Will Endangerment Finding Repeal Trigger New State Actions on Climate?

The Trump administration included language in its proposal designed to head off new state rules and lawsuits. But legal experts predict years of battle ahead.

President Donald Trump’s administration is not the first to declare it has no legal authority to regulate greenhouse gas emissions.

Twenty-two years ago, President George W. Bush’s administration came to the same conclusion, but that was hardly the end of the matter. The Bush decision touched off an era of aggressive legal and regulatory action by states, led by Massachusetts, California and Connecticut, which shaped the U.S. legal framework on climate change for two decades.

Could the same thing happen again, after the Trump administration finalizes its plan to rescind the Environmental Protection Agency’s endangerment finding on greenhouse gases?

Trump’s EPA is aiming to head off that risk, including language in its proposal asserting that state regulation or lawsuits on greenhouse gas emissions would be “preempted”—or, in plain language, prohibited. But legal experts expect that a repeal will nevertheless touch off years of new state-vs.-federal government battles over climate action, with a familiar roster of states in the forefront of the action.

“EPA’s disregard for the dangers of greenhouse gases defies science, law, and common sense,” said Massachusetts Attorney General Andrea Joy Campbell in an emailed statement to Inside Climate News. “More than two decades ago, Massachusetts led the charge to force EPA to do its job to regulate greenhouse gas emissions, and we’re not going to stop holding EPA accountable now.”

A Patchwork of Differing State Approaches?

EPA Administrator Lee Zeldin has maintained that repeal of the 2009 endangerment finding would create a clearer legal and regulatory landscape. “The Trump EPA is proposing to end sixteen years of uncertainty for automakers and American consumers,” he said in a written statement when unveiling the proposal July 29. He said that the Obama and Biden administrations had “twisted the law, ignored precedent, and warped science” to put the endangerment finding in place.

Environmentalists and scientists immediately pushed back on Zeldin’s assertions. But there has also been some concern in the business community that without the federal government taking the lead on climate action, it could be open season for states to write their own regulations or file lawsuits against companies over greenhouse gas pollution.

It has happened before. 

Massachusetts led the litigation that in 2007 prompted the U.S. Supreme Court ruling that defined greenhouse gases as pollutants under the Clean Air Act. 

California developed regulations that transformed tailpipe emissions—changing the key measure from miles per gallon to carbon dioxide per mile. Automakers were embroiled in litigation over California’s authority until President Barack Obama brokered a deal soon after taking office in 2009 that essentially put California rules in place nationwide. 

Connecticut, meanwhile, raised the specter of public nuisance lawsuits against utilities and other greenhouse gas polluters, an effort that was decisively cut off by the Supreme Court in a unanimous 2011 decision. The high court cited the endangerment finding in its decision that such lawsuits were preempted.

Given the importance of the endangerment finding in cutting off the Connecticut case, it’s not surprising that Edison Electric Institute, the trade group representing all of the nation’s investor-owned electric companies, has consistently maintained that its members support EPA having authority to regulate greenhouse gas emissions under the Clean Air Act. 

“Otherwise, we would face a patchwork of state regulations and lawsuits from plaintiffs that could raise costs to customers and impact grid reliability,” Alex Bond, EEI’s executive director of legal and clean energy policy, said in an email to Inside Climate News in March.

The Trump administration indicated it recognized these concerns. “We are … aware that regulated parties may have reliance interests in national uniformity,” the EPA said in its proposal. But the agency said that although it determined that regulating greenhouse gas emissions “based on global climate change concerns” exceeds the EPA’s authority under the Clean Air Act, the EPA retained its authority to regulate those emissions in the future. 

Therefore, in the EPA’s view, states would continue to be preempted, or barred, from taking their own regulatory actions or filing federal common law claims over greenhouse gas emissions.

But Richard Revesz, dean emeritus of New York University School of Law, who served as a top regulatory official in the Biden White House, said some of the assertions that the EPA makes challenging the science of climate change undercut its argument that it is maintaining authority to regulate greenhouse gas emissions.

“EPA is trying to thread an impossibly small needle,” Revesz said. “They don’t want to regulate greenhouse gas emissions. And they also don’t want California to be able to have its own vehicle greenhouse gas emission standards, and they don’t want [federal common law actions] to come back to life. They want to have it both ways, and their ability to succeed is questionable.”

Brittany Pemberton, a partner at Bracewell, a law firm that represents a wide variety of energy industry clients, points to language in the Supreme Court’s 2011 ruling that would make the particular kind of case that Connecticut filed against American Electric Power and other utilities—a federal common law case—dubious today even if the EPA backs away from carbon dioxide emissions altogether. 

But Pemberton said there are plenty of legal questions ahead. “The extent to which state law (common law made by courts or legislation) can be used to try to limit future emissions or obtain damages for past emissions is much less clear,” she said in an email. “Multiple courts are wrestling with this right now and reaching different conclusions. Repealing the Endangerment Finding is likely to add another layer of complexity and confusion in that area.”

The EPA is continuing to take public comments on the endangerment finding repeal proposal through mid-September, with public hearings scheduled on Aug. 19 and 20. 

Massachusetts and California led a coalition of states last week in calling on the Trump administration to extend the comment period. 

“Given the breadth and complexity of this proposal, including its impact on the economy, human health, and the environment, a 45-day comment period is wholly inadequate,” they wrote.

Cover photo:  Then Massachusetts Attorney General Tom Reilly speaks to reporters outside the U.S. Supreme Court on Nov. 29, 2006, as states argued against the EPA’s inaction on global warming. Credit: Brendan Smialowski/Getty Images