AFPF Files Comment Supporting Trump EPA’s Efforts to Repeal the Endangerment Finding and Unleash American Energy Dominance 

On September 22nd, Americans for Prosperity Foundation (“AFPF”) filed a comment supporting the Environmental Protection Agency’s (“EPA”) proposal to repeal its 2009 Endangerment Finding—a document that has underpinned a cascade of burdensome and overreaching EPA regulations affecting transportation, energy, manufacturing, and many other sectors of the economy. EPA’s proposal presents an opportunity to restore constitutional boundaries on EPA’s power and ensure that major policy decisions are made by the American people’s elected representatives. AFPF applauds President Trump and EPA for taking yet another bold action to unshackle American energy, unleash prosperity, and lower costs for all Americans. 

AFPF believes that proper environmental stewardship, including appropriate measures to ensure the American people have clean air, can coexist with a prosperous economy and American energy dominance. At its core, this rulemaking is about who gets to make major decisions that affect every American and by what process. In the past, EPA has used the 2009 Endangerment Finding to unilaterally impose far-reaching regulations, including de facto electric vehicle mandates (regardless of whether consumers want them or not) and regulations that would force generation-shifting in the energy sector and thereby increase the price of electricity for all Americans. Such regulations impact everything from Americans’ ability to drive the car or truck of their choice to the price of groceries, keeping the lights on, and heating and cooling our homes. Regardless of what one thinks of the wisdom of the basic policy choices and the consequential tradeoffs involved, these actions have profound consequences. AFPF believes that under the U.S. Constitution such momentous decisions should rest with Congress, not unelected bureaucrats.  

Massachusetts v. EPA—the 2007 Supreme Court decision that opened the door to the Endangerment Finding—remains on the books. But that misguided decision does not foreclose EPA’s proposal and leaves EPA with discretion to decide whether and, if so, how to regulate. It is also out of step with more recent Supreme Court precedent, including West Virginia v. EPA, and would likely be decided differently today. AFPF’s comment argues that if EPA were writing on a blank slate, repeal of the Endangerment Finding would easily be justified on the ground that it violates the major questions doctrine, as articulated in West Virginia, because it is an important policy choice that Congress has not clearly authorized EPA to make. AFPF is not alone in making this point. For example, as U.S. Senator Caputo and nine other Senators recently wrote to Administrator Zeldin, “your proposed rule would repeal standards that unmistakably violate the statute and ignore the Supreme Court’s ruling in West Virginia v. EPA.”  

AFPF believes that, in furtherance of President Trump’s efforts to unleash American energy and prosperity, Administrator Zeldin should withdraw the Endangerment Finding to the maximum extent legally defensible—not the least because it arrogates to unelected administrative officials sweeping power to unilaterally make decisions that under the U.S. Constitution should be made by Congress through the legislative process. By withdrawing the Finding, the EPA would be respecting the limits of its statutory authority and restoring democratic accountability. But AFPF’s comment respectfully suggests that to maximize regulatory certainty, EPA should not put all its eggs in one basket and exclusively base any decision to withdraw the Finding on the ground that it is a major policy choice reserved to Congress. Instead, AFPF respectfully suggests that EPA should adopt all rationales and alternatives that independently support repeal of the Finding and regulations predicated on it. EPA should also make sure that each rationale stands on its own and clearly explain how each alternative is supported by the administrative record. In this way, EPA will be able to best deliver on the President’s goal of achieving American energy dominance.