EPA's Greenhouse Gas "Endangerment Finding": Finally Gone

On Thursday (February 12) President Trump and EPA Administrator Lee Zeldin held a press briefing at the White House where they announced the issuance of the final rescission of what is known as the “Endangerment Finding” — the 2009 Obama-era regulatory edict purporting to find that CO2 and other “greenhouse gases” are a “danger to human health and welfare.” The regulatory document finalizing the rescission then came out the next day, February 13.

The Rescission Document has the title “Rescission of the Greenhouse Gas Endangerment Finding and Motor Vehicle Greenhouse Gas Emission Standards Under the Clean Air Act.” It is 436 pages long. In this version, it appears in standard double-space typed format, with no page numbers. Although there is a table of contents, the lack of associated page numbers makes it extremely difficult to find anything in the Document. Within a few days, the Document will then appear in something called the Federal Register. The text will not be changed (other than that they reserve the right to correct errors); but the format will be substantially different — single-spaced and with multiple columns on a page. Publication in the Federal Register is what starts the clock ticking for deadlines to challenge the rescission in court.

Note that this Rescission Document is specifically directed to part of the Endangerment Finding that dealt with motor vehicles. Back when the Obamanauts implemented this stuff in 2009-10, they did the Endangerment Finding in pieces, starting with “mobile sources” (i.e., vehicles) in December 2009. Simultaneous with the Finding that GHG emissions from motor vehicles constituted a “danger,” they also issued something called the “Technical Support Document,” setting forth the purported scientific basis for the Finding. Later, they issued separate Endangerment Findings with respect to emissions from other sources, such as power plants. However, the subsequent Findings relied on the same Technical Support Document, so there never was any additional scientific support beyond the initial December 2009 regulatory action as to motor vehicles.

As others have already noted, this Rescission Document does not really take on the phony science of the climate alarm movement, as set forth in the 2009 Technical Support Document, or otherwise. Granted, there is a substantial discussion in the Rescission Document of the science issues, appearing in Section VI, from approximately pages 187-200 of this Document. From the first paragraph of that Section:

The discussion below is provided in the interests of transparency and public engagement and should not be understood as presenting any views or conclusions related to the bases for this final action set out in section V of this preamble.

So the basis for the rescission is not the phony science. Rather, they provide two main rationales: (1) the best reading of Section 202(a)(1) is that EPA lacks the authority under the statute to make the determination in question, and (2) the Endangerment Finding as to motor vehicles is futile, because the contribution of vehicles in the U.S. to overall world GHG emissions is de minimus.

I’ll give you some brief quotes from the document on these two issues. First, as to the interpretation of Section 202(a)(1), from the Executive Summary, approximately page 15 et seq.:

EPA now acknowledges that the Endangerment Finding and subsequent regulations exceeded the Agency’s statutory authority under CAA section 202(a)(1). These actions rested on a profound misreading of the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007). . . . Intervening legal developments reinforce our conclusion that Congress did not decide the Nation’s policy response to global climate change concerns in CAA section 202(a)(1), let alone clearly authorize the EPA to make that policy choice by prescribing emission standards that force a transition to EVs.

On the issue of futility, this is from the Executive Summary, approximately page 16:

Nor does climate impact modeling suggest that the EPA’s initiative has been anything but futile, which further supports the conclusion that CAA section 202(a)(1) was not designed with such a problem in mind. The inability of the EPA’s GHG emission standards to materially impact the identified risks both corroborates the interpretation of CAA section 202(a)(1) adopted in this final action and serves as an independent basis to revoke those standards, separate and apart from the question of statutory interpretation and of the nature of the EPA’s authority under this provision.

The “futility” ground is rather a good basis for rescission of this nonsense, separate and apart from any other basis. At about pages 178-180 of the Rescission Document the agency runs projected emissions reductions from extreme Biden EV mandates through some models and comes out with estimates that this transformation of the U.S. vehicle markets might reduce average surface temperatures by something in the range of 0.007 deg C by 2050 and 0.017 deg C by 2100. Modeled effects on global sea level are comparably minuscule. Conclusion (approximately page 180):

Whether viewed in terms of the complete elimination scenario or the illustrative 50 percent reduction scenario, these projections lead the EPA to determine that GHG emission standards under CAA section 202(a)(1) have no material impact (i.e., beyond a de minimis level) on the global climate change concerns relied upon in the Endangerment Finding to justify regulation. This determination leads us to two independent conclusions. First, as discussed in section V.A of this preamble, the futility of GHG emission standards under CAA section 202(a)(1) further supports that the best reading of the statute does not encompass global climate change concerns within the scope of the “air pollution” that Congress authorized and required the EPA to address. And second, as discussed in this section below, the futility of GHG emission standards under CAA section 202(a)(1) renders retaining such standards unreasonable given the certain and immense costs and other direct adverse impacts of the standards.

I have to say that I am disappointed by the agency’s decision to mostly duck the science questions. There are multiple simple demonstrations of the phoniness of the alarmist science that supported the finding of “danger,” the most obvious being the reliance in the 2009 EF for its main “line of evidence” on a global temperature data base in which most of the data for the Southern Hemisphere had been fabricated and infilled.

But there is some strategic thinking going on here that may be correct. Finding sufficient basis for rescission without taking on the “science” means the undermining of the ability of hundreds of seeming authorities from corrupt organization like the NSF and various scientific societies to make any counterarguments.

The litigation goes in the first instance to the DC Circuit. That court is likely to find some basis to reverse EPA’s action; and that likely would have been true no matter how definitive a showing on the science EPA could have made. Meanwhile, the current Supreme Court looks like it will be highly sympathetic to the arguments that EPA is putting forward in this Document. It’s really a question of how quickly it can get there.