Paths Forward If Trump Nixes EPA Greenhouse Gas Protections

Varun Sivaram is senior fellow for energy and climate and director of the Climate Realism Initiative at the Council on Foreign Relations. Alice C. Hill is the is the David M. Rubenstein senior fellow for energy and the environment at the Council on Foreign Relations. David M. Hart is a senior fellow for climate and energy at the Council on Foreign Relations.

In 2009, the U.S. Environmental Protection Agency (EPA) formally concluded that the buildup of heat-trapping greenhouse gases in the atmosphere endangers public health and welfare. Based on scientific evidence and research, the agency identified six greenhouse gases as the main culprits and established the legal basis to regulate them under the Clean Air Act.

President Donald Trump’s administration has proposed rescinding this determination, commonly known as the Endangerment Finding, which would upend the government’s ability to regulate emissions of those greenhouse gases from cars, trucks, power plants, and industrial facilities. The EPA, led by Administrator Lee Zeldin, claims that the endangerment finding has justified regulations costing more than $1 trillion, negatively affecting the U.S. economy and auto manufacturing. Critics argue that the Trump administration is ignoring peer-reviewed science and regulatory history to pursue this proposal; they have said it will not only diminish U.S. efforts to address climate change but also put people’s lives and livelihoods at risk.

CFR Climate Realism fellows Varun Sivaram, Alice C. Hill, and David Hart examine the potential fallout and benefit of the EPA proposal. 

ALICE C. HILL: For sixteen years, the EPA’s 2009 Endangerment Finding has served as the legal foundation for climate regulations. Now, the Trump administration wants to reverse the EPA’s determination that six greenhouse gases constitute air pollution endangering public health and welfare.

In one bold move, the agency tasked with protecting the American people from environmental harm has sought to smother the regulation of heat-trapping pollutants. EPA Administrator Lee Zeldin correctly predicts that, if successful, elimination of the Endangerment Finding “will be the largest deregulatory action in the history of America” He believes that it would drive “a dagger straight into the heart of the climate change religion.” 

With the Endangerment Finding knocked aside, the EPA would have no obligation to regulate greenhouse gases, and the Trump administration could speed up its unraveling of existing climate regulations.

Do you two see a way forward for the Endangerment Finding? Or will future administrations need to find alternative ways to re-establish climate protections?

DAVID M. HART: You’re the lawyer, Alice, so I will defer to you on the detailed legal questions involved here. The Supreme Court’s 2007 decision in Massachusetts v. EPA was 5–4, so my presumption is that there are credible legal arguments on both sides of the matter. 

As a matter of policy, I would like the federal government to have the authority to control greenhouse gas emissions. They pose a threat to Americans. They also pose a threat to societies and ecosystems worldwide. As the world’s largest historical source of emissions, the United States has an obligation to try to address that threat. Regulation could be an important tool to this end.

Unfortunately, this tool has not been used to great effect in the past. The Clean Power Plan, which the Barack Obama administration sought to use to reduce emissions from electricity generation, never went into effect and yet, emissions from that sector still declined.

The story is somewhat different for automobiles. Controls on tailpipe emissions have made cars sold in the United States more efficient and encouraged manufacturers to offer electric vehicles, thereby reducing emissions compared to a business-as-usual forecast.

But there are large caveats here. Federal agencies can use authorities that predate the Endangerment Finding to regulate fuel economy, and many states—led by California—have been able to impose stronger controls than the federal government, all of which calls into question the particular impact of the Endangerment Finding. And, these regulations have had some perverse effects, notably encouraging sales of SUVs and pickup trucks. 

VARUN SIVARAM: David, those are really compelling lenses to evaluate this policy shift, and thanks Alice for kicking us off.

To me, one of the goals of the Climate Realism Initiative is to speak plainly and truthfully about what the United States should do about climate change. I believe the public deserves such transparency, and that policies passed with clear and sensible justifications will have more durability. The EPA’s Endangerment Finding fails this test, so I’m happy to bid it good riddance.

To be clear, I completely agree with the Endangerment Finding’s factual assertion that “six greenhouse gases taken in combination endanger both the public health and the public welfare of current and future generations.” This is true on a global scale: The world’s emissions of greenhouse gases cause climate change and risk catastrophic impacts on human wellbeing around the world.

But it is equally true that trimming U.S. motor vehicle greenhouse gas emissions—as the EPA Endangerment Finding allows under section 202(a) of the Clean Air Act through vehicle efficiency standards—will reduce global greenhouse gas emissions by much less than 1 percent this decade.

HART: Of course, the United States cannot control global greenhouse gas emissions by itself. As you point out in your introduction to our initiative and as you just alluded to, Varun, even if the U.S. eliminated its emissions today, that might have little effect on the pace of climate change. On the other hand, if the United States joins the rest of the world in imposing limits on emissions, the threat could be reduced, if not averted. Handcuffing the federal government, as Trump’s EPA proposes to do, could take such collaboration off the table for future administrations.

SIVARAM: There are two questions at play here, though. First, are global cuts to greenhouse gas emissions desirable? And second, is regulation under the Clean Air Act, enabled by the Endangerment Finding, the best way to achieve it? The answer to the first question is, of course, yes. But I don’t think that the Endangerment Finding charts the best path forward.

On the international front, China and India will continue making energy policies that suit their own interests, irrespective of the decisions made in the United States. At home, one of the more frequently cited benefits of the vehicle emissions standards imposed under the Clean Air Act is lower vehicle running costs for consumers, since they do not need to buy as much fuel. 

But this is a paternalistic, ex post justification. If Americans want to spend money on inefficient, gas-guzzling vehicles, the bar to infringe on their liberty to do so should be high. Before the shale revolution, there was a strong national security and energy security case for curbing U.S. fossil fuel import dependency, but those risks aren’t as pronounced anymore, now that the United States is a net oil and gas exporter.

In short, if we are being completely honest, the regulations enabled by the EPA Endangerment Finding have no measurable impact on averting climate-related risks to the health or welfare of future American residents. The Endangerment Finding is a tortured attempted to pass climate policies through an obscure back door without leveling with the American people.

HILL: Honesty and transparency are indeed critical components of effective climate policy. But the Trump administration isn’t just seeking to roll back climate regulations, it’s also going after the science and data that support them.

For example, the Trump administration has reportedly asked NASA to develop plans to end the only two satellite missions designed to measure carbon dioxide in the atmosphere. And it has proposed terminating funding for Mauna Loa Observatory in Hawaii, which has measured atmospheric carbon accumulation for close to seventy years—the world’s longest continuous record. It also killed the long-running database that tracks climate-related disasters costing the nation more than $1 billion each. Started in 1980, that database documents the rising costs of climate extremes for Americans.

At the same time, the administration has dismissed the hundreds of scientists who volunteered to complete the nation’s sixth national assessment—a Congressionally mandated report grounded in peer-reviewed science that evaluates climate risk by region and economic sector. Without access to up-to-date authoritative climate information, American communities and businesses will fly blind to the risks from climate change that their government apparently no longer wants to protect them from. 

HART: Climate policy would certainly be much stronger if Congress legislated it in a bipartisan fashion. But it never has. And perhaps it never will. 

HILL: I agree that legislation would certainly be a desirable solution if regulation through the Executive branch proves impossible, though I share David’s skepticism that it is a likely one. In the absence of action under Articles I or II, however, one ironic outcome of lifting the Endangerment Finding might be increased activity under Article III of the Constitution: the judiciary. 

It could remove a shield that polluting companies have used effectively in litigation. Companies have successfully argued that the Clean Air Act preempts federal common law actions against them. But if the EPA is out of the business of climate regulation, that preemption argument could fall. The dockets of both federal and state courts could swell with lawsuits against utilities and other greenhouse gas emitters. In addition, the regulatory void left by a reversal at the federal level could leave more room for state legislatures to force fossil fuel companies to pay for adaptation and disaster recovery through measures like the Climate Superfund Acts passed in New York and Vermont. 

By the way, abandoning the Endangerment Finding also flies in the face of the International Court of Justice advisory opinion [PDF] issued earlier this year, which found that nations have legally binding obligations under international law to mitigate heat-trapping pollution and adapt to the changing climate.

HART: Alice, that is a really fascinating and unanticipated twist to this story. I have been and continue to be worried that the courts are being asked to do far too much in a wide range of policy areas, due to failures in our other branches of government. I don’t think that having the courts make climate policy will result in effective action. It’s unlikely to be better than legislation passed by only one party and the use of executive authorities, which the United States has now tried without much success. Perhaps I’ll be proven wrong; a combination of state-level and judicial action have led to important progress in civil rights policy, including most recently same-sex marriage. 

SIVARAM: I don’t think we should give up on legislation. Building innovative, world-leading energy industries will create jobs and wealth in the United States, something both parties profess to support. It will also reduce the cost of deploying low-carbon energy in other countries. Developing next-generation technology that can be deployed quickly and at scale will enable faster, cheaper diffusion of these technologies to the countries where most future emissions growth will occur. 

This kind of constructive approach under my Climate Realism Doctrine could have three components.

1. Focus our approach to electrifying the economy through the lens of American security and competitiveness. We should be honest that in the next decade, America will do quite well by continuing to extract fossil fuels, using fossil fuels to power domestic industries and the artificial intelligence (AI) boom, and achieving global geopolitical leverage through energy dominance. But in the medium- and long-term, the United States risks losing economic competitiveness to China, which is electrifying its economy and producing far more electricity (through clean sources such as nuclear, solar, and wind) and using electricity for electric vehicles, electrified industry, and more. Such an economy will be cheaper, more advanced, and fundamentally more competitive thanks to the basic physics of why electrified technologies are more efficient than combustion-based ones.
2. Pass legislation focused on advancing U.S. innovation in electric and clean technologies and scaling-up technology advances to commercial scale. U.S. clean industries need support to bring cutting-edge innovations to market and compete with giant Chinese producers.
3. Pass legislation creating early markets for advanced U.S. technologies, such as solid-state battery powertrains. The military might purchase drones or vehicles with next-generation batteries, restricting purchasing to U.S. companies, for example. Such early markets create a demand-pull for U.S. clean technologies.

When the United States is able to bring together voters and legislators on both the right and the left to agree that global climate change threatens U.S. security and welfare, the set of interventions we should undertake will likely focus heavily on the more than 85 percent of emissions from China and emerging economies, adopting a muscular and realist approach to induce those economies to reduce their emissions as a condition of the United States reducing ours.

HART: Either way, these developments ultimately put the burden back on people like us to persuade the public as well as policymakers why the United States ought to do something to help the world slow and ultimately eliminate greenhouse gas emissions.

This work represents the views and opinions solely of the authors. The Council on Foreign Relations is an independent, nonpartisan membership organization, think tank, and publisher, and takes no institutional positions on matters of policy.