On August 1, the EPA published a proposal to repeal all greenhouse gas (GHG) emission standards for light-duty, medium-duty, and heavy-duty vehicles and engines from model year 2012 and beyond. As part of this proposal, EPA is also considering rescinding the 2009 Endangerment Finding.

The Environmental Protection Agency’s (EPA) “endangerment finding” issued in 2009 marked a pivotal moment in the United States’ approach to managing greenhouse gas emissions. This determination concluded that carbon dioxide and other greenhouse gases pose a threat to public health and welfare, thereby creating a regulatory framework for limiting emissions from vehicles, industry, and power generation under the Clean Air Act (CAA). In recent years, however, debate has intensified with some suggesting recission of this finding. But this action isn’t just about clean air or GHGs, it marks one of the first efforts to test a recent SCOTUS decision questioning the legal authority of executive agencies. Should this recission take effect, it could have far-reaching implications on the ability of federal agencies to regulate (or deregulate) the industries they oversee.

This proposal is among the most significant steps thus far under EPA’s efforts to advance the President’s “Unleashing American Energy” Executive Order (EO) signed on his first day in office earlier this year. This EO was followed up by EPA’s March 12 announcement that they would undertake 31 distinct actions to advance the EO and noting that this was the “greatest and most consequential day of deregulation in U.S. History,” not just because of the proposed deregulatory actions but that it was questioning the legal foundation on which those regulations were established..

EPA often uses the endangerment finding to justify its authority under the CAA and as its basis to regulate emissions from mobile sources, such as trucks and cars, and stationary sources, including factories and power plants. The finding also underpinned subsequent rules and standards, such as the Corporate Average Fuel Economy (CAFE) standards and emissions controls for heavy-duty vehicles.

In its August 1 proposal, the Agency offers several legal, scientific, and policy arguments as to why they are taking this action and why the 2009 endangerment finding should be rescinded. A significant issue that caught STC’s eye in all of this is the reference to the recent Loper Bright Supreme Court ruling that some court watchers have said may undermine previous agency and judicial applications. The decision eliminated what was commonly referred to as the “Chevron Deference,” a paradigm the federal government operated under for more than 40 years, which gave agencies wide latitude to implement regulations based on their interpretation of Congressional intent.

Relatedly, on April 9, President Trump “quietly” issued a memo to all Federal Agencies directing the repeal of unlawful regulations. In this memo, agencies are directed to identify and repeal “facially unlawful regulations,” and finalize rules without notice and comment, where doing so is consistent with the “good cause” exception in the Administrative Procedure Act, and further noting that retaining and enforcing unlawful regulations is contrary to the public interest.

Since the inauguration, we have seen many deregulatory actions taken by the various agencies under the Trump Administration. It is our view, and we have written on this previously, that most of these have been low-hanging fruit without much controversy, and agencies are likely “banking” these actions to help in promulgating regulatory actions they DO want to implement in order to meet the 10 for 1 requirement that was the key piece of the deregulatory EO Trump issued January 31.

What we view as unique about the EPA’s August 1 proposal is that this looks to be the first major effort under Trump’s April 9 memo challenging the constitutionality and lawfulness of actions previously taken by federal agencies to expand their regulatory authority beyond what Congress has authorized or intended. It remains to be seen how this EPA action unfolds, and which other agencies follow suit, but we are likely to be in for a long few years of deregulatory actions, much of which likely will end up being decided in the courts.

What remains to be seen is how this impacts Agencies’ ability to get things done, as well as the lack of clarity that some of these actions will undoubtedly present to the business community, including trucking. The other issue STC is watching is if some of these big impactful deregulatory actions don’t result in wins for the Trump Administration, whether Congress will wade in to attempt to make changes to the Administrative Procedure Act. Regardless, there is likely to be far-reaching impacts to trucking and the regulatory landscape, so make sure you buckle up and strap in for the ride.