse gas emissions for motor vehicles.

Norfolk attorney Gary Bryant, who heads Willcox Savage’s litigation group and is an experienced environmental litigation attorney, told Virginia Lawyers Weekly that much of the reaction around the repeal “begins with the claim that it ignores the science behind climate change.

“But the legal debate really is over the role of EPA under the Clean Air Act,” Bryant said.

The end of the greenhouse gas endangerment finding has already sparked litigation, with a coalition of environmental and health groups filing suit in federal court in
Washington, D.C., on Feb. 18, asking the court “for review of a final action taken” by the EPA and EPA Administrator Lee Zeldin.

Among the organizations involved in the suit before the D.C. Circuit Court of Appeals is the National Resources Defense Council.

“EPA’s unlawful repeal cuts off the federal government’s ability to fight climate change at the knees,” NRDC Senior Counsel Rachel Heron told Virginia Lawyers Weekly. “We don’t expect this gambit to survive judicial scrutiny.”

Endangerment finding history

The EPA’s endangerment finding on greenhouse gas emissions was sparked by a 2007 U.S. Supreme Court decision in Massachusetts v. EPA.

In a 5-4 decision, the U.S. Supreme Court ruled in favor of the plaintiffs, who argued that the Clean Air Act required the EPA by law to regulate air pollutants that could endanger public health. The EPA had argued that federal law does not permit the EPA to regulate greenhouse gas emissions.

Writing for the majority, Justice John Paul Stevens wrote that 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.’

“If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant from new motor vehicles,” Stevens wrote.

The justice concluded that “[b]ecause greenhouse gases fit well within the Clean Air Act’s capacious definition of ‘air pollutant,’ we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles.”

That decision set in motion the process that led to the 2009 endangerment finding from the EPA and began the agency’s regulation of the six named greenhouse gases.

That finding determined that the “combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution that threatens public health and welfare.”

While the finding itself did not impose any requirements on other entities, including auto manufacturers, the action “was a prerequisite for implementing greenhouse gas emissions standards for vehicles and other sectors,” according to the EPA.

In a Feb. 12 release, Zeldin described the finding and its impact as “the source of 16 years of consumer choice restrictions and trillions of dollars in hidden costs for Americans.

“Referred to by some as the ‘Holy Grail’ of the ‘climate change religion,’ the Endangerment Finding is now eliminated,” Zeldin said in the release.

The EPA said in a release that in rescinding the order, the agency concluded that “Section 202(a) of the [Clean Air Act] 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.”

Instead, the agency noted, a policy decision “of this magnitude” rests with Congress, rather than within the agency itself.

“The position of the current administration is that the Clean Air Act does not authorize EPA to make endangerment findings that would necessitate regulation of greenhouse gases,” Bryant said. “The administration sees that as a political decision that should be made by Congress through amendments to the Clean Air Act, and not by an agency.”

In response, environmental groups criticized the current lack of federal regulations following the recission of the endangerment finding.

“For now, at the federal level, there is a gaping hole where there used to be nearly 20 years of regulations limiting greenhouse gas emissions from cars and trucks,” Heron said.

Looking ahead

Bryant noted that the 2009 endangerment finding differed from others typical of the agency.

“EPA endangerment findings typically apply to pollutants that cause specific, localized harm like carbon monoxide and lead,” Bryant said. “By contrast, the harm from greenhouse gases is more global, and based on the overall impact of greenhouse gas on the environment.”

Bryant anticipated legal challenges to the decision, which have already begun beyond the D.C. Circuit filing. In a Feb. 12 press release, California Attorney General Rob Banta announced his intention to sue to challenge the recission of the endangerment finding.

“California will challenge this illegal action in court, and will continue fighting to defend public health, uphold environmental justice, and protect future generations,” Banta said in a statement.

Virginia Attorney General Jay Jones’ office did not respond to a request for comment on whether his office had a response to the EPA’s decision.

To the extent that legal challenges are made, Bryant anticipated them to progress all the way through the federal court system.

“Notwithstanding the inevitable legal challenges, the current Supreme Court very well may agree with the administration,” Bryant said.