The EPA recently overturned its so-called “endangerment finding,” the bedrock decision on which Clean Air Act regulation of greenhouse gas admissions rests. What will that mean in practice? Amidst the Trump Administration’s blitzkrieg assault on the rule of law, it can be difficult to separate the more fundamental changes from mere political combat over policy goals. When it comes to climate policy and the endangerment finding, my 2 cents is that this action is a little of both.
Move Fast & Break Things
First, let’s acknowledge that this action is not surprising, and that the fight about it is not over.
The Administration’s ends-justify-the-means approach to the law has enabled it to make sharp policy changes and to decimate climate expertise within the executive branch much faster than it could have if it had followed the established legal rules. From the Department of Justice to immigration enforcement to vaccines and public health, in one policy domain after the other, the administration has fired agency experts who were too faithful to the rule of law and replaced them with obedient loyalists willing to break existing rules and hope courts ratify those changes later. And in some cases, the Supreme Court has rewritten the rules of executive branch decision-making so as to endorse Administration’s actions, either formally through case law or informally using its emergency docket.
In the realm of climate and energy policy, the Administration has attempted to claw back money appropriated by Congress for particular clean energy investments. It has fired career staff and closed programs, research offices and research labs. Many of these actions contravened existing constitutional and administrative law rules, and most of the disputed issues are being litigated. But the courts are slow.
Given that backdrop, we could see the EPA’s reversal of its endangerment finding – the conclusion that greenhouse gas (GHG) emissions endanger the public health and welfare – coming. The inevitable judicial review of that reversal will have to grapple with the Supreme Court’s 2007 decision in Massachusetts v. EPA, in which the Court suggested that the facts and the law almost compel the conclusion that GHG emissions endanger public health and welfare:
[O]nce EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute. Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design….
Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so.
Justice Roberts dissented from the majority decision in Massachusetts. He would have dismissed the case on procedural grounds, and his dissent included dicta indicating that he sees the endangerment finding as a policymaking decision better left to “the policymakers in the Executive and Legislative Branches of our Government.”
It is not a foregone conclusion that the Court will uphold the EPA’s reversal of the endangerment finding, but it now seems more likely. The Roberts Court has already circumscribed Congress’ power to delegate policy decisions to agencies and overturned precedent calling for judicial deference to agency policy decisions; soon it will grant the president the power to fire the heads of formerly “independent” commissions for policy reasons. And in each case, the Court’s decision changed administrative law in ways that favored the Republican policy agenda.
Implications for the Energy Transition
What will that mean for the future of climate policy? For climate policy in the power sector (about one-fourth of U.S. emissions) it may not mean much, because the Biden EPA’s GHG rule for power plants was likely to be struck down by the Court regardless, and the Court’s prior decisions leave little room for Clean Air Act regulation of the power sector — with or without the endangerment finding. Some scholars see a possible pathway there, but I am skeptical.
But depending on what the Court says and does, it could foreclose future opportunities to regulate GHG emissions from other sectors, like transportation (representing a little more than one-fourth of total emissions).
If the Court says that EPA has the discretion to choose — that is, either to refuse to make an endangerment finding, or to conclude that regulation of GHGs is not in the public interest even though GHG emissions contribute to climate change — then the policy impact of the decision will be small. The Trump Administration is pulling back the Biden Administration’s GHG rules anyway, and a future Democratic Administration could reinstate the endangerment finding and the programs limiting GHG emissions outside the power sector. Absent congressional intervention, policy will swing back and forth depending upon which party is in control of the White House.
If, on the other hand, the Court concludes that Congress never intended that the Clean Air Act be used to regulate GHGs at all (an argument raised and rejected in Massachusetts v. EPA), then future administrations would lack the authority to regulate GHG emissions from automobiles and various industrial sectors. They would need additional legislation authorizing such regulation; given the GOP’s sharp turn against clean energy and strong climate policy, that seems unlikely.
For now we must wait and see.
Meanwhile, is it intentional or merely ironic that the Court keeps using administrative law and constitutional law to help the GOP achieve its environmental policy goals? No one really knows, probably not even the justices themselves.– David Spence
