Oops! Zeldin's EPA Dumped Key GHG Endangerment Finding, And It May End Up In A Flood Of Lawsuits, State Actions

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Since 2009, EPA’s endangerment finding has served as the legal predicate for greenhouse gas regulations under the Clean Air Act. It underpins standards for pollutants such as carbon and methane that drive climate change. High-emitting industries, especially those that sell or rely upon fossil fuels, often have opposed those rules — particularly those drafted under Democratic administrations. For the Trump administration, reversing the endangerment finding would ease EPA’s task of undoing Biden-era rules and free the agency from any obligation to replace them. The move — if the courts uphold it — also would make it harder for a future administration to impose climate regulations without new action by Congress.

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But removing the endangerment finding carries risks for the same companies that Zeldin expects to benefit from its repeal. For one, it could encourage Democratic-led states to do more to regulate carbon-heavy industries within their borders, such as power plants and oil companies. There may also be an opening for states to regulate greenhouse gas emissions from motor vehicles without EPA’s permission. The Clean Air Act specifies that states need an EPA waiver to do so, but it’s up for debate whether a waiver would be necessary if the endangerment finding goes away. The Biden administration granted California a waiver to implement tougher-than-federal vehicle emissions rules. Litigation is ongoing about whether the Trump EPA can rescind it. But states such as California might make the case that EPA’s refusal to address climate pollution frees them from the obligation to secure a waiver, said Ann Carlson, director of the Emmett Institute on Climate Change and the Environment at UCLA.

“I think there’s an argument — although it’s by no means a slam dunk — that if the administration is convinced that there’s no endangerment and no need to regulate, that that could free up states to regulate, and that would not require a waiver,” she said. Adler said revoking the endangerment finding for greenhouse gases would weaken any claims that states can’t or shouldn’t regulate climate pollution because the federal government is doing so. But he said those arguments weren’t legally sturdy, except for motor vehicles and a handful of other sectors. The endangerment finding’s removal would have a more consequential impact, he said, on a 14-year-old precedent that has stopped federal tort suits against carbon-polluting industries.

States and citizen groups already can sue polluters under state common law — usually seeking monetary damages for climate impacts such as wildfires and sea-level rise. But a 2011 Supreme Court case — American Electric Power Co. vs. Connecticut — barred plaintiffs from suing climate polluters under federal common law, because greenhouse gas pollution was covered by the Clean Air Act. The statute “displaces” common law, the high court said. Now, arguably, it wouldn’t. “There’s a lot of concern in industry about how reversing the endangerment finding could open the door to more litigation and lawsuits,” said Jeff Holmstead, a partner with Bracewell LLP who represents industry clients.

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https://www.eenews.net/articles/killing-epa-climate-rule-could-backfire-on-industry/