This article was originally published by Energy and Environment News on October 6, 2017.
A conservative think tank with ties to the Trump administration is lobbying the White House to go big when it reconsiders the Obama administration's signature climate change rule.
U.S. EPA is expected to soon announce its plans to repeal the Obama-era Clean Power Plan rule to limit power plants' greenhouse gas emissions. And the conservative nonprofit Texas Public Policy Foundation recently met with White House and EPA officials to urge them to use the opportunity to re-evaluate the so-called endangerment finding, a scientific finding that underpins all of EPA's climate rules, according to a handout the group provided to officials during the closed-door session.
"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," said Charles "Chip" Roy, vice president for strategy at TPPF, who attended the Sept. 28 meeting with the White House Office of Management and Budget and EPA.
EPA is likely to formally put forward its plans to repeal the rule next week, an administration official told E&E News. The agency is also expected to ask for broad public input on how it should replace the rule.
TPPF is calling for EPA also to use this public comment period to take a hard look at how it regulates greenhouse gases under the Clean Air Act. The group contends that EPA under the Obama administration did not follow the correct procedure set by Congress for regulating carbon emissions. This time, the group says, it wants to see "full public participation" to evaluate the climate rule and the underlying legal basis for it.
Environmental groups have argued that rescinding the endangerment finding would not stand up in court. David Doniger, director of the Climate and Clean Air program at the Natural Resources Defense Council, stated recently that there is "no way" EPA could sustain an endangerment finding repeal. Even some of those in favor of eliminating regulations on carbon emissions acknowledge that doing so would be a long shot.
But those arguments have not stopped TPPF, which has close connections with the Trump administration.
The group had previously filed a formal petition for EPA to review the endangerment finding. Kathleen Hartnett-White is the director of its Armstrong Center for Energy and the Environment and has long been considered a favorite for leading the White House Council on Environmental Quality. In June, President Trump nominated Doug Domenech to be the Interior Department's assistant secretary for insular areas. He had previously served as TPPF's director of its Fueling Freedom Project, which was created to establish a coalition in opposition to the Clean Power Plan.
Roy emphasized that their concern was not with the science but with EPA's following the law.
Part of the problem with the endangerment finding, according to the group, is that EPA did not develop separate endangerment findings under Clean Air Act Sections 111(b) and 111(d) for stationary electric generating units — or EGUs — and instead "piggybacked" on the 2009 endangerment finding based on greenhouse gas emissions from mobile sources.
They contend that EPA did this because creating a separate endangerment finding for stationary sources would mean demonstrating that 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. Every biological and industrial process emits carbon. To make a finding that EGUs significantly contribute is a stretch," said Roy.
Another complaint of TPPF is that EPA did not have its scientific advisory board peer review the Clean Power Plan before finalizing it, something Roy said went against regulatory procedures required by Congress.
"In that fundamental threshold, they missed a step," he said.
"If the 2009 endangerment finding was promulgated in violation of law, then it is illegal. How EPA chooses to go through that and ask for a review, without at least putting a pause on the action of the prior administration, that's something that EPA will decide," he added.
Even if EPA did end up getting rid of its endangerment finding for greenhouse gases, that wouldn't necessarily be the end of carbon regulations from the agency, TPPF noted at the end of its 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," the brief says.