In proposing to rescind the Obama-era “endangerment finding,” EPA Administrator Lee Zeldin seeks to do nothing less than demolish the shaky legal foundation on which over 15 years of society-altering climate regulations were built.
Fittingly, Zeldin chose a truck dealership in the Midwest (Indianapolis) to challenge the Obama EPA’s 2009 endangerment finding that gave the federal government the authority to regulate tailpipe emissions from the nation’s automotive fleet and, by extension, emissions from fossil fuel-burning power plants and other industrial facilities.
The Obama administration used the endangerment finding to force the premature closure of coal-fired power plants by regulatory means. And the Biden administration used the endangerment finding to impose a de facto EV mandate by regulating gasoline- and diesel-powered vehicles out of business – a scheme that was overturned by the Trump administration earlier this year.
“If finalized, today’s announcement would amount to the largest deregulatory action in the history of the United States,” Zeldin, flanked by representatives of the trucking industry, said at the July 29 event. His claim is no exaggeration.
The endangerment finding is rooted in the Supreme Court’s 2007 decision in Massachusetts v. EPA. That ruling said the EPA had the authority to regulate carbon dioxide (CO2), methane, and other greenhouse gases under the Clean Air Act. Two years later, Obama political appointees, freshly ensconced at EPA, lost little time in crafting the endangerment finding; they recognized the seeming limited opportunities the Supreme Court’s ruling had handed them.
The result was an onslaught of regulations under Obama and Biden aimed at the decarbonization of the entire country, on the way to a government-driven transition to a green economy. Regulations targeting fossil fuels were accompanied by generous government handouts – grants, loans, subsidies – to politically well-connected purveyors of all manner of green products and technologies.
For the climate cartel, life was good, and the party was going to go on forever. Or so they thought. While the Supreme Court claimed in 2007 that the EPA had the authority to regulate CO2 and other greenhouse gases as pollutants, there is no language to that effect anywhere in the Clean Air Act. In June 2022, the high court, in West Virginia v. EPA, ruled that federal agencies must have specific authorization from Congress before issuing rules raising “major questions” of economic impact. The court found that the Obama EPA lacked statutory authority under the Clean Air Act to regulate greenhouse-gas emissions from coal-fired power plants.
Now, the Zeldin EPA is going to use that ruling, along with other legal arguments, to do away with the endangerment finding. Zeldin’s initial goal is to “remove all greenhouse gas standards for light-, medium-, and heavy-duty vehicles and heavy-duty engines” beginning in 2010. But this is about a lot more than just motor vehicles. Once his rule has been finalized and has survived court challenges (see below), the precedent will have been set for rescinding all federal rules targeting greenhouse-gas emissions.
This is not something that environmental groups and their political allies are going to take sitting down. After all, they are facing the prospect of seeing much of their decades-old effort to use the climate as a pretext for gaining power over much of American society relegated to the proverbial ash heap of history. They will sue.
And that may be precisely what the Trump administration wants. Those lawsuits will eventually make their way to the Supreme Court. The current court, however, is the same court that – in West Virginia v. EPA and in overturning the Chevron deference doctrine, Roper Bright Enterprises v. Raimondo – has ruled against federal agencies overstepping congressional authority in issuing rules. Based on the Supreme Court’s recent history of rolling back the administrative state, it is a good bet that it will side with Zeldin.
Those deliberations could ultimately lead the court to reconsider its 2007 ruling in Massachusetts v. EPA, the decision that gave birth to the endangerment finding. The court has not been shy about overturning precedents, whether it’s Roe v. Wade or the Chevron doctrine that allowed bureaucrats to determine the meaning of ambiguously written laws. What is to keep the Supreme Court from reversing Massachusetts v. EPA, arguing it is up to Congress to enact legislation regulating greenhouse gases?
From the standpoint of the Trump administration, legal challenges to Zeldin’s initiative could well be a case of: “Come into my parlor said the spider to the fly.”
Bonner Russell Cohen, Ph. D., is a senior policy analyst with the Committee for a Constructive Tomorrow (CFACT).
