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Research from the Institute for Energy Economics and Financial Analysis calls blue hydrogen’s carbon math into question.
The largest hydrogen producer in the world, Air Products, stands to earn up to $440 million per year in clean energy tax credits once it opens its massive, $7 billion complex in Louisiana in 2028. But a recent report argues that while the hydrogen produced there will be highly profitable for Air Products, it’s a “lose-lose proposition” for the environment — and for taxpayers.
The research adds to the long-running debate around the climate benefits of “blue hydrogen,” which is produced via the separation of hydrogen molecules from carbon molecules in natural gas, with systems that capture the resulting carbon emissions and store them underground. Advocates of the technology say it’s a critical bridge to a renewables-powered hydrogen economy, as it allows for cleaner hydrogen production now by relying on existing infrastructure. Critics, however, say that blue hydrogen’s emissions benefits are minimal if any, and that a focus on this technology diverts money from more meaningful climate solutions.
The blue hydrogen produced at Air Products’ Louisiana facility will be eligible for the lucrative 45Q carbon sequestration tax credit, which was expanded by the Inflation Reduction Act in 2022 and provides up to $85 per metric ton of carbon that’s permanently locked away.
The March report from the Institute for Energy Economics and Financial Analysis, however, argues that Air Products makes overly optimistic assumptions about both methane leakage rates and the effectiveness of carbon capture equipment, while underestimating the potency of methane in the short term. The company’s estimates are largely based on a Department of Energy life cycle analysis tool, which the report's authors also believe is flawed. The result, the authors write, is that the Louisiana plant would “cost billions of dollars in subsidies for essentially zero environmental benefit.”
With lawmakers in Congress considering which IRA tax credits to preserve and which ones to cut to make way for Trump’s spending priorities, now is a critical moment for climate-focused policymakers to have their priorities in order. It’s worth asking which provisions from Biden’s signature climate law are actually delivering a climate bang for their buck.
Air Products says that its Louisiana facility will sequester 5 million metric tons of CO2 annually over the 12 years that it’s eligible for the tax credit, which equates to $6.3 billion in total tax savings. To state the obvious, that’s a lot of taxpayer money for a project that a leading research group asserts will likely be a net negative for the environment.
“As you start expanding the envelope to take into account the full footprint and the full impact of this project and its product, there’s just not much of a benefit there, if any. It may be making things worse.” Anika Juhn, an energy data analyst at IEEFA and one of the report’s authors, told me. These findings are not specific just to Air Products’ upcoming facility — they’re “broadly applicable to other blue hydrogen projects,” Juhn said. (My colleague Emily Pontecorvo, for instance, wrote about a similar finding regarding methane leakage from the Permian Basin.) At least four of the DOE’s seven hydrogen hubs rely on natural gas with carbon capture and storage to some degree. Meanwhile, the Trump administration is looking to cut funding for the hubs that primarily produce hydrogen via renewable energy.
The DOE’s life cycle analysis tool uses an industrial methane leakage rate of 0.9% and a carbon capture rate of 94.5% for the specific method the Air Products facility will use, called autothermal reforming. (Or at least that’s what the IEEFA report said — I couldn’t find evidence of this carbon capture number in the government’s model itself.)
When Juhn and her co-author David Schlissel adjusted the analysis of Air Products’ Louisiana project using more typical industrial methane leakage rates of 1% to 4% and carbon capture rates ranging from 60% to 94.5%, they found that only under the most optimistic scenario would the project yield any carbon reductions at all. Even then, avoided emissions would only be about 200,000 metric tons per year of CO2 equivalent, whereas at the high end of the report’s “realistic scenario,” the project could result in an additional 7.5 million metric tons of CO2 equivalent annually.
Courtesy of IEEFA
To calculate the net life cycle emissions of a hydrogen project, the authors had to take the estimated benefits of hydrogen production into account, a task complicated by the fact that Air Products hasn’t announced any offtakers, making it impossible to know what dirtier (or cleaner) options customers might turn to if they didn’t have access to blue hydrogen. So instead, IEEFA relied on the White House’s general estimate that the 3 million metric tons of blue and green hydrogen (i.e. hydrogen released from water molecules using carbon-free electricity) produced by the hydrogen hubs would displace 25 million metric tons of CO2. But because the White House didn’t release its formula for determining avoided emissions, take their numbers with a grain of salt.
All of Air Products’ calculations thus come with the usual caveat, which is that they’re measured against an unknowable counterfactual — essentially a best guess at what would happen if plans for the Air Products facility went poof. Would the end users opt for hydrogen alternatives or would they rely on a standard natural gas-powered hydrogen facility with no carbon capture? Is it possible that a green hydrogen plant using renewables-powered electrolysis would be built instead?
All weknow is that a portion of the hydrogen will be turned into ammonia and exported abroad, where Juhn told me it’s likely to be burned as fuel. Another portion will be injected into an existing 700-mile hydrogen pipeline on the Gulf Coast for use by existing customers in industries such as energy, transportation and chemicals.
While Air Products did not respond to my request for comment on the report, I was able to discuss the results with John Thompson, a director at the climate nonprofit Clean Air Task Force, which advocates for a wide array of climate-focused technologies, including hydrogen with carbon capture and storage. He took issue with the IEEFA study’s methodology, and told me that blue hydrogen projects have the potential to be a big win for the climate, so long as they’re replacing “gray” hydrogen projects — that is, those powered by natural gas with no carbon capture.
“When you do displace gray hydrogen, you get huge, huge benefits,” Thompson told me. Despite all the unknowns involved, he’s confident the Louisiana project will do just that, primarily due to the existing network of hydrogen pipelines at the site. “Those pipelines are there because they’re serving existing customers — refineries, ammonia plants, chemical manufacturing,” he said, meaning that “the likelihood that you’re displacing existing sources is pretty great.”
Thompson also took issue with the notion that a 95% capture rate is overly optimistic, telling me that there’s no technical barriers to achieving industrial capture rates in the 90s. “The 95% capture rate that they’re proposing to build towards is what is commercially guaranteed by many vendors,” Thompson said. “It hasn’t been widely used, not because it’s not commercially available, but because it’s costly, and there hasn’t been much demand for it until we got into climate considerations.”
To Thompson, the IEEFA report looked more like an “advocacy piece.” To IEEFA, the Louisiana project still appears to be a government subsidized money-making scheme. Notably, the Air Products facility probably will not qualify for the much debated 45V clean hydrogen production tax credit, the most generous subsidy of all in the IRA. That credit provides up to $3 per kilogram of clean hydrogen produced — a whopping $3,000 per metric ton — for projects with the lowest emissions intensity. It’s also tech-neutral, meaning that so long as blue hydrogen projects have life cycle emissions under 4 kilograms of carbon dioxide equivalent per kilogram of hydrogen produced, they will be eligible for at least a $0.60 credit per kilogram of clean hydrogen.
Air Products said last May that it would not even attempt to claim this credit for the Louisiana facility, even as the company asserts that the complex will produce “near-zero carbon emissions.” A 2023 DOE report indicated few blue hydrogen projects will be eligible, period, given “the added [natural gas] and electricity needed to run the [carbon capture and storage] facility.”
So at least by the DOE’s own standards, the hydrogen produced by Air Products will not be “clean.” That’s not a precondition for the carbon sequestration tax credit, though, which doesn’t demand life cycle analysis, just proof that you’re putting a certain amount of CO2 in the ground. Juhn thinks that’s a big mistake. These analyses are “the only way that you can know whether or not investing in CCS projects makes sense, either in a climate sense or in a financial sense,” she told me.
But as fossil fuel interests including Occidental and ExxonMobil have advocated for preserving and even increasing the 45Q tax credit, Juhn doesn’t expect to see any changes to the rule that would mandate more stringent requirements.
“I do hear the fossil fuel industry saying, Oh, we need blue hydrogen first because we can get things moving. We can get this online and we can start creating this product to stimulate demand,” she told me, citing a common argument that blue hydrogen is a necessary stepping stone to creating a robust, economical green hydrogen economy. “But the problem is that these facilities, they’re not going to go away when green hydrogen projects come online, and these projects are being built with a 25-, 30-year lifespan.”
At the very least, what everyone can agree on is the need to address upstream methane leakage. “It’s not enough to do carbon capture, I can’t emphasize that enough,” Thompson told me, pointing out that methane emissions are “not a law of thermodynamics” but rather “a variable that we can control if we choose to.” Unfortunately, it looks like the Trump administration won’t be choosing to, as the president recently signed legislation scrapping a Biden-era rule that imposed fees on oil and gas producers who emit excess methane.
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Not even the companies that — on the surface, at least — seem most likely to benefit from them.
Amidst the chaos of President Donald Trump’s tariff regime so far, there has been one constant — the 25% levies on steel and aluminum imports applied in February, with no country-specific exemptions. I’ve been a bit befuddled as to what these tariffs may, or may not, mean for the companies trying to green these notoriously hard-to-decarbonize sectors. And it turns out, some of them are a bit befuddled, too.
“It’s a mixed bag,” Cody Finke, CEO of the Bay Area-based clean cement and aluminum startup Brimstone told me. Brimstone’s core breakthrough is figuring out a way to co-produce cement and alumina — the core material in the critical mineral aluminum — using carbon-free calcium silicates such as basalt rather than limestone, which releases a lot of CO2 when it’s processed.
At least on the surface, a company like Brimstone should fall squarely among the beneficiaries of Trump’s trade policy — the whole point of the tariffs, after all, is to increase demand for domestic steel and aluminum by making foreign metals more expensive. That will likely allow U.S.-based producers to raise prices, too, generating even more revenue.
Then again, green steel and aluminum producers rely on imports of these same materials to build their own plants. Tariffs on these vital construction materials — plus exorbitant levies on all goods from China — will make building new production facilities significantly costlier. (As Keith Norman, CEO of the domestic battery manufacturer Lyten told me last month, “The reality is, the energy transition is a manufacturing transition.”) Not to mention the fact that the auto industry — a heavy user of both steel and aluminum — is facing its own 25% tariffs on imported vehicles and auto parts. That stands to raise the price and thus lower the demand for cars, in turn reducing demand for the materials needed to build them, green or not.
Large industry players such as Nucor and Cleveland Cliffs — both of which have plans to produce green steel — have seen mixed responses since the tariffs were announced. “Nucor recently said on an earnings call that they have huge backlogs, suggesting increased demand. [Cleveland] Cliffs, on the other hand, is idling plants due to low demand,” Hilary Lewis, the steel director at Industrious Labs, a nonprofit advocating for heavy industry decarbonization, told me via email. But it's difficult to know how much a company’s recent performance is attributable to the tariffs. “The impact of the steel tariffs are uneven and subject to other disruptions in the market,” Lewis said.
Industrious Labs aluminum lead Annie Sartor told me that Trump’s first term tariffs on aluminum failed to revitalize the industry, which she said “saw a continued downturn.” So while the latest tariffs are more robust, Sartor is hesitant to to think that “this will be a real game changer.” As she explained, “The biggest challenge that the industry faces is access to electricity, and specifically renewable electricity.”While the tariffs won’t directly address that, Sartor said that an optimistic analysis would suggest that with their extra revenue, companies that rely on electrification to clean up their operations “could use those additional funds to help them access the renewable energy that they want.”
At least for now, many of the leading companies have expressed strong support for Trump’s trade agenda. Century Aluminum’s CEO Jesse Gary said the tariffs “will help drive the resurgence of domestic aluminum production,” while Cleveland Cliff’s CEO Lourenco Goncalves stated they would “penalize the foreign competitors who have been playing by a different set of rules.” And while Leon Topalian, CEO of Nucor, acknowledged that the tariffs will increase the price of the raw materials for steel, such as iron ore, he told investors that he thinks this will be outweighed by “the overall macroeconomic trends in the industry, a healthy, vibrant steel industry.”
Aluminum giant Alcoa, which has also expressed interest in producing green aluminum, is an outlier among industry leaders in its opposition to tariffs. The company’s CEO, Bill Oplinger, told the crowd at a metals and mining conference in February that the disruption caused by the tariffs could eliminate 100,000 jobs in the domestic aluminum industry. The company operates two smelters in Canada that will be subject to tariffs, while it’s closed down many older smelters in the U.S. that it’s in no rush to reopen. “It’s hard to make a restart decision based on tariffs that could change,” Oplinger said during an analyst call, the Wall Street Journal reported. “We just don’t know whether they will stick.”
Startups focused narrowly on green metals production, however, have generally been more circumspect in their responses. “At this point, we’re trying to just stay steady through all of it — not reacting to the day-to-day,” Adam Rauwerdink, senior vice president at the green steel startup Boston Metal, told me. His company uses renewable power to electrolyze iron ore at high temperatures to create molten iron, the feedstock for steel.
Boston Metal has yet to build its first demonstration plant, and while Rauwerdink told me the tariffs could provide some incentive to site the facility in the states, the increase in domestic materials demand that tariffs will presumably bring is by no means enough to guarantee a U.S.-based facility will be worth it. “Here in the U.S. right now, the challenge is just the grid not being sufficient,” he said.
With electricity demand on the rise, green metals companies are now competing for renewable resources with tech giants that are trying to scoop up as much clean energy as possible to power their artificial intelligence-focused data centers. “Innovations like that, which change the landscape on the grid, can definitely impact some of these other solutions that are going to be competing for electrons and are probably less profitable than an AI data center,” Rauwerdink told me.
Electra, a startup that’s also using electrolysis to decarbonize the ironmaking process, recently landed a $186 million Series B funding round to build its demonstration plant in Colorado. But the tariffs aren’t enough for them to commit to the U.S. market, either. As the company’s CEO, Sandeep Nijhawan, told me, building a facility in an area with easy access to renewables is of paramount importance to them too.
Adding to all of this tariff-related uncertainty is the fact that many of these demonstration plants or first commercial facilities, including Brimstone’s, aren’t even scheduled to come online until the latter half of Trump’s term, if not the next decade. “We don’t know what the policy of the United States will be at that time,” Finke told me. The plan is for the company’s first commercial demonstration plant to be operational in 2030. “Maybe the next president will extend those tariffs, or maybe they will cut them back,” Finke said. After all, Biden mostly kept Trump’s first term tariffs on steel and aluminum in place — although prior to this February, there were numerous country-specific exemptions in place.
At the end of the day, tariffs are only one of numerous policy unknowns plaguing these green producers. Another major one is the status of the funding many of them were granted from the Department of Energy but have yet to see. In Brimstone’s case, that’s a $189 million award from the Office of Clean Energy Demonstrations to build its first plant. While Finke told me the company has started spending that money scoping out potential sites, it hasn’t yet been reimbursed. I asked him if that was concerning. “It’s a good question,” he told me. “At this time, it’s too early to say that.”
Similarly, Century Aluminum and Cleveland Cliffs both have $500 million awards from OCED to produce green aluminum and green steel, respectively. While I reached out to both companies for comment on the tariffs and the status of their funding, neither got back to me. Boston Metal also has a $50 million DOE grant for a facility that would produce chromium, a critical material for many advanced energy technologies. That money is, of course, now mired in “limbo and uncertainty,” Rauwerdink told me.
Green aluminum manufacturers large and small also stand to benefit from the Inflation Reduction Act’s advanced manufacturing production tax credit, which incentivizes the domestic production of critical minerals, as well as certain types of clean energy components. This credit — along with so many others — may or may not be slashed as Republicans look to cut funding for a variety of IRA-related initiatives in the budget reconciliation process.
While Finke told me — as so many other companies did — that Brimstone does not rely on tariffs, tax credits, or the company’s DOE grant for its survival,it sure would be nice to have just a little certainty for once. “What we’d really like is to know what number to put in our financial model,” he told me.
Wouldn’t we all.
On EU EVs, Exxon’s CCS projects, and Australia’s election
Current conditions: Spring rainshowers and thunderstorms will move over the Central and Eastern U.S. at the start of the week • The Eta Aquarids meteor shower, the result of debris from Halley’s Comet, peaks Monday night and Tuesday morning in the Northern Hemisphere • It’s another sunny day in Rio de Janeiro, where authorities are investigating an attempted attack on Lady Gaga’s Sunday outdoor concert at Copacabana Beach.
First quarter new car registrations for the European Union are in, revealing that March was the second-best month ever for BEVs on the continent, up 24% year-over-year with 245,000 units sold, Clean Technica reports. While the Tesla Model Y and Model 3 remained the top-selling electric vehicles for the month, Model Y deliveries were down 41% year-over-year. “The name Tesla has become toxic for many, limiting its appeal, so don’t expect the Model Y’s performance to go back to the sky-high results it once had,” Clean Technica writes. The Model 3, meanwhile, was up 6% year-over-year in March, but down 14% over the whole quarter.
The Renault 5, in third place for the month, delivered just over 8,000 units, marking “a new record for the French model” that could be even higher for April as it benefits from “Tesla’s off-peak month.” The Volkswagen ID.4, sitting in the fifth place spot with almost 7,600 deliveries, saw a remarkable 52% growth year-over-year. Also creeping up the charts was the BYD Song, which had the best result ever in Q1 for a BYD model in Europe.
ExxonMobil characterized carbon capture and storage as “probably the biggest thing we’re investing in this year” during its first quarter earnings call on Friday. “We have the permanent storage, we’ve drilled the wells, we’ve got the monitoring put in place, and so we’re feeling very good about how that business is progressing,” Kathryn Mikells, Exxon’s chief financial officer and senior vice president, said on the call, adding that low-carbon projects amount to “$30 billion of our total [capital expenditure] from 2024 through 2030,” or about 10% of the company’s total capital expenditure. Earlier in the week, energy consultancy Wood Mackenzie said ExxonMobil’s low-carbon investments place it ahead of Shell and BP.
Darren Woods, Exxon’s president and chief executive officer, also shared an update on the company’s planned Baytown Blue Hydrogen project. The project was announced in 2022 and would be the world’s largest such facility if developed; it aims to eventually produce 1 billion cubic feet of low-carbon hydrogen per day. Acknowledging there’s “some debate today with the Trump administration” and that “policy may change,” Woods said, “our expectation is the things that we need to drive low-carbon hydrogen will probably stay in place.” He added that he expects to make a final investment decision on the project “hopefully … later this year.”
A view of a proposed nuclear facility in Port Augusta, Australia.Brook Mitchell/Getty Images
Australia’s center-left Labor Party retained power in the national election on Saturday, securing Prime Minister Anthony Albanese a second term in office. He is the first Australian prime minister to win consecutive re-election in two decades, and is expected to secure the largest win for his party since 1946 — a landslide victory many have credited to the conservative coalition leader’s association with President Trump.
Though the Australian campaigns, like Canada’s, did not center around climate issues, “few voters have as much power over climate change as an Australian citizen,” The New York Times writes, noting that the country has the highest per capital greenhouse gas emissions among democracies and that it is one of the biggest exporters of coal and natural gas, which it mainly ships to Asia. During the campaign, the Labor Party pitched voters on quickly deploying wind, solar, and pumped storage hydropower to reduce domestic emissions, while the conservative coalition made a pitch for building new nuclear reactors over the next 10 years. “This was an energy referendum,” Amanda McKenzie, the CEO of Australia’s Climate Council, said. “Nuclear bombed at the ballot, with Australians dubbing it toxic.” Australian Conservation Foundation CEO Kelly O’Shanassy added that the landslide for Labor means the door has not just closed on nuclear — “it is welded shut.”
Soil testing by the Los Angeles Timeshas found that properties that burned in the Los Angeles fires in January have elevated levels of arsenic, lead, and mercury — in some cases, levels that are “three times higher than the state benchmark.” That is true even of properties remediated by the U.S. Army Corps of Engineers, with dangerous contaminants potentially present in “thousands” of the county’s now-empty lots.
Soil testing is a precautionary measure that has followed every major California wildfire since 2007, the Times writes, due to the known toxicity of fire-scorched properties. In my interview earlier this year with Ruben Juarez, one of the lead researchers of the Maui Wildfire Exposure Study, a multi-year effort to track the 2023 Lahaina fire’s physical and mental health impacts on residents, he told me that “60% of participants may have poor lung health, and 40% may have mild to severe lung obstruction. We believe this is associated with the exposure to ash and the [inadequate] personal protective equipment individuals wore when they returned to the fire site.”
The Federal Emergency Management Agency “now insists it’s not the agency’s responsibility to meet California’s health standards for private properties,” the Times writes, and has said its current clean-up procedures are “sufficient to rid properties of fire-related contamination.” Rachel Morello-Frosch, an environmental health scientist and professor at the University of California Berkeley, described FEMA’s attitude as “no data, no problem,” calling the government’s failure to properly clean up contaminated properties in Altadena a “quintessential environmental justice issue.” Read the Times’ full findings here.
Two major American scientific societies have announced their intention to produce peer-reviewed studies on climate change in the wake of the Trump administration’s retreat from funding such research. “This effort aims to sustain the momentum of the sixth National Climate Assessment, the authors and staff of which were dismissed earlier this week by the Trump administration, almost a year into the process,” the American Meteorological Society and the American Geophysical Union said in their joint statement on Friday. The Trump administration laid off nearly 400 scientists from working on the NCA, which is mandated by Congress and due in 2027. “Our economy, our health, our society are all climate-dependent,” AMS President David Stensrud said, per The Guardian. “While we cannot replace the NCA, we at AMS see it as vital to support and help expand this collaborative scientific effort for the benefit of the U.S. public and the world at large.”
Hawaii passed a first-of-its-kind law on Friday that will increase the tax on hotels, vacation rentals, and cruise ships to raise money for climate resiliency projects. Officials say the new tax could generate as much as $100 million for the fund annually.
The administration can’t have it both ways on the Clean Air Act.
The Trump administration filed lawsuits this week against four states that are pursuing compensation from oil and gas companies for climate change-related damages. But Trump’s separate aim to revoke the government’s “endangerment finding,” the conclusion that greenhouse gases pose a threat to public health and should therefore be regulated under the Clean Air Act, could directly undercut the legal basis for the suits.
In each of the cases, the Trump administration is arguing that the Clean Air Act preempts the states’ actions. But if the Environmental Protection Agency rules that the Clean Air Act does not, in fact, require the federal regulation of greenhouse gases, that argument could fall apart.
Two of the lawsuits target Vermont and New York for their new “climate superfund” laws that require the companies responsible for the greatest amount of emissions over the last three decades to pay into a fund supporting adaptation and disaster response. The Department of Justice is also suing Hawaii and Michigan to block them from suing fossil fuel companies for damages for climate change-related harms. Neither state had actually filed such a lawsuit yet, although both had expressed interest in doing so. (Hawaii went ahead and filed its suit on Thursday night.)
“I just want to start by saying that these lawsuits by the government are totally unprecedented,” Rachel Rothschild, an assistant professor of Law at the University of Michigan, told me when we hopped on the phone. To her knowledge, never before has the federal government tried to preemptively stop a state from filing a liability case against companies.
In an executive order in early April, Trump had directed Attorney General Pam Bondi to “stop the enforcement” of state climate laws and actions that “may be unconstitutional” or “preempted by federal law.” The order singled out lawsuits against oil companies as well as climate superfund laws, calling both a form of “extortion” and a “threat to economic and national security.”
Nevermind that climate change is a major threat to economic and national security, and states have filed these lawsuits and created these laws because they are scrambling to find ways to pay to address the unprecedented damages brought by the increasing severity of wildfires and floods.
Even before Trump took office, Rothschild said, the federal government had warned states that they were going to need to take more responsibility for preparing for and responding to increasing natural disasters. “[States] do not have the resources alone to address this problem,” said Rothschild. “These companies have engaged in an activity that causes external harms that they’ve not taken into account as part of their business practices, they’'re imposing all the costs of those harms on states and citizens, and they should be liable to help us deal with the resulting problems. That’s a very normal activity for tort suits.”
Dozens of states have filed similar lawsuits seeking damages from oil companies. (A Justice Department press release did not say why it was singling out states that had not taken any legal action yet rather than targeting those that had.) Many of these lawsuits have been stuck in a holding pattern for years, though. “Climate superfund” laws are a new legal strategy, modeled on the federal superfund program, that some states are testing to get oil companies to pay up.
The DOJ’s lawsuits claim that states cannot fine oil companies for their emissions because that authority lies with the federal government under the Clean Air Act. That argument is underpinned by the Environmental Protection Agency’s endangerment finding, which stems from a 2007 Supreme Court ruling that greenhouse gases are a pollutant as defined by the Clean Air Act, and therefore the EPA must determine whether these emissions pose a threat to public health. The court said that if the agency finds there is enough scientific evidence to say greenhouse gases are harmful, it must develop regulations to rein them in. EPA officially made this finding in 2009.
This was a big headache for Trump during his first term. He wasn’t allowed to simply repeal Barack Obama’s greenhouse gas rules — by law, he had to replace them. If he’s able to reverse the endangerment finding, however, he could undo climate protection rules and that would be that.
At the same time, he’d make oil companies much more vulnerable. “There is great concern that reversing the finding would open the door to a lot more nuisance lawsuits against all types of energy companies,” Jeff Holmstead, a partner with Bracewell, a lobbying firm, told E&E News. “It would eliminate one of the best arguments that oil companies have used to get lawsuits against them dismissed,” he added.
EPA administrator Lee Zeldin will face an uphill battle in reversing the finding, as there is a mountain of scientific evidence that greenhouse gases cause dangerous climate change. But Zeldin may instead try to argue that the EPA did not consider the cost of addressing these emissions when it made the initial finding — and that the costs of reining them in outweigh the costs of emitting freely.
Legal experts are skeptical this argument will go anywhere, either. In 2012, the D.C. Circuit Court found that the EPA’s endangerment finding should be based on science, not economics. Cost-benefit analyses and other policy considerations are relevant if the EPA finds that greenhouse gases do, in fact, pose a threat, but they “do not inform the ‘scientific judgment’” that the law requires the EPA to make, the judge ruled. Meanwhile, the Supreme Court’s decision last year to overturn “Chevron deference,” a decades-long precedent that gave agencies broad authority to interpret their statutory mandates, could also hurt Zeldin’s case.
Rothschild, for her part, is confident that states’ superfund laws and tort suits are defensible regardless of what happens to the endangerment finding. These actions have nothing to do with the Clean Air Act, she argued, because they are not an attempt to regulate emissions. “They're trying to impose liability for local, environmental, and public health harms from past activities,” she said.
One thing is for certain: Between states’ lawsuits suing oil companies, oil companies’ countersuits, the DOJ’s new lawsuits against states, and probably future suits against any actions the Trump administration takes on endangerment, there’s going to be a whole lot of new case law about greenhouse gases over the next four years.