The Aporia · When Making a Statutory Argument, It Helps To Read the Statute

Jonathan Adler criticizes Ben Zycher's response in Regulation magazine, where Zycher argued against Adler’s critique of the EPA’s decision to rescind the "endangerment finding" under the Clean Air Act. Adler points out that Zycher incorrectly interprets the statutory language in Section 202(a), claiming it replaces the phrase "cause or contribute significantly" with "reasonably be anticipated to endanger public health or welfare." However, Adler clarifies that this latter clause appears verbatim in both relevant sections but emphasizes that Section 111 specifically requires a significant contribution.

Written by AI on 2026-09-26, from this article's own text only (the story summary below draws on all the coverage).

Story summary

Jonathan H. Adler criticized the Environmental Protection Agency's (EPA) decision to rescind the "endangerment finding" under the Clean Air Act, which regulated greenhouse gas emissions from new motor vehicles. In response, Ben Zycher argued that Adler’s critique was flawed in a Fall 2026 issue of Regulation. Zycher claimed that Section 111 of the Clean Air Act only applies to sources "cause or contribute significantly" to air pollution, but this does not apply under Section 202 because it uses different language: "reasonably be anticipated to endanger public health or welfare." Adler counters that Zycher's interpretation is incorrect since the relevant statutory text shows identical wording in both sections. This disagreement highlights a significant legal debate over how the EPA can regulate greenhouse gas emissions from vehicles.

Written for “Legal Argument Requirements” on 2026-11-03, grounded in this article and the 0 other(s) covering the same event.

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Jonathan H. Adler

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🔮 Zycher's claim here that "in the context of Section 202(a), 'cause or contribute significantly' is replaced with 'reasonably be anticipated to endanger public health or welfare'" is simply wrong, as a moment's review of the relevant statutory text would have demonstrated.

2026-09-26 · mixed framing · When Making a Statutory Argument, It Helps To Read the Statute

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"Cause or contribute significantly" in Section 111 is not "replaced with 'reasonably be anticipated to endanger public health or welfare'" in Section 202, as the "reasonably be anticipated to endanger public health or welfare language" appears in both Section 202 and Section 111, word for word.

framing: mixed · carried by 1 article(s) · first seen 2026-09-26

2026-09-26 · Reason

When Making a Statutory Argument, It Helps To Read the Statute · mixed framing

In the Fall 2026 issue of Regulation, Ben Zycher argues that my critique of the Environmental Protection Agency's decision to rescind the "endangerment finding" which triggered the regulation of greenhouse gas emissions from new motor vehicles under the Clean Air Act is "deeply problematic." asserted

which → argue → Act

I appreciate that Zycher took the time to respond to my essay, but I think his analysis misses the mark. asserted

analysis → appreciate → mark

I hope to have a full response to Zycher in due course. asserted

I → hope → course

For the moment, I wanted to point out a serious error in Zycher's attempt at legal analysis. asserted

I → want → analysis

Zycher writes: Adler … notes: Section 111 of the Clean Air Act … only applies to emissions from sources that "cause or contribute significantly" to the air pollution at issue, suggesting the EPA need not—indeed, perhaps, cannot—regulate sources of de minimis contributions under that provision. asserted

EPA → write → provision

Is Adler ignoring this language, or is he actually arguing that GHG emissions yielding temperature effects almost literally equal to zero nonetheless can "reasonably be anticipated to endanger public health or welfare"? asserted

emissions → ignore → health

Zycher's claim here that "in the context of Section 202(a), 'cause or contribute significantly' is replaced with 'reasonably be anticipated to endanger public health or welfare'" is simply wrong, as a moment's review of the relevant statutory text would have demonstrated. uncertain

review → contribute → text

As I noted in my essay, Section 111 requires that the EPA adopt emission standards for a category of stationary sources if that category "causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare." Section 202(a) provides, in relevant part: The Administrator shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles . . . which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. uncertain

which → note → health

(Emphasis added.) asserted

Emphasis → add → ?

language → contribute → word

The relevant difference between the two provisions, as I noted in my essay, is the insertion of the word "significantly," indicating that a significant contribution is required under Section 111, but not under Section 202. asserted

contribution → note → Section

So, is Zycher ignoring this language or did he not even read it? asserted

he → ignore → it

Zycher also tries to claim the Section 202 requires the Administrator to find that emissions from new motor vehicles themselves "endanger public health or welfare." uncertain

emissions → try → health

Again he ignores the relevant text. asserted

he → ignore → text

Section 202 requires that the vehicles in question "contribute to" the air pollution that "may reasonably be anticipated to endanger public health or welfare"--not that the emissions from the vehicles themselves endanger public health. uncertain

emissions → require → health

Put another way, it is the air pollution to which the vehicle emissions contribute that must be reasonably anticipated to endanger public health or welfare, not the vehicular emissions in isolation. asserted

that → put → isolation

Zycher may think this is irrational or unwise (and I may even agree), but that does not change what the law says. uncertain

law → think → what

There is more I could say about Zycher's reply. uncertain

I → be → reply

For now I'll simply note that before Zycher suggests someone else is "ignoring" statutory language, he might want to give it a careful read for himself. uncertain

he → note → himself

When Making a Statutory Argument, It Helps To Read the Statute

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