Maybe this was just overreach leveled at perceived regulatory excess, but it will matter a great deal. If EPA can drive through its plan to unwind 31 different existing rules, it would not only turn back the clock on environmental regulation to the time before the passage of the Clean Air Act of 1970, but it would also undermine California’s role as the state-based leader of national environmental rule-making. To call this a drastic change is an enormous understatement.
Among the items on Zeldin’s shopping list are canceling clean air rules for power plant emissions, toxic mercury standards around those plants, greenhouse gas reporting, wastewater rules for oil and gas development, and emissions standards for vehicles. The administration also wants to end the “Good Neighbor” portion of the Clean Air Act, which requires upwind states to reduce their air pollution so as not to make it harder for downwind states to meet their own targets.
Three things could happen to Zeldin’s plan. From the point of view of clean air advocates in the states, two of them are bad.
One possibility is a pivotal fight over climate change. In 2009, EPA issued its “endangerment” finding, which held that “greenhouse gases, once emitted, can remain in the atmosphere for decades to centuries, meaning that 1) their concentrations become well-mixed throughout the global atmosphere regardless of emission origin, and 2) their effects on climate are long lasting.” Here’s the logic: People generate greenhouse gases. Greenhouse gases cause effects on the climate. The climate changes endanger the people. People need to change their behavior to reverse the danger. As part of Zeldin’s plan, EPA would revoke that finding, which would undermine the legal basis for most of the clean air rules issued since.
The endangerment finding emerged in the first year of Barack Obama’s presidency, but on the first day of his current administration, President Donald Trump issued an executive order to unwind it. To top it off, he sought steps “terminating the Green New Deal,” a signature Joe Biden initiative that emerged from the 2022 Inflation Reduction Act. It’s not easy to unwind a policy grounded deeply in law, regulation and practice — the product of both Republican and Democratic administrations. But this is a centerpiece of the new “Drill, Baby, Drill” presidency, and the administration is determined to take the issue all the way to the Supreme Court, where it hopes that a friendly conservative majority will uphold its position.
Will that majority side with Trump? Or will Justice Amy Coney Barrett bolt, holding an originalist position that a president cannot unilaterally upend a policy with such deep roots over 55 years? If the majority does side with Trump, that would indeed be a dagger thrust into the heart of environmental policy.
The second possibility is that EPA not only pushes through the regulatory change but also revokes the waivers under which states have been operating. California, with other states and the District of Columbia flying under its regulatory umbrella, has been operating under waivers — more than 75— granted by EPA to the clean air regulations. The waivers hold that California must adhere to the minimum standards set in federal law but can impose tougher ones, if it chooses, because the state has historically struggled with high levels of air pollution. States operating under the California waiver sell nearly 40 percent of all new cars purchased in the United States. No car company can afford to ignore a market that large or to manufacture different cars for different regions, so California’s policy has become the de facto national policy.
The waivers have been the focus of enormous controversy, with some members of Congress seeking to nullify the states’ power. In the courts, opponents have contended that the state waiver decisions amount to rules that Congress can overturn, a direct federalism challenge. The U.S. Government Accountability Office has disagreed, which has allowed the waivers to stand.
The challenge to the endangerment finding could also lead to a challenge to state governments’ power to enforce their own tough rules under other waivers. If the Trump administration can break the back of the clean air waivers, it could well be tempted to challenge other important ones, including those that make Medicaid and the Affordable Care Act run.
But there is a third possibility. The Supreme Court could reject the Trump strategies, tactics and arguments. It could rule that the administration is trampling on settled law and reject the Trump endangerment changes. That would be very good for the proponents of existing clean air policy.
But by that time, Trump might well have had the chance for a new appointment — or two — to the Supreme Court, perhaps undercutting Barrett’s importance as a swing vote. That could indeed make the administration’s proposal “the biggest deregulation in American history” — and the largest shift in the balance of intergovernmental power in modern memory.
Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
