One news report after another states that, by its repeal of the Endangerment Finding, the Environmental Protection Agency (EPA) has terminated its own authority to restrict climate pollution. But that is just not true.
For one thing, the repealed authority at issue was conveyed by Congress in the Clean Air Act, as interpreted by US Supreme Court in Massachusetts v EPA (2007). Unless Congress amends that statute or the Court reinterprets it, the authority will remain EPA’s to use – whether in this or by a future Administration.
Second, EPA’s 2009 finding that greenhouse gas emissions, primarily from the combustion of oil, gas and coal, “contribute to [] air pollution which may reasonably be anticipated to endanger public health or welfare,” triggers restriction of greenhouse gas (GHG) emissions from only “new motor vehicles and new motor vehicle engines.” Clean Air Act Section 202(a)(1). That is, from cars and trucks. See CPR Initiative’s comments to the Endangerment Finding Repeal Docket, reprinted at my To Protect the Nation blog entry here.
But emissions from other sources are governed, if at all, by other provisions of law. For instance, GHG emissions from fossil-fuel-fired power plants were restricted by EPA in the course its exercise of its authority under Clean Air Act Section 111(b). That provision of law empowers EPA to restrict a multiplicity of pollutants that together render the entire source category one that “contributes significantly to [] air pollution which may reasonably be anticipated to endanger public health or welfare.” Thus, no separate “cause or contribute” finding as to greenhouse gas emissions from that sector was required. See CPR Initiative’s comments to the docket concerning EPA’s proposed Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units, linked at Unwarranted: The Case Against Repeal.
EPA’s repeal of the fossil-fuel-fired power plant rule has not been finalized, at least not at this writing. But the current repeal and this pending one are linked in a couple of ways, including by a bizarre “de minimis” contention advanced by the Agency with respect to both repeals. That is, EPA asserts that annual GHG emissions from US mobile sources, on the one hand, and US power plants, on the other, are too puny to impose any real additional risk to public health and welfare.
In a future entry here I will explain, once again, just how impoverished are these “too-puny-to-matter” de minimis contentions, but here I’d like to observe, briefly, that they have been rejected by notable Courts.
For instance, most recently, by the World Court (July 2025). In determining that states – that is, nations – are encumbered by fundamental obligations under international law to combat climate change, that Court recognized that “it is the collective and aggregate effects of GHGs, anthropogenic [] that cause damage to the climate system. While, in general, all States both contribute to these emissions and are adversely affected by climate change, [] States have contributed to significantly different degrees to the concentration of GHGs in the atmosphere. . . . Failure of a State to take appropriate action to protect the climate system from GHG emissions — including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licences or the provision of fossil fuel subsidies — may constitute an internationally wrongful act which is attributable to that State.” ICJ Obligations Of States In Respect Of Climate Change, at 120-22.
Also, by the European Court of Human Rights (ECtHR) (April 2024). In deciding whether Switzerland’s failures to prevent excessive GHG emissions violated the rights of a group of elderly Swiss women, whose health and lives were jeopardized by heatwaves, the ECtHR rejected that nation’s “drop in the ocean” defense. The Court observed that it had “consistently held that it need not be determined with certainty that matters would have turned out differently if the authorities had acted otherwise. . . Rather, what is important, and sufficient to engage the responsibility of the State, is that reasonable measures which the domestic authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm. Case of Verein Klimaseniorinnen Schweiz and Others v. Switzerland (2024) at 176.
Moreover, 19 years ago, the United States Supreme Court (April 2007) also rejected the drop-in-the-bucket defense. In deciding that EPA was obliged under the Clean Air Act to consider whether mobile source GHG emissions endanger public health or welfare, the Court rejected the Agency’s argument that those emissions were too insignificant to matter. As the Court wrote:
“EPA nevertheless maintains that its decision not to regulate greenhouse gas emissions from new motor vehicles contributes so insignificantly to petitioners’ injuries that the agency cannot be haled into federal court to answer for them. For the same reason, EPA does not believe that any realistic possibility exists that the relief petitioners seek would mitigate global climate change and remedy their injuries. That is especially so because predicted increases in greenhouse gas emissions from developing nations, particularly China and India, are likely to offset any marginal domestic decrease.
“But EPA overstates its case. Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. . . They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more-nuanced understanding of how best to proceed. . .That a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law.
“And reducing domestic automobile emissions is hardly a tentative step. Even leaving aside the other greenhouse gases, the United States transportation sector emits an enormous quantity of carbon dioxide into the atmosphere [] more than 1.7 billion metric tons in 1999 alone. That accounts for more than 6% of worldwide carbon dioxide emissions. [] To put this in perspective: Considering just emissions from the transportation sector, which represent less than one-third of this country’s total carbon dioxide emissions, the United States would still rank as the third-largest emitter of carbon dioxide in the world, outpaced only by the European Union and China. Judged by any standard, U. S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, according to petitioners, to global warming.”
We will have occasion soon enough to further examine EPA’s vigorous advocacy that patently aims to “unleash” the fossil fuel industry.1
- Executive Order, Unleashing American Energy (Jan. 20, 2025). ↩︎