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The elephant in the room: Endangerment finding missing from Trump order

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The elephant in the room: Endangerment finding missing from Trump order

An elephant stood in the room watching over President Donald Trump as he picked up his pen to sign an executive order directing the repeal of the Clean Power Plan and turning back other environmental initiatives put in place by his predecessor.

That elephant has been the talk of Washington, D.C., energy policy wonks and was the topic du jour at a recent conference questioning the science underlying climate change. Members of Congress have been mulling whether to hold a hearing to discuss it — a public meeting that is likely to be met with protests but also fierce efforts to support the politicians' right to even talk about it in the first place.

That elephant is the U.S. EPA's 2009 endangerment finding.

A decade ago, almost to the day, the Supreme Court on April 4, 2007, ordered the EPA to review whether carbon should be regulated under the Clean Air Act. The agency then determined in the endangerment finding that carbon in fact is a threat to public health and the environment, and therefore must be regulated. The EPA's authority to regulate greenhouse gases was later backed by the high court.

Trump's order notably did not address the endangerment finding but instead went after the Clean Power Plan for existing fossil fuel power plants, as well as a similar rule for new and modified power plants. Height Securities analysts said the decision to leave the endangerment finding out of the sweeping order represents a win for the more moderate wing in the White House. That wing, according to Height, includes first daughter Ivanka Trump, Secretary of State Rex Tillerson and even U.S. EPA Administrator Scott Pruitt, who reportedly pushed back against the inclusion of the finding in this round of executive actions.

That opposition has landed Pruitt in hot water with Breitbart News, the conservative web site co-founded by Steve Bannon, who currently serves in the Trump administration as Assistant to the President and White House Chief Strategist. Breitbart columnist James Delingpole called on Pruitt to resign amid reports that the EPA chief had fought against repealing the endangerment finding in the March 28 executive order. The conservative outlet alleges that Pruitt is maintaining a moderate stance in order to prepare himself for a later run at a Senate seat.

Climate study vs. science

At the International Conference on Climate Change hosted by the Heartland Institute on March 23 and 24, proud "climate skeptics" gathered to discuss the expected shift in U.S. energy and environmental policy now that Trump is in power.

SNL Image

Former EPA Administrator Gina McCarthy signs a proposed version of the Clean Power Plan in June 2014 at the agency's headquarters in Washington, D.C.

Source: The Associated Press

Patrick Michaels, director of the Cato Institute's Center for the Study of Science, was showered with applause and cheers as he made the argument for repealing the endangerment finding. Noting that the Supreme Court ordered the EPA to make an endangerment determination in the first place, Michaels asserted that the legal history does not preclude the agency from now working to unwind the finding that carbon is a danger to public health and environment.

Michaels' argument for repeal is that the endangerment finding was built on faulty climate modeling and that scientific research was conducted with an inherent bias on the final outcome. He also suggested that studies that fail to support the conclusion that global temperatures are rising have been downplayed. Therefore, all the EPA would have to do now is present new science calling that modeling into question, according to Michaels.

"I have decided that I am dropping climate science when I refer to these models. It is climate studies. Because climate science modifies a hypothesis when it doesn't work. Climate science objectively determines the answer," Michaels said. "Therefore, the endangerment finding is not based upon anything close to normative science and must be vacated."

FBR & Co. analysts explained that the endangerment finding triggers regulatory processes under the Clean Air Act and requires the EPA to regulate vehicles and power plants for greenhouse gases. During a March 27 call with media, a senior White House official disputed that the finding applies to power plants and said the previous administration did not issue a finding directly related to power plants.

The World Resources Institute took issue with that position, calling the official's claim "inaccurate and indefensible in a court of law." WRI explained that evidence cited by the EPA to develop the endangerment finding's conclusion showed that elevated concentrations of greenhouse gases in the atmosphere are a threat regardless of the source of the pollutant. Moreover, the Supreme Court in an opinion penned by late Justice Antonin Scalia, who was appointed by a conservative president, explicitly stated that the EPA can regulate greenhouse gas emissions from power plants and other large stationary sources of pollution.

The right to regulate, and the right not to

However, Megan Berge, an attorney with Baker Botts, said the White House official was not completely wrong. Berge, who has represented power companies in litigation over environmental issues, including the Clean Power Plan, said the official was correct that the endangerment finding specifically addressed vehicles. But the official was "not exactly right, because what he's talking about is legally versus practically," Berge said.

For the Clean Power Plan, the Obama administration explained that the EPA was using its discretion to regulate carbon from power plants under Section 111(d) of the Clean Air Act. As evidence of the need to regulate, the agency offered the endangerment finding as well as several climate change studies.

While CAA Section 112 maintains a list of Congress-approved pollutants the EPA must regulate, Section 111(d) does not. That means the EPA can pick what pollutants it wants to tackle under that section so long as it offers a rational for doing so. The agency has been sued in the past for failing to regulate certain pollutants, but the courts typically have upheld the EPA's decision if it could be justified.

But that same discretion could lead to the Clean Power Plan's ultimate downfall. "Agencies can always change their mind," Berge explained. That means to undo the Clean Power Plan, according to Berge, the EPA can simply issue a new rulemaking on carbon that states the agency would like to use its discretion "not to regulate CO2."

"[The EPA would] have to give a rational basis for that, and that means walking away from what they've already said in terms of how the endangerment finding supports the regulation," Berge said. The administration also could opt not to go after the endangerment finding at all, and instead substantially narrow its regulation of climate change and the environment in other ways.

FBR & Co. expects any attempt to unwind the endangerment finding will be met with significant legal challenges.

Denise Grab, a senior attorney with the New York University School of Law's Institute for Policy Integrity, said the 2007 mandate from the Supreme Court in Massachusetts v. EPA "ordered the agency to no longer bury its head in the sand and ignore the scientific evidence that greenhouse gas emissions are causing climate change."

The agency provided a robust catalog of evidence supporting the endangerment finding that followed the court's order, which means the agency would have to go through a typical notice and comment rulemaking to unwind it. In contrast to the claims made by Michaels on the status of climate change science, Grab said the scientific evidence supporting climate change has only become stronger in the time since the endangerment finding was issued. Grab said the Trump administration made a smart move by leaving the endangerment finding out of its latest order.

"Trying to undo the endangerment finding would be like trying to un-brew tea — it's not likely to work, and the agency, the public, and even individual polluters would likely get burned in the process," Grab said. "If EPA removes itself entirely from the business of regulating greenhouse gases, this would once again expose individual emitters to the types of public nuisance suits we saw late in the Bush administration, arguing that emitters should be liable for climate change harms."