EPA proposes to rescind greenhouse gas endangerment finding

On Aug. 1, the U.S. Environmental Protection Agency (“EPA”) published a proposed rule in which it proposes to rescind the 2009 Endangerment Finding and repeal all greenhouse gas (“GHG”) emission standards that have been issued for light-duty, medium-duty, and heavy-duty vehicles under the Clean Air Act (“CAA”). This proposal represents a significant change in EPA policy and the potential future of numerous CAA regulatory schemes.

The Endangerment Finding was a final rule published in 2009 by the Obama administration in which EPA concluded that a combination of six key GHGs “endanger both the public health and the public welfare of current and future generations.” It was intended to provide a basis for EPA’s regulation of motor vehicles and engines pursuant to Section 202(a)(1) of the CAA, which authorizes EPA to regulate emissions or air pollutants from motor vehicles and engines that cause or contribute to “air pollution which may reasonably be anticipated to endanger public health or welfare.” By rescinding the Endangerment Finding, EPA will eliminate this regulatory foundation, clearing the way for a repeal of the GHG emission standards.

In support of its proposal, EPA makes numerous legal and scientific arguments. Notably, EPA argues that global climate change concerns (as opposed to solely local or regional concerns) cannot be used to meet the criteria of CAA Section 202(a) and that the Endangerment Finding was not adequately supported by scientific evidence. EPA also argues that, regardless of whether the Endangerment Finding is repealed, GHG vehicle and engine emission standards should still be repealed because there is no emission control technology that would “measurably impact GHG concentrations in the atmosphere or the rate of global climate change” and because the emission standards “may harm, rather than advance, public welfare as defined in the CAA by reducing fleet turnover that improves air quality, safety, consumer choice, and economic opportunity.”

If adopted, the EPA’s proposal to rescind the Endangerment Finding may not only lead to the repeal of the GHG emission standards for motor vehicles and motor vehicle engines at issue, but may also undermine numerous other CAA regulations, leading to their proposed repeal. Comments on the proposed rule are currently due on or before Sept. 15, though it remains to be seen whether this deadline will be extended. While environmental organizations have generally criticized the proposal, the initial reaction from industry groups has been mixed, with some welcoming the change and others raising concerns that the repeal may affect federal preemption of state-level GHG emission programs or other state-level actions addressing climate change. There will undoubtedly be a significant number of comments submitted in response to the proposal and lawsuits challenging whatever final rule comes out of the rulemaking process.

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