The Trump administration's plan to undo a landmark finding that climate pollution threatens public health and welfare poses lots of risks for corporate America.
The Environmental Protection Agency's endangerment finding has served as the legal basis for federal climate regulations under the Clean Air Act since 2009. The finding concludes that the accumulation of greenhouse gases such as carbon dioxide in the atmosphere endangers people's health and the well-being of communities. Reaching that determination was a prerequisite to set limits for the pollution. Getting rid of that authority would lead to the repeal of "all greenhouse gas standards" at the federal level, according to the EPA, amounting, it says, to "one of the largest deregulatory actions in American history."
Companies have long complained that the government's efforts to rein in heat-trapping pollution are impractical. But a lot of businesses want the EPA to be in charge of setting national standards of some kind, according to proponents and legal experts, because it helps shield them from lawsuits and creates a predictable environment in which to make big, long-term investments.
"I look at what the administration wants to accomplish with regards to our national security and winning the AI race — we want to have expansive energy production. We have that opportunity. We can do that affordably, and we can do it while we're managing air pollution and greenhouse gas emissions," says Lisa Jacobson, president of the Business Council for Sustainable Energy, whose members include major electricity producers and a trade group for the natural gas industry.
"I would like to focus more on that, than changes to these regulatory policies," Jacobson says, "which will cause disruption in planning and moving forward with projects we need today."
Jeff Holmstead, an environmental lawyer at the firm Bracewell, says he doesn't know of any major industry groups that pushed the EPA to reverse its position on the dangers posed by climate pollution.
"Several of them have opposed it," says Holmstead, who was an EPA official under then-President George W. Bush. "And I know that a number of companies were trying to persuade the administration not to do it."
The American Petroleum Institute, a trade group for oil and gas companies, told NPR that it "continues to support a federal role in regulating greenhouse gas emissions."
The EPA said in a statement to NPR that Congress never authorized the agency to regulate climate pollution under the Clean Air Act. EPA Administrator Lee Zeldin "has long been on the record that the climate is changing," the agency said. "EPA's proposal is primarily legal."
The Trump administration said this spring that it was reconsidering the endangerment finding as part of a sweeping initiative to roll back environmental rules. At the time, Zeldin said the goal was "driving a dagger straight into the heart of the climate change religion."
Public hearings on the EPA's plan are scheduled for this week.
Companies use EPA regulations as a defense in lawsuits
Environmental advocates, public health experts and former EPA employees say the Trump administration's proposal contradicts a long-standing scientific consensus that climate pollution, mainly from burning fossil fuels like oil and coal, is raising global temperatures and driving more intense storms, floods and wildfires that threaten communities.
Zeke Hausfather, a climate scientist whose work is cited in the EPA proposal and in an Energy Department report on the impact of greenhouse gas emissions, said in an online posting that the Trump administration "cherrypicks figures and parts of studies to support a preconceived narrative that minimizes the risk of climate change."
The EPA said in a statement to NPR that it "considered a variety of sources and information in assessing whether the predictions made, and assumptions used, in the 2009 Endangerment Finding are accurate and consistent" with the agency's authority under the Clean Air Act. The Energy Department said in a statement that its climate change report "critically assesses many areas of ongoing scientific inquiry that are frequently assigned high levels of confidence — not by the scientists themselves but by the political bodies involved, such as the United Nations or previous Presidential administrations."
The impacts of rising temperatures are being felt in communities around the United States. And states and localities have filed dozens of lawsuits in recent years alleging fossil fuel companies misled the public for decades about the dangers of burning fossil fuels. The lawsuits seek money to help communities cope with risks and damages from global warming.
Those cases have been filed in state courts. In some instances, the EPA's current regulation of climate pollution has helped protect oil and gas companies from litigation.
A state judge in South Carolina recently dismissed a lawsuit that the city of Charleston filed against companies in the oil and gas industry, in part because, the judge said, greenhouse gas emissions are an issue for the federal government to deal with.
"One of the main defenses that the oil companies are raising in these lawsuits pending in state courts is that there is preemption by the federal Clean Air Act," says Michael Gerrard, a professor at Columbia Law School. "If the federal Clean Air Act is no longer regulating greenhouse gas emissions through EPA, then that defense could go away."
Weakening a defense used by the fossil fuel industry could expose companies to more legal risk, Holmstead says. "There [are] plenty of people out there who want to bring lawsuits," he says, "and it seems like this would just invite a lot more litigation."
Theodore Boutrous, a lawyer for Chevron, says the EPA's proposal to stop regulating climate pollution doesn't affect the oil and gas company's defense. Regardless of what the Trump administration does, the Supreme Court has already ruled that greenhouse gas emissions are covered by the federal Clean Air Act, Boutrous said in an emailed statement to NPR.
But Trump administration supporters think the Supreme Court is poised to overturn that ruling.
The Texas Public Policy Foundation, a conservative advocacy group, said in written comments to the EPA that the Supreme Court "wrongly decided" the 2007 case in which it labeled carbon dioxide as "air pollution" under the Clean Air Act. The group notes that the five justices in the majority on that case are gone from the court. The comments were submitted on behalf of four California businesses and trade groups, including a company that uses natural gas boilers to make tomato products and a trucking association whose members are subject to EPA climate regulations.
Regulatory debate highlights tensions on the right
Holmstead says it's a toss-up what the Supreme Court would do now.
The court historically has been reluctant to reverse prior rulings, Holmstead says. But he says the court's conservative supermajority "probably would agree that Congress didn't clearly intend for EPA to regulate greenhouse gas emissions."
Such a ruling could create havoc for businesses, according to a trade group for electric utilities. In a 2022 Supreme Court brief, the Edison Electric Institute (EEI) said that having the EPA regulate climate pollution creates an orderly system for cutting emissions while minimizing economic impacts on consumers and businesses. Rolling back the agency's authority could expose companies to a flurry of environmental lawsuits, the group said, adding: "This would be chaos."
"Industry really has accepted the endangerment finding. They have accepted that carbon dioxide and other greenhouse gasses are pollutants and that something needs to be done with that," says Jim Murphy, director of legal advocacy at the National Wildlife Federation, a conservation group.
But in the conservative movement, "there's an element out there that just wants to pretend that [climate change] is not a problem," Murphy says, "and that this is something that snowflakes and soft folks on the left are screaming about."
EEI said in a statement to NPR that it supports EPA "establishing clear, consistent regulatory policies that drive energy infrastructure investment and strengthen America's economic and energy security."
The fact that the EPA is moving ahead with its plan to stop regulating climate pollution despite serious concerns from corporations highlights a growing divide between the business and ideological wings of the Republican Party, says Holmstead, who under George W. Bush's administration ran the EPA office that develops air pollution regulations.
"Traditionally, Republican administrations have believed in trying to reduce the regulatory burden, but I think they've paid more attention to the concerns of the business community," Holmstead says. "And I don't want to suggest that the Trump administration is impervious to those concerns. But for ideological reasons, they are doing a number of things that U.S. business is not supportive of."
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