The Trump administration's controversial move to repeal a critical climate finding has sparked a debate with far-reaching implications. This decision, which could impact the future of climate litigation, has left many wondering about its true motives and potential consequences.
In a surprising turn of events, the Environmental Protection Agency (EPA) under Donald Trump's leadership has revoked the 'endangerment finding' - a 2009 determination that greenhouse gases pose a threat to public health and welfare. This move has eliminated federal limits on climate-warming emissions from vehicles and is expected to extend to all pollution sources.
Critics argue that this change was a favor to oil companies, who generously funded Trump's campaign. However, the irony lies in the fact that this decision could weaken the very shield that the fossil fuel industry has relied on to protect itself from climate damage lawsuits across the US.
The future of this legal protection will soon be tested as the Supreme Court considers a fossil fuel industry petition to dismiss a climate lawsuit filed by a Colorado city.
In recent years, numerous US states and local governments have taken legal action against big oil companies for their role in climate change. Since 2024, Vermont and New York have even passed 'climate superfund' policies, requiring oil majors to contribute to the costs of climate disasters.
Fossil fuel companies and their allies have argued that these laws and lawsuits should be dismissed, claiming they are preempted by the federal Clean Air Act. However, legal experts like Pat Parenteau from Vermont Law School believe that the repeal of the endangerment finding could weaken this argument.
"I don't see how oil companies can continue to make this claim with a straight face," Parenteau said.
In 2011, the Supreme Court dismissed a climate lawsuit by Connecticut against a power company, stating that emissions should be regulated by the EPA under the Clean Air Act, not the courts. Since then, several similar climate lawsuits against big oil have been dismissed, with many appeals still pending.
Parenteau suggests that if the federal government no longer regulates greenhouse gases, there should be no federal law preventing other efforts to control them.
Michael Gerrard, founder of the Sabin Center for Climate Change Law, believes that public nuisance claims, which allege companies should fund the abatement of harm to communities' health and safety, could benefit significantly from the rescission of the endangerment finding.
However, oil companies argue that lawsuits focused on deceptive messaging or marketing, rather than emissions, should still be preempted by the Clean Air Act.
"All climate accountability cases could be affected by this change," Parenteau warned.
Trump's Justice Department has also sued New York and Vermont over their climate superfund policies, partly on the grounds that the Clean Air Act already controls greenhouse gas emissions. Sarah Light, a law professor at the University of Pennsylvania, believes that the EPA's rollback could undermine these claims.
"The argument is that there is a comprehensive federal statutory scheme that applies to greenhouse gas emissions, and therefore the Clean Air Act preempts the superfund laws. But now, the administration is saying the Clean Air Act no longer applies, so there is no comprehensive scheme at all," Light explained.
The Supreme Court's decision on Monday to consider a petition from two oil companies to end a climate lawsuit in Boulder, Colorado, adds another layer of complexity. The companies argue that federal law prevents seeking climate damages in state court.
If the Supreme Court sides with the oil companies, it could invalidate the Boulder case and potentially other climate accountability lawsuits and superfund laws. However, this could put the justices in a tricky position if they later need to rule on the endangerment finding.
The potential threats to this legal shield have caused concern among corporate interests. Andres Restrepo, a senior attorney at the Sierra Club, noted that "a lot of companies and industry are really worried" about the repeal of the endangerment finding.
The utility trade group, Edison Electric Institute, warned last fall that a repeal could lead to increased litigation. Interestingly, the American Petroleum Institute (API) supported the repeal for vehicles but not for stationary sources like power plants, a stance that contradicts their earlier messaging in the 1990s when they coordinated a campaign against federal greenhouse gas regulation.
The EPA's focus on repealing pollution controls for vehicles, rather than stationary sources, has left experts believing that the agency will soon clarify the implications for other sectors, effectively undercutting the legal foundation for all greenhouse gas standards.
Delta Merner, lead scientist at the science hub for climate litigation at the Union of Concerned Scientists, believes the "ambiguity" is intentional, giving the fossil fuel industry more time to prepare legal arguments.
"It creates an uncertainty on where regulation stands now," Merner said.
The EPA maintains that the Clean Air Act "continues to preempt" state greenhouse gas laws and regulations.
"The Clean Air Act preempts states from adopting or enforcing emission standards for new motor vehicles, whether EPA has issued standards or not," an agency spokesperson stated.
Restrepo sees this as the EPA trying to have it both ways.
Ultimately, the legal system will decide whether the Clean Air Act still preempts climate superfund laws and accountability litigation.
"The courts will decide, not the EPA," Light emphasized.
The Supreme Court could potentially uphold the repeal of the endangerment finding while maintaining that federal greenhouse gas regulations prevent states from controlling emissions.
"They could twist themselves into a pretzel to make it work," Parenteau suggested.
In the past year, fossil fuel companies and their allies have pushed for broad protection from climate accountability efforts. A US representative from Wyoming has even stated their intention to "craft legislation" to tackle big oil lawsuits and climate superfund bills. Red states have introduced bills to shield fossil fuel companies from climate litigation, and Republican state attorneys general have urged the Justice Department to provide a liability shield for oil companies.
Merner believes that the looming threats to the "pre-emption shield" are driving the push for broader immunity, with oil companies potentially seeking a liability waiver similar to the 2005 protections granted to the firearms industry.
"Communities will continue to pursue climate accountability in new and creative ways," Merner assured.
"State governments and courts become essential when national protections fail," she added.
The federal government's decision to step back from regulating climate pollution doesn't mean the problem goes away. The debate over climate accountability and the role of the fossil fuel industry continues, with legal experts, communities, and corporate interests all watching closely.
