USA – TEXAS Trends and Developments Contributed by: Gerald J. Pels, Gerald D. Higdon and Elizabeth Corey, Troutman Pepper Locke
ards would not materially diminish the harm associ- ated with climate change. The role of the MQD The MQD also supported EPA’s Rollback. In West Vir- gina , the Court made clear that the “economic and political significance” of a regulatory action must be carefully evaluated against whether “Congress meant to confer such authority”. Thus, under West Virginia , there must be more than a “merely plausible textual basis” to affect a significant policy-making activity under a Congressional statutory enactment. In the Rollback, EPA drew an analogy between the subject matter of West Virginia and that of the Endangerment Finding. In West Virginia , the Court reviewed what it understood to be an administrative attempt, absent clear Congressional authority, to “shift the power grid away from fossil fuels through GHG standards”. The Endangerment Finding, implicitly sought to shift the national vehicle fleet “from one type of vehicle to another”, namely from diesel or internal combustion engines to electric vehicles. In support of its position, EPA cited Utility Air Regulatory Group v EPA (2014), where EPA’s regulatory effort to expand the number of stationary sources subject to the CAA’s permitting requirements based on GHG emissions was struck down based on the MQD. In the Rollback, EPA took the position that the standards established under the Endangerment Finding were becoming so stringent that compliance necessarily would lead to electric vehicles. EPA concluded this type of regulation rep- resented a major question, having vast economic and political implications, and would result in mate- rial impacts to the US economy, triggering the need for a clear statement from Congress as to its intent to regulate GHGs in such a manner. The Role of Loper Bright EPA’s rescission analysis also utilised th e Loper Bright holding to undermine reasoning supporting the Endangerment Finding. EPA asserts in its Roll- back, that in 2009, EPA did not sufficiently consider traditional “interpretive principles” or the “ordinary meaning” of the concept of “air pollution”, stating EPA had “asserted an unlimited discretion to decide what EPA may target through regulation by defining air pollution, without reference to the best reading of the statutory term”. Under Loper Bright , that type of
deference to address statutory gaps or ambiguities is misplaced. EPA noted that in Loper Bright , the Court ruled that Congress has often expressly delegated to an agency the authority to provide content and mean- ing to statutory terms. But that was not the case with Section 202 (a)(1). The Rollback posited that in 2009 EPA simply lacked the discretion to “redefine air pol- lution” from “local and regional exposure problems”... “to global climate change concerns”. Thus, EPA now takes the position that notwithstanding prior agency interpretations, EPA’s actions must align with what Congress authorised under a statute’s best reading. EPA concluded in the Rollback that here, Congress did not extend that degree of authority to the agency. The Rollback even raised potential infringement of the separation of powers between Congress and the executive branch, through the non-delegation doc- trine. Refining the Massachusetts holding Another key to the Rollback’s analysis was refining and distinguishing the Supreme Court’s 2007 holding in Massachusetts , where the Court determined that Congress, when drafting the CAA, did not intend to exclude GHGs from its broad definition of “air pollut- ant”. That holding opened the door for the Endan- germent Finding and subsequent regulatory action addressing vehicle emissions and other sources. Massachusetts did not, however, address whether EPA necessarily had to issue an endangerment find- ing for GHG emissions under Section 202 (a)(1), nor the way the critical “cause or contribute” provision should be construed, nor whether broader economic/ policy concerns should be taken into account or were at issue in making such a finding. EPA now asserts that the Endangerment Finding took the language of Massachusetts beyond its proper scope. In 2009, EPA appeared to assume that the treatment of air pollut- ants by the Court in Massachusetts allowed EPA to bypass the critical analysis of whether a specific air pollutant causes or contributes to harmful air pollu- tion. The Rollback explains in detail that a direct caus- al connection must exist between individual pollutants and a local or regional harm, necessary to satisfy an endangerment finding. Thus, while Massachusetts held GHGs may be pollutants, it did not address the core issue for an endangerment finding.
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