The actual text of EPA’s final rule rescinding the 2009 Endangerment Finding was published this morning. Several other documents in support of the final rule also were posted on the EPA website: Final Rule: Rescission of the Greenhouse Gas Endangerment Finding and Motor Vehicle Greenhouse Gas Emission Standards Under the Clean Air Act | US EPA
Most of the rule’s immediate effects will be on motor vehicles. The regulations directly affected are 40 CFR Parts 85 (Control of Air Pollution from Mobile Sources), 86 (Control of Emissions from New and In-Use Highway Vehicles and Engines), 600 (Fuel Economy and Greenhouse Gas Exhaust Emissions of Motor Vehicles), 1036 (Control of Emissions from New and In-Use Heavy-Duty Highway Engines), 1037 (Control of Emissions from New Heavy-Duty Motor Vehicles, and 1039 (Control of Emissions from New and In-Use Nonroad Compression-Ignition Engines)
The final rule does not affect criteria pollutant emission standards, mobile-source air toxics standards, or vehicle fuel-economy standards (also known as Corporate Average Fuel Economy, or CAFE, standards).
How will the rescission of the Endangerment Finding affect the solid waste industry? To the extent that heavy-duty trucks and equipment become less expensive with no requirements to limit GHG emissions, solid waste companies will see savings. However, major CAA regulatory programs such as New Source Performance Standards for landfills and operating permits for landfill gas control systems are unlikely to be affected, at least in part, because, at the federal level, the threshold triggers for these programs are based on non-methane organic compounds rather than greenhouse gas emissions.
It remains to be seen if EPA will follow through on changes to the Mandatory Greenhouse Gas Reporting Program under 40 CFR Part 98 as proposed last September. Among those changes would be to eliminate GHG reporting for 46 industrial categories, including municipal solid waste landfills and industrial waste landfills. Some of those affected have asked the EPA to continue requiring GHG reporting because they do not want to be subject to numerous state reporting programs, including New York’s new program that takes effect in 2027, as well as California, Oregon, and Washington, which already have GHG reporting. Some states that require GHG reporting directly reference 40 CFR Part 98 and/or rely on the EPA’s electronic Greenhouse Gas Reporting Tool (eGGRT).
Another aspect of the rescission of the Endangerment Finding is any effect that may have on any preemption of state laws outside the motor vehicle context. Several states are not waiting for the EPA in this regard, requiring GHG reporting and disclosures as a matter of state law.
The recission final rule is based on the EPA’s interpretation of the Clean Air Act as a legal matter. Although EPA “continues to harbor concerns regarding the scientific analysis contained in the Endangerment Finding . . . . the Administrator is not basing this action on a new finding under CAA section 202(a)(1). Rather, we conclude that the EPA lacks statutory authority to resolve these questions under CAA section 202(a)(1).” Section 202(a)(1) covers emission standards for new motor vehicles or new motor vehicle engines.
Boiled down to its essence, EPA is saying that it never had the legal authority from Congress to regulate GHGs under the Clean Air Act. It says that the CAA addressed air pollution having local and regional impacts, not pollution that may affect global climate change. By taking this approach, the EPA avoids addressing climate science altogether.
Under the Supreme Court’s “major questions” doctrine, President Obama couldn’t regulate greenhouse gas emissions outside the fence line as part of the Clean Power Plan in the electric utilities sector. President Biden couldn’t require COVID-19 vaccinations or forgive student loans en masse. President Trump might not have been able to impose tariffs under the International Emergency Economic Powers Act because such major questions require specific congressional authorization. EPA cites the major questions doctrine as requiring rescission of the 2009 Endangerment Finding.
The goal appears to be to secure the Supreme Court’s affirmation of the EPA’s current views before Mr. Trump leaves office. The Court has considered aspects of EPA’s GHG regulations from time to time since the 2009 Endangerment Finding was published. Of course, the Court said that EPA could prepare an Endangerment Finding, but it never directly considered the finding itself. If the Court ultimately rules that the CAA does not authorize the EPA to regulate GHGs, one assumes that, until Congress passes a new law addressing GHGs, there will be no such regulation at the federal level.
If you have questions about federal, state, or local air quality regulations, reporting, or verification, please contact the experts at SCS Engineers.
