Litigation has begun challenging the EPA’s decision to clip its own regulatory authority over greenhouse gas emissions, a fight that analysts say is almost guaranteed to come before a US Supreme Court that looks much different from when it first considered the issue nearly two decades ago.
The Trump administration’s final rule revoking the Environmental Protection Agency’s 2009 endangerment finding, which established greenhouse gases (GHGs) as a threat to public health and welfare, will likely see an initial hurdle at the US Court of Appeals for the District of Columbia Circuit—where two suits have already been filed, according to a former Justice Department attorney who worked on early litigation in the 2010s over the finding.
But an appeal that makes it to a US Supreme Court under a 6-3 conservative majority may face different prospects, said the attorney, who spoke on the condition of anonymity as required by their current law firm.
The attorney noted this Supreme Court has three of the dissenters from Massachusetts vs. EPA, the landmark ruling that forced EPA to act in 2009, and none of the majority justices.
Massachusetts vs. EPA established in 2007 that the EPA does have authority to regulate GHGs as “air pollutants” under the Clean Air Act. Two years later, the Obama administration said that six greenhouse gases emitted by vehicles pose a threat to public health and welfare.
Chief Justice John G. Roberts, and Justices Clarence Thomas and Samuel A. Alito dissented in the decision, and they remain on the high court today. They’re joined by Justices Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett, all Trump appointees. The dissenting justices in Massachusetts said they failed to find a traceable causal connection between the EPA’s actions and climate impacts.
The EPA says it’s rule is not challenging Massachusetts v. EPA, just what it terms as localized emissions that don’t have a direct impact on public health. Decades of research on the elevated health risks of GHGs says differently, according to Nicholas Muller, associate professor of economics, engineering, and public policy at Carnegie Mellon University.
“Massachusetts v. the EPA was pretty clear on that dimension,” Muller said. “I would not be surprised if this very different Supreme Court, if it got to that point, read that decision and the matters at hand very differently.”
Slow-Walking Claims
Public health groups and youth climate plaintiffs launched the first lawsuits against the finding’s revocation on Wednesday in the DC Circuit. Some state attorneys general, like those representing California, Massachusetts, and Colorado, are poised to file their own actions.
The groups filed petitions for review of the EPA’s rule, but have yet to offer briefs making their legal case.
Groups may ask for a stay of the rule while litigation proceeds, but that could launch the case to the US Supreme Court early, and it may not be the best strategy, the former DOJ attorney said.
The EPA has said it won’t comment on this or other ongoing litigation, but the agency said in a statement announcing the action that the revocation “restores consumer choice, makes more affordable vehicles available for American families, and decreases the cost of living on all products by lowering the cost of trucks.”
Still, attorneys and court watchers see multiple holes in the EPA’s approach to scrapping the finding, which could appear in litigation. The final rule ultimately left out a controversial report that called established climate science into question, a document relied on in the proposal that was lambasted by advocates and scientists.
The EPA is also relying on an “unconvincing” reading of what an “air pollutant” is under the Clean Air Act, which currently applies broadly to substances entering into the air, and is not limited to harm, according to University of California Berkeley law professor Dan Farber, writing for The Regulatory Review.
“EPA now says that the Clean Air Act does not cover substances like greenhouse gases that cause harm indirectly rather than by their ‘mere presence’ in the air,” Farber wrote.
Youth plaintiffs are alleging the move violates their constitutional rights, but there isn’t much information on how other groups will tackle their legal arguments. Advocates have made it clear they believe the move directly flouts the Clean Air Act and EPA’s mission to protect public health.
“We’re suing to stop Trump from torching our kids’ future in favor of a monster handout to oil companies,” said David Pettit, an attorney at the Center for Biological Diversity’s Climate Law Institute. “Nobody but Big Oil profits from Trump trashing climate science and making cars and trucks guzzle and pollute more.”
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