Long overdue: EPA at last abandoning the endangerment finding

The Environmental Protection Agency’s reconsideration of its so-called "endangerment finding" is long overdue.

It was already true in 2009, when the endangerment finding was first established to regulate motor vehicle greenhouse gas emissions. Sixteen years of additional evidence later, it is even more evident.

Carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride do not qualify as pollutants under the Clean Air Act as written or intended by Congress. Motor vehicle greenhouse gas emissions pose no risk to people’s health or welfare at a national or regional level at any reasonably foreseeable atmospheric concentrations.

In 2009, the EPA administrator determined that public health and welfare were threatened by the indirect impact of greenhouse gases as a driver of climate change. This marked the first time ever that the EPA had used a heretofore undiscovered “procedural discretion” to regulate such emissions, because the Clean Air Act was “silent on [the] issue.”

Where the law is silent, people are free to act and interact, unless and until the legislature, acting within its constitutional bounds, decides to legislate. Congress alone, not the executive branch nor the U.S. Supreme Court, is specifically delegated the power to make laws.

Science suggests that present change has been beneficial to human health and welfare. Higher carbon dioxide concentrations have boosted plant productivity, improving crop yields and production, which has resulted in reduced starvation and malnutrition globally.

Peer-reviewed literature and data presented at the Climate at a Glance website show no type of extreme weather event has become more frequent or severe during the present period of climate change. Also, Deaths attributable to extreme weather have declined dramatically.

Even the U.N. Intergovernmental Panel on Climate Change reports that, for most categories of extreme weather, it has neither detected any dangerous trend nor can it attribute dangerous changes with high levels of confidence to human activities.

Since there is no readily identifiable harm, there is no scientifically justifiable basis for the endangerment finding. In fact, if anything endangers human health and welfare, it is the endangerment finding itself, and the restrictions on hydrocarbon use that have been imposed by the federal government.

Section 202 of the Clean Air Act authorizes the EPA to regulate emissions from motor vehicles that directly compromise human health. Greenhouse gas emissions do not do so at any foreseeable atmospheric concentration.

Purported indirect harms to human health or welfare due to impact on climate are extremely speculative and largely based on flawed computer models. There is no correlation between U.S. vehicle emissions of greenhouse gases and identifiable human health or welfare impacts, much less any evidence of causation.

In Massachusetts v. EPA, the U.S. Supreme Court opened the door to regulating greenhouse gases as pollutants. The court’s majority was rewriting law, not following it as written by Congress. Congress has directly considered bills to regulate greenhouse gases, adopting none of them. When those bills were considered, no one suggested that the EPA already had such authority under the Clean Air Act.

The Massachusetts v. EPA ruling was nothing more nor less than the Supreme Court’s Roe v. Wade moment in the realm of environmental policy. The court gave individuals and states the right to force the federal government to adopt regulations, even though under the Constitution, only Congress has legislative authority and is the only branch of government delegated the power to regulate interstate commerce.

Recently, in West Virginia v. EPA, the Supreme Court reexamined the scope of EPA authority with regard to “major questions.” According to the ruling, the EPA “exceeded its statutory authority when it interpreted the Clean Air Act to require .... permitting for stationary sources based on their greenhouse gas emissions” and “may not treat greenhouse gases as a pollutant.”

If anything is a “major question,” it is the ability to regulate human emissions of carbon dioxide. Make no mistake, carbon dioxide is one of the most ubiquitous naturally occurring chemical compounds on Earth and is vital to life. The court reasoned that EPA’s claim of such authority was “unreasonable because it would bring about an enormous and transformative expansion in EPA's regulatory authority without clear congressional authorization ... discover[ing] in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy.’”

What is true of power plant greenhouse gas emissions is equally true of emissions from motor vehicles.

With West Virginia v. EPA in hand, and President Trump’s executive order directing agencies to repeal regulations that violate recent Supreme Court decisions, the EPA is not simply justified in rescinding the endangerment finding — it is legally required to do so. Do your duty then, EPA, and end the endangerment finding.

H. Sterling Burnett, Ph.D., is director of the Arthur B. Robinson Center on Climate and Environmental Policy at The Heartland Institute, a non-partisan, non-profit research organization.