EPA Proposes Repeal of 2009 Endangerment Finding Impacting Greenhouse Gas Regulations

This finding concluded that greenhouse gasses (GHG) “threaten the public health and welfare,” and that motor vehicle emissions contribute to GHG pollution, forming the legal authority to regulate GHG emissions from motor vehicles.

Speaking in front of an Indiana auto dealership, EPA Administrator Lee Zeldin announced that the proposed rescission would “repeal all resulting greenhouse gas emissions regulations for motor vehicles and engines,” and characterized federal GHG rules as “hidden taxes” on American consumers.

The proposed rescission is the latest and most significant of 31 planned actions the Trump Administration dubbed the “greatest deregulation action in US history” back in March.

The 2009 Endangerment Finding

The 2009 Endangerment Finding is an Obama-era EPA rule issued in response to the US Supreme Court’s decision in Massachusetts v. EPA, which held that GHGs were “pollutants” under the Clean Air Act (CAA). The finding is the Agency’s formal position that GHGs endanger the public health and welfare, a prerequisite to developing motor vehicle fuel efficiency and emissions standards under CAA Section 202(a).

While the Endangerment Finding directly led to regulation of GHG emissions from motor vehicles, it also made GHGs “subject to regulation” under the CAA, triggering additional emissions monitoring and control requirements for stationary sources, such as factories or power plants. EPA subsequently created a “tailoring rule” which set specific GHG emissions thresholds for stationary sources.

EPA’s Proposed Rescission

EPA’s proposal states that the agency “explored all findings, support, questions, and ambiguities contained within the science relied upon by the Endangerment Finding,” and determined that the finding should be “reconsidered to address legal and scientific developments” that may undercut the validity and reliability of the Endangerment Finding.

The proposal states the Endangerment Finding improperly looked at the global climate instead of the localized risks from inhaling GHG emissions, and also concludes that the Endangerment Finding was “unduly pessimistic” about the impacts of GHGs on rising global temperatures.

Finally, the proposal argues that US vehicles cause only a small percentage of global GHG emissions, and that increased regulations raise the prices of new vehicles and encourage consumers to continue driving older, less efficient vehicles.

Importantly, because all subsequent vehicle emissions standards have relied on the 2009 Endangerment Finding (rather than making new/updated findings with each new rulemaking), EPA’s proposal also includes the repeal of all EPA emission programs for light- and medium-duty vehicles and heavy-duty vehicles and engines. The proposal also notes that, if finalized, the repeal would preempt any state fuel efficiency or vehicle emissions laws or regulations.

What Happens Next?

EPA will hold hearings and accept public comments on the proposed recission until September 25.

If finalized, the proposal will likely face legal challenges from environmental groups and from states, reinvigorating debate on the Supreme Court’s decision in Massachusetts v. EPA.

EPA’s proposal could also foreshadow increased pushback on the existing waivers allowing California to set its own stricter vehicle emissions standards. In June, the Supreme Court allowed fuel producers to challenge California’s emissions rules in court (see our discussion here).

Finally, EPA’s proposal could be the first step in rolling back GHG regulations on stationary sources, as well. The proposed rescission would not automatically invalidate existing rules, but EPA’s formal rejection of the legal and scientific justifications for GHG regulation could be echoed in future rulemakings.

The firm’s Energy & Cleantech and Environmental teams will continue to monitor administrative changes and legal developments related to the energy transition. Stay tuned for further updates.