Deep Dive 307 - Confronting the Questions: A Discussion on the EPA’s Proposed Revisions to Endangerment Finding

Under the Clean Air Act, the Environmental Protection Agency (EPA) is required to regulate emissions that “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” The Supreme Court held in Massachusetts v. EPA that greenhouse gases are considered pollutants under the Act, so whether they can be regulated depends on whether they endanger public health. The EPA issued the Endangerment Finding that greenhouse gas emissions cross this threshold in 2009. Any actual regulation of greenhouse gas emissions is issued by EPA separately, such as greenhouse gas emissions standards for vehicles. On March 12th, 2025, EPA Administrator Lee Zeldin announced that the EPA would be initiating “formal reconsideration of the 2009 Endangerment Finding in collaboration with the Office of Management and Budget (OMB) and other relevant agencies.”

Join us Friday, May 9th, from 11am – 12pm EST, as our panel of legal experts discusses the various questions surrounding the proposed revisions, such as preemption, cost revision, and how these changes would be implemented.


Featuring:

Michael Buschbacher, Partner, Boyden Gray PLLC
Richard Belzer, Independent Consultant
Jonathan Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law
(Moderator) Laura Stanley, Gibson Dunn, LLP

Episode Transcript

Speaker 1 (00:00):
Regulation after regulation.

Speaker 2 (00:02):
There are all dated regulations that need to.

Speaker 1 (00:04):
Be changed one hundred and eighty five thousand pages now
public accountability and transparency.

Speaker 2 (00:11):
There will be no public supports. It's really the best
we can do. There's a regulation that doesn't make any sense.
Why do you keep you.

Speaker 3 (00:17):
Know who wrote the regulatory laws you must comply with.

Speaker 4 (00:20):
Welcome to the Regulatory Transparency Project's fourth Branch podcast series.
All expressions of opinion are those of the speaker.

Speaker 3 (00:32):
Good morning, everyone, and welcome to today's Regulatory Transparency Project
webinar titled Confronting the Questions, a discussion on the EPA's
proposed revisions to Endangerment finding. We're so glad that you're
able to join us today. My name is Livy Dickinson,
and I'm the assistant director with the Federalist Society's Regulatory
Transparency Project. As a reminder, all opinions expressed are those

(00:52):
of the speakers and not of the Federalist Society. We're
honored to be joined today by an excellent panel of
legal experts. Our moderator to is Laura Stanley, an associate
attorney with Gibson, Dunn and Krutcher. You can find more
about today's moderator and panelists at fedsoc dot org, that is,
fedsock dot org. With that, I will hand things off
to Laura.

Speaker 5 (01:13):
Thanks so much, Libby. So like Liby said, my name
is Laura Stanley, and I am so excited to join
the Federal Ciety today to discuss EPA's plans to revise
its two thousand and nine in datriment finding. Under various
sections of the Clean Air Act, EPA is required to
regulate emissions that cause or contribute to air pollution once
may reasonably be anticipated to endanger public health or welfare.

(01:35):
It's the official statutory language. In two thousand and six,
the Supreme Court held in Massachusetts versus EPA that greenhouse
gases are considered pollutants under the Clean Air Act, and
I found that EPA had improperly denied a petition by
states and environmental organizations to regulate vehicle greenhouse gas emissions.
But before greenhouse gases from new motor vehicles can be

(01:57):
subjected to regulation, Section two two A of the Cleaner
Act still requires that EPA make a two part finding. First,
EPA must find that the air pollutant in question may
reasonably be anticipated to endanger the public health and welfare.
And second, EPA must find that the motor vehicles emissions
at issue cause or contribute to this air pollution. In

(02:19):
two thousand and nine, then EPA Administrator Lisa Jackson signed
two key findings that allowed EPA to take a step
closer to regulating greenhouse gases from vehicles. The first finding
was that concentrations of six greenhouse gases endanger the public
health and welfare of current and feature generations. The second
finding was that the combined emissions of these greenhouse gases

(02:42):
from new motor vehicles in the United States contribute to
global climate change. So these two findings imposed no direct
regulations on automakers or other industries, but they served as
the legal predicate for EPA's greenhouse gas emission standards for
motor vehicles, and EPA has issued at least three other
client endangerment finding since two thousand and nine. For example,

(03:03):
in October twenty fifteen, EPA made an endangerment finding pursue
into Section one to eleven be the Cleaner Act for
Electric Utility generating units. Earlier this year, in mid March,
EPA Administrator Lee Zelden announced that the agency will be
kicking off a formal reconsideration of the two thousand and
nine endangerment finding in collaboration with the Office of Management

(03:23):
and Budget and other agencies. Ep also announced that it
intends to reconsider its prior regulations that rely on that finding.
So the planner visions to EPA's endangerment finding is likely
to be an enormous undertaking for the agency and has
implications for many regulations that rely on that finding. And
it is all that's certain to face numerous legal challenges,

(03:44):
so we are sure to have an interesting discussion today.
So as far as the format goes, we will hear
from our experts and then will take time to discuss questions. So,
as Leby mentioned, please use the Q and A function
to semit your questions at any time and we will
ask them the end. So he began by introducing all
our panelists and then I altern it over to them.

(04:04):
So first we'll hear from Michael Bushbucker. Michael's a partner
at Boyden Gray where he has a particular focus on
environmental and energy matters. Before joining the firm, Michael served
as the DOJ at the DOJ as Council to the
Assistant Attorney General for the Environment and Natural Resources Division.
Prior to serving in the government, Michael was an associate

(04:25):
in the DC Office of Sidney Austin, and he also
clerked on the Sixth Circuit and on the US are
Ship Court for the Northern District in Indiana. After Michael,
we will hear from Professor Jonathan Adler, who is a
professor at Case Western Reserve University School of Law, and
he's also the founding director of the coleman Berg Center
for Environment Environmental Law. He's a contributing editor to The

(04:48):
National Review Online and a regular contributor to The Vola Conspiracy.
He's edited or written seven books, and his articles have
appeared in publications ranging from the High Harvard Environmental Law
Review and the Journal on Regulation to The New York Times.
Professor Eller is also clerked in the DC Circuit and
worked at the Competitive Enterprise Institute, and come July, Professor

(05:10):
Eller will be joining the faculty at William and Mary.
So congratulations on your new position. William and Mary is
very lucky to have you. And then finally we'll he'll
hear from doctor Rich Beelzer. Since two thousand and one,
Rick has been an independent consultant and regulation, risk economics,
and information quality. He previously served as a visiting professor

(05:31):
of public policy at Washington University in Saint Louis, and
he also serves as an economist in the Office of
Information and Regulatory Affairs, whuch is housed in the Office
of Management Budget. He receives his PhD in Public policy
from Harvard University and his master's in Public policy from
the Kennedy School of Government now the Harvard Kennedy School,
and he served in leadership in many professional societies, including

(05:52):
the Society for Risk Analysis and the Society for Benefit
Costs Analysis. He also completed a two year term as
a member of e PA Science Advisory Board panel on
Economy Wide Modeling. So very privileged to hear from such
an experienced panel of experts, and I will go ahead
and turn it over to Michael.

Speaker 6 (06:11):
Well, thank you, Laura. It's an honor to be here
with such great panelists. So since I'm first at bat,
I'm going to expand a little on the background here
to start off with before talking about why one might
want to get rid of the endangerment finding, and then
some of the pathways that EPA could use to to
get there, and some of the pitfalls that they'll have

(06:31):
to avoid and which are quite significant, And I say,
you know, or one of the things that's important here
is like to just note that we're still very early
on in the process. There's not a proposed rulemaking out yet.
There's just the announcement that they're going to reconsider it.

(06:51):
What Administrator Zelden has called the holy grail of the
climate religion. I think it actually should be like the
pieces of the true Cross, because it's scattered all over.
It's not just an it. It's a thing that you
find in many different places. And important to note just
kind of at the outset is that the nagement findings

(07:12):
not about whether climate change endangers anybody. It's about particular
source categories under the Clean Air Act and whether the
contribution to pollution or the pollution that those pollution pollutants
themselves cause, are going to endanger human health and welfare.
So the story really starts, as Lawer point out, with

(07:34):
Massachusetts versus EPA, so as a nineteen ninety nine petition
for rulemaking that EPA rejects during the Bush administration and says,
you know, under section two two A one this isn't
a pollutant. So that provision says that EPA shall regulate
the emission of any air pollutant from new motor vehicles which,
and this is a crucial phrase in the administrator's judgment,

(07:58):
cause or contribute to air pollution which may reasonably be
anticipated to endangered public health or welfare. There are a
couple of other similar provisions, but that's the one that
was an issue here. So EPA denied it, saying, you know,
not ghg's aren't air pollutants, and even if they were,
there's scientific uncertainty and the economic impacts of climate regulation

(08:20):
justifyed not regulating. So this determination was litigated up to
the Supreme Court, and the Supreme Court and some what
some might said fed socks circles, maybe called kind of
a boss stock esque opinion said that no, no, EPA
was wrong. Section two two a's capacious definition easily covers

(08:44):
greenhouse gases and that these economic impacts are simply not
part of not valid reasons for declining to regulate. The
court did say that uncertainty could have been a basis
for not regulating, but said that EPA had not actually

(09:05):
made that finding. There is a descent from Justice Scalia,
joined by Justices Thomas and Chief Justice Roberts. That's classic
Scalia barn Berner. He says that you know, if you
take the majority's approach, EPA can regulate as air pollutants
everything quote from frisbees to flatulence. It's interesting because you know,
flagelence is methan largely, so you you know there that

(09:29):
is a greenhouse gas. And one thing that's very different
from the conservative today is that the court, the dissenters
said that the Court should have upheld it using Chefron
Chevron deference. So shortly after the decision, Obama comes into
office and again, as Laura mentioned, EPA says there are
six well mixed greenhouse gases that they, in their judgment

(09:52):
think do endanger human health and well being. Carbon dioxide, methane,
nitros oxide, sulfredex of florid, hfc's PFCs, so a bunch
of different things, and relied on a lot of scientific evidence,
including the IPPC, the UN Intergovernmental Panel, and climate change.

(10:14):
And then after that they started regulating, and that's when
you have the first rules for greenhouse gas emissions from
motor vehicles, from new motor vehicles, I should say, and
because of fuel economy and greenhouse gas emissions are two
sides of the same coin. In fact, the way the
government measures fuel economy is by seeing how much CO
two comes out of the tailpipe for a given unit

(10:34):
of work. That rulemaking was taken jointly with the Department
of Transportation, specifically the National Highway Traffic Safety Administration or NITZA.
So since then, at least during democratic administrations, there's been
a lot of a whole number of rulemakings and several
different areas, including airplanes but also motor vehicles that have

(10:59):
regulatding greenhouse gas emissions. Based on this initial two thousand
and nine finding, typically the agency said it's not reopening it,
which was a clever litigation gambit on its part, because
the question of was the endangerment finding right or has
it ever become right since then has never actually been
adjudicated by any court. The DC Circuit has punted on

(11:22):
jurisdictional bases to a whole bunch of challenges over the years,
including CEI were Professor Adler used to work, and if
you're like me and you've got to litigate climate issues
in front of the DC circuit. That probably won't come
as too much of a surprise that they are have
been pretty hesitant to get into the merits and have

(11:43):
focused on jurisdictional questions. So there are a number of
arguments that the enagement finding was wrong at the time
it was made and has not gotten right since then,
that it underplays the uncertainty, that it doesn't have the
scientific evidence it looked at, wasn't sufficient to justify the outcome,

(12:04):
or had sort of problems with it, or wasn't properly disclosed.
And then also whether the marginal impact of new motor
vehicles in the US is actually the kind of thing
that can cause or contribute to global climate change significantly
enough that it's a it justifies being regulated under two

(12:26):
two A. So there's also an argument, I'll display this upfront,
that Congress has somehow ratified the engagement Finding and subsequent legislation.
They certainly kind of wanted to suggest that, but they
didn't actually do that because they had to get those
bills largely through reconciliation, which wouldn't have allowed them to
modify to A two A. So you know, they have

(12:49):
kind of an atmospheric effect. But the notion that this
is somehow been legislatively settled is not correct. One final
key point on the way things played out following Massachusetts VERSUSZPAS,
several years later, the court decided case called aep versus Connecticut,
which said that the Clean Air Act displaces federal common

(13:10):
law regarding trans boundary emissions in that case, looking particularly
at greenhouse gases. That is very important because since then
states have tried to use state common law and state
legislation to go way further than the federal government has
to the point of I think the current slate of

(13:31):
litigation and laws have an estimated cost to the energy
industry if they succeed of twenty eight trillion dollars. So
a very big thing that looms in the background here.
So what are EPA's options. I think they've got two
main things they can do. Option one is they can

(13:51):
take a run at challenging the legal basis for the
endangerment finding. I think there are two variants of this.
One is to basically say Massachusetts versus EPA is wrong.
One way they could do that would be by saying, look,
Massachusetts versus EPA says that NITSA and EPA can both
administer their regulatory regimes without inconsistency regulating the same thing

(14:14):
using very different statutes. But subsequent experience has shown that
that's wrong. So, for instance, under the Biden administration, they
the two agencies decoupled their rulemakings, so they did them separately.
I like to think of that as kind of like
that guy from Coldplay and Gwyneth Paltrow consciously decoupling. They
consciously decoupled those rulemakings, and they're no longer consistent, they're

(14:36):
not harmonized. And so that shows that, at least in
these most recent rules, that Massachusetts is sort of factual
basis about how this could work was questionable. Then of course,
there are the legal arguments that the court rejected.

Speaker 2 (14:55):
There.

Speaker 6 (14:55):
You know, the big change here is now all the
five justices who are on the court in the majority
you're gone, and you've still got Justice Thomas and the
Chief and you've got some folks who have joined the
court since who probably would not have joined the majority
had they been around when that case was initially decided. Endangerment,
they could also look at narrowing their interpretation of endangerment

(15:17):
in addition to looking at the definition of air pollution.
Of course, statutory story decisis is hard to overcome, and
there are a number of kind of practical difficulties. There's
no way the DC Circuit can rule in their favor,
and if you have a panel that doesn't want that
case to go further, then there are always opportunities to

(15:38):
create vehicle problems to make keep away easier from the
Supreme Court. And I'm not cantingly sure that the Supreme
Court would be interested in taking this issue up again.
So those are some headwinds that they face. There slightly
different option is to kind of address endangerment within repeals.

Speaker 2 (15:55):
Of other rules.

Speaker 6 (15:56):
And there's a better argument that you can make that
the manner in which the enagement finding has been used
to regulate it violates the major question doctrine, which says
that if you have an agency adopting a novel interpretation
that it's going to have serious economic or political consequences,

(16:20):
you need a clear statement. And that's West Virginia versus EPA,
which of course is a climate EPA regulation case, though
not about mobile sources but about stationary sources. So this
doesn't pull the band aid off all the way, but
it may be has a higher chance of success ultimately,
and then on the factual side, EPA can challenge the
science across the board, which is an enormous undertaking because

(16:43):
you have not only the initial two thousand and nine determination,
but all these other ones, and that's the bulk of
climate science. There, of course, are people who disagree with that,
who have smart arguments about why they think that climate
change is, whether it's greater uncertainty, or why the additional

(17:04):
marginal impact of more carbon in the atmosphere is not
going to change anything or endanger anybody. But that's not
the majority of view, and explaining why the agency has
been wrong for well over a decade is going to
be a tough thing to do because you've got arbitrary
and capricious review that is going to require because it's
a change in position under FCC versus Fox, the court's

(17:27):
going to demand giving reasons for why the new approach
is better. Of course, the reason why you might want
to do this is the cost of climate regulation is
extremely high, and I think this is the main reason
why they want to take it on the Biden tailpipe
REGs for cars, the EPA estimated under the Biden administration,

(17:49):
we're going to have something at one point six trillion
dollars in costs. And that's just one rule, and there
are many others. So you're talking truly enormous impacts on
American industry and things like driving, the electrification of the
motor vehicle market. The new rules require about sixty two
percent electrification in just a few years. That kind of

(18:09):
shift is at least as significant as the shift that
the court in West Virginia said went way too far.
On the factual side of things. You know, there's a
narrower approach to that'll just fly real quickly before wrapping up,
and that is that the statute does say in the
administrator's judgment, and it does tie it to emissions from

(18:30):
new motor vehicles, not just motor vehicles, but only new ones.
The marginal impact on that to climate there's a you
can make, i think a pretty good argument that where
we are going globally is not going to be affected
by our regulation of that one way or the other,
so there's no marginal impact. If you could show that,
then that would provide a different, slightly narrower basis for

(18:54):
revisiting endangerment. The final sort of problem all flag is
that if you do undo endangerment, that doesn't potentially reopen
the question of whether the Clean Air Act displaces federal
common law. And one of the arguments that has been
made in all of these climate suits is that the

(19:15):
Clean Air Act also displaces state common law on state
authority to regulate greenhouse gas emissions. So if the Clean
Air Act doesn't stretch that far, or at least this
part of the clean Erict doesn't, and there are other
parts that do, then there's an argument that AEP should
be should also be undone, and that you'd have federal

(19:41):
common law come back into play, which would open up
a new avenue for challenging for states and others to
challenge emissions from the energy sector. Not sure that federal
common law would be worse in the final analysis than
state common law, but that is sort of a downstream
question about whether under the current some we have preemption

(20:03):
of all state climate regulation for emissions. So looking for
very much to the debate as we get going further.
But while there are some significant headwinds, you know, rereading
Massachusetts was which just made me super angry all over again,
because it really is kind of a ridiculous decision and

(20:25):
there are better ways of doing this, and it should
be in Congress's court, not with the agencies, and not
with the courts, to set our global climate policy.

Speaker 5 (20:35):
Thank you so much, Michael. So as a reminder, you
can drop your questions into the Q and A function.
I've seen some coming into the chat, so that will
get to those at the end as well. For now,
I'm going to turn it over to Professor Adler.

Speaker 2 (20:47):
Well, great, thank you.

Speaker 7 (20:48):
It's a pleasure to be here to talk about indieenageerment,
finding something that some of us have been thinking about
and wrestling with now for close to two decades. I
agree with a lot of what what Michael said. I'm
gonna highlight a couple of things where I view the
history a little bit differently, and I want to say
a little bit about why I have characterized what EPA

(21:10):
Administrator Zelden has asked the agency to do as a
fool's errand as something that will waste resources, tie up
agency personnel on something that will not succeed, will not
accomplish what their purpose is. And let me, just as
an initial matter, note what I am not claiming. I
am not claiming Massachusetts versus EPOS correctly decided. I submitted

(21:33):
to Mikas brief with the Cato Institute back in that litigation,
arguing that the Cleaner Act should not be interpreted to
apply to greenhouse gases, and I still believe that would
have been the better interpretation of the statute. But it
is not the one that the Supreme Court adopted, and
not the one that the Supreme Court has at this
point subsequently and repeatedly reaffirmed. Indeed, Chief Justice Roberts, at

(21:57):
oral argument in one case said quite explicitly, we don't
do that about the question of revisiting the statutory holding
to Massachusetts versus EPA. The question before us is not
whether the Clean Air Act as a policy matter is
a good way to deal with climate change. I am
on record for years saying it is a fundamentally unseerious, destructive,

(22:19):
and wasteful.

Speaker 2 (22:20):
Way of trying to deal with climate change.

Speaker 7 (22:23):
It is a poor set of tools to try and
deal with the accumulation of greenhouse gases in the atmosphere,
a set of tools that can impose substantial costs and
will do nothing meaningful to reduce the accumulation of greenhouse
gases in the atmosphere. So for those on this program
that are particularly concerned about climate change, trying to maintain

(22:45):
the use of the Clean Air Act for this purpose
is like looking for love in all the wrong places.

Speaker 2 (22:48):
This is a waste of time and resources.

Speaker 7 (22:51):
It is not what someone serious about the climate challenge
should be focused on. Thirdly, this is also not a
question about whether or not producing atmosphere concentrations of greenhouse
gases or emissions of greenhouse gases is net welfare beneficial.
I happen to think it could be. I know there
are others who disagree, but that's also not the question

(23:14):
that the EPA is confronted with. The question that the
EPA is really confronted with is whether or not the
findings that have been made with regard to Section two
OZ two and then subsequently with some other prisons of
the Clean Air Act, that the emissions of greenhouse gases
a causer contribute to air pollution that can be reasonably
anticipated to threaten public health or welfare can or should

(23:36):
be revisited. And as a lawyer, I think it's important,
you know, those are lawyers to focus on. That is
the legal question before the court. Michael noted some other
questions about EPA's authority that I think are very interesting.
I think as an analytical matter, though, we do want
to recognize that EPA deciding to challenge the statutory interpretation

(23:57):
in Massachusetts versus EPA is distinct from challenging or revisiting
the conclusion about satisfying the endangerment finding under Section two
oh two and other provisions of the Act. Those are
distinct questions with distinct implications. So, just for example, if
the EPA were to reject the Supreme Court's interpretation of

(24:19):
the Cleaner Act in Massachusetts versus ZPA, again, I'm not
sure the Court's willing to go there. I think the
court's view is that statutory story decisis. It was a
decision that did not rely upon Chevron deference. The court
again wrongly in my view. So this is the clear
meaning of the statute That would obviously remove EPA's authority
to regulate greenhouse gases under the Cleaner Act for any provision.

(24:42):
It would in effect eliminate displacement of federal common law
under aep It would also eliminate a preemption of California
greenhouse gas vehicle emission standards because undoing Massachusetts versus EPA
would be saying these emissions are no longer subject to
the Act, and in particular with regard to California standards,

(25:04):
not subject to Little two of the Act, which is
the basis for preemption of California standards. That's distinct from
rolling back the endangerment finding, which in my view, and
this is not a consensus view, would not disturb aep
and would and would likely not disturb preemption of California
standards because the endangerment finding is not about whether or

(25:26):
not greenhouse gases are subject to regulation. It's rather whether
or not the administrator can make the conclusion that triggers regulation.
These are one one is a pre a predicate to
the other. First is the question is are these things
things like flatulence and Justice Scholis Famous formulation, things the

(25:48):
EPA could regulate. The endangerment finding is then about whether
or not, given that it can, must it or should
it given the language of the statute.

Speaker 2 (25:57):
So that's just some.

Speaker 7 (26:00):
Kind of setting the stage of how we should be
thinking about this question in terms of thinking about what
the actual endangerment finding itself.

Speaker 2 (26:07):
I think it's important for us to remember what.

Speaker 7 (26:10):
The statute says and to think carefully about what the
statute says. So we're gonna start with section two zero two,
and there are similar language elsewhere in the Act. In
a minute, i'll talk about how there are some places
where this language varies a little bit, and that might
give the EPA an opportunity to do kind of mini endangerment,
either withdrawals or preclusions. But let's start with section two

(26:34):
or two, because that was the initial primary base or
primary engagement finding, and there the administrator is required shall,
by regulation prescribe standards when the administrator concludes in his
judgment that the emissions of the pollutant cause or contribute

(26:57):
to air pollution which may reasonably be anticipated to endanger
public health or welfare. And I think that language is
important for a bunch of reasons. One, it is only
about do these emissions cause or contribute, so they play
a role and not even contribute to any meaningful magnitude.

(27:18):
There are other versions of the Clean Air Act.

Speaker 2 (27:20):
Section one eleven is one.

Speaker 7 (27:23):
And I believe of section two thirteen with regard to
nonword vehicles as one where the statutes has contributed significantly.
Those provisions are distinct. Here's just contribute, And because it
says contribute significantly in some parts of the statute but
not here, that means we are not asking for some
judgment about the degree of contribution. It's just a contribution,

(27:47):
and that that contribution may reasonably be anticipated. So we're
not asking for proof, We're not asking beyond a reasonable doubt,
we're not asking for ponderance of evidence.

Speaker 2 (27:59):
We're asking is this absolutely certain?

Speaker 7 (28:05):
Can it be anticipated that what's being contributed to will
endanger public health or welfare? And again, in danger doesn't
mean net welfare reducing does not mean on net harmful.
It's just can you reasonably anticipate? Is it reasonable to think, yeah,
this bad thing could happen? And then public health and

(28:28):
welfare and into the statute, welfare in particular are defined
exceedingly broadly to include just about everything. This is the
way we think about the way environmental statutes are written,
incredibly precautionary language. Now we may think I've certainly written
that precautionary approaches to risk regulation are often a really
bad idea, That loading the dice in favor of regulation

(28:52):
tends to be bad for human welfare, tends to be
bad for lots of things, But I wasn't asked to
write this statute. Congress, when drafting this language, chose to
use very precautionary language. Language that does not ask the
administrator to decide whether or not regulating the substance is
a good idea, does not ask the administrator to decide

(29:13):
whether regulating the substance it will on net be a
good or bad thing. And the reason I spend this
time stressing these points is because to undo the endangerment finding,
it's not enough to say regulating greenhouse gases is really
expensive and bad and does more harm than good, or
regulating greenhouse gases is worse than focusing on climate adaptation,

(29:36):
or using the Clean Air Act is going to be ineffective,
or regulating greenhouse gasses won't actually.

Speaker 2 (29:41):
Solve the problem.

Speaker 7 (29:43):
One can believe all of those things none of them
are responsive to what the EPA is required to focus on.
And as Massachusetts versus EPA pointed out in the one
part of the decision that I think is correct, an
agency like the EPA is required to first and foremost
focus on the criteria and the considerations that Congress.

Speaker 2 (30:04):
Told it to focus on.

Speaker 7 (30:07):
And so in order for the EPA to under the
endangerment finding. What the EPA basically has to be able
to say is that it is unreasonable to anticipate that
greenhouse gases accumulating in the atmosphere can endanger public health
or welfare. And the reality is that's not something that

(30:28):
I think VP is capable of saying. It's not something
the EPA is capable of saying without literally undoing and
rejecting virtually everything the agency has said for the past
thirty five years, including the things it said when it
denied the petition filed by Massachusetts that led to the
Massachusets versus EPA decision. Further, it's also inconsistent with the

(30:51):
arguments made by most what we might call loop warmers
or climate skeptics, right, that is to say, if you
look carefully at the work of people.

Speaker 2 (30:58):
Like your own Lambourg or Steve Coonan and.

Speaker 7 (31:02):
So on, their arguments tend to be climate change produces
some bad effects, but look, there are all these other
things that are bigger problems in the world, and the
resources that will be required to address climate change could
be better spent dealing with these other problems. Again, you
may agree with that, that is not the question that
the Clean Air Act asks the EPA to consider. And

(31:25):
the various folks that are comments gifticts out there don't
claim that there's zero anticipated effect on whether zero anticipated
effect on temperature extremes, zero anticipated effect on sea level rise.
They just say not a disaster. But the statute doesn't
ask EPA whether it's going to be a disaster. It
asks can the EPA reasonably anticipate these negative effects on

(31:49):
public health and welfare? Defined very broadly, so, I think
just as a legal matter, this language in this statute
puts the APA in a decision. And you know when
in twenty twelve in the litigation when the enagement finding
was challenged, the d C Circuit did say that the
engagement finding was not arbitrary and capricious, even on bonk.

(32:11):
At most one or two judges on the d C
Circuit half heartedly raised questions about that finding. But you know,
I think for the reasons we see there, it's something
that that for that would be incredibly difficult for the
EPA to undo given existing standards of review. Let me

(32:32):
just say one last point, because I've gone on a bit.
We tend to talk as if the endangerment finding under
Section two oh two is necessarily the same for all
purposes of the Act, and that's not quite true. There
is very similar language in section one o eight, which
raises some different questions which would relate to whether or
not greenhouse gases could be considered or creditia air pollutants

(32:56):
for purposes of MAC standards. I think, for the reasons
we saw in U R VPA tried to do that.
If lower court tried to force EPA to do that,
that door would be closed.

Speaker 2 (33:05):
There is similar language.

Speaker 7 (33:09):
In section one eighty three for tag vessel standards section
two thirty two rare crest standards. What's interesting is that
in the provisions that relates to non road vehicles in
section two thirteen and the provisions that relate to source
specific stationary sources under section one to eleven, like was
that issue in the Clean Power Plan, the language varies,

(33:31):
and that the question that the EPA is supposed to
consider is whether the emissions from the source category contribute significantly.
And I do think that does raise some different questions,
not really about undoing the enngagement finding under section two
oh two, but do I think create possibilities for the EPA,

(33:52):
particularly for smaller categories of emissions. So you know, once
you get past power plants and maybe maybe one or
two other source categories, the percentage of US emissions, let
alone global emissions that a particular category is responsible to
starts to become very very small. I think there is
room for the EPA to perhaps say, for example, maybe

(34:15):
you know cement kilns don't contribute significantly under Section one eleven,
or this particular subcategory of offer of vehicle engines don't
contribute significantly. I think there's room there under those provisions
because of the addition of that additional word. But for
the environtment finding broadly, for the idea that legally you

(34:36):
could somehow undo the EPA's ability and indeed obligation to
regulate greenhouse gases without unleashing federal common law litigation and
California emission standard regulations, I just think legally that's too
big a lift, and I think the resources that are
going to be spent trying to do that are resources

(34:58):
that can be better spent on other efforts that could
produce tangible and long lasting deregulatory results, which is something that.

Speaker 2 (35:08):
I think many of us would like to see. So
I've gone on a bit. I will stop there.

Speaker 5 (35:11):
Thank you, Thank you so much, Professor Adler. So again,
please drupt your questions into the Q and A function
and we will get them all. We're done, and last
well we'll hear from doctor Poser what's over deal?

Speaker 1 (35:26):
Thank you. I just as a point of departure, I
want to say that my interest in this is on
the in the quality of the science that the DPA
would rely upon, and then secondly in the I'm interested
in any way that the economics of the problem could

(35:48):
be pulled again. I don't see how that could happen
with revisiting the endangerment finding. I will say that I
don't believe that the original the enagement finding was effectively
challenged on the on the matters of science quality, and

(36:12):
of course involved in tennedy has been highly differential to
each days reported expertise and doesn't matter. But if the
science doesn't isn't challenged, then there's there's not much else
that we can do. Given the broad language of the
engagement finding. I see three different ways that ETA, because

(36:39):
that's what we're dealing with here, could reverse the engagement finally,
at least provided the basis for themselves The first would
be for them to say that the science as of
two thousand and nine was wrongly interpreted when it was
relied upon in two thousand and nine. Would all prinative true.

(37:02):
It could say that the two thousand and nine science
has proved to be wrong and intervened in sixteen years.
It takes sens which there were predictions with regard to
climate that were made in that literature and have proven
to be incorrect. That provides another pathway. And then the

(37:22):
third EPA could take a look at the twenty twenty
five science and say, well, the twenty twenty five science
has makes is a more complicated case. Ses should the
conclusion in reach in two thousand and nine may have
been pretty much work. Fourth possibility is something else, but

(37:44):
I don't know what that would be within EPA. I
think that there are some significant practical barriers.

Speaker 6 (37:52):
To EPA doing with this.

Speaker 1 (37:56):
The first is that I don't see EPA statf ever
being willing to write the documents that would be required.
Even if we stipulate that that everything I've just said
before about the science, you know, it all falls all right,
I don't think if you're doing that. I think that

(38:17):
an infant number of monkeys with an infant number of
work processes would would produce that document sooner.

Speaker 2 (38:24):
Than the EPET staff.

Speaker 1 (38:28):
So then who can do this? It's going to have
to be Congress, and Thomas doesn't really have a role
in this. Their role is UH came and went when
they enacted the statute in the first place. What can
be done.

Speaker 8 (38:47):
A normal bill to repeal it is not not feasible
to get out of the seven I presume that it's
possible to get it.

Speaker 1 (38:58):
Out of the House. But the fourth option, the option
that Congress could take, it's a very high risk tactic
that we'll call it Congressional Review Act Chicken, and that
would be a situation where EPA does issue a new document.
I would think that a Congressional Review Act Chicken approach

(39:23):
would be to issue a document that takes away all
of the flexibility that e p A has thus far
provided in this regulatory reglatory agenda and maximizes the short
term pain, maximizes the costs that would be borne by

(39:45):
American household. I want to put in a marker here.
I think Michael used to was talking about costs on industry,
and I think that that's a that's not an act
to portrayal a way costs are are born. Costs are
born by household they're not born by fronts. Firms passed

(40:08):
them on, They pass them on the customers, they pass
them on the stockholds, they pass them on the boholders
in some respect that they default. They pass them on
to employees and the managers. They pass them on the suppliers.
But unless take an export costs either to another nation

(40:28):
that they don't operate in, or they export them to
the future, shifting costs to the next generation. All costs
are us done households, and those costs of achieving something
like that zero twenty fifty, which is arguably still the goal,
is a popular goal among the advocates of regatory action.

(40:52):
Those costs amount to, depending on the social costs of
carbon and how in addition they clean air at prooves
to be when used as the tool for achieving the goal.
If you look at a social cost of carvement of
about one hundred dollars per metric time we're talking about

(41:17):
we'll call it kind of an average across across states
of household level cost of five to ten percent of
median household income. That's a that's a significant effect. It's
the cost for higher than that. The consulting firm mckennedy
has in their kind of least efficient scenario SoCal hostive

(41:43):
cartment of seven hundred dollars per metric ton, which I
don't find astounding given the inefficiency of command and control regulation.
But now we're talking about roughly half of median's household income.
And if households had to bear half give up path

(42:03):
of their income for this purpose, I think that the
politics of climate change would would change, would would be
very very different. The on top of that, we wanted
to be partis about it, and I do spell only
is not at the point of advocacy, but the point
of being descriptive. One could one could do this in

(42:27):
a manner that shifts the distal court to share of
the telescold costs onto households and bluestate. Uh And that
that certainly can be done. And now the question is
what happened? And this would be teeing it up for
Congress to using the Correction Review Act to pass the

(42:48):
Joint Resolution Disapproval with plusident Trump Furry would sign, and
that would sit in motion tay UH. In practice, there
would be no ways if you hadn't do anything like
this again, powers would have to take action for it
is to be to be revived from the dead.

Speaker 6 (43:07):
UH.

Speaker 1 (43:07):
That is extremely risky approach. It has the it has
some significant perspective benefits if the UH, if the if
the approach were successful, the costs to be horrendous and
it failed. But that's an up set out there if

(43:28):
they're serious about it. I don't think that a direct
approach and direct attack on the endangerment finding would work.
How we're like to have a reason. I just don't
see EPA doing the work it would be necessary. If
they produced a document, it would be soulful of landmines
that it would certainly losing for That's the end of

(43:49):
what I had to say in prepare comments to look
forward to question right.

Speaker 5 (43:53):
Thank you so much. So, we have quite a few
questions that I would like to get to. At first,
I wanted to save my if you wanted to like
very quickly respond to yeah.

Speaker 6 (44:04):
So I think I disagree a little with Professor Adler
about exactly what the question is. So I don't think
the question is whether greenhouse gases endanger the public health
or welfare. I think it's about whether the the emissions
from new motor vehicles cause or contribute. And by the way,

(44:27):
I don't think to read the cause and contribute or
contribute the way Professor Adler does, I think makes it redundant.
I think contribute here has to mean like it's a
precursor to a pollutant being formed, so that that's like
some stuff gets in the atmosphere and then it interacts
with other stuff and then becomes something that's a pollutant,
because otherwise I think it would be because otherwise you

(44:51):
just be reading cause and contributors essentially meaning the same thing,
because no emission from anything in the United States is
the sole cause of any kind of pollution in the atmosphere.
So and you know, the question is like, at what
point does something I agree that significantly language in Title

(45:12):
I of the Clean Air Act is different, but at
some point you have to say, well, is the contribution
from this type of source actually causing or contributing to
the endangerment? And I think it just means butt for cause.

(45:33):
And if it's not a butt four cause, in other words,
if the harm would have happened anyway, then I think
there's plenty of space there in the Act for the
administrator to say, in my judgment, this doesn't and that's
an important word in the statute too. I think it
takes you out of arbitrary and precious land into abusive
discretion land, at least to some extent. So the other

(45:57):
thing I would point out is, I think think you're saying,
Professor Adler, that aep doesn't depend on the enngagement finding.
I agree with that, But then you also said something
about return to federal common law. I think that would
only happen if you had a pretty serious limitation or
overruling of Massachusetts versus EPA itself. But maybe I misunderstood

(46:19):
you there. And last point on Rick's CIRA idea, I
think I think that's a I think it's fantastic.

Speaker 1 (46:27):
I love that idea.

Speaker 6 (46:28):
I love the idea of if they lose on whatever
they end up doing on the endangerment part of it,
doing a direct final rule, send it over to Congress,
and then Congress can cra send it the President, and
then you have then you know, the agency is prohibited
from ever doing something substantially similar again untangling That would

(46:48):
certainly be a little bit messy. But yeah, so those
are my Those are my reactions. But I do think
it's very important to just emphasize that it's not about
green gases writ large, it's about the contribution from a
specific set of sources which are divvied up in different
ways across the actesser.

Speaker 5 (47:10):
Oh there, I'll give you a chance to respond quickly.

Speaker 7 (47:13):
Question yes, yes, So first on matters versus AP, I
think we agree so AP and AAP is often misread. Right,
It's about displacement, not preemption. Those are two different things.
AEP makes very clear that what causes displacement is the
existence of a statute in the space, not regulation, not

(47:36):
federal action that actually is addressing the problem. I think
the opinion is very clear about that. I think the
history of unders of how displacement is different from preemption
makes that very clear.

Speaker 2 (47:45):
So I think we agree.

Speaker 7 (47:46):
The only way EPA playing in this sandbox undoes the
result of AEP is by getting the courts to reverse
the statutory holding of Massachusetts versus EPA. Ending federal regulation
in some other way of greenhouse gases in some other
way would not matter, because displacement is about whether or

(48:08):
not Congress has entered the field, not about what policy
choice Congress has made in that space or what policy
choice an agency has.

Speaker 2 (48:18):
Made with that delegated authority.

Speaker 7 (48:22):
And I think that I think that whether or not
California vehicle mission standards for greenhouse gases are preempted probably.

Speaker 2 (48:33):
Follows in parallel.

Speaker 7 (48:34):
That's a slightly different question, but I think there as well,
it's not clear to me that undoing the endangerment finding
would mean that California a greenhouse gas standard greenout gas
mission stands for vehicles would not be preempted and not
need to obtain waivers, because I think that under the

(48:54):
statutory holding of Mass versus EPA, they would still be
subject to that title.

Speaker 2 (48:59):
Even if wasn't using that authority.

Speaker 7 (49:02):
On the contribute part, you know, I think we do
disagree in the sense that the way I understand causer contribute,
and especially thinking about the history of environmental regulation, is
that way. Whether we're talking the Clean airct Clean Water Act.
Congress knew that there were certain things that were in
the in the environment naturally, and that human activities could
cause the volumes or concentrations of those things to increase

(49:24):
to a degree that would cause problems uh. And it
also knew that there were things that generally weren't in
the atmosphere air naturally or in the water naturally, that
were only there as a result of human contri actions,
and the causer contribute language captures both. Now, it may
well be that there are lots of things that we
thought were in the pure you know, humans are the

(49:47):
only cause of bucket that we have subsequently learned are
more in the contribute bucket than we thought. But I
believe that when you go back through that history, the
scientific understandings, the cause of contribute language is to try
to embrace them both. So to take one very easy example,
think about nutrient loading in water mines. Right, so, because

(50:08):
there's a common argument in the climate space, Oh CO
two is it's plant food. Well, yes, but that's irrelevant.
All kinds of nutrients are plant food. They can also
be pollutants for purposes of federal law. They can also
cause environmental harm when they get a reach levels beyond them.
So the fact that something can be beneficial in some
context or in some ways doesn't mean it can't be

(50:30):
harmful in another way. And so I think the contribute language,
especially when you have other parts of the Statute that
say contribute significantly means that we're talking about is this
something that's identifiable and measurable, And certainly if we're talking
about new motor vehicles, we are. And I think when
you look at the statute last point, I know I'm
going on here. When you look at the statute and

(50:51):
look at where contribute significantly is used versus where contribute
is used.

Speaker 2 (50:56):
You actually do see a pattern.

Speaker 7 (50:58):
When you're talking about big contributors, large classifications, all new
motor vehicles, all aircraft, the languages contribute. The assumption is
we're talking about lots of stuff when you're talking when
you're looking at provisions like section one eleven or Section
two thirteen, where you're looking at much smaller categories, right,
different categories of industrial facilities, different categories of non road engines,

(51:21):
of which there are lots of very small, niche sorts
of things. Significantly is used because Congress didn't want the
EP to spend all this time chasing down little niches,
little niche contributors, and so I think there's room there.
But I think that just reinforces the idea that trying
to say, oh, we can say no endangerment because the

(51:42):
contribution isn't large enough, doesn't work for Section two oh two,
doesn't work for Section T one eighty three, or it
doesn't work for Section two thirty two, might work for
most applications of Section one eleven and Section two thirteen.

Speaker 2 (51:58):
Again, because there's that differ language.

Speaker 5 (52:01):
Okay, I'm going to go ahead and jump to some questions.
So how do you all think that EPA will frame
the economic and cost considerations based on the sat RAI language?
The exist in case law? Can EPA consider costs when
assessing dangerment?

Speaker 2 (52:16):
I'm already on one of this thing.

Speaker 7 (52:18):
No, And I will just note in American Trucking, if
you go back to that litigation, a very similar argument
tried to be made there.

Speaker 2 (52:26):
And I was a you know, lowly peon in that case,
trying to argue that.

Speaker 7 (52:35):
The EPA could should be allowed to consider costs when
sitting national amain air quality standards because language about things
like welfare and public health and so on necessarily assumes
net wellfare maximization or net maximization of the health. Not
a single justice on the Supreme Court thought that was
even a plausible argument. Under American Trucking, I would be

(52:58):
very surprised if a parallel argument here, given the language
of the endangerment persons in the statute, could get anywhere.
Costs are what you think about when you set the standards,
when you decide what their regulations are, not in deciding
whether or not something is contributing to endangering health and welfare.

Speaker 1 (53:19):
And let me just jump in and say that I
would love to see an analysis of the extent to
which the endangerment and finding pauses or contributes to morbidity
and more mortality than the state.

Speaker 5 (53:32):
Much into another question. So this administration has been relatively
bullish about using rulemaking procedures such as an infernal rules
that do not provide for notice and comment prior to promotation.
Would EPA need to accept and respond to public comments
on the endangement finding prior to finalization?

Speaker 6 (53:52):
Well, I mean, you can't stop them from issuing in
term final rules before they do, but that would be
a be a serious mistake. This is the sort of
thing that is going to require public comments. As I
read the Clean Air Act, there is one sort of

(54:12):
wrinkle that they could take advantage of, which is if
you in notice and comment. If usually there's this sort
of logical outgrowth doctrine, which says that you can't introduce
something at the end that you didn't include at the beginning,
especially in the Clean Air Act, with data that you're
basing your decision on. But Section three oh seven of
the Clean Air Act also says that if there's something

(54:36):
new in the final rule that wasn't in the proposal,
then those who wish to challenge that can first have
to petition the agency or to address that issue, and
only then after the agency responds can they can they sue,

(54:58):
which allows for an infinite regress problem. This is something
the DC Circuit I think has created. But it's an
interesting option here where if you keep on moving the goalposts,
you keep on forcing people to file new petitions, and
you can delay a judicial review if you're the agency.
On this, Justice Barrett seemed to have a pretty broad
view of this, but the majority of the Supreme Court

(55:20):
last term, in a case called Ohio versus EPA, read
that more narrowly. But that is an open question. But
in terms of like, can you avoid notice of comment altogether?
I think that would be I think that would be
a big mistake.

Speaker 2 (55:34):
I agree with that. I mean I would have said
two little wrinkles.

Speaker 7 (55:37):
One where the administration, I think is on strongest ground
and trying to do interim final rules in the environmental
space are where there are either court decisions that suggest
existing rules are problematic, or where the administration has a
strong argument that the play meaning of a statute does
not in fact allow for the regulation that was issued.

Speaker 2 (56:00):
That's a high risk.

Speaker 7 (56:01):
There's some recent scholarship out suggesting that if the agency's
claim is the statute doesn't allow this, that the imposition
and enforcement of an unlawful rule should be good cause. Right,
Preventing people from being unlawfully regulated should be good cause.
But you're only going to prevail if the court ultimately
accepts your statutory interpretation. So in cases that hinge on

(56:23):
statutory interpretation, there's an argument there. It's a high risk strategy.

Speaker 2 (56:27):
It can be done. The other thing is that under
the Little Sisters.

Speaker 7 (56:31):
Opinion, you can certainly do an intern final rule, initiate
notice and comment, and if you can get through the
noticing comment process before a judicial review on that rule,
you might essentially get away with it, especially if the
rule making comments don't produce anything.

Speaker 2 (56:46):
That requires the rule to be revised.

Speaker 7 (56:50):
Again, there are contexts where I think you could do that.
I think, and I know Rick might have thoughts on this.
I think the volume of things that you are opening
the door to once you open this box make this
a very bad candidate for trying to use internfinal rulemaking,
because you're not primarily trying to do a very narrow
statutory argument, and then once you get into the underlying

(57:11):
stuff that leads to endangerment, you're not talking about a
small discrete amount of material, small dispreate amount of comments
to respond to. You know, you're going to be drinking
water from a fire hose, And so I think it's
a bad candidate for using that technique that might well
work in other context.

Speaker 5 (57:28):
All Right, I think we have time for maybe one
more question. So, Michael, you mentioned that the DC Circuit
declined to review the finding on the merits due to
juris social issues and the initial engagement finding. Do you
expect that it would be similarly difficult for you know,
the almost certain challenges to get past these jurish soectional bars.

(57:48):
Happy to hear from anyone on.

Speaker 6 (57:49):
This, well, I mean that was a very strong argument
in Massachusetts itself, which was, Yeah, the first part of
that opinion is about standing. This is where the special solicitude.
Every little tiny bit counts for purposes of standing. You know,
I think the Supreme Court is not as I think.
I don't think they view any part of that standing

(58:11):
decision as as right anymore. I don't think they're going
to overrule it out right, but I do think it is.
It's certainly not the direction they're heading. So I mean,
but I think if I think, what with something that's
about the same provision, I suspect one way or the other,

(58:32):
we're going to have a different approach to standing if
it comes to challenging this, And of course if it's
in a new rule like a power plant rule or
a rule about vehicles, then it's easy to challenge. You
just say this, you know, this purts my business, or
this you know, all the usual standing arguments that everyone
makes when they go to court to challenge a rule
that actually puts new provisions in the CFR and requires

(58:55):
people to change their behavior.

Speaker 7 (58:58):
I'm just jump in the DCS in the first council
for I always get the name wrong, Council for Sensible
Regulation or Coalition for Responsible Regulation. Decision NISI Circuit did
say the engagement finding was not arbitrary and capricious. So
they did reach that they rejected on standing grounds that
the challenges the tail time and and tailoring rule on
a very bizarre theory of standing that the Supreme Court

(59:22):
did not even think needed to be dignified in the U. R.

Speaker 2 (59:24):
Opinion, And I think the Supreme Court in h I'm
going to get the name.

Speaker 7 (59:30):
Michael's going to know the name of this case better
than I am. But in the case concerning standing challenging
the California waiver right now, the Court is going to
make clear I think that when you can identify a
clear economic impact of a regulation on your business or
your industry, you have standing. And so I don't think
there would be a problem challenging standing here. There might

(59:53):
be other issues about you know, is the Court going
to narrow state standing? Is it going to narrow the
sort of standing theories that are relied upon other climate contexts.
I'm inclined to agree with Michael that I think the
Court is going to try and cabin that part of
Mass versus EPA without it without espressly overruling it kind
of say, well, you know, if you're on all fours.

(01:00:15):
You're fine, but don't try using this elsewhere. But I
think that'll have its greatest effects in you know, Ada
tester litigation and other sorts of contexts that are outside
of the climate space.

Speaker 5 (01:00:29):
Well, thank you so much. I'm sure we could talk
for another hour about DIM on alternative energy and standing,
but I think we are out of time. So thank
you so much to our excellent panelists and to the
Federal Society for hosting Libby. I want to run it
back to you great.

Speaker 3 (01:00:43):
Thank you, what a fantastic discussion. Thank you so much
Laura for moderating, and thank you again to our panel
for joining us and for sharing your incredible insights today.
For more content like this from the Regulatory Transparency Project
here at the Federalist Society, discussing the regulatory state and
the American way of life, please visit us at Regproject
dot org. That is reg Project dot org.

Speaker 4 (01:01:05):
Thank you on behalf of the Federal Society's Regulatory Transparency Project.
Thanks for tuning in to the Fourth Branch podcast to
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Speaker 5 (01:01:34):
This has been a FEDSC audio production