President Donald Trump’s Environmental Protection Agency issued new regulations this month that will save many coal and natural gas power plants from closure. To prevent them from being unnecessarily decommissioned, the agency used a clever new argument that will help the new standards hold up in federal court.
The Clean Air Act grants the EPA legal authority to issue regulations for any substance it determines can “reasonably be anticipated to endanger public health or welfare.” Since the legislation was enacted, the EPA has used it to regulate universally recognized pollutants such as carbon monoxide, sulfur dioxide, lead, and particulates.
In 2009, for the first time, then-President Barack Obama’s EPA went through the proper regulatory process of making an “endangerment” finding against carbon dioxide and other greenhouse gases. They do not harm public health as directly as sulfur dioxide or lead, but the argument was that climate change has adverse effects on public health, and carbon dioxide and other greenhouse gases undeniably contribute to global warming.
That first endangerment finding was made under Section 202 of the Clean Air Act, which governs EPA authority over motor vehicles. The EPA has since issued several new greenhouse gas regulations based on that finding for automobiles, including former President Joe Biden’s electric vehicle mandate.
Obama also used the 2009 greenhouse gas endangerment finding to try to regulate power plants in 2014 with his “Clean Power Plan.” Trump undid those regulations in 2019 before Biden reinstated them in 2021. The Supreme Court invalidated Biden’s version of the Clean Power Plan in 2022, holding that the Clean Air Act did not intend to give the EPA authority to ban coal and natural gas power plants entirely, as the Biden plan would have done.
Trump’s EPA is now moving to undo the agency’s authority to regulate greenhouse gas emissions from power plants entirely. The creative argument that EPA Administrator Lee Zeldin is using is that power plants are governed by Section 111 of the Clean Air Act, not Section 202, which governs cars, and that Section 111 says the EPA is required only to regulate a pollutant when the administrator determines that it “significantly” contributes to pollution. That qualifier “significant” is absent from Section 202.
The Trump EPA is arguing that since greenhouse gases only become a pollutant at a global level, and since U.S. power plant greenhouse gas emissions are a tiny fraction of global emissions, U.S. power plant emissions do not significantly contribute to the public health dangers caused by climate change.
“Unlike other air pollutants that can have a localized or regional impact and direct consequences to human health, GHGs are global pollutants,” the Trump EPA power plant rule says. “The share of GHG emissions from the U.S. power sector, including CO2, to global concentrations of GHGs in the atmosphere is relatively minor and has been declining over time. In 2005, U.S. electric power sector GHG emissions comprised 5.5% of total global GHG emissions. This percentage has fallen steadily since then to 4.6% in 2010, to 3.7% in 2015, and comprised 3% of total global emissions by 2022.”
Importantly, this new rule does nothing to weaken the EPA’s long-standing regulation of local and regional pollutants such as sulfur dioxide and lead. Our air will still be clear and clean long after this regulation takes effect. It also applies to the regulation of greenhouse gases that do not harm the environment at the local level.
CALIFORNIA HAS NO RIGHT TO ITS OWN IMMIGRATION POLICY
Trump’s new power plant rule will be challenged in court by environmental activists, but they would have sued no matter what he did. However, this new legal strategy gives Trump’s EPA a stronger footing to defend its policy now and make it stick in the future.
There will always be a danger that a future Democratic administration will undo Trump’s regulatory work, plunging the nation’s electric grid into uncertainty. But for now, our existing coal and natural gas power plants are safe to help deliver the energy supplies we need.