EPA Denies Petitions Challenging 2009 GHG Endangerment Findings

On April 21, 2022, EPA Administrator Michael Regan signed a final action denying four petitions filed between 2017 and 2019, which challenged the Agency’s 2009 finding that “elevated concentrations of greenhouse gases (GHGs) in the atmosphere may reasonably be anticipated to endanger the public health and welfare of current and future US generations. “

The petitions were submitted by the following organizations:

  • The Concerned Household Electricity Consumers Council (2017)
  • Competitive Enterprise Institute
  • FAIR Energy Foundation
  • Texas Public Policy Foundation

“EPA has carefully reviewed all of the petitions, including any supporting information submitted by petitioners, and reviewed both the scientific record and the Administrator’s decision process underlying the 2009 Endangerment Finding in light of these petitions,” states the EPA decision document. “EPA’s analysis of the petitions concludes that the petitioners have provided inadequate, erroneous, and deficient arguments and evidence for their assertions that the underlying science supporting the 2009 Endangerment Finding is flawed, misinterpreted, or inappropriately applied by EPA. Thus, EPA concludes that these assertions do not warrant reconsideration of, or initiating rulemaking to revisit, the 2009 Endangerment Finding. Similarly, after reviewing the petitioners’ assertions about flaws in the process or approach that was used to develop the 2009 Endangerment Finding, EPA disagrees that reconsideration or reopening of the 2009 Endangerment Finding is warranted on those grounds. “

Background

In Massachusetts v. EPA (2007), the US Supreme Court (SCOTUS) held that GHGs meet the definition of air pollutants under the Clean Air Act (CAA), meaning they are subject to regulation under the CAA. The Court further concluded “in responding to the petition the [EPA] Administrator needed to determine whether emissions of GHGs from new motor vehicles cause or contribute to air pollution…, ”the EPA decision document continues.

In response, in 2009, the EPA proposed endangerment findings for six well-mixed GHGs under Section 202 (a) of the CAA that were collectively addressed as a single air pollutant. These findings stated:

  • “Endangerment Finding: The Administrator found that the then current and projected concentrations of the combined mix in the atmosphere of the six well-mixed GHGs— CO2, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride — endanger the public health and welfare of current and future generations.
  • Cause or Contribute Finding: The Administrator found that the combined emissions of the six well-mixed GHGs from new motor vehicles and new motor vehicle engines contribute to the GHG pollution which threatens public health and welfare. “

Although the Agency’s findings did not impose any industry regulations or restrictions, it received 10 petitions for reconsideration. All of those petitions were denied by the DC Circuit Court of Appeals. Next, the petitions were submitted for certiorari (review) to SCOTUS, which agreed to hear six of the petitions to decide one question: “Whether EPA permissibly determined that its regulation of [GHG] emissions from new motor vehicles triggered permitting requirements under the [CAA] for stationary sources that emit greenhouse gases. “

When SCOTUS agreed to review on this single issue, it left the DC Circuit Court’s holding that affirmed the EPA’s 2009 endangerment finding.

The EPA characterized the four recently denied administrative petitions as “reconsideration or petitions for rulemaking regarding the 2009 Endangerment Finding.”

The petitions:

  • Argue that recent revelations show that the science supporting the EPA’s 2009 endangerment finding was flawed or questionable.
  • Raise process concerns regarding the approach used in developing the 2009 endangerment finding and supporting documents.

The EPA decisions determined “that the petitioners’ arguments and evidence are inadequate, erroneous, and do not show that the underlying science supporting the 2009 Endangerment Finding is flawed, misinterpreted by EPA, or inappropriately applied by EPA.”

The EPA decision further states that the arguments and claims raised in these petitions are similar to those decided against by the 2012 DC Circuit Court of Appeals in upholding the 2009 endangerment finding.

“In that decision, the court denied all the petitions for review of the 2009 Endangerment and Cause or Contribute Findings,” states the EPA decision document. “Much like comments and petitions previously considered and addressed by EPA, the petitioners rely on faulty statistical arguments, studies that have not gone through peer review, mischaracterizations of the science upon which EPA relied in developing the 2009 Endangerment Finding, and cherry-picked trends for individual metrics over short time periods and in small geographic regions, while ignoring the larger breadth of the climate science literature. “

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