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Endangerment Finding Should be Reviewed and Repealed, says Think Tank

November 13, 2017

Representatives of the Texas Public Policy Foundation met with Environmental Protection Agency staff to show why as a matter of law the agency should reconsider its endangerment finding concerning carbon dioxide.

When it comes to repealing President Obama’s signature climate change rule, the White House needs to think big, says The Texas Public Policy Foundation (TPPF), a think tank advising the Trump administration.

The Environmental Protection Agency (EPA) announced its plan to repeal the Obama-era Clean Power Plan (CPP) rule limiting power plants' greenhouse gas emissions on October 10. The TPPF says EPA should use this time to go farther and re-evaluate the endangerment finding, which underpins the rule, holding greenhouse gases are pollutants that endanger the health and welfare of current and future generations.

TPPF met with White House and EPA officials on September 28 to encourage them to re-evaluate the endangerment finding.

Charles “Chip” Roy, vice president for strategy at TPPF, told E&E News: “The government is reconsidering the Clean Power Plan, and it needs to do that in a responsible manner and accordance with the rule of law; we feel that had not been done in that way by the prior administration.”

Re-evaluate Greenhouse Gas Regulation

A 60 day public comment period is now open on EPA’s proposal to plan to replace the CPP. TPPF advised EPA it should also to use this public comment period to re-evaluate how it regulates greenhouse gases under the Clean Air Act, contending EPA under the Obama administration did not correctly follow procedures Congress set for regulating air pollutants.

Roy emphasized TPPF’s concern was not with the science but with ensuring EPA follows the law.

Flawed Interpretation

According to TPPF, the process EPA used on developing its endangerment finding was flawed, not conforming to the law because it did not develop separate endangerment findings under the Clean Air Act’s Sections 111(b) and 111(d) for stationary electric generating units (EGUs), and instead “piggybacked” onto the 2009 endangerment finding based on greenhouse gas emissions from mobile sources.

TPPF contends EPA did this because creating a separate endangerment finding for stationary sources would mean the regulatory agency would have to demonstrate power plants contributed “significantly” to greenhouse gas emissions, something they say EPA would not have been able to prove.

“Carbon dioxide is a natural substance; it’s everywhere and in everything,” Roy told E&E News. “Every biological and industrial process emits carbon. To make a finding that EGUs significantly contribute is a stretch.”

Proper Procedures Not Followed

Another complaint TPPF has is EPA did not have its scientific advisory board peer review the CPP before finalizing it. Roy said this goes against regulatory procedures required by Congress.

“[T]hey missed a step,” said Roy. If the 2009 endangerment finding was promulgated in violation of law, then it is illegal.”

TPPF noted at the end of its brief, even if EPA did end up getting rid of its endangerment finding for greenhouse gases, it wouldn’t necessarily be the end of carbon regulations from the agency.

According to TPPF’s brief, “EPA still has the ability under [the Supreme Court case] Massachusetts v. EPA, to regulate greenhouse gases. It is the ability, provided via Congressional delegation, that is important; not whether there is a specific rule or set of rules governing greenhouse gas emissions.”

Kenneth Artz (kartz@heartland.org) writes from Dallas, Texas.

Author
Kenneth Artz is a news reporter for The Heartland Institute. Artz has more than 20 years’ experience in nonprofit organizations, publishing, newspaper reporting, and public policy advocacy.
kartz@heartland.org @@KennethArtz