Editors at National Review Online praise a major shift from a leading federal environmental agency.
In March, we cheered the news that Environmental Protection Agency Administrator Lee Zeldin planned to “reconsider” the Obama EPA’s 2009 “Endangerment Finding.” That finding allowed the EPA to regulate fossil fuel emissions under the Clean Air Act. On Tuesday, Zeldin announced that the EPA intends to rescind the finding, a step he described as “the largest deregulatory action in the history of the United States.” This strikes a major blow against intrusive regulation of the energy, automotive, and manufacturing sectors.
The Clean Air Act, passed in 1970, provides that the EPA administrator “shall by regulation prescribe . . . standards applicable to the emission of any air pollutant” from new motor vehicle engines, “which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” The Supreme Court, in a dubious 5–4 decision in Massachusetts v. EPA (2007), ruled that Congress in 1970 meant to classify carbon dioxide as an “air pollutant” notwithstanding the fact that it is naturally present in the atmosphere and is exhaled by humans and animals. The Court required the EPA to provide a “reasoned explanation” for why it was not regulating “greenhouse gases.” The Obama and Biden administrations each rushed to pile such regulations on the carmakers.
The 2007 ruling has been the legal basis for those regulations, but the EPA administrator can rescind it on one or both of two grounds: that he does not consider such emissions to “endanger public health or welfare,” or that he believes that the Court read the statute wrong. The former step is well within the discretion of the EPA administrator, but its basis could be challenged in court. The latter would require the EPA to argue for overturning Massachusetts v. EPA — a harder task, but court challenges are inevitable, so there will be ample opportunity for the administration to make that case. The EPA is pursuing both.
