The Affirmative Case for Finding Endangerment

The  repeal of the Endangered Finding is shocking mostly because it’s so blatantly wrong. For EPA to decide that vehicle greenhouse gas (GHG) emissions aren’t harmful is like NASA deciding the earth isn’t round after all.  Let’s not get mired in the legal weeds. It’s crazy that this issue is even being raised.

In 2007, the Supreme Court told EPA to do two things: (1) consider whether GHGs endanger human health and welfare, and (2) if the answer is yes, regulate vehicle emissions of GHGs.  That’s exactly what EPA did in 2009, Its the reason the D.C. Circuit easily upheld the Endangerment Finding, despite a dissent making essentially the same arguments the Trump Administration is making today.

Supreme Court interpretations of statutes are entitled to super-strong status as precedents, because Congress can always change a statute if it doesn’t like the Court’s ruling. Congress has had almost twenty years to reject or revamp the 2007 precedent, and it hasn’t done so. The Trump EPA is currently raising so many different arguments because they can’t find one strong enough put their full weight behind. There is little doubt from any objective view. The legal basis of the 2009 Endangerment Finding was solid then and remains so today.

It’s also clear that U.S. vehicle emission are a significant part of the global problem.  Last year, the U.S. transportation sector emitted 1.8 billion tons of carbon dioxide. That means that this one U.S. sector emits a little less than the entire economy of Russia (the #4 global emitter) and about twice as much as Japan (the #5 emitter.)

As to the scientific support for the reality and impact of climate change, it’s enough to say that the evidence is so clear that the Trump EPA abandoned its effort to contest the science.

Despite EPA’s current effort to minimize them, GHG emissions from U.S. vehicles cause immense damage.  A recent report by researchers at NYU’s Institute for Policy Integrity highlights the extent of the impacts:

“The evidence, in fact, could not be clearer. The best available scientific and economic data shows that the U.S. on-road vehicle sector… contributes tremendous levels of greenhouse gas emissions annually. The U.S. vehicle sector is the highest source of transportation emissions globally—in fact, over the last fifty years, U.S. vehicles have emitted more greenhouse gases than the vehicles in the next nine highest-emitting countries combined. The emissions from U.S. vehicles cause billions of dollars in economic damages to the United States and will result in the loss of thousands of U.S. lives.”

Finding endangerment under these circumstances isn’t an abuse of power. It’s just common sense.

The Clean Air Act was passed at a time of unprecedented concern about the environment. Congress’s concerns explicitly included international as well as local problems.  President Johnson had  warned Congress about climate change five years earlier, and the statute explicitly flags “climate” as an issue.

The 2009 Endangerment Finding faithfully carried on the legacy of the 1970 Congress.  This is no time to backpedal.