Pillar in Peril

EPA's 2009 "Endangerment Finding" on greenhouse gases faces the prospect of demolition by Lee Zeldin's blitz against Administrative EcoStatism.

“Opportunities multiply as they are seized.” - Sun Tzu

In the United States, “climate change” has been the animating theme of energy, environmental and economic policy since 2009. The regressive progressive Democrat obsession has displaced other serious environmental issues, and squandered over $1 trillion of the nation’s treasure, most of it in the form of printed money.

A 2009 EPA action stands as the singular pillar supporting the entire “climate change” agenda. Take out that pillar and the entire EcoLeftist climate regulatory regime crumbles.

It all began with a Supreme Court ruling in 2007, around the time innovations in hydraulic fracturing (“fracking”) caused the explosion in U.S. oil and natural gas production. That decision opened the door for the Obama-era EPA regulatory “finding” that became the foundation on which the whole “climate change” agenda rests today.

The Trump administration is going after EPA’s vampire economic, energy and environmental “finding” on CO2, wooden stakes and swords in hand. What pillar of U.S. “climate change” regulation is the Trump administration trying knock out? How will they attempt to do it? This is a scary story for those who believe that “climate change is the greatest threat to America.” For those who aren’t so inclined, this is the heavyweight energy and environmental legal/regulatory boxing match we’ve been anticipating for more than a decade. Grab your favorite frosty beverage. This post is your pre-fight program.

Our story begins with the U.S. Supreme Court’s 2007 ruling in Massachusetts vs. EPA, arguably the twenty-first century Court’s most misunderstood and misquoted environmental decision. That ruling directly led to EPA’s 2009 “Endangerment Finding” (EF) stating that greenhouse gases in the atmosphere “endanger public health and welfare.” The ruling and the EF are both absurd.

For nearly twenty years, Charlaticians™, journalists and the legacy media have mischaracterized the Mass. v. EPA decision, commonly suggesting the Court ruled that carbon dioxide (CO2) and certain other greenhouse gases (GHGs) are “pollutants” under the Clean Air Act (CAA), or that the Court said EPA had a duty to regulate CO2 and GHGs under the CAA. Both depictions are wrong.

In Mass v. EPA, while the Court ruled that GHGs “fit well within the CAA's capacious definition of air pollutant,” it merely held that the CAA gives EPA the authority to regulate tailpipe emissions of greenhouse gases. It did not say that CO2 or GHG’s are pollutants under the CAA, or that EPA must regulate them.

After the Court’s Mass. v. EPA ruling, during George Bush’s second term EPA slow-walked the process of examining the science and considering an EF for CO2 and GHGs all the way to the 2008 election. The Obama administration had no such compunction. In the first 100 days of Obama’s first term (April 2009), the EPA proposed “endangerment findings” for six greenhouse gases.

EPA held the requisite public comment period and hearings (during which it received nearly 400,000 comments, and conducted public hearings on both coasts) throughout 2009. In December that year, it issued the EF for CO2 and GHGs, stating “that greenhouse gases in the atmosphere endanger both the public health and the environment for current and future generations.”

This unleashed “climate change” regulatory hell under President Obama and later President Biden. In the eight years between 2000 – 2008 under George W. Bush, EPA merely began collecting GHG emissions data from major sources such as utilities (mandated by Congress under FY 2008 appropriations) and undertook the regulatory investigation process into whether those emissions endanger public health and welfare (the “EF” process).

Then came President Obama. During his two terms - counting the 2009 EF - EPA issued no less than eight major regulations dealing with GHGs and “climate change.” These ranged from major emissions sources such as power plants to vehicle emissions, including the EF and revised GHG Reporting Rule (2009), the GHG Tailoring rule (2010, which led to the Supreme Court case Utility Air Regulatory Group vs. EPA), emissions standards for new power plants (2012), the Clean Power Plan (2015, which led to the Supreme Court case West Virginia vs. EPA), light-duty vehicle GHG emissions standards (2010) and heavy-duty vehicle GHG emissions standards (2016), and methane emissions standards for the oil and gas industry (2016).

Unsurprisingly, during President Trump’s first term EPA made no major attempts to expand regulation of CO2 or other GHGs. Instead, Trump initiated the U.S. withdrawal from the U.N. Paris Agreement on “climate change” that President Obama had officially joined in September 2016 - by Executive Order - two months before Trump defeated Hillary Clinton in the 2016 election.

Not to be outperformed on “climate change” by his Democratic predecessor, the EPA under President Biden issued nearly as many regulations dealing with CO2 and GHGs during his single term as it had during two terms under President Obama. The EF had opened the gates to wide reaching EPA regulation into virtually every corner of American personal life and commerce, from utility scale electricity generation to home heating and appliances, from personal transportation to the commercial trucks that move goods and people who provide services. Capitalism, industry, and personal life are all negatively affected by the EF because all of these rely on coal, oil, and/or natural gas to power a high percentage of transportation (>95%) and electricity generation (~60%, far more in some regions).

Once the EF took force in 2009, the EPA under Democrat-led administrations was going to attempt to regulate more and more CO2 emissions from a broader swath of U.S. industry, vehicles, and even personal homes and appliances until something or someone stopped them. And on November 5^th, 2024, that someone and something arrived in the most dreaded form possible: Donald J. Trump.

On January 20, 2025, on the first day of his second term, Trump issued more than 100 Executive Orders (EOs) and presidential directives, including one titled “Unleashing American Energy” which signaled his intent to dismantle Democrat EcoStatists’ “climate change” agenda. Section 6. (f) of that EO required the EPA Administrator to submit within 30 days joint recommendations to the Director of OMB “on the legality and continuing applicability of the Administrator’s findings, “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act,” aka the EF.

While EPA Administrator Zeldin was developing those recommendations, we developed a model for how the Trump administration and Zeldin might successfully challenge the EF, an effort that will not be easy. For simplicity’s sake, there are two main paths, one we’ll call scientific, and the other legal.

Challenging the science behind the EF would seem to be a steep climb, not for lack of uncertainty, or new studies that challenge the prevailing paradigm since 2009, but the sheer volume of studies and assessments that predict doom and gloom. For more than two decades, the government research grant funding process has ensured that research proposals seeking to find more problems/danger with CO2 and other GHG emissions get funding, while those suggesting less danger generally do not, and others outside the government grant process routinely get kept out of scientific journals by shady behavior and/or corruptions of the peer review process. The net result is that new and important scientific studies that would cast doubt on the legitimacy of the EF are vastly outnumbered by “consensus science.” Due to this reality, we would expect Zeldin and EPA to build their case as much or more on the strength of the legal underpinnings of the EF than the scientific ones.

In a testy exchange with U.S. Senator Edward Markey (D-Mass) during his confirmation hearing, Zeldin gave a clue about his strategy. If that clue had gone over the head of the Massachusetts Charlatician™ any faster, it might have taken off all of his hair. In what appeared to be an intentionally understated manner, Zeldin corrected Markey more than once, stating that the Mass. v. EPA ruling merely authorized EPA to regulate GHG’s. Markey played the role of mindless, talking point-spewing Democrat EcoStatist to perfection, a performance that instantly gained him a nomination for a 2025 environMENTAL Award.

We viewed the exchange as a signal that Zeldin’s challenge to the EF will rely as much on questions of law as on questions of science. That is, was the EPA right to find that GHGs endanger public health and welfare under the relevant statutory language in the Clean Air Act? On this question, our model contemplated Zeldin leaning heavily on two other Supreme Court rulings in the years since the 2009 EF.

Last July we covered the demise of the Chevron Doctrine in our post Roaming Dogs Get Their Fence. In last year’s Loper Bright Enterprises vs. Raimondo decision, the Supreme Court threw out the “Chevron Doctrine” in a case involving commercial fishermen and a National Marine Fisheries regulation. The net effect is that federal agencies, including EPA, no longer have the deference (known as “Chevron deference”) to make regulations where the language in federal statutes is ambiguous. Those decisions will now be made by Congress by writing clearer statutes, or by Courts interpreting disputes in the absence of such clarity. As we noted in the piece, given shifting court makeups and the lack of scientific expertise in Congress (aptly demonstrated by Senator Markey), this may or may not end up being a good thing, depending on your view.

It is instructive to note that the Supreme Court’s 2007 decision in Mass. v. EPA that ushered in the EF relied specifically on Chevron deference. In his opinion on behalf of the 5-4 (liberal) majority, Justice Stevens noted that (emphasis added):

As we have repeated time and again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842–845 (1984).

In the final two sentences of the majority’s Opinion, Stevens documents that Zeldin was correct in his confirmation hearing Zeldin and Markey wrong, while again referencing Chevron deference (emphasis added):

We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S., at 843–844. We hold only that EPA must ground its reasons for action or inaction in the statute.

In his dissent to the Court’s Mass. v. EPA decision, Justice Roberts found legal problems with the plaintiff’s standing, and the concepts of injury in fact, causation, and redressability. In his dissent, Justice Scalia joined Roberts’ reasoning (including standing), finding additional problems with the majority determination that CO2 meets the CAA definition of “pollutant,” as well as its failure to give EPA the very deference not to regulate CO2 under the Chevron doctrine that the majority cited above. We believe the problems Roberts and Scalia articulated in their dissents will be central to Zeldin’s “review of” the EF.

Given Roberts’ specific dissent in Mass. v. EPA, plus last year’s Supreme Court ruling in Loper Bright, on the surface it might seem that federal agencies’ loss of Chevron deference might be a straightforward wooden stake to the heart of the EF vampire. But in his opinion on behalf of the majority, Justice Roberts was careful to note otherwise (emphasis added):

Chevron was a judicial invention that required judges to disregard their statutory duties. And the only way to “ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion,” is for us to leave Chevron behind.

By doing so, however, we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology. Mere reliance on Chevron cannot constitute a “‘special justification’” for overruling such a holding, because to say a precedent relied on Chevron is, at best, “just an argument that the precedent was wrongly decided.” That is not enough to justify overruling a statutory precedent.

So, the fact that a prior ruling relied on Chevron deference is not a reason to overturn it and prior agency holdings are still subject to stare decisis (the legal doctrine to let prior rulings stand). Loss of Chevron is just one argument and in and of itself, not enough.

On the other hand, we view Roberts’ comments as having left open a back door to challenge prior agency rulings and regulations including the EF: Chevron’s demise is an argument to challenge prior agency actions that relied on it, but only in conjunction with more compelling evidence to call those actions into question. Indeed, as he surely knew, compelling evidence that might call into question the EF already existed and, ironically, some of it came from Chief Justice Roberts’ own Court.

In June 2022 the Supreme Court rendered the West Virginia vs. EPA decision, a dispute centered around the Obama era EPA “Clean Power Plan.” At issue was the Plan’s attempt to force utilities toward “generation shifting,” from existing to new natural gas and coal-fired power plants (eventually with “carbon capture and sequestration”), then ultimately to “alternative, clean” energy sources such as solar and wind power. Rather than setting emissions standards within its statutory authority under the CAA, under the Clean Power Plan, EPA attempted to force utilities to shift electricity generation technology to nonreliable sources (aka wind and solar) on the basis of CO2 and GHG emissions.

Nineteen states led by West Virginia sued EPA arguing the Clean Power Plan went beyond EPA’s statutory authority. The Court ruled that attempting to force “generation shifting” to nonreliable sources like wind and solar on states and utilities fell under the major questions doctrine, a principle of statutory interpretation on questions of major economic or political significance. The doctrine holds that Congress does not delegate authority to agencies on such “major questions” without clear and explicit statutory authorization.

Chief Justice Roberts (whom, as we noted, dissented to the Court’s Mass v. EPA ruling in 2007) wrote the following in his opinion for the majority in WV v. EPA (emphasis added):

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible “solution to the crisis of the day.” But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in (Clean Air Act) Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

In the scenario we had modeled, Lee Zeldin and EPA would combine the Supreme Court’s findings in Loper Bright wrecking Chevron deference with its findings in WV v. EPA involving the Major Questions Doctrine to try and knock down the EF. Nearly finished writing this story, the chance to act as a fishing guide for the ebullient ten-year-old son of an old friend vacationing nearby for spring break with his lovely wife was too much to resist and we were delayed finishing this post. The delay turned out to be a godsend, not least for the chance to play fishing guide.

On Wednesday last week, Lee Zeldin announced his plans for “revisiting” the EF, the “Social Cost of Carbon” and a whole lot more about to be visited on what he referred to as the “green scam.”

You had us at “Social Cost of Carbon” | X

In the official EPA press release accompanying the announcement, Zeldin confirmed our model expectations. The release also noted that two other Supreme Court cases will be included in the effort, which should improve the chance of success (emphasis added):

“..major Supreme Court decisions in the intervening years, including Loper Bright Enterprises v. Raimondo, West Virginia v. EPA, Michigan v. EPA, and Utility Air Regulatory Group v. EPA, have provided new guidance on how the agency should interpret statutes to discern Congressional intent and ensure that its regulations follow the law.”

And as noted in the Endangerment Finding One Pager accompanying the press release (emphasis ours):

BOTTOM LINE: EPA does not prejudge the outcome of this reconsideration, but these and other legal issues require fresh scrutiny, particularly in light of multiple major Supreme Court cases issued since the Finding came out, including Loper Bright, West Virginia, UARG, and Michigan.

The two other cases Zeldin notes in his announcements are highly relevant and provide additional support for knocking down the EF. Both deal with questions of EPA authority unrelated to the issues in the Loper Bright and WV v. EPA cases.

In Michigan v. EPA (decided June 2015), the Supreme Court ruled that EPA acted unreasonably by not considering costs when determining whether it was "appropriate and necessary" to regulate hazardous air pollutants, such as mercury, from power plants. The same argument applies to EPA’s 2009 EF.

In Utility Air Regulatory Group v. EPA (decided June 2014), the Supreme Court rendered something of a split decision. It upheld EPA’s authority to regulate GHGs at facilities already subject to certain permitting due to their emissions of other regulated pollutants, while ruling that EPA overstepped its authority when it attempted to alter the CAA’s explicit emissions thresholds applying to regulated pollutants and tailor (the GHG “tailoring rule”) them to its liking as respects CO2 and other GHGs.

How do we see the Trump administration’s attempt to “revisit” the EF playing out? Whether by Executive Order or merely undertaking the process, Trump and Lee Zeldin are going to use the proclivity for litigation demonstrated by environmental nongovernmental organizations’ (ENGOs) like the Natural Resources Defense Council (ironically, plaintiff in the Clean Air Act case that led to the 1984 Chevron Doctrine), Sierra Club and others to draw them into filing a lawsuit Zeldin and Trump believe will act as a punji pit against their own case.

One or more ENGOs will file a lawsuit in a federal court to try and stop the administration’s efforts. The plaintiffs will choose a venue in which they have a reasonable likelihood of success.

The Trump administration and Zeldin expect the ENGO plaintiffs to prevail at the federal Court level, at which point the Trump administration and EPA will appeal the case all the way to the Supreme Court, a plan the administration believes will effectively walk the plaintiffs right into the punji pit. If Zeldin and the Trump administration can get the Supreme Court to accept the case, they like their chances. Why? Because this is the same Supreme Court that rendered the Loper Bright and WV v. EPA decisions.

With Zeldin and EPA incorporating into their arguments the findings in Michigan v. EPA (requiring EPA to consider costs of regulatory actions), as well UARG v. EPA (prohibiting EPA from arbitrarily changing explicit CAA emissions thresholds) and the other nuances listed in the announcements, the plaintiffs and the EF could very well end up impaled at the bottom of the punji pit. This could be the key to the Trump administration’s and Zeldin’s strategy.

The current Supreme Court to ENGOs? | Shutterstock

We close by noting that as environmental industry professionals, we have always viewed the Supreme Court’s decision in Mass. v. EPA as flawed. In our view, the Clean Air Act’s drafting history, Congressional record, and application in the field make it clear that Congress’ intended to regulate traditional hazardous air pollutants that cause direct physical harm to humans and ecosystems, like mercury, lead, particulate matter, sulfur dioxide, nitrogen oxides, etc., not CO2 or GHG’s.

In a study last summer led by Naomi Oreskes (author of a widely publicized bullshit “97% consensus” paper years ago), the authors make the case that scientists and Congress were actually aware of GHG’s potentially dangerous warming effects even during the earliest legislative debates over the CAA and at the time of its passing. But rather than bolstering the case that the CAA justifies the EF, it seems to only bolster our view: if Congress was well aware of the dangerous warming potential of GHGs and did not expressly include them as pollutants (or explicitly give EPA the statutory authority to do so), then it is clear that they intended the CAA to deal with traditional airborne pollutants that cause direct physical damage to “public health and welfare.” Before EcoLeftist Democrats used Administrative Statism and ENGOs used lawfare to incrementally expand the CAA into the realm of GHGs after Mass. v. EPA, that is how the CAA had been administered by EPA since its enactment.

Whether CO2 and GHGs should be regulated under the CAA is obviously a question Congress should answer. But in the absence of a 2027 mid-term election sweep that gives Republicans enough votes in the House and Senate to amend the Clean Air Act, do not look for that to be answered in the negative and codified in legislation any time soon.

Will Zeldin and the Trump administration succeed knocking down the EF, the “Social Cost of Carbon,” and other religious doctrines propping up what Doomberg correctly labels the Church of Carbon™? No one knows. But we have been waiting for someone to attempt to right this wrong for nearly two decades.

The “Endangerment Finding” on CO2 and GHGs is the single pillar on which all U.S. government “climate change” policy rests. And that pillar has been scheduled for demolition by the Trump administration.

This is a developing story. We will post updates as it evolves.

“Like” this post if you’re glad our ebullient young friend caught 9 rainbow trout with our help. And that Lee Zeldin is going after the “Endangerment Finding” on CO2.

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