Game On

The Trump EPA starts the process to rescind the Endangerment Finding on CO2. Climate activists and Democrats better hope it never reaches this Supreme Court.

“So in war, the way is to avoid what is strong, and strike at what is weak.” - Sun Tzu

Shortly after his inauguration in 1981, Ronald Reagan nominated attorney and former member of the Colorado House of Representatives Anne Gorsuch to be Administrator of the U.S. Environmental Protection Agency (EPA). When the Senate unanimously confirmed her in May of that year, Gorsuch became the first woman to lead the agency.

Gorsuch set out to advance the Reagan agenda to reduce federal regulation and the size of government (sound familiar?). Her reign as EPA Administrator did not last long.

She quickly became embroiled in a variety of self-made controversies. Her effort to withhold cleanup funds under the new Superfund program from the Stringfellow Acid Pits site in California in order to hurt the Senate campaign of Democrat and former California Governor Jerry Brown was her ultimate undoing. As a result of the ensuing scandal, she became the first agency director in U.S. history to be cited for contempt of Congress. Gorsuch resigned in early March 1983 after 22 months in the role.

Gorsuch was also lambasted for a December 1981 meeting with officials from Thriftway Company, a small New Mexico-based oil refinery. Company representatives asked her for an exemption from compliance with new limits on the lead content of gasoline under the Clean Air Act (CAA). While Gorsuch made no commitment in writing, she verbally assured company officials that, as the Administrator, they could count on her promise not to enforce the regulations.

Gorsuch pursued other efforts to make major retrenchments in EPA’s administration of the CAA. She viewed those actions as part of her mission to make “the most sweeping reforms” in the agency’s short history.

Anne Gorsuch died thirteen years before her son became an Associate Justice on the U.S. Supreme Court in 2017. But in an ironic twist of fate, Neil Gorsuch is going to be a pivotal vote on a CAA case that is being described as “the most sweeping rollback of federal environmental regulations” since the days his mother faced similar accusations as head of the Reagan administration EPA forty years ago.

On August 1st, EPA Administrator Lee Zeldin formally kicked off the process to rescind the EPA’s 2009 Endangerment Finding. The EF is the 2009 Obama-era EPA determination that CO2 and greenhouse gases (GHGs) endanger public health and welfare and is the basis for all related U.S. CO2/GHG-related regulation of vehicles, power plants, and other industry.

Zeldin announced the formal Notice of Public Rulemaking (NPR) with a presser at a truck dealership in Indianapolis, Indiana three days earlier with U.S. Department of Energy (DOE) Secretary Chris Wright in tow.

Point of the spear | EPA

Depending on one’s perspective, Zeldin’s proposal is either a desperate attempt to throw “discredited” science and legal arguments against the wall, or a surgical effort to exploit weaknesses in the original EF exposed by empirical observation, scientific developments, and key Supreme Court rulings in the fifteen years since.

What happens next, and how long is it likely to take? What are the scientific and legal justifications for EPA’s attempt to rescind the EF? And how does story end? Let’s lay out the plot of a drama with many chapters, whose conclusion several years from now could take out the pillar of U.S. “climate change” regulation.

We begin with the process itself, for which Zeldin’s NPR is only the official beginning. The 78-page NPR (link here) lays out EPA’s proposal and rationale to rescind the EF. The diagram below depicts the process the agency must follow when proposing to issue a new rule or rescind an old one like the EF, with estimates as to the duration of each:

Public hearings were completed via Zoom over four days last week. Various legacy media reported that the number of parties testifying against rescinding the EF outnumbered those supporting it by about ten to one. Much of that testimony repeats the same tired, worn, and hyperbolic computer-modeled misinformation fear-mongering Zeldin’s rescission effort goes after head on.

The public comment period is set for 51 days (August 1 to September 22, 2025), which aligns with standard Administrative Procedure Act requirements. While the period for high-profile rules can extend to 90 days if significant public interest or complexity warrants it, EPA has opted for a shorter period because (as explained below) timing is an essential part of the Trump administration’s strategy.

EPA has established a docket with a website for this process. Transcripts of the public hearings will eventually be posted.

The agency anticipates a high volume of public comments. EPA’s scientific and legal review along with the response to those comments may take a year or more, and they must be careful to be fully responsive to public comments or risk giving opponents an easy procedural win in the coming court battles. We estimate EPA’s final rule to rescind the EF will be issued in the last quarter of 2026 or early 2027.

The NPR lists EPA’s three justifications for the rescission. The first proposal is EPA’s primary rationale.

EPA Administrator Lee Zeldin has emphasized the agency’s case to rescind the EF is primarily grounded in the relevant statute – the Clean Air Act. Below we summarize each of EPA’s proposals (all bold emphasis added):

1. We propose that CAA section 202(a) does not authorize the EPA to prescribe emission standards to address global climate change concerns and, on that basis, propose to rescind the Administrator’s prior findings in 2009 that GHG emissions from new motor vehicles and engines contribute to air pollution which may endanger public health or welfare.

The NPR specifically states that this is EPA’s primary proposal. It consists of three interrelated arguments.

First, EPA argues that the CAA limits its authority under the relevant portions of the statute to air pollutants that endanger public health and welfare by local/regional exposure, and that the group of greenhouse gases chosen to address global concerns falls outside that standard. As the NPR notes:

Because the text, structure, and history of CAA section 202(a) and related provisions demonstrate that this language targets air pollution that threatens public health or welfare through local or regional exposure, “air pollution” defined as six “well-mixed” GHGs raising global climate change concerns that adversely impact a subset of regions globally cannot satisfy this standard.

This “best – and only permissible - reading of the statute” argument constitutes a new interpretation that “air pollutants” are only those substances producing direct, localized effects. It relies on three Supreme Court rulings rendered since the 2009 EF.

The first is the 2024 Loper Bright ruling that eliminated the long-standing doctrine (the “Chevron deference” doctrine) that required courts to defer to a federal agency’s reasonable interpretation of ambiguous statutes it administers. Where a statute is ambiguous or silent, Loper made the Courts the arbiter, not the agencies.

The second is Utility Air Regulatory Group (UARG) v. EPA in 2014, where the Court ruled that EPA’s 2010 “tailoring rule” overstepped its CAA authority by requiring permits for stationary sources based solely on their greenhouse gas emissions. There EPA attempted to change emissions thresholds explicit in the statute to tailor its way out of an administrative absurdity that would have captured millions of small emitters (e.g., buildings).

The third is West Virginia v. EPA, where in 2022 the Court ruled EPA exceeded its authority under the CAA when it implemented the Obama-era Clean Power Plan. There the Court invoked the “major questions doctrine,” finding that agencies must have clear congressional authorization for regulations with significant economic and political impact. It also held that EPA did not have the authority to use “generation shifting” (from coal-fired power generation ultimately to “renewables”) as a basis for setting emissions standards (as it also attempted to do with electric vehicles under the Biden administration).

The second component of EPA’s primary argument is that the relevant sections of the CAA require issuing emission standards together with the “cause or contribute” (to endangerment) findings, rather than severing the regulatory action into separate endangerment and standards-setting proceedings as was done for the EF. EPA no longer believes that the approach of taking six “well-mixed GHGs,” bundling them versus analyzing each individually, then regulating their global impacts without considering whether U.S. motor vehicle emissions were de minimis contributors and, as such, whether regulation would be effective is consistent with the statute or their authority under it.

The third component of EPA’s primary argument is that the agency failed to consider the cost or effectiveness of regulating GHG’s from motor vehicle emissions in the 2009 EF. Here it argues that the duty to regulate trigged by the finding obligated EPA to evaluate the cost, availability, and effectiveness of the “requisite technology.”

On one hand, some of the legal arguments or their components have been addressed by previous challenges to the Supreme Court’s 2007 Massachusetts v. EPA decision (which unleashed the Obama EPA to issue the 2009 EF), or in direct challenges to the EF since. On the other hand, the sum of these arguments has not been reviewed by the current Supreme Court, one that rendered two of the three rulings that underpin EPA’s primary rationale for rescinding the EF.

That twist makes Zeldin’s approach a new ballgame. Put these specific arguments in front of “the right court at the right time” and who knows what might result.

In its NPR, EPA provides two alternative rationales for rescinding the EF that are mutually exclusive from the primary legal reasoning above. The first is its scientific argument.

2. We further propose, in the alternative, to rescind the Administrator’s prior findings in 2009 because the EPA unreasonably analyzed the scientific record and because developments cast significant doubt on the reliability of the findings.

This alternative argument targets EPA’s prior scientific conclusions and places significant weight on scientific developments in the 16 years since. Concurrent with the EPA’s NPR filing, the DOE released “A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate.” Authored by a Climate Working Group (CWG) made up of four well-known climate scientists and an environmental economist highly experienced in this debate, the CWG Report is scientific support for this second proposal.

As Secretary Wright noted in the Forward:

“...we are told—relentlessly—that the very energy systems that enabled this progress now pose an existential threat. Hydrocarbon-based fuels, the argument goes, must be rapidly abandoned or else we risk planetary ruin. That view demands scrutiny.”

We read the entire 150-page CWG report. Several Substack posts would be needed to detail the findings of the CWG report’s three sections. Readers interested in the detailed scientific case it makes can find the document here.

Part I – Direct Human Influence on Ecosystems and the Climate considers CO2 beyond a traditional “pollutant,” including the aerial fertilization effect on plants and crops. It provides data, with context, about CO2’s impact on the world’s oceans and coral reefs. (Spoiler alert: the world’s oceans are still solidly in the alkaline – not acidic – range on the pH scale.)

Part I also covers radiative forcing and changes in atmospheric CO2. Importantly, it details the growing gap between scary emissions scenario that was always implausible (something we noted in The Population Bombing) but portrayed by “certain” climate scientists and legacy media as “business as usual” (despite the growing divergence from the observed trend) in six UN IPCC’s Assessment Reports since the late 1990s. It closes discussing the well-documented urban heat island (UHI) bias – which the UN IPCC acknowledges – and questions how well data cleaning procedures have resolved it.

Part II – Climate Response to CO2 emissions deals with climate sensitivity to human CO2 emissions, the critical issue for policy making. It discusses the growing recognition that climate models are not suited for determining Equilibrium Climate Sensitivity (ECS, defined as the amount of warming expected in response to a doubling of CO2 from its pre-industrial atmospheric concentration of 280 ppm, after all climate components have had time to adjust). Graphically, it shows that observed temperature trends align well with the low-ECS models and consistently fall at or below the low-end of the range for the medium-ECS models. For high-ECS models, observed temperatures fall well below the low end of the predicted range. The UN IPCC itself has acknowledged the problem and reduced the upper end of its ECS range estimates over recent Assessment Reports.

Part II also covers extreme weather, demonstrating most types exhibit no statistically significant trends over available long-term historical records. It states that so called “extreme convective storms,” tornadoes, floods, hurricanes, and droughts all show considerable natural variability but no long-term increases, despite some increases in precipitation events in areas over short intervals that disappear over longer periods and at regional scales. Wildfires are not more common than in the 1980s, but total acres burned increased in the last four decades of the 20th century (yet remain low compared to estimated natural baseline levels).

As for global sea levels, it notes they have risen by 8 inches since 1900, with the largest increases in the U.S. (Galveston, New Orleans, Chesapeake Bay region) explainable largely by land subsidence. The global rates have been lower than predicted using a 1995 – 2014 baseline according to the latest IPCC Assessment Report’s projections to 2050, with no obvious acceleration beyond the historical average as measured by U.S. tide gauges.

Part II closes addressing climate attribution, which assumes that all known drivers of the climate system are a) known, b) understood (individually and in combination), and c) accurately represented by climate models – a leap of faith we consider absurd on its face. The idea that they might be suitable for attribution of individual weather events is beyond absurd.

Part III – Impacts on Ecosystems and Society addresses climate change and agriculture, noting field and lab studies involving CO2 enrichment. Risks of extreme weather in the human (heat/cold mortality) and socioeconomic context, the economy and the highly controversial (we’re being polite..) “social cost of carbon” (SCC) are also scrutinized in Part III. The CWG report includes evidence for a low SCC, noting one mainstream Integrated Assessment Model under reasonable assumptions that yields (emphasis added) “evidence consistent with the SCC not being significantly greater than zero.” The section closes discussing the global climate impacts of U.S. CO2 emissions policies, noting that the EF obligated EPA to regulate emissions from new motor vehicles in relation to harms to the public but showing their scale as effectively futile in the global context.

The CWG report is taking the obligatory and expected thrashing from the usual climate Organs including certain outspoken/activist “consensus” scientists, environmental non-governmental organizations (ENGOs), and legacy media. Some scientists have claimed their work is misrepresented or cherry-picked, but their findings were incorporated by the authors of the CWG report in a straightforward manner and speak for themselves.

We thinks thou dost protest too much | Zeke Hausfather on X

Carbon Brief published a refutation claiming to have found over 100 “misleading or false” statements in the CWG report. Astute observers will find that it largely falls flat upon examination, with the “refuters” commonly recasting comparisons (data sets, metrics, geography, or baseline time periods, etc.) in classic straw man fashion, coloring their squawking with a distinct (and scientifically unbefitting) political religiosity.

Nothing in the CWG report definitively answers the question of whether human emissions of GHG’s seriously endanger human health and welfare, plants, animals, and ecosystems. The same is true of all six UN IPCC Assessment reports and the five National Climate Assessment Reports (NCARs) issued by the U.S. Global Change Research Program (USGCRP). The science is not “settled.”

Opponents of EPA’s attempt to rescind the EF will claim the volume of UN IPCC and U.S. NCAR reports weighs against DOE’s 150-page report. They will claim that the number of the “world’s top scientists” supporting the “settled science” “consensus” is orders of magnitude higher than the CWG report’s five authors. That’s sheer religion. Remember Copernicus.

What they miss is that this fight will ultimately be resolved in federal Court and, recognizing they are not the experts, its judges generally do not muddle in complex scientific issues. Instead, they generally defer to an agency’s technical and scientific analysis, as long as the agency’s process followed the Administrative Procedures Act, and the finding was reasonable, not arbitrary or capricious. Here again, “the right court at the right time” is an enormous advantage to one side or the other, as it was in Mass. v. EPA.

3. Lastly, we propose to repeal all GHG emission standards on the alternative bases that no requisite technology for vehicle and engine emission control can address the global climate change concerns identified in the findings without risking greater harms to public health and welfare.

EPA’s second alternative rationale relies on the argument (emphasis ours) “that there is no “requisite technology” for emission control for light- and medium-duty vehicles because reducing GHG emissions from such vehicles to zero would not measurably impact GHG concentrations in the atmosphere or the rate of global climate change.”

In addition to the “futile” argument, EPA contends that in order to qualify as a requisite technology capable of having a measurable impact on the identified GHG danger, an engine design or device would need to remove the air pollutant (GHG) from the atmosphere, rendering it an emission standard.

Here EPA also argues that GHG standards applied to light and medium-weight motor vehicles are actually harmful because they cause consumers to drive older, higher polluting cars longer than they would in order to avoid the higher cost of purchasing electric vehicles. EPA says this delays fleet turnover, contributing to higher emissions of criteria air pollutants and hazardous air pollutants and direct impacts on public health, as older models emit more pollutants.

Million mile engine, our cold dead hands | Shutterstock

Next year or in early 2027 - after the requisite responses to public comments, scientific reviews and interagency coordination required by this federal rulemaking - EPA will issue its final rule to rescind the 2009 EF. Opponents will have to sue the Trump administration to keep it in force. As we wrote in March in Pillar in Peril, inviting those suits was always part of the Lee Zeldin’s plan in order to get the battle on the current Supreme Court’s friendly ground.

The litigants will argue that the “overwhelming” amount of evidence produced by the “world’s leading scientific authorities” like the UN IPCC and USGCRP far outweigh the conclusions in the CWG Report. They will also rely heavily on past unsuccessful legal challenges to Mass. v. EPA and the EF itself.

Whether the Supreme court will accept one or more of EPA’s new arguments and depart from its approach in its 2007 Massachusetts v. EPA ruling is a key question that will determine the ultimate outcome. The stakes for climate activists, “environmentalists” and ENGOs could not be higher.

If a reviewing court accepted EPA’s primary proposal to rescind the EF as the best reading of CAA section 202, it would prevent future administrations from regulating GHGs under the Clean Air Act, absent legislative amendments. However, if a court were to accept the alternative proposal in which EPA relies on its policy judgment and discretion, it would not bind a future administration to Zeldin’s new rule.

Finally, we acknowledge industry concerns that rescinding the EF will increase litigation risk for utilities, auto manufacturers, and other industries who rely on the federal preemption provided by EPA’s authority to regulate GHG’s under the CAA as a legal defense. The concern is valid and may prove problematic. But we believe courts can still apply the “major questions doctrine” in the absence of the EF and note that the Climate Litigation Complex will not give up attempting clever workarounds even with federal preemption. More importantly, we believe the economy-wide impact of failing to rescind the EF is orders of magnitude greater than the impact of litigation faced by industry relying on federal preemption, and that the need for strict reading of the statute that corrects a mistake outweighs those risks.

We close by noting that the venue for disputes over federal rules such as this will almost certainly be the U.S. Court of Appeals for the DC Circuit (DC Circuit). The losing party will be forced to take the case to the U.S. Supreme Court, which we believe would certainly grant certiorari to decide a case of this national importance.

In several places above we have used the term “the right court at the right time.” In our view, in this case, that looks like the current Supreme Court. Why?

• In 2007, Justices Roberts, Thomas, and Alito together with Justice Scalia were the four dissenting votes in the 5-4 Mass v. EPA decision that unleashed the EF in 2009. Their dissent noted that they would have denied standing to the plaintiffs (Massachusetts, etal).

• In 2014, Justices Roberts, Thomas, and Alito ruled against EPA overreach with the 5-4 majority in UARG (Justices Coney Barrett, Gorsuch, and Kavanaugh were not yet on the Court).

• In 2022 all six conservative Justices ruled against EPA overreach in West Virginia.

• In 2024, all six conservative Justices ruled to eliminate the Chevron deference to federal agencies in Loper Bright.

In ending the “Chevron deference doctrine,” the Court noted in Loper Bright that prior decisions determining specific agency actions are lawful — including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis (“stand by things decided”) despite the Court’s change in interpretive methodology. It elaborated by specifying that “mere reliance on Chevron cannot constitute a ‘special justification’ for overruling such a holding.”

But it would be more than plausible for the same Supreme Court that rendered Loper Bright, UARG, and West Virginia to adjudicate EPA’s proposal in line with those precedent-setting rulings. In fact, in our view, the Court would have to wrestle mightily with those precedents, in particular the “major questions doctrine,” not to decide in EPA’s favor.

“Major question” inbound, folks | U.S. Supreme Court (credit Fred Schilling)

Put another way, if the coming litigation reaches the U.S. Supreme Court in time for it to render a decision before November 2028, we believe the 2009 Endangerment Finding is in serious legal jeopardy.

If the Supreme Court were to agree with EPA’s primary proposal, the entire foundation for all U.S. GHG regulation vanishes into thin air. Once they get over being angry EPA issued this proposal in the first place, all of this should seriously worry the U.S. congregants of what Doomberg calls The Church of Carbon™.

In the meantime, it’s game on in EPA’s effort to rescind the EF, and there is not much climate activists, “environmentalists,” and Democrats can do to stop it for now. Their best bet may be to use every available legal and administrative tactic to time the litigation process sufficiently to keep the case from reaching the Supreme Court before early 2029. And, in the meantime, pray to Gaia that Gavin Newsom wins the White House in November 2028 and withdraws the rule before SCOTUS has a chance to review it and render a decision.

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