This week, the EPA Administrator said he will rescind their 2009 Endangerment Finding that has underpinned the EPA’s regulation of carbon dioxide (CO₂) and other greenhouse gases. If upheld by the courts the decision will eliminate the EPA’s regulations on greenhouse gases with implications for global climate change.
How the EPA Came to Regulate CO₂
The foundation for regulating carbon dioxide traces back to the 1970 Clean Air Act which authorizes the EPA to regulate air pollutants that may endanger public health.
Initially, CO₂ and other greenhouse gases weren’t considered pollutants under the law. That changed with the 2007 Supreme Court case Massachusetts v. EPA, in which the Court ruled that greenhouse gases are air pollutants under the Clean Air Act and must be regulated if the EPA determines they pose a risk.
In 2009, the Obama-era EPA issued the Endangerment Finding, concluding that CO₂ and other greenhouse gases DO endanger public health and welfare due to their role in climate change.
That triggered regulatory requirements, starting with fuel economy and emissions standards for motor vehicles, regulations on large industrial sources like power plants, cement manufacturers, and oil refineries.
Industry Compliance and Enforcement
Over the next several years the EPA launched a suite of regulatory actions like Vehicle Emission Standards, permitting of major industrial sources, and the 2015 Clean Power Plan which focused on making electricity plants slowly shift to lower-emission sources.
Enforcement came through a mix of permit requirements, monitoring and reporting standards, and potential penalties for noncompliance.
The Decision to Overturn the Endangerment Finding
The new EPA now argues that the scientific and legal basis for the Endangerment Finding is flawed and that carbon dioxide and other greenhouse gases (methane) don’t meet that standard anymore – which if upheld by the courts would eliminate all the reduction measures developed and implemented since 2009.
Legal Challenges and the Role of the Courts
Given that the 2009 Endangerment Finding has survived multiple legal challenges, EPA’s reversal is almost certain to be challenged in court.
Expect lawsuits from states, environmental groups, and possibly some industry players who have already invested in compliance and want regulatory certainty.
Courts will scrutinize whether the EPA has a sufficient scientific and administrative record to justify rescinding a long-standing finding that has been upheld multiple times, including at the US Supreme Court.
The Post-Chevron Legal Landscape
Meanwhile, the legal playing field has changed since 2009 with the US Supreme Court’s decision to overturn Chevron deference (a decades-long doctrine that instructed courts to defer to reasonable agency interpretations.
Without Chevron in place, courts are more likely to second-guess the EPA’s interpretations of the Clean Air Act, including this decision by giving judges more leeway in questioning and staying agency decisions, like this one.
Looking Ahead
Legal challenges will likely stretch on for years and so will the uncertainty facing regulators, industries, and communities dealing with the accelerating impacts of climate change.
In the short run, much will depend on what federal District and Appellate courts decide… and whether they issue a Stay on the EPA decision.
In the long run, much will depend on the results of the 2028 presidential election.
