Is the EPA "Endangerment Finding" Endangered?
No and yes
Earlier today, The Washington Post reported that head of the Environmental Protection Agency (EPA), Lee Zeldin, has urged the Trump administration to rescind the EPA’s 2009 “endangerment finding” on greenhouse gases.
The Post reports:
Environmental Protection Agency Administrator Lee Zeldin has privately urged the White House to strike down a scientific finding underpinning much of the federal government’s push to combat climate change, according to three people briefed on the matter who spoke on the condition of anonymity because they were not authorized to comment publicly.
The 2009 “endangerment finding” cleared the way for regulating greenhouse gases under the Clean Air Act by concluding that the planet-warming gases pose a threat to public health and welfare. Both the Obama and Biden administrations used that determination to set strict limits on emissions from cars and power plants.
When published in 2009, EPA summarized its “endangerment finding” as follows:
The [EPA] Administrator finds that six greenhouse gases1 taken in combination endanger both the public health and the public welfare of current and future generations. The Administrator also finds that the combined emissions of these greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas air pollution that endangers public health and welfare under CAA [Clean Air Act] section 202(a).
The report that EPA has recommended rescinding the “endangerment finding” follows from a day 1 executive order from the Trump administration asking EPA to report back in 30 days on its “legality and continuing applicability.”
My view:
From both a legal and scientific standpoint, there is no legitimate basis for rescinding the 2009 “endangerment finding;”
From a create-chaos standpoint, the Trump administration may choose to rescind the finding and set in motion a dispute to be adjudicated by the courts;
There are good reasons, scientifically, to update the “endangerment finding,” as almost more than fifteen years have now passed and its justifications are out-of-date;
If the Trump administration wants to improve climate policy in line with U.S. national interests, then it should engage Congress, including proposing revisions to the Clear Air Act.
Let’s briefly discuss each.
Science and Law
The 2009 “endangerment finding” uses the word “risk” 237 times. Do changes in climate resulting from the emission of greenhouse gases pose risks to U.S. citizens and its economy?
The answer to this question is undeniably yes and needs clear only an exceedingly low bar.
Greenhouse gas emissions influence the climate and thus pose risks, because none of us are omniscient. As the late climate scientist Steve Schneider wrote in 2002:
“I readily confess a lingering frustration: uncertainties so infuse the issue of climate change that it is still impossible to rule out either mild or catastrophic outcomes, let alone provide confident probabilities for all the claims and counterclaims made about environmental problems.”
The reality of possible risks, small or large, associated with greenhouse gas emissions is sufficient to justify the endangerment finding.
Legally, the 5-4 judgment of the Supreme Court in 2007 in Mass. vs. EPA is exceedingly clear regarding its interpretation of the Clean Air Act (footnotes not included here):
The Clean Air Act’s sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical … substance or matter which is emitted into or otherwise enters the ambient air … .” §7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.” Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical … substance[s] which [are] emitted into … the ambient air.” The statute is unambiguous.
It is important to note that the 2009 finding requires EPA only to consider implementing a regulatory response, and it does not dictate what that response must be, or determine how EPA should assess costs and benefits of regulation, as EPA explained in the following analogy:
To use an analogy, the question of whether the cure is worse than the illness is different than the question of whether there is an illness in the first place. The question of whether there is endangerment is like the question of whether there is an illness. Once one knows there is an illness, then the next question is what to do, if anything, in response to that illness.
Neither science nor law support rescinding the “endangerment finding.” This should not be controversial, but I’m happy to hear about it in the comments!
Create Chaos!
What to say?
The Trump administration appears all-in on creating chaos in the federal government in an effort to (positively) fix things or (less positively) break things. Rescinding the EPA’s “endangerment finding” would certainly result in legal challenges. Given that Mass vs. EPA 2009 was decided on a narrow 5-4 vote, it is certainly not inconceivable that the current court would rule in favor of the Trump administration in a new case.
That said, the nation has survived perfectly well since 2009 under that judgment. Here, the end of Chevron deference by the Court last year is relevant — it is not up to EPA to decide how to interpret the CAA, rather the agency must defer to the language in statute, which is “unambiguous.” I agree.
Ultimately, climate policy is a matter for Congress and the president, and I’d expect the Supreme Court to send it back to them.
Update the “Endangerment Finding”
The 2009 “endangerment finding” is based on scientific understandings of more than twenty years ago.
Consider its use of scenarios of future carbons dioxide emissions. The “endangerment finding” relies on SRES (2000) and CCSP (2007) scenarios — and don’t worry if you are not familiar with these, just know that they are well out-of-date.2
These dated scenarios project ever-increasing carbon dioxide emissions, as shown below from the technical analysis that accompanied the 2009 finding, in the CCSP reports (created as an alternative to a U.S. National Climate Assessment by the Bush administration). Today, we expect emissions to peak soon and decline for the rest of the century, contrary to what was expected back in 2009. An update is needed.
An update to the “endangerment finding” would find that while risks of changes in climate from greenhouse gas emissions certainly remain, those risks have attenuated in the past few decades as the most extreme emissions scenarios have become increasingly implausible.
The Trump administration would do much more for science and policy by supporting a truly independent and fair-minded approach to updating the “endangerment finding” via a new FACA committee dedicated to this purpose under EPA.
To empanel such a committee, given the high political stakes, it would be worth creating a separate empaneling committee consisting of a small group chosen by, say, Republicans and Democrats of the House Science Committee. There are a lot of ways to produce good scientific assessments, should it be desired.
Do I expect this might happen? No.
Engage Congress
If (and it is a big if) the Trump administration wishes to change climate policy implementation for the longer term, rather than just for his term covered by executive orders, then it should engage Congress on the regulation of greenhouse gases. If Congress believes that the Clean Air Act should not be used to regulate greenhouse gases, then legislation explicitly espousing this policy should be proposed and the case made by the Trump administration for why it should pass, expending political capital in line with how it prioritizes the issue.
Executive action is for show, legislation is for real.
As Democrats would likely not jump to amend the CAA, meaningful changes would require significant political trade-offs, i.e., typically normal U.S. politics of the past ~250 years. The continued refusal of the Trump administration to seek policy change through legislation indicates a preference for symbolism over substance.
A Fun P.S.
The language in the 1977 Clean Air Act related to stratospheric ozone depletion anticipated and preceded the EPA “endangerment finding” on greenhouse gases by more than 30 years:
If at any time prior to the submission of the final Notice to report referred to in section 155 in the Administrator's judgment, any substance, practice, process, or activity may reasonably be anticipated to affect the stratosphere, especially ozone in the stratosphere, and such effect may reasonably be anticipated to endanger public health or welfare, the Administrator shall promptly promulgate regulations respecting the control of such substance, practice, process, or activity, and shall simultaneously submit notice of the promulgation of such regulations to the Congress.
This language was written by my late mentor Rad Byerly, who at the time was a PhD physicist and also chief of staff to the House Subcommittee on Space of the House Science, Space, and Technology Committee.
Rad explained to me in the 1990s that his motivation with this language was to refocus attention away from debates over the science of ozone depletion and on to what to do about risks.
It was brilliant and it worked.
In 1998, Michele Betsill and I wrote a paper explaining the consequences of this legislative framing, which were significant, leading ultimately to the Vienna Convention and Montreal Protocol, and a focus on solutions over science.
Climate change poses risks and uncertainty is not going away. So lets focus on solutions over debates over science. Pragmatism over politics.
Comments welcomed!
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These gases are: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6).
This was right before RCP8.5 arrived on the scene.
John Droz sent this via email which I am sharing
“ As you stated the word "risk" is utilized in the Endangerment Finding a few hundred times!
a) Why?
The EPA's objective here was to be able to increase their regulatory authority. It's a proven strategy that instilling fear is an extremely effective methodology in getting people to be willing to bypass logical thinking and give up their rights. Think COVID policies.
b) Perspective.
Essentially EVERYTHING involves some type of risk. For example, getting married involves substantial risks. Does that mean that the government should regulate all aspects of marriage?
c) Net Benefit.
Essentially everything that has risks also has rewards. Life is a series of judgments about the Net Benefit after comprehensively and objectively assessing the risks and rewards. There was no Net Benefit consideration in the Endangerment Finding.
d) Science.
A genuine Scientific Assessment includes four required elements: 1) Comprehensive, 2) Objective, 3) Empirical, and 4) Transparent. That was not done in the Endangerment Finding — ergo it is not a scientific assessment regarding CO2 or anything else.
e) Politics.
Arguably the most significant societal threat we are facing today is the persistent and purposeful undermining of real Science. (This starts in K-12 education — see the NGSS.) A primary tactic used to fool the technically-challenged public (and Supreme Court justices) is to substitute political science for real Science. That is exactly what happened in the Endangerment Finding (and COVID policy, and All of the Above energy policy, etc.).
Please reconsider your support of the horrifically bad Endangerment Finding — as it is an endangerment to Science, citizens, and America.”
It’s clear to me that co2 is not properly classified as a pollutant simply because it is critical to human life. Unless the EPA can quantify exactly how much co2 is too much, and how much is too little, the endangerment finding is overly broad and unclear, which are grounds for the court throwing out the decision.