Today, the U.S. Environmental Protection Agency (EPA) published the rule rescinding the 2009 Greenhouse Gas (GHG) Endangerment Finding and certain GHG-based vehicle emissions standards. The decision, according to the EPA, amounts to “the single largest deregulatory action in U.S. history” and will have massive impacts for a wide array of American industries – including automakers, air carriers, energy companies, oil and gas producers, manufacturers, and more.
The Endangerment Finding
The Clean Air Act of 1970 directs the EPA to regulate air pollutants that pose a threat to human health and welfare. In 2009, the Obama Administration’s EPA issued a determination (known as the Endangerment Finding) that carbon dioxide, methane, and four other GHGs pose such a threat: “The Administrator finds that elevated concentrations of greenhouse gases in the atmosphere may reasonably be anticipated to endanger the public health and to endanger the public welfare of current and future generations.”
The scientific basis for the finding, developed under the Bush Administration’s EPA in response to Massachusetts v. EPA, 549 U.S. 497 (2007), found that GHGs are released when fossil fuels are burned, for example when automobiles burn gasoline or when power plants burn coal to produce energy, and contribute to global warming, which may “reasonably be anticipated to endanger public health or welfare” under the Clean Air Act (CAA). Having made that finding, the EPA was required by the CAA to regulate GHGs.
The Endangerment Finding underpinned U.S. climate change regulation efforts for 17 years, serving as the predicate for imposing strict standards for GHG emissions from vehicle tailpipes, power plants, methane emissions from oil & gas operations, and other sectors.
The Trump Administration’s View
Nearly all scientists agree that human activities contribute to warming global temperatures, which in turn lead to increasingly intense natural disasters like wildfires and storms, rising sea levels, habitat destruction, and more. The Trump Administration has disputed this consensus or otherwise argued that the impacts of global warming have been overstated.
In its Reconsideration of the 2009 Endangerment Finding, the EPA put forward a number of rationales to support its review and ultimate repeal:
- First, that “air pollution” as used in the CAA only refers to pollutants like soot and smog that impact people on a local or regional level, not global pollutants like GHGs, notwithstanding the precedent established by Massachusetts v. EPA.
- Second, the EPA points to recent Supreme Court decisions, including West Virginia v. EPA, 597 U.S. 697 (2022), for the premise that agencies cannot adopt a novel interpretation and promulgate rules with far-reaching economic impacts without explicit authorization from Congress (the “major questions doctrine”). The Endangerment Finding is therefore invalid, it argues, because tailpipe emissions rules have such a substantial financial impact on automakers and prospective buyers.
- Other rationales put forward by the EPA assert that there are significant scientific uncertainties associated with climate change, that projections on climate change were unduly pessimistic based on observed trends, that there may even be benefits associated with climate change, and that technology cannot measurably reduce climate change impacts from vehicles.
Why It Matters and What Comes Next
The announcement is arguably the most impactful in a long line of actions by the Trump Administration to repeal or otherwise roll back Obama- and Biden-era environmental regulations. Not only does the decision immediately and explicitly repeal federal GHG emissions standards for numerous vehicles and engines for vehicle model years 2012 and later, it sets the stage for similar rollbacks of climate-related regulations on power plants, manufacturing facilities, and other fossil fuel users. (The EPA had previously introduced a proposal to repeal GHG emissions standards for fossil-fuel-fired power plants).
- Title V facility operators may see changes because permitting under the CAA’s Prevention of Significant Deterioration and New Source Review Rules for new stationary sources and major modifications to existing sources will be affected.
- Ongoing climate tort litigation against the fossil fuel industry may also be affected: Defendants have in some cases argued that federal climate regulation preempts or displaces state climate regulation, but without federal regulation in that space, those arguments may be undermined or mooted.
- States, and particularly California, could see new uncertainties and opportunities for state regulation of emissions. As reported in a previous advisory, the EPA’s revocation of waivers for some of California’s recent, landmark vehicle regulations on passenger cars and medium- and heavy-duty trucks has paused enforcement of those regulations. However, California may assert that with the EPA no longer regulating this space, it does not need a waiver under the CAA.
Ultimately, the decision removes the justification that has underpinned all U.S. GHG-related regulation for nearly two decades. We can expect a host of states, nongovernmental organizations, and other stakeholders to file litigation challenging the final agency action repealing the Endangerment Finding.
Several entities, including California Governor Gavin Newsom and the Natural Resources Defense Council have already stated their intentions to file lawsuits challenging the repeal. Alston & Bird will be tracking these cases closely, along with the ripple effects of the rescission of the Endangerment Finding, and is standing by to assist our clients in thinking through the potential implications for their industries.
If you have any questions, or would like additional information, please contact one of the attorneys on our Environment, Land Use & Natural Resources team.
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