White House Review Signals Final Stages of EPA’s Recission of Obama-era Greenhouse Gas Endangerment Finding

Last week, the White House began its interagency review of the Environmental Protection Agency’s (EPA) final rule to rescind its 2009 Greenhouse Gas Endangerment Finding and related vehicle greenhouse gas (GHG) standards.

On January 7, the draft final package of EPA’s proposed rule to rescind the Obama-era 2009 Endangerment Finding was delivered to the Office of Management and Budget (OMB), following more than 571,900 public comments.

Although OMB review of major rules commonly spans up to 90 days, some sources suggest this review may be expedited, with a final rule released in late January or early February.

The 2009 Endangerment Finding and EPA’s Proposed Recission

The 2009 Endangerment Finding — EPA’s foundational determination that GHGs “threaten the public health and welfare” — underpins EPA’s broader authority to regulate GHGs and has served as the legal cornerstone for EPA’s GHG regulatory architecture since 2009. Although EPA’s current efforts to repeal the 2009 Endangerment Finding are most directly tied to the motor vehicle program, recission could have implications extending to other regulated industries, such as power plants (read more about the recission decision here).

EPA’s proposed rule, now set for final review, contends that the Obama-era 2009 Endangerment Finding relied on outdated science, focused on global rather than localized risk, and was overly pessimistic about temperature impacts. EPA also purports that US vehicles represent a small fraction of global emissions and that federal GHG standards impose “hidden taxes” that raise new-vehicle prices and paradoxically keep older, less efficient vehicles on the road longer. Because subsequent vehicle standards relied on the 2009 Endangerment Finding, EPA’s proposal could have notable impacts on EPA emissions programs for light- and medium-duty and heavy-duty vehicles and engines, and, if finalized, could preempt conflicting state fuel efficiency or vehicle emissions programs.

What Happens Next?

Release of the final repeal is expected to trigger extensive litigation and public debate, building on years of controversy over the scope of EPA’s authority under the Clean Air Act and the US Supreme Court’s ruling in Massachusetts v. EPA. Environmental groups have already previewed challenges aimed at the repeal’s scientific premises and economic implications.

The firm’s Energy & Cleantech and Environmental teams are monitoring administrative changes and developments related to the EPA’s proposed recission of the 2009 Endangerment Finding. Stay tuned for further updates.