EPA Gets Moving On Its Push For Energy Deregulation

From the MANHATTAN CONTRARIAN

Francis Menton

Now coming into view are the specifics of EPA’s strategy to end the Obama/Biden efforts to strangle the energy sector of the economy in the name of “saving the planet” from climate change. A document released by EPA last week on June 11 lays out the plan for repeal of the absurd (and dangerous) regulation that would have ended use of fossil fuels to generate electricity by some time in the 2030s. This EPA document is particularly interesting for the way it treats — and effectively sidelines — the so-called Endangerment Finding, the 2009 regulatory action that is the basis for all of the Obama/Biden fossil fuel suppression efforts.

President Trump made it clear from the first day of his new administration that he intended to undo as many as possible of the Obama/Biden era burdens and restriction on American energy production and use. Among the Executive Orders that Trump signed on “Day 1” (January 20, 2025) was one titled “Unleashing American Energy.” All agency heads were directed to review existing energy regulations for potential rescission as being overly burdensome. Excerpt:

Sec. 3.  . . .  (a)  The heads of all agencies shall review all existing regulations, orders, guidance documents, policies, settlements, consent orders, and any other agency actions . . . to identify those agency actions that impose an undue burden on the identification, development, or use of domestic energy resources — with particular attention to oil, natural gas, coal, hydropower, biofuels, critical mineral, and nuclear energy resources. . . .

On March 12, EPA followed through with an announcement of what it called the “biggest deregulatory action in U.S. history.” The announcement identified and listed some 31 EPA regulations and programs as unduly burdening the American economy, and therefore targeted for extinction. These ranged from rules designed to eliminate fossil fuel-fired power plants (called “Clean Power Plan 2.0,” or CPP 2.0), to rules restricting automobile emissions (and effectively mandating electric vehicles), to the massive “greenhouse gas reporting program,” and many, many more. The first item at the top of the list for elimination was CPP 2.0. However, at that time, the actual process for rescinding these various rules had not yet begun, and it remained unclear what approach EPA might take to effect the rescissions.

As regards CPP 2.0, that ambiguity ended on June 11, when there appeared on EPA’s website a “pre-publication” version of the document intended to initiate the rescission of CPP 2.0. The title is “Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units” The actual regulatory rescission process formally begins when this document gets published in what is called the Federal Register. Apparently, that will occur tomorrow, June 17.

There are several notable things about this document. First, it signals that CPP 2.0 will be eliminated through a process of formal “notice and comment” rulemaking under the Administrative Procedure Act. Second, it lays out the schedule and procedures for the rescission, thus giving an indication of when the process will be concluded (and ripe for judicial review). Third, it provides the rationale for the rescission, grounding that rationale in the language of the relevant statute (here Clean Air Act Section 111). And fourth — and most significant in my view — it uses a rationale that implicitly undoes and undermines the Biden-era “Endangerment Finding” that underlies all of the government’s greenhouse gas regulations. And it does that without ever confronting the so-called “science” of greenhouse warming. I’ll take these points one at a time.

The first seven or so pages of EPA’s document set forth the procedure and schedule of the prospective rescission. There will be a virtual public hearing 15 days after Federal Register publication (thus, in early July). Comments will be due 45 days after Federal Register publication. That means that the comment period can be closed by some time in early August. After that, EPA must respond to the comments before finalizing its action. They will want to be careful in doing that. (Any slip-up can give an opening to a court to enjoin its action.) However, relative to other rule makings, there will be no occasion in this one to modify the rule’s language in response to comments, since the rule is being eliminated entirely. I highly doubt that any commenter is going to dissuade the current EPA from rescinding this rule. While this is somewhat speculative, I expect that the rescission can be finalized by early fall. And then, on to the litigation!

Note that EPA is not taking the alternative route of just asserting that CPP 2.0 is illegal as unauthorized by the Clean Air Act and beyond the powers of the executive branch pursuant to the Major Question Doctrine as articulated in West Virginia v. EPA. The administration may well use that theory as an alternative basis to support repeal of CPP 2.0 when their regulatory action gets challenged in court. However, I think they are wise to add a second rationale to support the repeal.

Now to the interesting part of EPA’s document. The basic approach to getting rid of CPP 2.0 is not to try to attack it on the basis of the badly flawed so-called “science” of greenhouse gases and global warming. Rather, the approach is to carefully parse the language of Clean Air Act Section 111 to emphasize words that were ignored or downplayed in the previous regulatory actions.

Many discussions of the Obama-era Endangerment Finding speak of EPA supporting its prior regulatory action by having made a determination that greenhouse gases constitute “a danger to public health and welfare.” That is a shorthand which I admit I have myself been guilty of using. But the actual words of the applicable statute are different. Here are the relevant words of Clean Air Act Section 111(b)(1)(A):

[The EPA Administrator] shall include a category of sources in such list [of sources of pollutants] if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.

Thus, it is not sufficient to satisfy the words of the statute that greenhouse gases in the aggregate or in general might be anticipated to endanger public health or welfare in some way. Rather, there must be a determination that emissions from this category of sources specifically (here, U.S. electric power plants) are reasonably anticipated to cause or contribute significantly to a danger to public health or welfare. And also, by the words of the statute, this determination is committed to the judgment of the EPA Administrator.

There is some endless discussion in the document of the impact of these semantic nuances. Here is a small sample from pages 52-53:

Consistent with its ordinary meaning, the term “significant[]” is defined as “having or likely to have influence or effect: important.” “Important” is similarly defined, in turn, as “marked by or indicative of significant worth or consequence : valuable in content or relationship.” Whether a source category’s contribution to air pollution should be considered “important” or “valuable” entails consideration of the influence, effect, or usefulness of finding such contribution. If regulating emissions of a particular pollutant from a source category would have little effect on dangerous air pollution, that source category’s contribution to the air pollution is not significant. By the same token, if regulating emissions would not be useful, taking into account, inter alia, the impacts on, and the Administration’s policies concerning, the source category, that source category’s contribution to the air pollution is not significant. An inquiry into the effect of a finding of significance necessarily involves policy considerations that will inform any subsequent regulation when making the significance determination in the first instance.

The Biden administration’s CPP 2.0 had sought to eliminate fossil fuel-fired power plants by imposing an uneconomic requirement of carbon capture and storage on any such remaining plants. But this document explains that that approach cannot comply with the statutory text:

Thus, the control options available to reduce GHGs from fossil fuel-fired EGUs [Electricity Generating Units] are not permissible as BSER {Best System of Emissions Reduction], not adequately demonstrated, cost unreasonable, or potentially ineffective in reducing emissions. Because it is likely that the Agency may be unable to develop a BSER that would result in any meaningful, cost-reasonable GHG emission reductions, the contribution of this source category to GHG air pollution is not significant.

And the Trump EPA has also caught on that greenhouse gas emissions from the U.S. power plant sector have no “significance” when the broader international picture is considered. From page 63:

Unlike other air pollutants that can have a localized or regional impact and direct consequences to human health, GHGs are global pollutants. The share of GHG emissions from the U.S. power sector, including CO2, to global concentrations of GHGs in the atmosphere is relatively minor and has been declining over time. In 2005, U.S. electric power sector GHG emissions comprised 5.5 percent of total global GHG emissions. This percentage has fallen steadily since then to 4.6 percent in 2010, to 3.7 percent in 2015, and comprising 3 percent of total global emissions by 2022. This relative decline is driven in part by increases in GHG emissions from developing countries that are rapidly electrifying and increasing their energy demands, including through the robust deployment of fossil fuel-fired EGUs —a trend that is likely to persist going forward. Further, many other countries burn much more coal than is utilized by the U.S. power sector. For example, in 2024, China used more than 13 times as much coal as the U.S. . . . Limiting the use of coal and other fossil fuels in U.S. EGUs does not significantly impact global GHG concentrations when other countries continue to increase their use of fossil fuels.

There is lots of other good stuff in this document — far more than I can quote here. To be fair, EPA is following the tried and true regulatory strategy of burying the public in verbiage as a way to make it as difficult as possible for a court to intervene.

As can be seen from the above, this proposed regulatory action relates to CPP 2.0 specifically, and not to the Endangerment Finding more generally. Nevertheless, the logic expressed in this document has the effect of undermining the EF and rendering it essentially ineffective. The same arguments as to “significance” of U.S.-based emissions, and as to the EPA Administrator’s right to exercise his judgment under statutory language, will apply to all other sectors where the Obama/Biden administrations had sought to suppress the use of fossil fuels. All the environmental groups that have been gearing up to defend the “science” of global warming are going to need to totally re-tool their arguments.