The Environmental Protection Agency's move to withdraw a scientific determination that greenhouse gases present risks to public health and welfare threatens to reopen a contested legal avenue for holding emitters responsible for climate-related harms. The agency is expected this week to remove the 2009 "endangerment finding" that underpinned federal efforts to regulate carbon dioxide, methane and four other heat-trapping air pollutants.
Legal specialists say that repeal of the endangerment finding could undercut the legal rationale that has kept many federal court public nuisance suits at bay, potentially enabling states and localities to renew common-law claims against power-plant operators and other major emitters.
What the endangerment finding did
The 2009 determination - commonly called the endangerment finding - provided the scientific and legal foundation for EPA action under the Clean Air Act of 1963 to limit emissions from vehicles, power plants and other sectors. EPA actions based on that finding formed the statutory framework that, according to some court rulings, displaced certain common-law claims that plaintiffs sought to pursue in federal court.
EPA Administrator Lee Zeldin has described the rescission as "the largest act of deregulation in the history of the United States." That characterization reflects the administration's deregulatory agenda, which has generally been welcomed by many utilities. Still, industry representatives have voiced concerns that removing the endangerment finding may produce unintended legal consequences.
Public nuisance as a revived legal route
U.S. courts recognize the doctrine of public nuisance, which bars activities that unreasonably interfere with a community's health and safety. Typically brought by state or local governments, public nuisance suits seek orders and damages to abate the condition alleged to be harmful. These claims have been difficult to win in part because plaintiffs face challenges proving direct causation from a particular defendant's emissions to specific climate harms.
Still, public nuisance litigation has been one pathway environmental advocates have used to try to hold greenhouse gas emitters accountable. In 2004, California and five other states filed suit alleging that large power companies had created a public nuisance by contributing to climate change. That litigation named defendants including American Electric Power and Xcel Energy.
The dispute ultimately reached the U.S. Supreme Court. In a unanimous 2011 decision, the court ruled against the states, with Justice Ruth Bader Ginsburg writing that greenhouse gas regulation should be conducted through the EPA under the Clean Air Act. Ginsburg added that the statutory and regulatory scheme effectively displaced the nuisance claims the plaintiffs sought to pursue.
Because the 2011 decision relied on the existence of a comprehensive statutory scheme, legal experts say abandoning the endangerment finding may remove the legal impediment that had prevented similar federal nuisance suits from proceeding.
Voices from law and industry
Robert Percival, an environmental law professor at the University of Maryland, warned that the administration's deregulatory steps could produce unintended consequences. "This may be another classic case where overreach by the Trump administration comes back to bite it," he said, characterizing the repeal as a move that could invite legal backlash.
University of Pennsylvania law professor Sarah Light described the potential shift in legal dynamics: "If the Clean Air Act no longer applies to greenhouse gas emissions, then there's no comprehensive statutory scheme in which Congress intended to displace nuisance claims, so they would likely be able to proceed in court."
Meghan Greenfield, an environmental lawyer at Jenner & Block, framed the development as opening "a new front" for litigation. She noted that the area of law had been settled for about 15 years, but that if the EPA withdraws from regulating greenhouse gases, parties interested in pursuing nuisance claims may press those fronts more aggressively.
At the same time, the Edison Electric Institute - representing publicly traded electric utilities - has explicitly cautioned that rescinding the endangerment finding carries the "potential for increased litigation alleging common-law claims, regardless of the merits of those suits." Utilities, which have generally favored deregulatory policies, nevertheless appear wary of the prospect of renewed legal exposure.
Legal and practical implications
With the endangerment finding removed, plaintiffs' attorneys and governments seeking remedies for climate harms may find it easier to pursue public nuisance claims in federal court, because the statutory basis that previously displaced those claims would no longer be present. Some nuisance suits have continued in state courts despite the 2011 ruling; the repeal could change litigation strategies and the jurisdictional landscape in which climate-related common-law claims are litigated.
How quickly and broadly such lawsuits might proliferate is uncertain. Legal experts and industry observers say the repeal alters the legal calculus and could encourage renewed efforts to hold emitters accountable through the courts, but concrete outcomes will depend on how courts interpret the changed regulatory environment.
Conclusion
The EPA's action to withdraw the endangerment finding marks a significant regulatory reversal. Legal scholars, a leading utilities trade group and environmental lawyers all signal that rescission may invite a resurgence of public nuisance litigation targeting major greenhouse gas emitters - a possibility that could reshape legal and commercial risk for sectors tied to emissions.