EPA sued for attacks on science & clean air which hike your energy costs $1.4T

A coalition of 17 environmental groups have filed suit against the EPA’s recent illegal attacks on clean air and climate science, pointing out that the rule will raise American energy costs by $1.4 trillion by the EPA’s own numbers, in addition to massive health and environmental costs.

To catch up, EPA recently moved to delete climate science by claiming that greenhouse gases, which are harmful to human health, are not air pollutants and therefore cannot be regulated by the EPA. It finalized that rule last week, despite a massive public outcry of over half a million comments opposing this move, including from not just consumers but from the business community.

This came in the form of rescinding the “endangerment finding,” a 2009 rule which correctly claimed that greenhouse gases are harmful to human health, in keeping with current science on this topic. The endangerment finding was a reaction to a Supreme Court decision which found that the US 1963 Clean Air Act requires the EPA to regulate greenhouse gases.

Since that finding, it has been treated as settled law by both courts and Congress. But Lee Zeldin of the EPA, who has received hundreds of thousands of dollars in bribes from the oil industry over his political career, wanted to rescind it so he could also eliminate clean vehicle standards, which he did in the same rule.

Zeldin claimed that the motivation for the rule is to end burdensome regulations on automakers that make cars more expensive, but even by his own numbers, that’s not what will happen.

EPA’s regulatory impact analysis includes a table of calculations (on page 28) showing costs and cost savings associated with the rule. This table shows that the cost to the public of the rule exceeds the claimed cost savings that will come from the rule – with the more central scenario showing this rule just cost America $180 billion in current, net 2026 dollars.

That number comes from increased running costs of $1.47 trillion dollars (including, interestingly, the higher refueling time required for gas vehicles, compared to EVs which are conveniently plugged in where they park), and what EPA questionably claims will be $1.29 trillion in savings for the auto industry as they are allowed to offer lower-technology vehicles to Americans. So even the EPA’s numbers say the automakers will save money, but you will have to pay nearly one and a half trillion more in costs. Even if those savings are passed along, America still nets down $180 billion.

EPA goes on to offer other analyses – one which claims gas prices will go down (which contradicts the Energy Department’s own math which says gas prices will go up 76c/gal), and two which only account for the first 2.5 years of fuel costs for a vehicle. Since we all know that vehicles typically last longer than 2.5 years, it is clear that this analysis was motivated by trying to smooth the numbers, rather than by any attachment to reality.

Notably, these numbers do not include health costs. EPA recently moved to start counting human lives as worth nothing (yes, really), so it didn’t bother to calculate the health and environmental costs of its regulation. Those numbers would likely bring the net cost of this rollback into the trillions, given the outsized scale of health costs in the country with the most expensive healthcare in the world.

So EPA’s move is a huge change for the existing regulatory environment, is harmful by its own admission, and is not a change that was motivated by science, by the courts, by Congress, or by the public asking for it. EPA is acting on its own here, against the interests of the country.

And today, environmental groups sued to try to stop it.

17 groups sue EPA – with more to come

The petition for review was filed in DC Circuit Court today, which is the court where all federal Clean Air Act lawsuits must be filed.

The case was brought by 17 public health and environmental groups:

• The American Public Health Association, American Lung Association, Alliance of Nurses for a Healthy Environment, and Clean Wisconsin—represented by Clean Air Task Force
• Center for Community Action and Environmental Justice (CCAEJ), Clean Air Council, Friends of the Earth, Physicians for Social Responsibility, Rio Grande International Study Center (RGISC), and the Union of Concerned Scientists—represented by Earthjustice,
• Center for Biological Diversity, Conservation Law Foundation, Environmental Defense Fund, Environmental Law & Policy Center, NRDC (Natural Resources Defense Council), Public Citizen, and the Sierra Club.

The groups argue that the move is unlawful, based on decades of action showing that Congress and the courts acknowledge that the Clean Air Act also covers greenhouse gases. If that’s the case, then EPA is not able to go on its own and decide to stop regulating those gases – it is required to do by law.

Further, given the massive negative effect this regulation would have on public health and the lack of any scientific justification for EPA’s actions (it tried to offer a junk scientific report, but that report was wrong on science, and was ruled illegal – and yet the junk report’s reasoning is still reflected widely in the final EPA rule).

The groups think they have a sound case. Georges Benjamin, Executive Director of the American Public Health Association, told us in a call, “If they did this on science they lose, if they did this on economics they lose, if they did this on health they lose. Their rationale holds no coherent policy perspective at all.”

But it’s unlikely that these groups will be the only ones who file suit. The rule was only just published in the federal register, with some documents being added as recently as today. Several state attorneys general have indicated interest in this or similar legal efforts, so we’re sure there will be more developments to come.

The groups are ready for a long fight, which they project could last multiple years.

Even if it loses in court, EPA still harmed America

Unfortunately, even if the environmental groups do win in court (as they should, given the clarity of the law and government’s past actions), this will still slow down progress. And that only harms America as the rest of the world moves forward with clean vehicle technology.

This will benefit America’s international rivals, making them more competitive globally, and will isolate America, with US automakers eagerly backpedaling on their EV plans which will only make them less attractive to the export market.

And of course it will make America sicker and poorer – by EPA’s own admission this will increase costs, and that’s not even accounting for health and climate impacts, which will be massive and drag down the American economy and quality of life.

The effects of EPA’s delay of clean vehicle technology will only make America sicker and poorer, both now and in the long term, and all the time we lose now will never be regained as other countries charge forward, unburdened by internal enemies working against their best interests.

Other potential negative effects of EPA’s rule

But even if the EPA gets what it wants, it won’t be good for business.

Andres Restrepo, senior attorney for the Sierra Club, pointed out that EPA’s rule would eliminate the pre-emption of tort-based nuisance claims against private companies.

The Clean Air Act pre-empts various claims against polluters (per AEP v Connecticut), giving EPA the sole authority to regulate greenhouse gases federally. This streamlines legal processes and gives businesses regulatory certainty – instead of having to deal with nuisance claims from the public or a patchwork of 50 separate ever-evolving state-level regulations, all they have to worry about is the EPA.

If EPA claims that it has no authority to regulate greenhouse gases, then that means private claims against polluters are no longer pre-empted by federal power.

It means that private individuals could bring lawsuits, which will be expensive for companies to defend – especially if they lose. And it will crowd our already crowded courts with more actions that could have been avoided were national standards not exploded by a fossil shill acting on his own.

And David Pettit, an attorney with the Center for Biological Diversity, echoed that this pre-emption could extend to state-level clean vehicle regulations.

This means that states like California could set their own regulations on greenhouse gases, and companies would have to follow those regulations – and the EPA would have no say in the matter, as it does currently via the waiver system.

For its part, EPA tries to “have its cake and eat it too” (said both Pettit and Restrepo), saying that it doesn’t have the authority to regulate greenhouse gases, but that it can still pre-empt state authority. But given that those rights are intertwined in section 209(a) of the Clean Air Act, this seems like shaky legal ground to stand on. Especially since EPA does not get to decide what gets pre-empted under 209(a), the courts or Congress do.

The above reasons are why many in the business community opposed the EPA’s rule during the public comment period – even the American Petroleum Institute urged the EPA not to eliminate standards for power plants and point sources, and to focus only on vehicle emissions. The EPA did seem to listen to them, and came short of eliminating power plant standards. (Surely it’s just a coincidence that Zeldin listened to the industry that has given him hundreds of thousands in bribes, and not the half-million other comments asking him to retain vehicle standards as well)

Finally, earlier speculation (which this author engaged in) suggested perhaps that the Loper Bright case could be used against EPA in this instance. The idea would be that, if the court recently restricted federal agencies’ ability to change interpretations without a clear Congressional signal, then EPA would not be able to change its interpretation here.

But Restrepo told us he doesn’t think Loper Bright applies here. That case only applies when the law is “ambiguous,” and the Clean Air Act is not ambiguous, and has a long history of being upheld and treated as applying to greenhouse gases. Loper Bright is not a catchall deregulatory silver bullet, but rather something that applies selectively, and won’t necessarily always support deregulation from a legal standpoint.

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