Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...
EPA Administrator Scott Pruitt has vowed to roll back Obama-era rules capping greenhouse gases from power plants and oil wells, but some conservative groups want him to go further and uproot the legal foundation for the agency’s climate regulations.
It remains to be seen whether Pruitt has the appetite to attempt to overturn the Environmental Protection Agency’s landmark 2009 determination that greenhouse gases should be regulated, known as the endangerment finding. Undoing that decision would require reversing course on decades of EPA research on greenhouse gases, but success would mean a complete halt to all of the EPA’s work on climate change. However, that might be insurmountable given a court decision upholding the finding—a case that Pruitt lost, attorneys said.
Jonathan Adler, a law professor at Case Western Reserve University in Cleveland, is a conservative blogger who has been critical of the way the Obama administration regulated greenhouse gases. But, he said, given a federal appellate court’s unanimous ruling the finding is legal, attempting to repeal it would be a fool’s errand.
“I think, even accepting the goals of the people who want to get rid of the endangerment finding, I compare it to chasing the white whale or tilting at windmills,” Adler told Bloomberg BNA.. “The likelihood of prevailing is so small.”
The agency did not respond to requests for comment for this story.
With a friendly administrator at the EPA—Pruitt, himself, has questioned the effect emissions from human activities have on climate—opponents of greenhouse gas regulations see an opportunity to halt all climate change work in its tracks.
“The endangerment finding is the springboard for all of the Obama EPA climate policies,” Ted Hadzi-Antich, a senior attorney at the Texas Public Policy Foundation, told Bloomberg BNA. “The endangerment finding supports the car emissions rule, the truck emissions rule, the power plants, all of the EPA’s regulations, many of which are still in the pipeline. Without the endangerment finding, none of them would be able to stand.”
Hadzi-Antich’s group is one of the three that have filed formal petitions on the endangerment finding to the EPA, arguing the determination should have been reviewed by an advisory board of scientists first. The Competitive Enterprise Institute, which helped staff President Donald Trump’s transition team at the EPA, and Concerned Household Electricity Consumers Councilhave also sought to overturn the finding, attacking the fundamental science of climate change.
Their petitions may be greeted with a receptive ear at the EPA.
As Oklahoma attorney general, Pruitt joined a lawsuit seeking to overturn the endangerment finding. That suit ultimately failed at the U.S. Court of Appeals for the District of Columbia Circuit in a unanimous 2012 decision and the U.S. Supreme Court declined to review the endangerment finding..
Given those decisions, Adler said going after the finding would divert EPA resources from less ambitious attempts to roll back individual climate regulations.
“In the real world, it’s a fairly destructive quest,” he said. “You can’t do it all.”
Rather than a frontal assault on the endangerment finding, Pruitt would be better served reading that decision more narrowly, said Eric Groten, a partner in Vinson & Elkins LLP’s Austin, Texas office who had represented industry groups in challenges to the initial 2009 finding.
He said the finding only addressed greenhouse gas emissions from vehicles, while the Obama EPA had interpreted this as triggering regulation for other emissions sources such as power plants. Pruitt could simply reverse course and decide that the endangerment finding doesn’t apply to sources of greenhouse gas emissions other than vehicles, Groten told Bloomberg BNA.
“Stop using that 2009 finding as a magic wand to justify further regulation,” he said.
However, the reality is that Pruitt has promised an aggressive deregulatory agenda at the same time that the White House has proposed more than 30 percent cuts to the EPA’s budget.
Ethan Shenkman, a partner in Arnold & Porter Kaye Scholer LLP who served as deputy general counsel at the EPA during the Obama administration, said this finite amount of resources and man-hours will factor into Pruitt’s decision making—especially considering that any potential repeal of the endangerment finding would be challenged in court and spend years being litigated.
“If the budget is cut significantly, and if the agenda remains as ambitious as it has been, there’s a question whether the agency will have resources to tackle all these issues in a way that will stand the test of time,” Shenkman said. “They can try to take shortcuts and cut corners, but the problem is there will likely be some state and environmental groups and others who will challenge what they do and the courts will take a very hard look.”
Having been on the losing side of the last attempt to overturn the endangerment finding, Pruitt may be less inclined to take a second whack at the decision and instead spend his efforts halting greenhouse gas regulations that specifically target power plants or oil wells, Adler said.
“Pruitt is an experienced litigator,” he said. “He understands that context. I would expect he’s well aware that the endangerment finding is not worth trying to take down. In litigation sometimes you go for the silver bullet and sometimes you go for the things you can achieve.”
To contact the editor responsible for this story: Paul Connolly at PConnolly@bna.com
The Competitive Enterprise Institute's petition is available at http://src.bna.com/oAv.
The Concerned Household Electricity Consumers Council's petition is available at https://thsresearch.files.wordpress.com/2017/04/ef-epa-petitionforreconsiderationof-ef-final-1.pdf.
The Texas Public Policy Foundation's petition is available at https://www.texaspolicy.com/library/doclib/Liberty-v.-EPA-Petition.pdf.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)