USA – TEXAS Trends and Developments Contributed by: Gerald J. Pels, Gerald D. Higdon, James Beers, Jr., Elizabeth Corey and Brett A. Miller, Troutman Pepper Locke
to be designed to undercut renewable energy development by levelling the investment playing field between renewables and traditional energy. Among the more significant climate change- related actions taken to date are the following. Reconsideration of the Environmental Protection Agency’s (EPA) GHG Endangerment Finding Without doubt, the most ambitious action of the Trump administration regarding climate change is the EPA’s announcement that it will formally reconsider its 2009 finding that GHG emis- sions threaten public health and welfare (the “Endangerment Finding”). The Endangerment Finding was made by the EPA in response to the Supreme Court’s 2007 decision in Massa- chusetts v EPA that GHGs are “air pollutants”, asserting that current and projected GHG con- centrations threaten public health and welfare. The Endangerment Finding formed the founda- tion for the EPA’s regulation of GHG emissions. In its announcement, the EPA provided several reasons for reconsidering the Endangerment Finding. The EPA stated that in 2009 it did not consider future costs, and at the time believed the finding was cost-neutral. The EPA further pointed out that the Finding “did not directly find that carbon dioxide emissions from US cars endanger public welfare. Instead, the find- ing looks at a combination of emissions of six different gasses – and cars don’t even emit all six”. Thus, the EPA is forecasting certain of the arguments it will use to attempt to show that the finding was inaccurate or arbitrary. Regard- ing the reconsideration, Energy Secretary Wright has questioned the science underpinning the Endangerment Finding and contended that it has negatively affected the lives of US citizens through (among other things) costly regulation.
Regardless of the merits of the EPA’s new posi- tion, the significance of this announcement for the regulated community cannot be overstated. The Endangerment Finding is the lynchpin for the EPA’s overall regulation of methane. Should this finding be set aside, prior regulation of methane emissions will certainly be on the EPA’s chopping block, and meaningful prospective methane regulation would be likely foreclosed. Certainly, any rule-making effort to reconsider the Endangerment Finding will be subject to the Administrative Procedures Act and extensive opposition. The EPA has already stated that it will seek public comment on the reconsidera- tion, including comment on the development of technology and mitigation measures that have been curtailing GHG emissions. While hotly contested litigation should be expected, recent US Supreme Court decisions have indicated the Court’s openness to recon- sidering seemingly decided issues on agency interpretations of statutory language. For exam- ple, in Loper Bright Enterprises v Raimondo , the Court struck down the “Chevron doctrine”, which generally required courts to defer to an agency’s interpretation of ambiguous statutory language. Additionally, in West Virginia v EPA , the Court invoked the “major questions doc- trine” to restrict agencies from imposing regu- lation with “vast economic and political signifi- cance” unless there is clear statutory authority for doing so. Whether and which direction these judicial doc- trines ultimately take remains to be seen, but there is no question that a potentially receptive Supreme Court is a factor that Administrator Zeldin took into account in deciding to recon- sider the Endangerment Finding. The outcome of the judicial battles over the finding will have
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