Michael Gerrard and Jeff Holmstead on Next Chapter in US Climate Policy

“I think, at least so far, people have exaggerated the importance of the endangerment finding, at least when it comes to actually reducing emissions. It's been in place since 2009 The EPA has tried multiple times to impose pretty aggressive regulations. But they've been upended either by the courts or by the Trump administration. But other things like the revocation of the IRA tax credits are much more important when it comes to impacts on US greenhouse gas emissions.”

“Then they go on to say that for purposes of Section 202, which is EPA's authority to regulate, you know, we find that the term air pollutant and air pollution read in context is only designed to deal with pollution that what they call local or regional air pollution. I refer to it as sort of through direct exposure. EPA can only regulate when air pollution harms people or things when they're exposed to it.”

“So, the basic idea is that if despite what the text of a statute says, an agency can't regulate something of enormous political or economic significance without explicit authorization from Congress. So, the idea has been around for years, but in 2022, in the case of West Virginia versus EPA, the Supreme Court used that to throw out a version of the Clean Power Plan. And the nature of the Major Question Doctrine is it's sort of looming over all of administrative law.”

“So let me just say about the DC. Circuit, there are 11 active judges on it, seven appointed by Democratic presidents, four nominated by Republican presidents. There is, I ran the numbers, there is a 28.11 percent chance that the three-judge panel that's randomly chosen has at least two Republican members. Can I just point out that in some ways that's the worst possible outcome for the Trump administration because then it would almost certainly go to the en banc court. And the en banc court is likely to be much less sympathetic to the Trump administration.”

“Well, can I just point out, the auto industry did not support the reversal of the endangerment finding. They actually, in the written comments and in the public statements, just urged the administration not to revoke the endangerment finding. They did say, you know, the Biden rules are unreasonable and perhaps unachievable, and we'd like you to relax those to make them more reasonable. But they said we'd much prefer, you know, durable, reasonable regulations than having the endangerment finding revoked.”

“And a third is that the aviation industry wants to leave the endangerment finding in place for the aviation industry. It's a separate endangerment finding, but the going in order to sell its airplanes to a lot of other countries needs a certification of compliance with greenhouse gas standards. And if the US is no longer issuing the certification, then they would have difficulty selling the airplanes, which would be a big problem for them.”

“So these cases began more than 20 years ago, and for several years the big issue was whether they belong in state court or federal court. They've finally landed in state court. The oil industry and others have been trying for years to get the Supreme Court to knock it out. There was a case from Baltimore that the Supreme Court took but it relied but ruled on very narrow procedural grounds. Then the Supreme Court rejected an effort to take a case out of Hawaii. Then there was an effort by Alabama. But here they just granted cert.”

“On vehicles, it's more complicated because California has taken the position that if EPA is not regulating these, then, well, I should take a step back. Ordinarily, under the Clean Air Act, it's very clear that only EPA is allowed to regulate, so there's not a patchwork of different states. There's one exception for California, and EPA can grant a waiver to California that allows them to have more stringent standards, and then other states can adopt that so there wouldn't be more than two different standards.”

“So I don't think there's any likelihood of that kind of legislation during the Trump administration, but I'm optimistic that some sort of bipartisan climate change legislation is still possible. It would not go nearly as far as I'm sure the environmentalists would like, because there would I think have to be compromises on all sides. But I do think there is a chance of in two Congresses from now that there could be bipartisan legislation.”