En­dan­ger­ment find­ing tough to re­v­erse for Trump’s EPA

Pruitt yet to act against green­house gas ba­sis

The Washington Times Daily - - FRONT PAGE - BY BEN WOLF­GANG

Af­ter dis­man­tling a host of Obama-era reg­u­la­tions in its first six months, Pres­i­dent Trump’s En­vi­ron­men­tal Pro­tec­tion Agency has yet to be­gin what would be its tough­est fight: re­vers­ing the agency’s 2009 en­dan­ger­ment find­ing on green­house gases, a game-chang­ing doc­u­ment that laid the foun­da­tion for many of the en­vi­ron­men­tal and cli­mate change reg­u­la­tions that fol­lowed.

Chal­leng­ing the en­dan­ger­ment find­ing — a tech­ni­cal sci­en­tific con­clu­sion that green­house gases, in­clud­ing car­bon diox­ide, pose a threat to hu­man health and must be reg­u­lated un­der the Clean Air Act — would be an up­hill climb, spe­cial­ists say, and would start an un­prece­dented le­gal war with en­vi­ron­men­tal­ists, states and a host of other lit­i­gants.

EPA Ad­min­is­tra­tor Scott Pruitt has spo­ken at length of his deep de­sire to trans­form fun­da­men­tally his agency and move it back to its “core mis­sion,” which he de­scribes as mak­ing sure Amer­i­cans

breathe clean air and drink clean wa­ter. But he hasn’t said one way or the other whether he plans to go af­ter the en­dan­ger­ment find­ing, which pro­vided the le­gal un­der­pin­ning for much of the Obama ad­min­is­tra­tion’s agenda in­side the EPA.

Try­ing to do so could prove a fu­tile ex­er­cise de­spite the pres­sure Mr. Pruitt has come un­der from con­ser­va­tives, and sources fa­mil­iar with the de­bate in­side the EPA say the ad­min­is­tra­tor be­lieves the mas­sive fight to kill the en­dan­ger­ment find­ing wouldn’t be worth the trou­ble.

“Re­vers­ing the en­dan­ger­ment find­ing would be a heavy lift. They would have to put to­gether a sci­en­tific record show­ing that green­house gas emis­sions do not en­dan­ger pub­lic health or the en­vi­ron­ment, put their case out for pub­lic com­ment and then is­sue a fi­nal rule that re­sponds to all the com­ments they would re­ceive from re­searchers around the world,” said Jeff Holm­stead, the for­mer head of EPA’s of­fice of air and ra­di­a­tion and a lead­ing cli­mate change lawyer at Wash­ing­ton’s Bracewell law firm.

“This would be a huge un­der­tak­ing, and they might have a hard time find­ing EPA sci­en­tists who would work on it,” he said.

The en­dan­ger­ment find­ing, the cul­mi­na­tion of more than two years of work at the EPA span­ning two ad­min­is­tra­tions, was born out of a 2007 Supreme Court de­ci­sion.

In Mas­sachusetts v. EPA, the court de­ter­mined that the fed­eral gov­ern­ment needed to take a sci­en­tific look at whether green­house gases should be reg­u­lated un­der the decades-old Clean Air Act.

The case stemmed from state chal­lenges to the EPA over its lack of reg­u­la­tion of green­house gases.

The re­sults of that de­ci­sion, and the sub­se­quent two years of work in­side the EPA, were the 2009 en­dan­ger­ment find­ing and its con­clu­sion that car­bon diox­ide and other green­house gases are threats to hu­man health. It then be­came the cor­ner­stone of the Obama ad­min­is­tra­tion’s fuel stan­dards for au­to­mo­biles, its at­tempt to limit car­bon emis­sions from power plants and a num­ber of other reg­u­la­tions.

Be­cause it was a di­rect re­sponse to an ex­plicit court or­der, the en­dan­ger­ment find­ing seemed to be a unique le­gal com­mit­ment by the EPA to take ac­tion against green­house gas emis­sions.

“Once you find there’s a pol­lu­tant that’s caus­ing an en­dan­ger­ment un­der the Clean Air Act, that trig­gers a num­ber of things that you have to do,” said Bob Per­ci­asepe, who served as deputy EPA ad­min­is­tra­tor from 2009 to 2014 and now is pres­i­dent of the Cen­ter for Cli­mate and En­ergy So­lu­tions. “You have to re­view new sources of emis­sions to see what the best avail­able con­trol tech­nol­ogy is.”

If Mr. Pruitt leaves the en­dan­ger­ment find­ing in place, then the EPA seem­ingly would have to ad­dress green­house gas emis­sions in some way, though it’s not en­tirely clear what courts would re­quire the agency to do.

“There is a dif­fer­ence be­tween what the en­dan­ger­ment find­ing re­quires EPA to do and what it au­tho­rizes EPA to do,” Mr. Holm­stead said. “The peo­ple who want to re­v­erse the find­ing aren’t too con­cerned about what it will re­quire of the Trump EPA. They are hop­ing to pre­vent reg­u­la­tory over­reach from fu­ture ad­min­is­tra­tions.”

In­deed, con­ser­va­tives say the en­dan­ger­ment find­ing rep­re­sents a key op­por­tu­nity for Mr. Pruitt to change the EPA’s fo­cus in the short run and to pre­vent fu­ture Demo­cratic ad­min­is­tra­tions from go­ing back down the same reg­u­la­tory road that the Obama White House be­gan to pave.

The Paris cli­mate treaty “and the en­dan­ger­ment find­ing are the two big out­stand­ing is­sues. It’s the first wave of things that are nec­es­sary to turn this coun­try around, par­tic­u­larly in the heartland states,” My­ron Ebell, a cli­mate change skep­tic who headed Mr. Trump’s tran­si­tion team at the EPA, said at a news con­fer­ence in May.

The prob­lem, as many spe­cial­ists point out, is that the EPA couldn’t sim­ply trash the en­dan­ger­ment find­ing.

The agency would have to pro­duce its own rig­or­ous sci­en­tific anal­y­sis — one that chal­lenges the pre­vi­ous find­ing and tries to make a com­pelling ar­gu­ment that green­house gases, in fact, do not need to be reg­u­lated un­der the Clean Air Act.

Putting to­gether such a le­gal and sci­en­tific ar­gu­ment would be dif­fi­cult even with­out a host of law­suits that courts could strike down.

“They would have to over­come all of that le­gal legacy and revisit all of the sci­ence,” said Chris­tine Todd Whit­man, who headed the EPA dur­ing the Ge­orge W. Bush ad­min­is­tra­tion.

The EPA did not re­spond to a re­quest seek­ing com­ment on its plans for the en­dan­ger­ment find­ing.

Pruitt

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