Will Pruitt Harpoon Climate Doubters’ 'Great White Whale’?

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By David Schultz and Andrew Childers

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.”

Friendly Administrator

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.”

Receptive Ear

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.”

No More ‘Magic Wand’

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.

Limited Bandwidth

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 reporters on this story: David Schultz in Washington at dSchultz@bna.com; Andrew Childers in Washington at AChilders@bna.com

To contact the editor responsible for this story: Paul Connolly at PConnolly@bna.com

For More Information

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.

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