The scope of the EPA’s power to regulate greenhouse gas emissions under the Clean Air Act (CAA) has been hotly debated in politics for years. This question was the underlying contention in West Virginia v. EPA, where the Supreme Court espoused its major questions doctrine. Additionally, the previous administration attempted to legislate the issue through the Inflation Reduction Act (IRA), which defined GHGs as air pollutants within the meaning of the CAA. A new Executive Order questions a long standing interagency finding that lends the EPA authority on this issue. Executive Order 14154 contains a provision requiring the EPA to revisit its findings that GHG emissions endanger public health and welfare. A recent Akin memo discusses the potential impacts if new agency leadership recommends a reversal of the endangerment finding:
“Such a recommendation could lead to a formal EPA challenge and eventual finding that U.S. GHG emissions do not meaningfully contribute to climate change or endanger public health or welfare. Paired with a repeal of the IRA, this would allow EPA to efficiently remove significant GHG regulations that were enacted based on the original endangerment finding. While Zeldin has not commented on what he may do regarding the findings, when challenged in his confirmation hearing in January on the topic, he refused to acknowledge that Massachusetts v. EPA ‘mandated’ EPA to regulate GHGs, instead stating that the decision ‘authorized’ the agency to regulate GHGs.”
A reversal would be devastating to national GHG emission reduction efforts, but may carry a silver lining. One major legal argument against state-led emissions reduction legislation is that such laws are preempted by the EPA’s authority to regulate GHG emissions and are therefore unconstitutional. If the federal government tosses this authority aside, then state governments may find it easier to impose GHG emissions reduction schemes. Given the federal government’s historical reluctance to limit GHG emissions, state programs could be more effective at decarbonization than the status quo. However, it may be too early to speculate on the issue – a reversal of the EPA’s endangerment findings would be an uphill battle for the new administration as the memo points out, including scientific and legal barriers which would likely delay any such finding for years to come.
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