Industry actors, Congress, and the EPA are teaming up to potentially make our air less breathable.
This article was originally published in The American Prospect. Read on the original site here.
In 1943, Los Angeles residents awoke to a city so thoroughly pervaded by eye-stinging smog that they thought the city had been the victim of a World War II-related chemical attack. It hadn’t. Rather, a boom in car infrastructure coupled with new and existing industrial pollution caused sulfur dioxide, carbon dioxide, and other particulate matter to dominate the air in the city. At times it was nearly impossible to see more than a few blocks, or to breathe outside of one’s home.
That first smog episode reportedly only lasted a day, but deadly, suffocating, layers of smog soon became a fact of life in L.A., as well as in many other major U.S. cities. The New York Times later described New York City’s air during the 60s and 70s as being “touch[able…] It was that filthy.” Ash rained over apartment buildings. Extreme smog episodes in the city literally killed dozens to hundreds of people with every new iteration.
Even smaller cities saw devastating impacts from unchecked air pollution. In 1948, Donora, Pennsylvania famously saw a thick smog descend on the city as a result of the toxic emissions of the town’s zinc plant and steel mill. That smog killed twenty people, and caused another 5000 to fall ill across just five days of exposure.
Poisonous hazes from accumulated air pollution caused crops to wither, led to severe headaches, contributed to the skyrocketing of chronic bronchitis and pulmonary emphysema, and otherwise increased rates of asthma, lung cancer, and heart disease for Americans nationwide.
Such was life in the United States before Congress passed the Clean Air Act (CAA) in 1970. 55 years after that landmark legislation, we could be headed back to that grim reality. Through industry-led litigation and a Republican stranglehold on every branch of government, fundamental provisions of the CAA face an all-encompassing assault. If successful, the clean air that we now take for granted may once again erode into a deadly, pollutant-filled smog.
The Clean Air Act and its Enemies
Put simply, the Clean Air Act enshrined in federal law the right of Americans to breathable air, through the regulation of common pollutant categories. Though this seems on its face to be non-controversial, the original CAA was vociferously protested by polluting industries, including car manufacturers like General Motors and Ford, as well as by oil companies via fossil fuel front groups like the American Petroleum Institute.
Polluters argued that the legislation would be economically disastrous (it wasn’t) and was predicated on impossible-to-meet standards (they weren’t). But they lost. Oil companies, automakers, and their associations derided the amendments to the act in 1990. They lost again. Life got genuinely better for Americans, and the CAA remains enormously popular and successful.
Yet, toxic industries have never quite accepted the loss. Instead, corporations continue to peddle these same talking points to try and gut the crucial regulations that keep our air breathable. The stakes in question are literally life or death; we know that air pollution kills people. The question that opponents of the Clean Air Act want to pursue is whether saving lives is more important than protecting their private profits. The answer, in their view, is no.
And this time, they might win.
The Court Cases Undermining The CAA
These attacks are manifesting in bad-faith court cases seeking to destabilize decades of state and federal law. Many of these efforts have been spearheaded by state-level Republican attorneys general and the polluting industries they partner with.
In 2023, a number of clean air related cases were argued before the D.C. Circuit Court of Appeals. As we explored then, these cases present a dire threat to the Clean Air Act as it relates to state-level regulation of the transportation industry, which is one of the most polluting industries in the U.S., responsible for nearly 30 percent of our annual greenhouse gas emissions. Transportation emissions will contribute to the premature deaths of anywhere from 6,700 to 18,000 deaths from pollutants in just 2025.
Some of these cases took aim at the legality of California’s Clean Air Act waiver, which allows the state to regulate a slate of pollutants more strictly than the federal government, and specifically to regulate greenhouse gas emissions from cars and light duty trucks. California has held this waiver for more than fifty years, and it has held a specific license to regulate passenger vehicles and light-duty trucks for more than a decade. Even so, industry wants to see these protections disappear.
The D.C. Circuit ruled in one of these cases, Ohio v. EPA, in spring of 2024. That decision affirmed California’s right to regulate under this authority. When later appealed by states and industry to the Supreme Court, SCOTUS refused to overturn the circuit court’s ruling… mostly.
Though the Court declined to review the waiver’s legality, in December 2024 it did accept review by industry plaintiffs relating to the D.C. Circuit’s determination of lack of standing in a case called Diamond Alternative Energy LLC v. EPA. Though the legality of the waiver is out of the high court’s crosshairs for now, petitioners now seek a redefinition of what constitutes “standing” to make challenges to regulation easier for industry plaintiffs moving forward.
A re-classification of standing would likely influence the other significant clean air cases from 2023, Texas v. EPA and NRDC v. NHTSA, whose decisions are still pending. Texas v. EPA in particular may do even more damage to the foundation of the Clean Air Act if taken up by the Supreme Court, given its far more expansive attack on the basis of the Environmental Protection Agency’s basic authorities under the CAA.
Expanded standing is, at best, a consolation prize for the polluters who sought a thorough rejection of the existing regulatory regime. Yet it may continue to pose a real threat to the regulation that keeps communities’ air clean.
Congressional Attacks on the California Waiver
Despite SCOTUS’ refusal to intervene on the waiver itself, Republicans and industry are now pushing novel—and unconstitutional—mechanisms for stripping California’s regulatory authority anyway.
Congressional Republicans and the White House are reportedly working to introduce language under the Congressional Review Act (CRA) to allow Congress to “review” and, ultimately, strip California of a Clean Air Act-related waiver allowing its ban on new gas-powered car sales in the state by 2035.
Again, this authority is not new, nor is it controversial. This waiver, like all of California’s clean air-related waivers, is predicated on the exemption built into the Clean Air Act that honors the fact that California was the only state regulating vehicle emissions before the Clean Air Act was passed. More than 100 of these waivers have been reviewed, granted, and continuously reaffirmed for more than half a century.
On top of the established precedent, the waiver is objectively ineligible for review under the CRA. First, the CRA only applies to “rules” as defined by the Administrative Procedure Act (APA). As Dan Farber has previously outlined, the waiver is plainly not a rule under that definition. That’s not a matter of popular opinion. The Governmental Accountability Office (GAO)—the federal research entity colloquially referred to as the “congressional watchdog”—released a formal decision in 2023 clearly determining that CRA does not apply to waiver issuances.
Should Republicans pursue stripping the waiver anyway under CRA, it would represent an illegal move by the Trump administration and Republican-controlled legislative branch, in brazen disregard of both institutions’ clearly delineated authorities.
The Endangerment Finding
Other attacks on the Clean Air Act persist, including one of the core components of the CAA.
The Endangerment Finding is a landmark subsection of Section 202(a) of the Clean Air Act, and a bedrock environmental determination that greenhouse gases (GHGs) fall under the regulatory purview of the CAA.
The Endangerment Finding was the result of a landmark Supreme Court decision in 2007 that found that “carbon dioxide and other greenhouse gases unambiguously are air pollutants under the Clean Air Act.” SCOTUS then ordered the EPA to decide, based solely on science, whether and which GHGs are, in fact, a danger to the public.
The EPA’s review of the science unambiguously determined that several GHGs—including carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)—do harm “public health and [the] welfare of current and future generations,” and that vehicle emissions contribute to that harm. This determination established the Endangerment Finding in 2009, which established the EPA’s legal obligation—and authority—to regulate emissions standards for “cars, trucks, power plants, aircraft, and oil and gas operations.”
Red states and industry challenged the decision, but the D.C. Circuit affirmed the mountain of evidence that firmly establishes the link between GHGs, climate change, harms to public health, and other harms to public welfare. SCOTUS refused review of the circuit court’s decision. Since then, the Endangerment Finding has successfully worked to protect people and the public in the regulation of pollutants that cause everything from lung, liver, and kidney damage to immune system degradation and increased cancer risk. Not to mention the devastating health impacts of worsening climate change.
Donald Trump’s EPA Administrator, Lee Zeldin, has reportedly begun efforts to strike the Endangerment Finding by submitting recommendations to the Office of Management and Budget. Such action is predicated on the Administration’s disavowal of years of settled science, and a thorough rejection of the interests of the public in favor of polluter profits. It would fundamentally rewrite more than a decade of regulation, gut the ability of regulators to limit the pollutants cars and corporations put into our neighborhoods, and further destroy the ability of communities to defend themselves from this poisoning.
The Endangerment Finding will be difficult for the Trump Administration to remove. It has been consistently reaffirmed under court review, Congress codified some of its languages through a Clean Air Act amendment in 2022, and the wealth of evidence of the impact of greenhouse gases on climate change and public health has only continued to grow. Even so, given this administration’s utter disregard for both fact and law, the threat remains extremely concerning.
Life got genuinely better after the Clean Air Act passed, and life will get tangibly, markedly, worse if it is taken away. We know exactly what that looks like: we have the histories, the photos, and the personal accounts to know how our skies looked just generations ago. We should hope not to have to experience that again.