For more than 15 years, the Environmental Protection Agency’s 2009 finding that greenhouse gases endanger human health and welfare has been the legal foundation for U.S. climate regulations — from vehicle emissions standards to limits on coal-fueled power plants.
Supporters say it’s essential for addressing climate change. Critics call it costly overreach that stifles energy production and jobs.
The Trump administration’s plan to reverse this endangerment finding is like “the domino that could topple critical climate efforts,” a Northeastern University climate law expert says.
“If you undo that endangerment finding — that initial legal basis — then there is a good chance that subsequent climate regulations and other efforts and initiatives that have taken place over the last decade and a half under the Clean Air Act could just fall down like dominoes,” says Sharmila Murthy, professor of law and public policy and faculty co-director of the Center for Public Interest Advocacy and Collaboration at Northeastern. “By going after the endangerment finding, what they’re basically trying to do is shortcut having to actually repeal or rescind other types of regulations one by one.”
In 2007, the Supreme Court ruled in Massachusetts v. EPA that the agency is required to regulate carbon dioxide and other greenhouse gas emissions under the Clean Air Act. In 2009, the EPA during the Obama administration said that greenhouse gases in the atmosphere “threaten the public health and welfare of current and future generations.”
But many conservatives and fossil fuel interests have had the finding in their sights, saying that it’s led to regulations that impose substantial costs and make the U.S. less competitive in global energy markets.
On the first day of his administration, President Donald Trump signed an executive order, “Unleashing America’s Energy,” directing agencies to review and remove regulations seen as burdensome to domestic energy production and giving the EPA 30 days to evaluate the endangerment finding.
In March, the EPA announced it would “reconsider” the endangerment finding, claiming the 2009 analysis was “flawed” and “unorthodox.”
“We are driving a dagger straight into the heart of the climate change religion to drive down cost of living for American families, unleash American energy, bring auto jobs back to the U.S. and more,” EPA Administrator Lee Zeldin said in a news release.
In July, Zeldin announced that the administration would “rescind” the finding, citing a Department of Energy-commissioned report from five scientists, at least three of whom have publicly rejected the scientific consensus that human activity – particularly fossil fuel use – is the dominant driver of climate change.
Murthy sees several possible paths for the future of the endangerment finding.
“We’ve seen the Trump administration do incredibly bold, controversial and often unlawful moves and then, when they roll it back a little bit, it seems legitimate,” Murthy says.
Murthy says that if the administration finalizes the rescission after public comment, the decision will “almost certainly” be challenged in court, potentially making its way to a Supreme Court that could overturn Massachusetts v. EPA.
“Historically we’ve seen the Supreme Court be more reluctant to overturn prior decisions and honor this idea of stare decisis, which every law student learns is really just respecting prior precedent,” Murthy says. “And we’ve seen that a majority of the justices on this Supreme Court have been willing to just jettison that principle.”
“Part of it is the legal — basically whether the Clean Air Act covers greenhouse gases,” Murthy continues. “But then the second piece of it is, if the EPA is required to make an endangerment finding, then it’s a question of science. And the science is clear that greenhouse gases are in fact endangering the public. This is about protections from climate dangers, like devastating floods and catastrophic fires, that harm all of us.”