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Texas think tank urges EPA to rethink endangerment finding


According to Market Intelligence, December 2022


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Texas think tank urges EPA to rethink endangerment finding

As the U.S. Environmental Protection Agency prepares to release its initial rulemaking related to repeal of the Clean Power Plan, a conservative Texas policy think tank is urging the agency to reconsider its 2009 determination that greenhouse gases threaten the public health and welfare.

That determination, referred to as the EPA's endangerment finding, has been upheld by the U.S. Supreme Court and serves as the underpinning for the agency's actions on climate change. By confirming that carbon dioxide and other greenhouse gases are a threat under Section 202 of the Clean Air Act, the agency set the stage to regulate sources that emit them.

During his confirmation hearing in January, EPA Administrator Scott Pruitt assured lawmakers that he would not attempt to unwind the endangerment finding. Pruitt asserted that the finding was the law of the land and must be respected, but he has since received a handful of petitions urging him to take another look at the determination. President Donald Trump did not mention the endangerment finding in his sweeping executive order directing the agency to review the Clean Power Plan.

Three representatives from the Texas Public Policy Foundation, or TPPF, met with EPA and Office of Management and Budget officials Sept. 28 as part of the EPA's review of the Clean Power Plan. In a handout, the think tank, which according to the Center for Media and Democracy's SourceWatch has ties to fossil fuel interests, encouraged the EPA to "take the opportunity to consider the full scope of overarching issues regarding federal regulation of greenhouse gases under the Clean Air Act" when reconsidering or replacing the carbon-cutting rule for existing fossil fuel-fired power plants.

The TPPF also recommended that the agency take the opportunity to review the underlying scientific data supporting the Clean Power Plan and a related rule addressing emissions from new sources, the legal thresholds for taking regulatory action, the economic impacts of the rules and public policy considerations. Doing so will aid the administration in "restoring the rule of law," the think tank said.

More specifically, the TPPF would like the EPA to conclude that a separate endangerment finding is needed for power plants, given that the original finding addressed greenhouse gases from motor vehicles as well as the broader threat posed by the pollutants. The foundation also would like the agency to review the 2009 finding in general.

In releasing the Clean Power Plan, the Obama administration determined that a separate endangerment finding was not necessary because such a finding was only needed to "list a subcategory, not to impose new standards on an already listed category," the TPPF said. But the think tank believes the EPA wanted to avoid creating a new endangerment finding under Section 111 of the Clean Air Act because it would not have been able to prove greenhouse gases were a significant threat under that statute.

The difference hinges on the word "significantly": Section 202 says something must "cause, or contribute to, air pollution" to be considered a threat, while Section 111 says a threat is something that "causes, or contributes significantly to, air pollution."

The foundation also argued that the Clean Power Plan was projected to have minimal impact on greenhouse gas emissions, and the EPA therefore wanted to avoid making a new endangerment finding and prompting further scrutiny on the effectiveness of the rule.