Americans for Prosperity Foundation Applauds Trump EPA’s Decision to Repeal Endangerment Finding and Restore Democratic Accountability

Americans for Prosperity Foundation applauds the Trump EPA’s decision to repeal the agency’s 2009 Endangerment Finding—a document the agency has used as a springboard to claim sweeping power under the Clean Air Act to unilaterally set national transportation and energy policy by administrative edict without Congress’s permission. The Endangerment Finding has underpinned a host of burdensome and expensive EPA regulations impacting the entire national economy and the daily lives of Americans, including the price we pay for basic consumer goods. By repealing it, President Trump, Administrator Zeldin, and EPA have taken yet another bold step to unleash prosperity, restore American energy dominance, and lower costs. As the Washington Post Editorial Board said, supporting the decision, “It’s about time.” This historic deregulatory action will make buying a new car more affordable and save over a trillion dollars in costs.

But even more fundamentally, the repeal is a win for constitutionally limited government, democratic accountability, and the rule of law. As AFPF argued in a comment supporting EPA’s proposal without taking a position on any scientific or technical issues: “EPA has used its standalone 2009 Endangerment Finding to arrogate to itself unilateral power to set national policy on a global issue—power that properly belongs to Congress alone.” The Trump EPA—unlike its predecessor—recognizes that the Finding “exceeded the agency’s authority” because the power to decide whether and, if so, how to regulate “lies solely with Congress.” That is a big deal.

The era of “trust us, we’re the agency” is over

The Supreme Court’s landmark decision in Loper Bright Enterprises v. Raimondo overruling Chevron deference played an important role in EPA’s decision. Loper Bright is cited twenty-five times in the final rule. There, EPA explains that “[a]s the Supreme Court made clear in Loper Bright,” EPA “can no longer rely on statutory silence or ambiguity to expand [the agency’s] regulatory power.” Instead, as EPA recognizes, quoting Loper Bright, “‘the scope of an agency’s own power’ is determined not by deference to asserted expertise, but by ‘the best reading of the statute,’ which is fixed at the time of enactment.” The agency concluded “the best reading” of its statutory authority under the CAA, “as informed by Loper Bright and principles of statutory interpretation, does not authorize the EPA to assert jurisdiction” to regulate “in a standalone endangerment finding.”

There is also a deeper story here. Loper Bright is not just changing outcomes; it is changing how regulations are written, justified, and defended. EPA’s Endangerment Finding repeal shows what it means to recast regulation for a post-Chevron world and is a prime example of an agency taking its duty to ascertain and respect statutory limits on its authority seriously, instead of reimagining the laws Congress passed as the agency wishes them to be. The era of “trust us, we’re the agency” is over.

It’s up to Congress to Decide

Applying the major questions doctrine—which requires Congress to clearly, not just plausibly, authorize agencies to make important policy choices—EPA independently found that it lacked legal authority to regulate for a second reason: “the Nation’s potential response to global climate change concerns is an issue that has significant economic and policy impacts, including to Americans’ basic way of life, that Congress did not clearly authorize the EPA to decide” and is therefore “a question for Congress to decide in the first instance.” In other words, the issue is of such consequence that the very question of whether to regulate—as opposed to how to regulate—should presumptively be up to Congress to decide, at least absent clear congressional authorization and subject to constitutional limits. Administrator Zeldin recently echoed this sentiment in common-sense terms, explaining the “best reading of the law” and Supreme Court precedent “makes it clear that if you’re going to regulate the heck out of greenhouse gas emissions with trillions of dollars of regulatory costs on Americans, that’s something that Congress should have a debate and a vote on.” Exactly so.

In sum, by repealing the Finding, the EPA disclaims power it has never legitimately possessed and puts it back where it belongs under our system of checks and balances: the halls of Congress. The Constitution promises that highly consequential policy choices, and the tradeoffs involved, must be made by the People’s elected representatives—not unelected bureaucrats acting alone. Whatever one thinks about the wisdom of EPA’s climate regulations, it’s up to Congress to decide whether and, if so, how to address global issues through the deliberately difficult legislative process. That is how is as it should be. And we should all celebrate the Trump EPA’s decision to respect bedrock limitations on the Executive Branch’s power by repealing the Finding.

Read AFPF’s full comment here.