A Seismic Shift in Climate Law

0:00Pam Karlan:I think the question that we'll formulate as this works its way through the courts, which it will work its way through the courts, already groups have announced that they're going to be challenging this rule. I think the question will be focused solely on not the sweep of the Clean Air Act more generally, but whether the Clean Air Act covers greenhouse gases and it's part of that larger sweep. And I just think that's where we're headed.

0:30Deborah Sivas:This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way, you'll have access to all our new episodes as soon as they're available. And this is an episode that's especially hot off the press. I'm really lucky today to be talking with my colleague, Debbie Sevis. Debbie is the Luke W. Cole Professor of Environmental Law here at the law school. She's also a professor at the Doar School of Sustainability. She's the director of our Environmental and Natural Resources Law and Policy Program.

1:07Deborah Sivas:She's the co-director of the Environmental Law Clinic, and she's a senior fellow at the Stanford Woods Institute for the Environment. So thanks so much for joining us today, Debbie.

1:18Pam Karlan:Thanks. I'm happy to be here.

1:20Deborah Sivas:Well, I don't think you're actually happy to be here in a sense, because yesterday, the Environmental Protection Agency announced a rescission of the greenhouse gas endangerment finding and motor vehicle greenhouse gas emission standards under the Clean Air Act. This is a huge deal. Indeed, the administration itself is calling it a huge deal. They're calling it the largest single deregulatory move in the history of the United States and perhaps in the history of the world. So I think maybe the place to start is to start with, under the Clean Air Act, what is an endangerment finding and what happened in 2009?

2:01Pam Karlan:Sure. And I will say that might be the one thing I agree with, that it is a huge rollback in regulations. So yeah, let's go back to 2009. So the Clean Air Act, which was passed in 1970, so a long time ago, and really originally was focused on traditional local air pollutants. So it has a provision related to air pollution emissions from motor vehicles that says that the EPA must take a look at whether vehicular air emissions quote, cause or create or contribute to, sorry, cause or contribute to air pollution, which may reasonably be anticipated to endanger public health and welfare. So that's where the endangerment comes from.

2:49Pam Karlan:And in 2009, after a lot of back and forth within the courts, the incoming new Obama administration made a finding, the endangerment finding, that determined that greenhouse gas emissions, and that's carbon dioxide, methane, and a few other pollutants, were in fact endangering public health and welfare. So that's the original finding back in 2009. Right.

3:18Deborah Sivas:So we had this finding that certain gases that, among other things, are emitted by cars, and I think in the United States, if I understand it correctly, the major source of greenhouse gases is automobiles.

3:30Pam Karlan:The transportation sector. Right. Yeah.

3:33Deborah Sivas:And obviously planes and trains, buses and the whole business. And the idea was that this endangerment finding would give the government a reason to regulate greenhouse gases. And among other things, it started to regulate how much car emissions, right?

3:52Pam Karlan:That's correct. So once the endangerment finding was made, then EPA went forward to look at... So of course, we've had fuel economy standards for many years dating back decades, but went forward to really look at accelerating the mileage standard that is higher miles per gallon as a result of the endangerment finding. And that's led to, in the vehicle sector, that has led to not only internal combustion engines that are more efficient, but also the proliferation of alternative, particularly electric vehicles and then hybrids, which helped to get the fleet-wide mileage standards up. Yeah.

4:35Deborah Sivas:So originally when the Clean Air Act was passed and they were thinking about the health risks from cars, the one they were mostly thinking about was people just actually inhaling the particulates, right? Yeah, that's correct.

4:48Pam Karlan:Particulate matter, ozone formation, things that led to ozone formation. So yes. Yeah.

4:54Deborah Sivas:So it's basically there was this kind of direct relationship between, you know, the car spews out the stuff, you breathe in the stuff, bad stuff happens.

5:04Pam Karlan:Yeah.

5:04Deborah Sivas:But we now know that greenhouse gases have other effects on people's health and welfare. And maybe just kind of give our listeners a sense of the range of those other effects.

5:15Pam Karlan:Yeah. So they're all around us. Right. Right. But probably the most obvious ones are so greenhouse gases. I think it's other than maybe the current administration, it is it is pretty much undisputed that those gases are leading to climate change in ways that are affecting all of us. And the local climate is a manifestation of that. So we're seeing more hurricanes, more wildfires, more intense wildfires, sea level rise. And, you know, so things that are that are all around us and obviously affect the public health and welfare in ways that are different than breathing in the individual particles.

5:55Pam Karlan:Right.

5:56Deborah Sivas:So we now have an administration that I think is, if I understood from reading the executive summary of the rescission and the like, they seem to have kind of three or four different arrows in their quiver. One seems to be just a doubt about whether climate change is real.

6:16Pam Karlan:Yes. And so there was a proposed rule that was put out in last September, right, that actually had even more quivers. They've narrowed it down in this rule. Maybe their lawyers thought about what would be actually the most defensible in court. And so in the original proposed rule, the administration really took on climate science quite directly. And there was a lot of blowback in that because there were questions about the science that they were relying on. There's pretty much, except at the very fringes, there's pretty much consensus that climate change is happening. So they're kind of making some gestures in this rule, but not really relying on attacking the climate science directly.

6:57Pam Karlan:Really, this rule is more focused on some of their legal arguments.

7:02Deborah Sivas:Right. And their legal arguments seem to start from the idea that because in 1969, the kind of harm that Congress was thinking about is people breathing in little dirty bits of what was coming out of a tailpipe, that Congress somehow couldn't have been thinking about other forms of danger to people's health. Because I think, you know, I saw one estimate that thousands and thousands of people are going to die from smoke from wildfires caused by the increase in greenhouse gases.

7:38Pam Karlan:Right.

7:39Deborah Sivas:And so those people actually are, in a way, breathing in a bunch of dirty stuff that's coming to them. It's just it's taking two or three more steps along the way to get from the tailpipe of the car to the stuff they breathe in.

7:53Pam Karlan:Yeah, that's absolutely right. And there's a growing science called attribution science, which links the increase in intensity and frequency of things like wildfire, links it directly to climate change. So you've got that two or three step process, but people are still being impacted and probably more so. I mean, I work some in the wildfire space, probably more so than all of the smog that we had in L.A. in the 70s put together. Right. It's coming. Yeah.

8:24Deborah Sivas:And what interests me about that is that the science tells us that it's still people breathing in stuff, but the administration wants to argue in an almost kind of Paul's Grafian way that unless you're breathing it in directly from the tailpipe of the car, it wasn't within Congress's contemplation when they passed something called the Clean Air Act, that they only cared about that first kind of dirty air and not about the dirty air. that comes from all of this other stuff.

8:55Pam Karlan:Yeah, I think that's absolutely what they're trying to do. And of course, they're trying to do it in a slightly more subtle way by going back to some of the recent Supreme Court precedent and weaving an argument that the court should go back and revisit whether greenhouse gases at all are even covered by the statute.

9:15Deborah Sivas:Yeah. Now, when we talk about the cases the Supreme Court's decided recently, I guess you're sort of alluding to at least two of those sets of cases, the major questions doctrine cases, and then the Loper-Bright decision that overturned Chevron. So maybe you could explain a little bit for our listeners about the major questions doctrine, which has become a general doctrine, but really almost all of it has come from environmental law cases.

9:46Pam Karlan:Yeah, no, that's right. So just to step back, right, before the endangerment finding happened in 2009, there was a fight in the Supreme Court about whether this very question we've been talking about, whether greenhouse gases, whether Congress covered those in the Clean Air Act. And there was the Supreme Court case, Massachusetts versus EPA, that said, yes, those greenhouse gas pollutants could be covered and that the EPA needed to look at those in terms of the endangerment finding. And then EPA made the endangerment finding. That related specifically to the vehicle emissions, as we've been talking about.

10:20Pam Karlan:But once that was done, then EPA, based on that finding, moved on to stationary sources. So those are things like power plants, industrial facilities. and started looking at regulating those. And one of the things it did was something called the Clean Power Plan, which was trying to ratchet down particularly carbon dioxide emissions from power plants. And that rule was promulgated and then led ultimately to a case that went up to the Supreme Court in the West Virginia versus EPA. And that's the case where EPA said, really articulated the major questions doctrine, where it said if Congress had intended to regulate such a large swath of the economy, it needed to say that very clearly.

11:10Pam Karlan:And the Clean Air Act does not say very clearly that that's what it intended to do. Because, again, it was 1970 at the time. Yeah.

11:19Deborah Sivas:So the argument here, I take it, that the administration is making is regulating cars in the way that the EPA sought to regulate cars after the endangerment finding was the kind of thing you would have expected to hear more out of from Congress before the agency should move into this new area. Yeah.

11:43Pam Karlan:And not just cars, but greenhouse gases, really. Before EPA should really do any of this greenhouse gas regulation, Congress needs to be much more clear that that's what it intended EPA to do under the Clean Air Act.

11:57Deborah Sivas:But it seems to me that the Clean Air Act was such a major piece of legislation that it really was Congress saying we think the federal government should get into the business of making sure we have clean air. And it was going to leave to an administrative agency with some expertise and some science and a process for thinking these things through how to instantiate that commitment to clean air. But the commitment would seem to me to be almost in the statute's title.

12:30Pam Karlan:Well, right. So we need you to be arguing the case that works its way to the Supreme Court. But yes, so right, the clean air itself was very sweeping new legislation. We have not done anything like that, little bits and pieces, but not anything that sweeping. And really, I think the question that we'll formulate as this works its way through the courts, which it will work its way through the courts already, there's been announced groups have announced that they're going to be challenging this rule. I think the question will be focused solely on not the sweep of the Clean Air Act more generally, but whether the Clean Air Act covers greenhouse gases and it's part of that larger sweep.

13:08Pam Karlan:And I just think that's where we're headed.

13:12Deborah Sivas:So before we get to where we're headed, just one other piece of this, which is the Supreme Court's decision in Loper Bright. In 1984, the Supreme Court decided another environmental law case that involved Chevron against the NRDC. And in that case, the Supreme Court said when a statute is ambiguous, courts should defer to the agency's interpretation of what its statutes mean, as long as that interpretation is reasonable. That is, the court wasn't supposed to say, well, what do we think the statute means? They were supposed to say, well, what does the agency think the statute means? And is that a reasonable interpretation of these words that aren't necessarily entirely determinative or clear?

13:55Deborah Sivas:In Loper Bright, the Supreme Court came back and said, you know, we don't think that that's an appropriate thing to do. That is, we, the courts, are experts at interpreting what the words in a statute mean. And so we, rather than the agency, should determine what those words mean. some of what again if i was reading the epa's announcements and like some of what they seem to be doing here though is actually doing their own reinterpretation of the statute and saying well we're reinterpreting the statute and now that's what we think the statute means but at the end of the day doesn't loper bright mean that the courts are going to decide this issue

14:37Pam Karlan:yeah well that's right the loper bright that is the way that you can think about loper bright as applying, right? Because remember that the court said there's one best interpretation, and that's for the courts to make ultimately. And I think what EPA is going to argue in this case is that there is one right interpretation. It was the interpretation that EPA took in 2008, 2006 to 2008, under President Bush. And at that time, the EPA said, we don't think the statute covers greenhouse gas emissions, and that's how we're interpreting the statute, right? And so now, of course, the Supreme Court in the Massachusetts versus EPA case said, no, read the statute more broadly to cover greenhouse gas emissions.

15:23Pam Karlan:But so they're going to use the Loper-Brite case to say, well, there is only one best interpretation and court. We think you should rethink what you said in Massachusetts versus EPA. I mean, they don't say that completely outright, but that's clearly where their decision is headed, trying to work that question back up to the Supreme Court. Of course, we have a very different court than we did 20 years ago. And I think that the sort of anti-climate policy folks believe they can get a reversal. And, you know, we've seen that the last couple of years, we've seen the Supreme Court really backtrack on some of this.