“How To Rescind The Endangerment Finding In A Way That Will Stick” By Francis Menton

“Since the EF is the foundation underlying all Biden-era regulations restricting and suppressing fossil fuels, you can be sure that any attempt to eliminate it will be met with a full-bore litigation…

How To Rescind The Endangerment Finding In A Way That Will Stick

January 26, 2025/ Francis Menton

As discussed in my previous post, one of President Trump’s first-day Executive Orders — the one entitled “Unleashing American Energy” — directed a reconsideration of EPA’s so-called “Endangerment Finding” (EF) of 2009. The EF is the EPA regulatory action where it claimed to determine that CO2 and other “greenhouse gases” qualify as “pollutants” under the Clean Air Act because they are a “danger to public health and welfare.” President Trump’s January 20 EO directs that EPA, within 30 days, submit “recommendations to the Director of OMB on the legality and continuing applicability of the Administrator’s findings.”

Since the EF is the foundation underlying all the Biden-era regulations restricting and suppressing fossil fuels, you can be sure that any attempt to eliminate it will be met with a full-bore litigation attack from the forces of the crazy left. Can the EF really be rescinded in a way that will stand up to these attacks?

Absolutely, it can. Let me address a few of the issues.

Massachusetts v. EPA

This is the Supreme Court’s 2007 decision that held that EPA was required to make a determination as to the status of CO2 and other greenhouse gases as “pollutants” under the Clean Air Act. Here is a link to the Supreme Court’s opinion. Some commenters have suggested that Mass v. EPA must be reversed before the EF can be undone.

I disagree. I’m not saying that Mass v. EPA is a model of clarity, and there is some language in it that would suggest the opposite. However, I think that the language at the very end of Justice Stevens’s majority opinion is the holding:

We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPAís actions in the event that it makes such a finding. . . . We hold only that EPA must ground its reasons for action or inaction in the statute.

Thus Mass v. EPA did not determine that CO2 was a “pollutant” as defined in Section 202 of the Clean Air Act, but only directed EPA to determine whether it was or was not. Thus a new well-reasoned determination by EPA that CO2 and the other GHGs are not pollutants would not violate that case.

West Virginia v. EPA

The other important Supreme Court decision bearing on the EF is West Virginia v. EPA, the 2022 decision where the Supreme Court held that EPA’s Clean Power Plan was beyond its regulatory authority under the Clean Air Act. The basis for the Court’s decision was what it called the Major Questions Doctrine, by which it held that a “transformative expansion” of EPA’s regulatory power would require a clear direction from Congress, which had not been given.

In 2024, despite West Virginia v. EPA, and without any further clear direction from Congress, EPA went ahead and finalized two gigantic new regulations to restrict use of fossil fuels, one regarding power plants and the other regarding automobiles. They essentially decided to dare the Supreme Court to try to stop them (much like Biden with his repeated efforts to forgive student loans).

West Virginia v. EPA did not explicitly overrule Massachusetts v. EPA, but the two are fundamentally in tension. The big difference is that the Court that decided Massachusetts v. EPA has since been largely transformed in personnel. Of the nine justices on the Court in 2007, only three remain — Roberts, Thomas and Alito — and all of them dissented in Mass v. EPA. The five justices in the majority plus Scalia have been replaced by three conservatives (Gorsuch, Kavanaugh and Barrett) and three liberals.

On today’s Court, I think it highly likely that a majority will uphold a well-reasoned rescission of the EF, and will not think it necessary to overrule Mass v. EPA.

Substance of the rescinding determination

Three main points need to be made in an EPA regulatory action rescinding the EF: (1) Empirical evidence accumulated since the original EF invalidates the finding and makes it impossible to conclude that CO2 and other GHGs constitute a “danger” as required by the statute; (2) due to huge increases since 2009 in CO2 and other GHG emissions outside the U.S. and thus outside the ability of EPA to regulate, no regulations promulgated by EPA could have any meaningful impact on the overall atmospheric concentrations of the gases, and (3) efforts by EPA to control the climate by restricting CO2 and other GHGs, by contrast, would almost certainly have drastic adverse effects on public health and welfare by, for example, destabilizing the electrical grid and causing blackouts, driving up the cost of electricity or mobility, bringing about massive battery fires and explosions, and lots of other such things.

Only the first of these three points deals with the “science” of whether GHGs do or do not cause any significant global warming. Most important is that this argument needs to be written carefully to not take on more than needs to be taken on. To rescind the EF, EPA does not need to contend that GHGs will not or cannot cause any global warming. Rather, they can put the burden of proof on the other side to show that GHGs emitted under EPA’s regulatory jurisdiction will inevitably cause dangerous warming. EPA need only conclude that there is no sufficient proof of that.

Framed in that way, this is not a complicated or difficult task. There are hundreds of scientific papers in the peer reviewed literature since 2009 accumulating empirical evidence that the dangers predicted 15 years ago have not happened. For example:

• There have been no upward trends in hurricanes, droughts, floods, tornadoes, wild fires, or other dangerous weather events.

• Sea level has not risen beyond the slow rate of rise over the prior century.

• Sea ice has not declined as predicted. The Greenland and Antarctic ice sheets have not meaningfully changed.

EPA can just create lists of dozens or hundreds of such scientific papers, and perhaps add a quote of a line or two from the abstract for each.

Points (2) and (3) are actually more important to the rescission than the point about the science of atmospheric warming. Trying to replace the fossil fuel energy system with something untried and untested actually does pose many real and immediate dangers — far more real, immediate, and dangerous than anything that might result from a hypothetical warming of a degree or two a hundred years from now. California is only up to about 30-40% of its electricity from wind and solar, and yet has suffered multiple instances of rolling blackouts. The extent of these blackouts has been relatively small only because California has the ability to import fossil-fuel-generated power from neighboring states like Arizona and Nevada. If EPA eliminates that safety valve by banning fossil fuel power plants in all the states, the blackouts will become lengthy and catastrophic. Similarly, batteries are proposed as the backup for intermittency of wind and solar generation. California and New York have both begun building massive battery farms to serve this role, although neither state has yet reached nearly 1% of the battery capacity they would need to back up a predominantly wind/solar generation system. But even with that small amount of batteries, both have suffered massive and explosive fires at their battery facilities. California had such a fire just last week at the facility known as Moss Landing in Monterey County. This was the fourth large fire at the Moss Landing facility over the past few years.

I actually have a high degree of confidence that a reconsideration of the EF will be successful. Likely, that will sweep away all of the restrictions on fossil fuels that have been put in place via regulation during the Biden years. One more thing: Once CO2 and GHGs are declared to no longer by “pollutants,” all of the billions of dollars of government grants under the Inflation Reduction Act to “reduce GHG pollution” can be suspended and never spent.

UPDATE, January 27, 2025:

Some commenters raise the issue of whether something in the Inflation Reduction Act of August 2022 may have changed the playing field. I don’t think so. The summary of the reason is that the IRA does not amend Section 202 of the Clean Air Act, let alone even attempt to provide the clear direction from Congress necessary under West Virginia v. EPA to enable EPA to transform the economy by severely restricting CO2 (let alone other GHGs).

Here is the text of the IRA from the Congressional website. You need to go all the way to the end, in Sections 60101 to 60108, to find the language that people are talking about. These sections of the IRA add new sections 132, et seq., to the Clean Air Act, which new sections provide funding and grants (aggregating in the tens of billions of dollars) for various sorts of “greenhouse gas” reduction programs. The language in question appears in a definition of the term “greenhouse gas,” which is repeated word for word in each of the sections:

“GREENHOUSE GAS. — The term ‘greenhouse gas’ means the air pollutants carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, per fluorocarbons, and sulfur hexafluoride.”

Thus they have, in a definition, applied the word “pollutant” to the six gases. But here’s what they did not do:

• They did not repeal or modify in any way Section 202(a)(1) of the Clean Air Act. That section does not give EPA blanket authority to regulate any and all substances that may get the label “pollutant,” but only “any air pollutant . . . which in [the Administrator’s] judgment cause [sic], or contribute [sic] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Thus, the statute remains such that there must be an endangerment finding to support regulation at least of CO2 (the other five gases have different issues).

• They did not make any legislative finding that any of the six gases, and particularly CO2, causes or may be anticipated to cause any danger to human health and welfare. (This is a much bigger deal than you might think, because all kinds of legislative findings are used to make completely false determinations that the courts then will not second-guess.)

Also, note that the IRA was a so-called “reconciliation” bill that was able to clear the Senate with only 51 votes (one of which was a tie-breaker from VP Harris) only because it was not allowed to contain anything but financial and budgetary provisions. Thus an amendment to the Clean Air Act to give EPA explicit new authority to regulate the six GHGs would clearly have been non-germane and not allowed into the statute.

Our excellent commenter Beta Blocker points to an article from the Environmental Law Reporter from 2023 titled “The Clean Air Act Amendments of 2022: Clean Air, Climate Change, and the Inflation Reduction Act,” by Greg Dotson and Dustin Maghamfar (D&M). In the article, D&M take the position that the sections of the IRA that amended the Clean Air Act “to make explicit that GHGs are air pollutants and that reducing them is a core objective of the Act.” In my opinion, that is D&M engaging in wishful thinking and attempting to create a record, not found in the statute, to try to “Trump-proof” the EF.

Note that a footnote on the first page of the article identifies Dotson and Maghamfar respectively as having been the Chief Counsels to the Senate and House Committees that developed the language of the Clean Air Act amendments included in the IRA. In other words, they are giving their partisan version of something they were trying to sneak through in the IRA which the rules of reconciliation specifically did not allow to be included.

Finally, there is no way that these definitions of the term “greenhouse gas” constitute the kind of “clear direction” from Congress for EPA to engage in “transformational change” of the economy, that would be required for EPA to suppress the use of fossil fuels in the economy.

So I say to Messrs. Dotson and Maghamfar, good try, but the odds of your sneaky gambit succeeding in saving the EF are slim to none.