Repeal of EPA’s endangerment finding on greenhouse gases faces hurdles and would threaten regulatory instability.
Calling it “the greatest day of deregulation our nation has seen,” Lee Zeldin, the administrator of the U.S. Environmental Protection Agency (EPA), announced on March 12, EPA’s plans to repeal 31 agency rules—an action he said would “drive a dagger straight into the heart of the climate change religion.” Among the rules targeted for repeal is EPA’s 2009 “endangerment finding,” which determined that “six greenhouse gases taken in combination endanger both the public health and the public welfare of current and future generations.” But can EPA repeal this endangerment finding and—as important—should it?
The short answer to the first question is that an agency generally has the authority to repeal regulations that themselves were not mandated by Congress, but there are significant procedural hurdles under the Administrative Procedure Act (APA) to doing so. In the case of the endangerment finding, the hurdles are particularly steep.
EPA’s 2009 endangerment finding was the outgrowth of the U.S. Supreme Court’s 2007 decision in Massachusetts v. EPA. The petitioners in the case—several states and environmental groups—challenged EPA’s denial of a petition for a rulemaking. The proposed rule would have required EPA to conclude that carbon dioxide was an “air pollutant” under the Clean Air Act and that automobile emissions of this and other greenhouse gases must be regulated because they “may reasonably be anticipated to endanger public health or welfare.” The Court rejected EPA’s challenges to the states’ standing, EPA’s argument that greenhouse gases were not air pollutants, and EPA’s claimed discretion whether to make an endangerment finding, remanding the case to the agency. In rejecting EPA’s claim of discretion, the Court reasoned that “if EPA makes a finding of endangerment, the Clean Air Act requires the Agency to regulate emissions of the deleterious pollutant from new motor vehicles.”
EPA’s subsequent 2009 endangerment finding was the product of an extensive notice-and-comment rulemaking proceeding that followed the Court’s decision. The fact that the endangerment finding was the product of a notice-and-comment process is important for several reasons.
First, before an agency may repeal a rule issued using notice-and-comment procedures, it must use those same procedures. That can be a lengthy process. The agency must consider and address adequately all significant comments to avoid the taint of arbitrariness. That is no small feat. A rule that alters a major agency policy such as the endangerment finding is likely to engender thousands of comments. For example, the Federal Communications Commission’s proposal to end its “net neutrality” policy prompted several million comments. The process of review will also almost surely be made harder—and more prone to error—in light of the EPA administrator’s announced plans to cut the agency’s spending by 65 percent. Budgetary cuts, coupled with plans to repeal 31 rules, are sure to strain the agency’s resources.
Second, if the original rule was centered on the agency’s fact finding—which was the case with what the agency termed its endangerment finding—the agency is not writing on a “blank slate.” In such cases, it must demonstrate either that the facts underlying the original rule have changed or, if not, why repeal is nonetheless appropriate. That too will likely be difficult for EPA. In the years since the endangerment finding, the climate change impacts of greenhouse gas emissions have gotten worse, as the United Nations (U.N.) has warned.
Finally, in repealing a rule, the agency must consider any “reliance interests” that the original rule may have created. In Department of Homeland Security v. Regents of University of California, for example, the Supreme Court struck down the first Trump Administration’s attempt to repeal the Deferred Action for Childhood Arrivals (DACA) rule protecting “dreamers”—undocumented immigrants brought to the United States as children—because the U.S. Department of Homeland Security had failed to consider the reliance interests of universities and others that had planned their affairs based on the rule. The existence of reliance interests is not a bar to repeal, but the agency must demonstrate that those interests have not been ignored and are outweighed by the benefits of the rule. Again, this task will be a hefty lift for EPA. The endangerment finding has been in effect for nearly a generation—undisturbed by Congress. During that time, utilities across the United States have retooled their generation fleets to reduce carbon emissions, car manufacturers—reliant on tax credits—have restructured their organizations to produce more hybrid and all-electric vehicles, and other major industries have promoted their own efforts to secure green energy.
Beyond these hurdles, the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo—which overturned the Chevron doctrine, under which a court must defer to a reasonable agency interpretation of an ambiguous statute—may not cut in a deregulatory direction, contrary to conventional wisdom. It is one thing when private parties are challenging government statutory overreach—the lack of agency deference helps the challengers. It is quite another thing when the government seeks to undo its own existing statutory interpretation.
Even before Chevron’s demise, an agency’s statutory interpretation was not entitled to judicial deference when the courts themselves had previously found the statutory term at issue to be unambiguous. In the case of EPA’s endangerment finding, one thing that is not at issue is whether greenhouse gases are air pollutants. “Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons,” the Court concluded in Massachusetts v. EPA, “are without a doubt ‘physical and chemical … substances which are emitted into … the ambient air.’ The statute is unambiguous.”
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