Changes to EPA’s Endangerment Finding Could Unleash Wave of Litigation

Matthew Morrison, an Environmental and Natural Resources partner at Pillsbury and a veteran of the EPA's Clean Air Act legal team, said that Congress amended the law in 2022 as part of the Inflation Reduction Act and bolstered the statutory support for the regulations that flow from endangerment finding.

“Even if the endangerment finding was successfully rescinded, it looks like EPA would still have the authority to regulate greenhouse gases as a result of the language in the Inflation Reduction Act, which effected changes to the Clean Air Act and defined greenhouse gases to be air pollutants,” Morrison said.

There are several options for the EPA to address the endangerment finding, according to Morrison and other practitioners.

“If the administration wants to take credit for doing something to push back on greenhouse gas regulation, it could simply pursue a notice and comment rulemaking on the endangerment finding,” Morrison said. "I think the administration may be surprised to see that many, if not most, of the industry commenters would actually support keeping the endangerment finding and the technical basis for it.”

If the EPA were to pull the endangerment finding, there could be a period of uncertainty following that.

Morrison told Law360 that it would result in regulatory confusion and shift responsibility back to the states to regulate greenhouse gases.

“So in that sense, the endangerment finding really wouldn't go away—it would just create a patchwork approach to a problem that's not only national in scope but global,” he said. “That, in turn, would really complicate compliance strategies for companies that have tried for years to do something about this critical issue.”