Law professor says Oregon can take action if federal climate change regulations go up in smoke

With the Trump administration’s dismantling of environmental regulations and total reversal of policies to combat climate change, activists have filed lawsuits and requests for injunctions all over the country. The latest development is the Trump-led Environmental Protection Agency reversing the long-standing “endangerment finding” that greenhouse gases threatened human health and welfare. One environmental law professor at Harvard called it “an assault on the foundation of all federal climate policy.”

Lewis & Clark environmental law professor Melissa Powers says Oregon — and other states — do have options to fight climate change, besides filing individual lawsuits. She says one viable strategy would be for Oregon to create a Climate Superfund. We talk with her about what the unraveling of environmental regulations is likely to mean in Oregon and more about the potential for an Oregon Climate Superfund.

Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Last week, the Trump administration announced its intention to revoke a scientific finding from 2009 that’s been a kind of cornerstone of federal action to reduce greenhouse gas emissions. It’s just the latest step by the administration to dismantle environmental regulations and to reverse course on efforts to combat climate change.

Melissa Powers joins us now to talk about what this could mean for the U.S. as a whole and for Oregon specifically. She is an environmental law professor at Lewis & Clark College and the founder of the Green Energy Institute there. It’s great to have you back on the show.

Melissa Powers: Thanks. It’s great to be here.

Miller: What is an endangerment finding in this case. What does that phrase even mean?

Powers: Sure. Under the Clean Air Act, if the Environmental Protection Agency wants to regulate air pollutants under certain programs, it first needs to make a determination that those pollutants cause or contribute to an endangerment to public health, meaning human health or public welfare, which includes the environment, climate and the weather. So what EPA is supposed to do is it looks at how the pollutant interacts in the environment to figure out whether or not it’s actually going to cause some type of harm to individuals or to the broader environment.

Miller: There was some legal underpinning to this, as I understand it. What’s the connection between this finding and a 2007 Supreme Court case called Massachusetts v. EPA?

Powers: So in Massachusetts v. EPA, the Supreme Court did two things. The first thing that it did is it made a legal determination that the Clean Air Act in fact does regulate greenhouse gasses as air pollutants. And second, it directed EPA to make this determination whether or not greenhouse gasses then cause or contribute to the endangerment. Before the Massachusetts v. EPA decision, EPA had taken the position that it could not regulate greenhouse gasses because they were not air pollutants, and that it should not regulate greenhouse gasses because it thought it just didn’t make sense politically, it thought that there would be better approaches to regulation and it basically said that it had broad discretion to avoid making the scientific determination of what the impacts of greenhouse gasses are going to be. And the Supreme Court said, nope, you actually have to regulate if you make this determination, the endangerment finding, and that the endangerment finding is a scientific inquiry, not a policy-based inquiry.

Miller: So what actually went into that scientific inquiry? Because that is then what the EPA did in the intervening two years. What kind of data do they look through and what did they put out in their final finding?

Powers: They looked at pretty much the bulk of the science involving climate change at the time. So the first thing they did is they looked at what are these things called “greenhouse gasses,” and how do they work to trap heat within the Earth’s atmosphere? That’s what they do – without greenhouse gasses, all of the heat that comes from the sun would filter back into outer space. We have greenhouse gasses in the atmosphere that allow us to actually be a warm enough planet for life to survive. But as you add more and more greenhouse gasses, you have more heat trapping chemicals. So the heat that would naturally filter out, which is good if enough heat gets out but some stays in, now more and more is staying within the Earth’s atmosphere. And therefore, we’re seeing the planet warm at an unprecedented rate.

So that’s the first thing EPA did, it looked at how greenhouse gasses operate. The second thing EPA looked at is what are the impacts of that warming then on plants, on animals, on humans, on the broader atmospheric system? How do increased temperatures affect weather patterns? How do increased temperatures increase, for example, disease outbreaks and other types of human-caused illnesses?

And then the last thing that EPA did is it looked at how much do vehicle emissions contribute to all of those harms? And collectively, EPA said greenhouse gasses cause climate change, climate change causes harm, and climate change is the result of burning fossil fuels, including from motor vehicles.

Miller: I have seen this endangerment finding described as the foundation of all federal climate policy. What kinds of regulations have directly followed from it?

Powers: First, the most direct impact was that once EPA promulgated the endangerment finding for the vehicle sector, then that meant that EPA had a legal obligation to actually establish emissions limitations for vehicles. And the first round of emissions limitations were relatively weak. But what they also did is they created leeway for the electric vehicle industry to start to realize that if they started to build vehicles that were less dependent on fossil fuels and more dependent on batteries and electric vehicle technology, they would be able to reduce their emissions. That then ultimately led to California passing vehicle standards that in the future would say that we’re going to be an all-electric vehicle economy. So that was the first, this transition in terms of vehicles

Miller: For tailpipe emissions specifically.

Powers: For tailpipe emissions specifically. Alongside those tailpipe emissions were efficiency standards for vehicles to make sure we can drive further on a single tank of gas. So those went hand in hand for a while. They’re separate today and I could talk about that, but it’s not quite relevant.

Second thing that EPA did is once it regulated vehicle emissions, that actually triggered another part of the Clean Air Act to trigger regulation of greenhouse gasses when new emitting facilities are first constructed or when they are subject to modification. So the idea is that we don’t want to have wholly new polluting facilities built anywhere without any pollution control.

Miller: Like a new natural gas fired power plant, for example.

Powers: Yeah, exactly. It’s called the Prevention of Significant Deterioration program. But that was automatically triggered once the vehicle emission standards program was triggered. And then the last and probably one of the other more important programs was not directly triggered by the vehicle standards endangerment finding. But EPA also has to make endangerment findings when it wants to set national emission standards for different types of stationary or industrial sources that don’t move. So the reason that we’re regulating greenhouse gasses from the entire power plant sector is because EPA had to make an endangerment finding that said that power plants also emit greenhouse gasses that also cause risk to human health and the environment.

Miller: My understanding is that the Trump administration has been trying to get rid of a lot of these specific rules or programs for months. [They] made a big announcement in March, the administrator of the EPA basically saying this is the most significant day in the EPA’s history where we’re getting rid of all these unnecessary regulations, we’re going to unleash American energy. Do they need to get rid of this engagement finding to do away with all the programs you’re talking about?

Powers: If they really get rid of this endangerment finding, they get rid of vehicle regulations. They would have to separately get rid of the other separate endangerment findings for the power plant sector, for the oil refining industry, for other types of industries that have already been regulated through separate regulation. But this is a really big one, because what they are trying to do with this getting rid of the endangerment finding is number one, they are trying to get rid of all regulation of greenhouse gas emissions from motor vehicles. And they’re trying to do it in one of two ways, one of which is they’re trying to say there’s no federal regulation allowed. But they want to keep in effect a part of the Clean Air Act that basically says states cannot develop their own vehicle regulations. So they would wipe out regulation of greenhouse gas emissions from vehicles if they get their wish here.

Miller: Completely? Not just at the federal level, but preempting states from doing their own regulation.

Powers: That is one way that they are trying to navigate, yes. Because what the Clean Air Act says is that states generally cannot develop their own vehicle emissions standards. California goes first, California gets authorization from EPA to develop its standards, and then other states can opt in to either the California standards or the federal ones. What they want to do is they want to say no federal standards and then they will deny California’s request to develop its own standards. And once they do that, that basically means we don’t have regulation of greenhouse gasses from the entire vehicle sector.

Miller: I want to hear more about what that could mean and what that could mean for Oregon in particular. But just to stick with the reasons behind this that have been put forward, the EPA administrator Lee Zeldin, he said that the administration is “driving a dagger straight into the heart of the climate change religion.” I’m curious first just what you make of that choice of language?

Powers: First of all, I would say that to describe climate change as a religion as opposed to an empirically based science reality illustrates the fact that they’re not taking climate science seriously. I very much don’t want to indicate that I disrespect people who have religious beliefs, I don’t. But climate science is an empirically based, well-proven reality here. It’s not a belief. And that’s what they’re trying to indicate the climate is. Why do we know it’s real? Well, we have decades and decades and decades of work that show what greenhouse gasses are, how they keep heat within the Earth’s atmosphere, where they come from, why they come from different sources and not others, and how long they last.

So it’s clear that what they’re trying to do is indicate that climate science isn’t real. And personally, when you ask me what I think about that, I think what they’re doing is actually overreaching. They’re going to basically try to present to a court where they have an obligation to provide proof of what they’re saying in a court … They’re basically going to ask the court to ignore all of the science and adopt their belief-based deregulatory system. And I hope that a court will not entertain that endeavor.

Miller: The U.S. Supreme Court, in that earlier case that we talked about, said to the EPA, “You actually have to look into this, you have to do this work.” That was a 5-4 decision, and it was a different court too, back in 2007. Is there now Supreme Court precedent that says climate change is real? I guess I’m just wondering if the U.S. Supreme Court has said that, or not?

Powers: Well so first of all, Massachusetts v. EPA, that 2007 decision said it was real, the majority opinion did. The second thing is that climate change has actually been back before the court subsequently under the Clean Air Act in two subsequent decisions. And what the Supreme Court has done is it has narrowed EPA’s ability to regulate under the Clean Air Act, but it has never since said that EPA lacks any regulatory authority because climate change isn’t real. So I would say that the court has said it’s real since 2007, and it hasn’t taken that away since then.

So I think that the EPA has a big lift. Although the Supreme Court has reversed other decisions recently. And I think that is what EPA is gunning for. I think it hopes that this Court will take away the Massachusetts authority that it gave.

Miller: I was struck by some lines in an LA Times editorial by Jody Freeman. She’s an environmental law professor at Harvard, she worked in the Obama administration. She wrote this: “The irony is that no industry asked for this extreme step. Carmakers need stable federal rules to compete globally. Power companies have invested billions in renewable energy, which regulatory uncertainty puts at risk. Even most oil and gas companies support a national approach to limiting methane.” I’m curious if you agree with her and if the industries tied to the biggest emissions did not want this?

Powers: I think an area where I might disagree. I think that she’s right when it comes to most utilities in the U.S., but not all. I think that she’s right in terms of automakers, because they have invested billions of dollars now in this transition to electric vehicles and they’re starting to take those investments away. And then when they reinvest, they’re gonna have to spend more money. In the utility sector, there are some utilities that still have very large investments in fossil fuel plants. But many other utilities have begun to move away from that, and they have a lot of reasons why they would want to. So I think it’s a little split, but I think most utilities see that transition.

Where it comes to the oil and gas industry though, I think that the oil and gas industry has been the most eager to retreat from climate policy.

Miller: That’s their business.

Powers: That’s their business, and especially with electric vehicles. Electric vehicles negate the need for oil in particular. Oil is dependent on an oil-dependent transportation system. If you get oil out of the transportation system, then that industry is gonna have to depend on exports. And those exports are going to diminish over time, because many other countries in the world are embracing electric vehicles for all of the benefits they provide.

Miller: I’m gonna turn to state level questions. What’s the connection between Federal Clean Air Act regulation, and our own state level policies?

Powers: So the first thing to note, and very, very importantly, is outside of the vehicle sector, Oregon retains all of the authority it’s had before to continue to regulate greenhouse gasses. The Clean Air Act is drafted in a way that says that states have an obligation to meet minimum federal requirements, but they can always go beyond. And if there’s something that isn’t encompassed in the Clean Air Act, then states have the ability to regulate outside of the Clean Air Act. So anything affecting our power plants, our electricity sector, the industrial sector, none of that is affected by what EPA is doing.

Miller: By this particular endangerment finding revocation, the plan to do that. But am I wrong that the federal government is trying to crack down on all of those things that you’ve just said at state levels, like for example, in California?

Powers: This administration is definitely trying to use every lever that it has to try to pressure states into retreating from their climate policies. And it certainly has taken away the federal funding that was available to make the transition to clean energy more affordable for all of us. But it cannot direct the state to follow whatever the administration wants, unless there is actual legislation put into effect that would preempt everything that the states are doing. There is no such legislation now and I’m not going to guess what this particular Congress would do, but they would face a very, very high burden to basically tell every state that they no longer have the right to protect their own citizens within their own boundaries. That would be, for many, many people, a bridge too far in terms of anti-climate policy.

Miller: Meanwhile, Vermont and New York have recently taken a different approach. In recent years, their legislatures have passed what are known as Climate Change Superfund laws. How do they work?

Powers: Basically, what they do is they acknowledge the fact that greenhouse gasses have been causing harm within their borders. And they also acknowledge, as the science shows, that only a couple dozen companies bear the vast responsibility for releasing all of those greenhouse gasses into the environment. So what they’re doing is saying, “You companies cause this harm in the form of all of the impacts we’re seeing in terms of climate change, and you therefore need to pay for the cost that we’re bearing so that we can then, as a state, take efforts to rectify the harms, to basically clean up the pollution.”

So there’s a statute under federal law that’s commonly known as the Superfund law that did this with companies that released toxic waste into the environment, left polluted areas and just abandoned them, and left the public either with contaminated sites or left the public responsible for paying the cost of cleaning them up. Congress said, we’re not going to do this anymore, past polluters have to pay for the harms they’ve caused.

And Climate Superfund laws are basically doing the same thing. What they’re doing is saying, “You caused the harm, you pay for it.” And then at the state level they’ll calculate how much each contributor to the harm big companies caused and then send them a bill and make them pay for the harms that they’ve actually caused.

Miller: I should note that a similar bill did not pass in Oregon in this most recent session. But it seems like what you’re talking about, it’s less about emissions reductions and more about responding to the effects of those emissions. Is that a fair way to put it?

Powers: It is a fair way to put it. And then the question is, in each state, where are the revenues going to go? And it’s not necessarily the case that you could only use the money from a Climate Superfund site to clean up. One way to basically clean up the past harm is to prevent it from making it worse, so put some of those funds into emissions reduction.

Miller: Melissa, thanks very much.

Powers: Yeah, thank you so much.

Miller: Melissa Powers is a professor of environmental law at Lewis & Clark Law School and the founder of that school’s green energy institute.

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