On January 20, 2025, the first day of President Donald Trump’s second term, among the 26 Executive Orders (EOs) initially signed was EO 14154, “Unleashing American Energy.”
Section 6 (f) of that order states, “Within 30 days of the date of this order, the Administrator of the EPA, in collaboration with the heads of any other relevant agencies, shall submit joint recommendations to the Director of OMB on the legality and continuing applicability of the Administrator's findings, ‘Endangerment and Cause or Contribute Findings for Greenhouse Gases (GHG) Under Section 202(a) of the Clean Air Act (CAA),’ Final Rule, 74 FR 66496 (December 15, 2009).”
The summary of the final rule on the endangerment finding says:
“The Administrator finds that six [GHGs] taken in combination endanger both the public health and the public welfare of current and future generations. The Administrator also finds that the combined emissions of these [GHGs] from new motor vehicles and new motor vehicle engines contribute to the [GHG] air pollution that endangers public health and welfare under CAA section 202(a). These Findings are based on careful consideration of the full weight of scientific evidence and a thorough review of numerous public comments received on the Proposed Findings published April 24, 2009.”
This final rule became effective January 14, 2010.
What is the endangerment finding?
The endangerment finding is the determination that GHG emissions are harmful to human health and the environment, and it’s the foundation for the EPA’s authority to promulgate regulations to control emissions.
The EPA is required to regulate air pollutants that “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”
“In 1999, EPA received a rulemaking petition to regulate GHG emissions from new motor vehicles under the CAA. Four years later, the agency denied the petition, refusing to issue an endangerment finding based on the premise that GHGs were not ‘air pollutants’ under the CAA,” according to law firm Akin Gump Strauss Hauer & Feld LLP. “States and private entities sued, and in the monumental case Massachusetts v. EPA (2007), the Supreme Court held that GHGs are air pollutants within EPA’s authority under the CAA, and that EPA was required by the rulemaking petition to either determine endangerment or provide a reasonable explanation for not doing so. As a result, in 2009, President Obama’s EPA published the two findings at issue in this EO 14154: (1) the endangerment finding, which concluded that each GHG threatens public health and welfare, and (2) the cause or contribute finding, which concluded that the combined GHGs from new motor vehicles contribute to pollution that threatens public health and welfare.”
The Inflation Reduction Act (IRA) added seven new sections to the CAA in 2022 that were intended to strengthen the endangerment finding, including Sec. 60101 establishing the clean heavy-duty vehicle program, Sec. 60103 creating the GHG Reduction Fund, and Sec 60105 that creates grants for states to adopt GHG standards for mobile sources of emissions and provides funding for emissions-monitoring stations.
“These statutory determinations of GHGs as pollutants may factor into and or complicate EPA’s determination revisiting the endangerment finding, especially as Congress contemplates reconsidering those provisions during the budget reconciliation process,” Akin Gump adds.
Scrapping the endangerment finding?
If new EPA Administrator Lee Zeldin recommends scrapping the endangerment finding, it would be a simple matter of routine paperwork to remove the EPA climate rules without any need for replacement rules.
“Taking away the 2009 endangerment finding would really make it almost a virtual formality to take down all the greenhouse rules for CO2 and methane,” says Joe Goffman, the EPA’s air chief under former President Joe Biden, according to Scientific American magazine.
“EPA would still need to strip out sector-specific findings from rules written under a key section of the (CAA) — known as Section 111 — he said. But when the dust settled, EPA could regulate oil and gas facilities for ozone-forming pollutants alone, and not for methane — greatly reducing requirements for industry. And power plants that burn fossil fuels wouldn’t be regulated for carbon.”
Environmentalists believe pulling back the endangerment finding will weaken the nation.
“Pulling back on the nation’s clean energy investments puts at risk hundreds of thousands of manufacturing jobs at electric vehicle and parts plants across the country,” Environmental Defense Fund (EDF) Executive Director Amanda Leland says in an EDF statement. “Weakening the [EPA] and our nation’s clean air and water protections will mean more pollution and more asthma and health problems for kids and elderly Americans. Abandoning efforts to help Americans who live in neighborhoods that have long experienced too much pollution will have a devastating impact. Giving in to lobbyists who want no limits on climate-altering pollution will mean a more dangerous future for our children and grandchildren.
“The country needs an agenda that actually helps American families,” Leland adds. “By investing in clean and affordable energy and strengthening protections for our air, water and climate, the United States has created hundreds of thousands of jobs while cutting the pollution that's harming people’s health and fueling destructive storms and skyrocketing insurance costs.”
Waste of time and money?
Analysts and experts agree that the endangerment finding is supported by an enormous amount of scientific evidence, and the finding has also survived numerous legal challenges.
“The latest IPCC (Intergovernmental Panel on Climate Change) report, for example, says climate change is ‘widespread, rapid, and intensifying,’ and there is ‘very high confidence’ that the risks and adverse impacts of climate change will escalate without major emission reductions,” according to the Natural Resources Defense Council (NRDC). “That’s stronger than any prior conclusion.
“Can you imagine writing a rational decision, supported by a record, that refutes this mountain of evidence? Any attempt to do so will surely be struck down as arbitrary and capricious by the D.C. Circuit (the only lower court where the decision can be challenged). And even though the Supreme Court is more conservative than before, it will not likely come to their rescue. It is unlikely to revisit Massachusetts now that Congress has expressly put its holding into the [CAA]. And it is unlikely to further stretch its public credibility by contradicting the scientific consensus and announcing that climate change isn’t real.”
Reversing course in the face of so many hurdles has been classified as a “fool’s errand.”
During Trump’s first term, a petition was received calling for the endangerment finding to be rescinded. The NRDC says that both of Trump’s former administrators, Scott Pruitt and Andrew Wheeler, declined the challenge.
The social cost of GHGs wrinkles
Trump’s EO also tasks Zeldin with determining whether the social cost of GHGs should continue to be used as a metric in promulgating future CAA regulations. The deadline for this report is March 21, 2025.
Omitting the social costs of GHGs metric while leaving the endangerment finding intact will create multiple legal headaches.
“The D.C. Circuit [Court of Appeals] is going to tell them, ‘Well, you're required to consider the effects of climate change because of the endangerment finding. And you have to include that in this rulemaking, and you've taken off the table the principal tool for measuring it,’” Myron Ebell, who led Trump’s EPA transition team in 2017, says, according to Scientific American.
The Zeldin factor
During Zeldin’s congressional term, he voted against a rider targeting the endangerment finding.
“David Fotouhi, Trump's pick to be Zeldin's deputy at EPA, had a hand in the first-term decision to avoid challenging the finding. And many industry groups oppose removing the finding — because it would strip EPA of its regulatory authority on climate change,” the Scientific American article continues.
In looking for an indicator as to where Zeldin’s thoughts are on the endangerment finding, several sources point to what has been characterized as evasive answers by Zeldin regarding whether GHG emissions contribute to climate change or endanger public health.
“While Zeldin has not commented on what he may do regarding the findings, when challenged in his confirmation hearing in January on the topic, he refused to acknowledge that Massachusetts v. EPA ‘mandated’ EPA to regulate GHGs, instead stating that the decision ‘authorized’ the agency to regulate GHGs,” Akin Gump notes.
Technically, Zeldin’s answer is accurate.
“Massachusetts decided they were air pollutants and that they must be regulated if the EPA makes an endangerment finding, but the Supreme Court did not, in that decision, compel a positive endangerment finding,” the NRDC article states. “But his answer evaded the fact that regulation became ‘required’ when the EPA subsequently made the endangerment finding and the courts upheld it.
“The only rational recommendation to OMB would be ‘don’t do this.’”
Another option for Zeldin is to submit a preliminary recommendation to allow more time to submit a final decision.
“Given EPA Administrator Zeldin’s voting record against an appropriations rider that targeted the findings, he could report to the President that the original findings are well supported,” Akin Gump speculates. “However, Zeldin could instead recommend that one or both findings are not adequately supported by scientific evidence, or that the findings lack legal and/or practical applicability. For example, the Administrator might claim that after being codified into the IRA in 2022, the findings no longer serve a legal purpose. The Administrator could also claim that emissions from the United States do not ‘meaningfully contribute’ to global emissions.
“Such a recommendation could lead to a formal EPA challenge and eventual finding that U.S. GHG emissions do not meaningfully contribute to climate change or endanger public health or welfare. Paired with a repeal of the IRA, this would allow EPA to efficiently remove significant GHG regulations that were enacted based on the original endangerment finding.”
To date, it’s reported that Zeldin has briefed the White House on his plans regarding the reevaluation of the endangerment finding, but his report hasn’t yet been made public.
The Sierra Club has called upon the administration to make it public.
“Denying both science and the Supreme Court to further unravel the [CAA] would be a slap in the face to the children and elderly suffering from asthma or COPD, the victims of extreme weather-fueled wildfires and floods, and to every person wanting clean air to breathe. The American people deserve answers from this administration on whether or not they plan to further ignore the law and science to put polluters over people. The Sierra Club is prepared to pursue all legal avenues and use every tool at its disposal to protect the American people and avert the very worst of the climate crisis,” Sierra Club Executive Director Ben Jealous says in a statement released by the organization.