Trump’s EPA is taking itself out of the regulation game

In the 55 years since its creation under President Richard Nixon, the Environmental Protection Agency has been a regulatory pendulum, swinging between tight and lax control of air pollution. Under Democratic presidents, the agency has tended to reduce emissions from cars and smokestacks. Under Republicans, this tends to give more flexibility to automakers and the manufacturing sector.

When President Donald Trump returned to office last year, climate experts expected him to tip the scales in favor of industry, as he did in his first term, continuing the ping-pong of recent decades.

Instead, his EPA goes much further, attempting to eliminate its own power to govern pollution. The agency is expected to soon release its final proposal to repeal the “historic danger finding,” an Obama-era rule that gave it the authority to regulate greenhouse gas which warms the earth; At the same time, it will also repeal its rule limiting carbon emissions from motor vehicles. The agency also confirmed this week that it would no longer quantify the human health benefits of regulating industrial pollution, a change that could justify much more lax monitoring of toxic emissions from things like smokestacks and power plants. Administrator Lee Zeldin hits the road today on a “Freedom Means Affordable Cars” tour of Michigan and Ohio, during which he will tout Trump’s efforts to relax environmental rules on gas-powered cars.

The changes are the latest in a battery of repeals that cover everything from mercury to microplastics, but they go much further than just giving the industry a break. If the changes hold up in court, experts and former agency officials say they could amount to a backdoor repeal of the EPA itself. The agency would still have funding and staffing, these experts say, but it would no longer be able to fulfill its mission of protecting what the Clean Air Act calls “the public health and welfare.”

“Any erosion of the purpose of these laws, which was to protect public health, undermines the very purpose of environmental protection,” said Bob Perciasepe, who served as EPA deputy administrator for air and water quality under President Bill Clinton.

The agency pairs its proposed repeal of the 2009 “danger statement” with the repeal of its rules limiting carbon pollution from gasoline-powered cars. Its rule proposing these repeals makes two distinct arguments against previous tailpipe carbon regulations. The first is that the EPA does not have the authority under the Clean Air Act to regulate carbon dioxide because global warming is a global problem and not “local and regional” like soot.

The second echoes Trump’s criticism of the Biden era’s strict exhaust rules. Biden’s regulations would have promoted a faster transition to electric vehicles, but Trump claimed they amounted to a ban on internal combustion cars. The proposed rule argues that “no technology…is capable of preventing or controlling” carbon emissions from cars, except for a “complete shift from internal combustion engines to electric vehicles.” It also claims that regulating the pollutant “often forces manufacturers to design and install new, more expensive technologies, thereby raising the price of new vehicles” and harming consumers. (He adds that “the ability to own a vehicle is an important way to unlock economic freedom and participate in society.”)

Experts reject both arguments. The legal basis on which the EPA regulates carbon has long been considered sound, and the Clean Air Act of 1970 even specifies that it can intervene when “air pollutants”[s] issued in the United States… endanger the public health or welfare in a foreign country. The Supreme Court ruled in Massachusetts v. EPA in 2007 that this authority was “unambiguous,” and the current conservative court has upheld this decision even in rulings limiting the scope of the agency’s authority.

The argument that auto regulations are too burdensome for automakers also doesn’t hold water, said Margo Oge, who led the EPA’s Office of Transportation and Air Quality from 1994 to 2012 and wrote its first greenhouse gas emissions standards for vehicles.

“Companies have told us time and time again that the sky is falling when they [are] “We face strict standards,” Oge told Grist. “But that hasn’t happened. As the rest of the world moves toward electric vehicles, U.S. policies and investments [risk] leaving domestic manufacturers behind by investing in old, highly polluting technologies.

Public comments regarding the EPA proposal have been almost universally negative. Thousands of environmental groups and individuals opposed the repeal, and even many polluters urged the EPA to reconsider. If the danger finding disappears, states could still attempt to regulate greenhouse gases under common law, they argued, creating a chaotic and unpredictable business environment.

“Attempting to comply with multiple, likely conflicting, regulations across states will increase compliance costs for businesses, create barriers to investment decisions, lead to regulatory uncertainty, and make it more difficult to effectively reduce emissions,” the Business Roundtable, an influential large business council, wrote in its comments. Roundtable members include major polluters such as 3M, General Motors and Chevron.

If the courts don’t strike it down, Trump’s repeal could cripple climate regulations for years to come. If a court were to rule that the EPA does not have the authority to regulate greenhouse gases, the incoming president would have to formulate a new hazard finding, which could take years to go through the regulatory process, or else he would have to obtain explicit approval from Congress. If Congress does not act, the EPA will not be able to set limits on greenhouse gas emissions from tailpipes, which account for a quarter of the United States’ contribution to global warming.

“If they said, ‘We have no authority,’ and the Supreme Court upheld that, there would be a lack of authority unless Congress passed a new law,” David Doniger, senior counsel at the Natural Resources Defense Council, who also served at the EPA and the White House Council on Environmental Quality, told Grist. “But if they take this position, they further expose companies to federal and state common law liabilities” – in other words, if the EPA’s central authority disappears, companies could face a series of climate lawsuits in various state and federal courts.

Such a move would also undermine other EPA regulations governing carbon from power plants and similar “stationary sources.” The agency is already trying to repeal Biden-era standards for pollution from power plants, and a full repeal of the endangerment findings would prevent future presidents from reimposing those standards. Even oil lobbyists such as the American Petroleum Institute have asked the EPA not to go that far — many producers fear that if the agency loses the ability to regulate methane coming from oil sites, they would be exposed to legal action for their role in climate change.

The EPA’s other action this week could weaken its basic authority to regulate other air pollutants. When the agency designs rules for contaminants such as soot, dust and ozone, it weighs the financial cost of compliance to an industry against the financial benefits of imposing the rule. To do this, the agency most often puts a monetary value on human health — under Biden, for example, the agency estimated that reducing a ton of particle pollution avoids $77 in health care costs.

Past presidents have revised that figure as scientific evidence evolves, but the EPA now sets the health cost of soot and ozone at zero, saying previous estimates offered a “false sense of precision.” When the agency determines whether to impose limits on emissions of ozone from factories or soot from chimneys, it will now quantify the economic costs of compliance to industry, but not the monetary value of avoided health costs.

The agency has already launched its first rule under this approach. It governs fine particle emissions from methane gas turbines used in power plants. Former agency officials said the decision not to monetize health benefits would lead to a bias against limiting pollutants like soot and dust, which could in turn lead to much dirtier air.

“A key guiding principle of evaluating benefits and costs is to consider all benefits and costs,” said Chris Frey, a civil engineering professor at North Carolina State University and former deputy administrator for research and development at the EPA. “The assessment is not valid if it excludes known benefits or costs. The fact that uncertainty exists is not a sufficient reason not to carry out an assessment.”

In response to questions from Grist, an EPA representative said the agency’s pause in monetizing health care costs was temporary and that it would resume quantifying those costs when it had better data.

“EPA remains absolutely committed to our core mission of protecting human health and the environment, which mission guides every decision we make,” the representative said. “The EPA, as the agency always has, always considers the impacts that [particulate matter] and ozone emissions have on human health, but the agency will not monetize the impacts at this time. The agency did not respond to questions about how it would incorporate health costs into its analyzes without quantifying them, or about the legal arguments against repealing its endangerment findings.

But experts and former agency officials said the pause on health care costs and the repeal of the greenhouse gas rule both represent deviations from the agency’s core mission. According to Perciasepe, if the agency does not take an active role in limiting major pollutants, it is deviating from its original mandate to protect public health, as established in laws like the Clean Air Act and the Clean Water Act.

“When you start going down this path of devaluing the economic cost of poor public health, you undermine the whole reason for … all these laws that were enacted in the 1970s, when pollution was having a blatant impact on the quality of life in the United States,” he said.