Environmental Protection Agency Administrator Lee Zeldin announced more than two dozen regulatory actions last week, almost all of which can help progress President Donald Trump’s promised “Golden Age of America.” But one of the actions will almost assuredly fail in court. We hope the EPA is not basing any other regulatory steps on this lost cause. Its limited resources would be better spent fighting other regulatory battles.
Under the Clean Air Act, the EPA must regulate any pollutant that can “reasonably be anticipated to endanger public health or welfare.” The act defines a pollutant as “any physical, chemical, biological … substance or matter which is emitted into or otherwise enters the ambient air.”
In 2009, the Obama EPA went through the proper regulatory process of making such an “endangerment” finding for carbon dioxide and other greenhouse gas emissions such as methane. Once that endangerment finding is made, the EPA is obligated to account for that pollutant when it implements such things as the National Ambient Air Quality Standards, “mobile source emission” standards (aka tailpipe emission regulations), and stationary source performance standards (aka power plant regulations).
Since 2009, the Obama administration and then the Biden administration used the greenhouse gas endangerment finding to issue thousands of pages of regulations, inflicting trillions of dollars of costs on the economy. As Energy Secretary Chris Wright said in a press release announcing Zeldin’s intention to reverse former President Barack Obama’s 2009 endangerment finding, it “has had an enormously negative impact on the lives of the American people. For more than 15 years, the U.S. government used the finding to pursue an onslaught of costly regulations — raising prices and reducing reliability and choice on everything from vehicles to electricity and more.”
Wright is right. The EPA under Obama and former President Joe Biden have greatly harmed the economy by not considering the costs of emission regulations they created. Zeldin has announced his intention to roll back all these harmful regulations, including Biden’s Clean Power Plan, which is forcing many coal and natural gas power plants offline, raising the cost of energy, and making the electric grid less reliable, and Biden’s strict tailpipe emission rule, which was so stringent that it acted as a ban on gas-powered cars and an electric vehicle mandate.
We wish Zeldin the best in swiftly undoing the damage and hope the EPA still has enough employees to go through the regulatory process properly.
But when the EPA said Obama’s EPA did not “consider future costs when making the finding,” that is true because the Clean Air Act does not list costs as one of the factors when considering if a substance needs to be regulated. What Section 202(a) of the act does say, as noted above, is that the EPA must regulate any substance “which may reasonably be anticipated to endanger public health or welfare.” All that must be shown is that a substance could cause harm to the public. To defend undoing the endangerment finding in court, the EPA would have to show either that greenhouse gas emissions do not affect the climate or that changes in the climate would not harm a single American. Those are both impossible to defend.
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The EPA can argue that Biden’s Clean Power Plan regulation causes economic harm and that it has no real environmental benefit because even if American power plants all emitted no carbon, the climate would still change thanks to India and China building hundreds of new coal plants every year. But those cost arguments should be made where the statute says the EPA should consider costs, not where it does not.
The first Trump administration moved to undo much of what the Obama EPA tried to do on carbon, and it chose not to go after the endangerment finding. That was wise. With the Department of Government Efficiency so focused on eliminating government waste, the EPA should be picking only the legal fights it can win.