EPA Rescinds The Legal Basis For Regulating Greenhouse Gases

The endangerment finding forced the EPA to regulate greenhouse gas emissions. Now, the agency says it doesn’t have the authority to do that.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Ira Flatow?

  Science Friday is supported by MathWorks, creator of MATLAB and Simulink software for technical computing and model-based design. MathWorks, accelerating the pace of discovery in engineering and science. Learn more at mathworks.com.

• 0:19Flora Lichtman?

  Hey, it's Flora Lichtman, and you're listening to Science Friday. Earlier this month, the Trump administration dealt a major blow to the government's power to fight climate change by rescinding a key piece of research.

• 0:33Speaker 02

  This is a big deal.

• 0:35Flora Lichtman?

  This is EPA head Lee Zeldin talking about it.

• 0:38Speaker 02

  Referred to by some as the holy grail of federal regulatory overreach, the 2009 Obama EPA endangerment finding is now eliminated.

• 0:49Flora Lichtman?

  The endangerment finding, it's the legal basis for the federal government's regulation of greenhouse gases under the Clean Air Act. And it basically says greenhouse gas emissions endanger public health and welfare, and because they're harmful, they must be regulated. So what does it mean that this finding has been thrown out? Joining me now is an original author on the endangerment finding, Dr. Andy Miller. He was at the EPA for more than 30 years, working on air pollution and climate change. Andy, welcome to Science Friday.

• 1:22Speaker 03

  Thank you, Flora, and thank you for having me on.

• 1:25Flora Lichtman?

  I think the endangerment finding might be new to people, this term. How big of a deal is this in the climate world?

• 1:34Speaker 03

  Well, it's huge. It officially and legally defines greenhouse gases as air pollutants. And with that definition and that finding, then that means that EPA is obligated to regulate that air pollutant, or those air pollutants, under the Clean Air Act. It is the basis for the regulatory programs. So it's a big deal from an EPA perspective.

• 2:05Flora Lichtman?

  You were an original author on the finding. This must be personal for you. What was your response to the news that it had been rescinded?

• 2:13Speaker 03

  It was...

• 2:17Speaker 03

  It was no surprise. We could see this coming from November of 2024. They've long wanted to get rid of the endangerment finding. They'd really like to get rid of the Massachusetts versus EPA Supreme Court decision. So this is not something that came as a surprise, certainly a disappointment, but not a shock.

• 2:43Flora Lichtman?

  What was that Massachusetts decision?

• 2:45Speaker 03

  So that's when the state of Massachusetts sued EPA saying that greenhouse gases were air pollutants as defined by the Clean Air Act. And so EPA at that time, this was, I believe, 2007, under George Bush disagreed. So Massachusetts sued EPA and it went to the Supreme Court. And Supreme Court at that time in 2007 said, yes, the requirements of the Clean Air Act are such that greenhouse gases fit the definition of an air pollutant for EPA and EPA must then respond.

• 3:26Flora Lichtman?

  So that's what triggered the endangerment finding?

• 3:29Speaker 03

  Yes. So there was the Massachusetts versus EPA decision. Then EPA had to take the steps to show that, yes, it is an air pollutant or that greenhouse gases are air pollutants under the Clean Air Act and therefore are subject to regulation. And without that endangerment finding, then EPA could not move forward with any kind of regulatory program.

• 3:54Flora Lichtman?

  Will you take me behind the scenes a little bit? I mean, what was it like back around 2007, 2008, 2009? Was it controversial to get the endangerment finding codified?

• 4:06Speaker 03

  Actually, it was.

• 4:10Speaker 03

  Internally, you know, at the working level where I was at, it was another, another scientific evaluation. And it wasn't that far off from the kinds of things that we normally did. It went through all of the internal evaluations, the reviews, the, the management, on up to the administrator's office. And the administrator, Stephen Johnson, under George Bush, actually sent this over to the Office of Management and Budget as per the, the process. And O M B decided they just were not going to open the email. This is very late in the, in the, in the Bush administration.

• 4:54Speaker 03

  They just decided they weren't going to, going to open the email.

• 4:58Flora Lichtman?

  That was the strategy? Let's just ignore, let's not even open it.

• 5:02Speaker 03

  Yeah. And so it came up again, obviously, when Obama came into office. And in 2009, then it had completed the whole legal process to become promulgated as an EPA rule.

• 5:19Flora Lichtman?

  Hmm. And what was the impact of it?

• 5:24Speaker 03

  Well, the, the immediate impact was that it allowed EPA to regulate greenhouse gases from vehicles. And so EPA did not have to wait for Congress to say, we need new fuel efficiency standards. EPA was able to use the endangerment finding to set these, these rules for new vehicles. And so that was the big deal. Now, EPA also tried to use this as the basis for reducing emissions from the electric generating stations, from power plants. That was not hugely ambitious.

• 6:09Speaker 03

  It didn't require deep cuts. It really codified what was already happening in the utility industry. That emissions were starting to go down already as we moved from coal to natural gas, bringing in more renewables. So the impact there was considerably less.

• 6:29Speaker 03

  But on the vehicle side, it was substantial. But it was also a following a trend that was already underway. As new technologies came into the market, as we get more and more electric vehicles, more and more plug-in hybrids. So you can argue it either way. I think that we're better off with it by far. I don't think it's yet a catastrophe.

• 7:00Flora Lichtman?

  To throw it out.

• 7:02Speaker 03

  To throw it out, exactly. Because it's not going to stop legal challenges from the states. So it's not clear right now whether the fossil fuel industry is going to have to face 50 different regulatory schemes or not. And even the automobile industry, they're still going to be facing pressure from international carmakers.

• 7:33Flora Lichtman?

  Right. I mean, and it's not like consumers want to buy cars that use a lot of gas.

• 7:39Speaker 03

  Most of them know. That's right. And this is one of the reasons why I don't think that this is a catastrophe, is that a lot of these pressures from overseas are still going to be present here and still going to drive efficiency and reduced emissions, even if there is not the regulatory driver.

• 8:00Flora Lichtman?

  What is the argument that EPA Administrator Lee Zeldin is giving for rescinding the finding? Is it a science argument or something different?

• 8:11Speaker 03

  It's a legal argument, at least on its face. It's not based on any scientific evidence, only on legal considerations.

• 8:22Speaker 03

  And those legal considerations are really focused on their view that EPA overstepped its bounds, that, given the recent Supreme Court decisions, that EPA could not make decisions of this magnitude without specific congressional direction.

• 8:45Flora Lichtman?

  Hmm. I mean, it's kind of interesting that the EPA isn't challenging the science because, you know, of course, we hear from President Trump that, you know, climate scientists are stupid and CO2 is never a pollutant. We've heard that from this administration. What do you make of that?

• 9:03Speaker 03

  From a scientific perspective, that's the big story. The EPA was really forced to accept, in this legal setting, that the mainstream climate science is valid. They were not able to show that the science is either an error or is too uncertain to be used as the basis for regulatory decisions. And so it's kind of, you know, funny is not quite the word, but somewhat ironic that when you read the current preamble, the legal preamble to the to the actual rule, they say over and over again that they still think there

• 9:44Speaker 03

  are problems with the science. But then they turn right around and say, well, we are not using this science in our legal arguments.

• 9:52Flora Lichtman?

  Hmm.

• 9:53Speaker 03

  And so in some ways, they're apologizing for not using the science that they developed.

• 10:01Flora Lichtman?

  Right.

• 10:02Speaker 03

  They really wanted to show, they wanted to take that to the Supreme Court and have the Supreme Court bless their view of the science that said it was wrong or that it was too uncertain to be used. Because that would then validate all of the arguments that, I won't even say all of the people in industry, but certainly people who are against the EPA's regulatory actions, that they wanted to see that really moved out and they were not able to do that.

• 10:33Flora Lichtman?

  Hmm. I mean, you've been working in climate science for 30 years. Does that seem like progress to you?

• 10:38Speaker 03

  Oh, absolutely.

• 10:43Speaker 03

  It doesn't surprise any, really, any of the climate science community. We've always known that the climate science is as solid as you're going to get. But what it does is it says, it makes it that much harder for institutions, for agencies, to make the claim that the climate science is flawed, and flawed to an extent that it cannot be used in a legal proceedings. Because what EPA has done here, it has said, "We can't use, we can't show that the science is wrong, or that the science is flawed." And so, this was their shot.

• 11:25Speaker 03

  This was their opportunity to make that case, and they couldn't do it. And so, not being able to make that case tells everybody else that, really, from a legal perspective, that argument should be over.

• 11:38Flora Lichtman?

  You're retired now, but you were at the EPA for more than 30 years. What are you hearing from your colleagues within the agency about this?

• 11:46Speaker 03

  Everybody's really disappointed. It really makes no sense. Sooner or later, we're going to have to regulate, or we're certainly going to have to reduce emissions. Whether we do that through regulatory means or other means is unclear. But we're moving in this direction. And no matter what the law is, no matter what the ideology is, no matter what the economics are, at the end of the day, the science wins. And there's no way around that.

• 12:16Flora Lichtman?

  Dr. Andy Miller was a scientist at the EPA for more than 30 years and an original author on the endangerment finding. Andy, thanks for joining me today.

• 12:26Speaker 03

  Thank you, Flora. It was a pleasure to be here.

• 12:30Flora Lichtman?

  This episode was produced by Rasha Aridi. We'll catch you tomorrow. I'm Flora Lichtman.