Evaluation: 3 issues to observe in EPA’s CO2 endangerment repeal
https://www.eenews.net/articles/3-things-to-watch-in-epas-endangerment-repeal/
By JEAN CHEMNICK
The agency is close to finalizing its rollback of the endangerment finding. Legal experts say its success could hinge on these details.
EPA is on the verge of finalizing its sweeping rollback of the endangerment finding — the scientific cornerstone that allows it to regulate climate pollution — in a move that would help President Donald Trump topple multiple rules aimed at forcing American industries to reduce their carbon emissions.
It stands to be a game changer for a president who has rejected the basic tenets of climate science as he works to accelerate the production of fossil fuels, the main source of pollution that has led global temperatures to reach levels never seen before by modern humans. Repealing the 2009 finding would eliminate the regulatory authority that EPA relied on to enact climate rules on sources such as power plants and vehicles, easing Trump’s ability to revoke them — and making it harder for future presidents to replace them.
Yet the repeal will almost certainly face court challenges. Whether EPA’s action is successful could hinge on three things: its legal rationale for revoking the finding, its treatment of the scientific record and the strength of its regulatory analysis and responses to public comments. Those factors will come to light when the agency releases its final rule, expected within weeks.
“If the courts decide that this is valid, then … you can definitely see a scenario where you can wipe out a lot of the rules on the books that have been justified using the endangerment finding,” said Tom Pyle, president of the American Energy Alliance, an advocacy group that opposes regulations. “That’s kind of a big deal.”
The proposed repeal is under review by the White House, along with a rollback of Biden-era climate standards for cars and trucks. The rules were submitted to the Office of Management and Budget last week and are expected to be released together in January or February.
Here are three things that could determine whether the repeal succeeds or fails, according to lawyers and environmental advocates.
Law and science, or just law?
The biggest question about the final repeal is what it will say about climate science.
The proposal issued by EPA on July 29, 2025, centered on a new statutory interpretation of EPA’s Clean Air Act authorities instead of science. It argued that the landmark environmental law did not permit EPA to regulate pollution from motor vehicles unless direct exposure to it endangered the public.
But last summer’s proposal also took a swipe at established climate science through what it called an “alternative rationale” for the repeal. It argued that the Obama EPA based the endangerment finding on projections and empirical data and analyses that were “unduly pessimistic” about the atmosphere’s sensitivity to spiking greenhouse gas emissions and the dangers of warming for the public.
To support this contention, EPA relied overwhelmingly on a report written by five climate contrarians assembled by Energy Secretary Chris Wright.
But the group and its report have run into significant legal and reputational problems in the months since the endangerment proposal was released. The Environmental Defense Fund and the Union of Concerned Scientists are suing the Department of Energy, which they say skirted public records laws in convening the so-called Climate Working Group in secret last May. A judge overseeing the case criticized the government for describing the contrarians’ work as an objective review of climate science, when instead it was a clear attempt, he said, to infuse established science with doubt about the effects of rising temperatures. Wright later disbanded the group.
Meanwhile, in September the National Academies of Sciences, Engineering and Medicine issued its own report reaffirming that the use of fossil fuels is producing dangerous warming. The scientific panel plays a unique role by statute in informing Clean Air Act regulations.
All told, experts predicted that if EPA highlights the DOE report in the final repeal of the endangerment finding it could come back to bite the agency in court.
“I think the disbanding of the Climate Working Group, the court decisions and the litigation brought by EDF and UCS, the complete rebuttal by the National Academies and many scientists, certainly weakens any basis for EPA to rely or depend on that report,” said Meredith Hankins, legal director for federal climate policy at the Natural Resources Defense Council. “And so, if they try and continue to include it in the final rule, that’ll just be one more arbitrary and capricious argument that we’ll be pushing in court.”
Jeff Holmstead, who served as EPA’s air chief under President George W. Bush, said he was “pretty confident they’ll rely on the legal rationale” in the final repeal — and not the contrarians’ climate report.
Joe Goffman, the air chief under former President Joe Biden, said EPA would likely lean into arguments that it thinks could persuade the D.C. Circuit Court of Appeals or the Supreme Court to issue a decision that “precludes or dispositively sandbags a future administration from regulating greenhouse gas emissions under the Clean Air Act.”
Public comments
Holmstead, an attorney at Bracewell LLP, said that dropping the so-called alternative rationale based on climate science from the final rule could stem from practical considerations. The draft rule’s public comment period closed in late September, and EPA hasn’t had time to process and meaningfully respond to all the public criticism it received about its scientific assertions. The DOE report that advanced those claims has been described by climate scientists as promoting misinformation, cherry-picking data to downplay the dangers of global warming and regurgitating debunked arguments.
If EPA’s rationale for the repeal continues to be partly based on scientific arguments, rather than relying on legal ones exclusively, it would have an obligation to respond to all of the scientific information in the public comments — including the report by the National Academies, the federal government’s preeminent advisory body on scientific matters.
“If they’re basing it entirely on their legal rationale, they may still want to sort of downplay the science. But they don’t have an obligation to respond to all the scientific arguments that were made,” said Holmstead.
Advocates and lawyers said they’d be looking to see how EPA responded to comments about the draft — not only on its science-based assertions, but on its legal arguments as well. The agency reports having received 572,000 public comments on the draft by the September 22 deadline, but it has uploaded only 31,000. If its response to those comments is deemed to be inadequate, the repeal could fail in court.
“The agency got hundreds of thousands of comments on this, including really extensive and detailed comments, and comments from people who would be adversely impacted by this action,” said Peter Zalzal, associate vice president for clean air strategies at EDF. “Seeing how the agency is responding and considering those — as it’s required to do under the law — has EPA done anything to analyze or consider those very real and harmful impacts on people?”
One rule to end all rules
Lawyers and advocates will also search the final rule for any intel about how EPA sees its repeal impacting regulations beyond the motor vehicle sector. The endangerment finding was issued under Section 202 of the Clean Air Act, which covers car and truck pollution.
The proposed rule asserts that EPA sees the endangerment repeal as only applying to motor vehicle sector regulations.
“Note this does not include stationary sources, which are regulated under a completely different section of the Clean Air Act,” said EPA press secretary Brigit Hirsch in an email to POLITICO’s E&E News. “To report otherwise would show a lack of understanding of EPA’s statutory authority.”
Mike Sommers, president and CEO of the American Petroleum Institute, said in a call with reporters on Monday that the oil and gas trade group supports EPA’s repeal of the finding for motor vehicles.
“We would not support repealing the endangerment finding for stationary sources, and one of the reasons why we wouldn’t support that is because we do support the federal regulation of methane,” he said.
But there isn’t a separate endangerment finding for stationary sources of climate pollution.