And suddenly, millions of voices cried out in unison: I voted for this.
Seventeen years ago, the EPA under Barack Obama issued an endangerment finding citing greenhouse gases as pollutants that posed significant harms on Americans. In the years since, that finding has served as the foundation for massive regulation on energy production, auto manufacturing, and a host of other industries. One of the first acts Donald Trump took on his second Inauguration Day was to order the EPA to review that finding and determine whether and how to reverse it. By July, EPA Administrator Lee Zeldin began the process of repealing it, calling the effort "driving a dagger into the heart of the climate-change religion."
Now, having followed the Administrative Procedure Act (APA) carefully, the White House will proceed with the formal and definitive repeal, negating an entire archipelago of regulations that creates over a trillion dollars a year in costs. The Wall Street Journal reported late last night that the end is nigh:
The reversal targets the 2009 “endangerment finding,” which concluded that six greenhouse gases pose a threat to public health and welfare. The finding provided the legal underpinning for the Environmental Protection Agency’s climate rules, which limited emissions from power plants and tightened fuel-economy standards for vehicles under the Clean Air Act.
“This amounts to the largest act of deregulation in the history of the United States,” EPA Administrator Lee Zeldin said in an interview.
The final rule, set to be made public later this week, removes the regulatory requirements to measure, report, certify and comply with federal greenhouse-gas emission standards for motor vehicles, and repeals associated compliance programs, credit provisions and reporting obligations for industries, according to administration officials.
It wouldn’t apply to rules governing emissions from power plants and other stationary sources such as oil-and-gas facilities, the officials said. But repealing the finding could open up the door to rolling back regulations that affect those facilities.
The WSJ notes that the environmental lobby will immediately go to court as soon as the EPA finalizes the rule. That is a feature, not a bug, in Zeldin's plan, as I explained back in July. The Obama administration used a lawsuit brought by environmentalists that forced the EPA to overrule its own experts to issue the endangerment finding activists sought. That lawsuit, Massachusetts v EPA, resulted in a 5-4 decision that made the decision that carbon dioxide and other naturally occurring atmospheric gases were required to be regulated as pollutants. That decision came in 2007, and it forced the George W. Bush administration into that policy even before the Obama endangerment finding formalized and expanded the climate-change regulatory offensive.
Repealing the endangerment finding won't be enough. The White House has to get into court to allow the Supreme Court to rethink Massachusetts v EPA, only without any technical distractions such as the APA. Otherwise, the EPA will remain stuck treating CO2 and other natural atmospheric gases as pollutants (as opposed to actual pollutants such as particulates), and nothing will change in the meantime. As I wrote at the time, Justice Antonin Scalia certainly gave plenty of reason for reconsideration of this kind of regulation-by-lawsuit that bypasses Congress and the text of statutes:
The question thus arises: Does anything require the Administrator to make a “judgment” whenever a petition for rulemaking is filed? Without citation of the statute or any other authority, the Court says yes. Why is that so? When Congress wishes to make private action force an agency’s hand, it knows how to do so. See, e.g., Brock v. Pierce County, 476 U. S. 253, 254–255 (1986) (discussing the Comprehensive Employment and Training Act (CETA), 92 Stat. 1926, 29 U. S. C. §816(b) (1976 ed., Supp. V), which “provide[d] that the Secretary of Labor ‘shall’ issue a final determination as to the misuse of CETA funds by a grant recipient within 120 days after receiving a complaint alleging such misuse”). Where does the CAA say that the EPA Administrator is required to come to a decision on this question whenever a rulemaking petition is filed? The Court points to no such provision because none exists. ...
“While the statute does condition the exercise of EPA’s authority on its formation of a ‘judgment,’ … that judgment must relate to whether an air pollutant ‘cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.’ ” Ibid. True but irrelevant. When the Administrator makes a judgment whether to regulate greenhouse gases, that judgment must relate to whether they are air pollutants that “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U. S. C. §7521(a)(1). But the statute says nothing at all about the reasons for which the Administrator may defer making a judgment—the permissible reasons for deciding not to grapple with the issue at the present time. Thus, the various “policy” rationales, ante, at 31, that the Court criticizes are not “divorced from the statutory text,” ante, at 30, except in the sense that the statutory text is silent, as texts are often silent about permissible reasons for the exercise of agency discretion. The reasons the EPA gave are surely considerations executive agencies regularly take into account (and ought to take into account) when deciding whether to consider entering a new field: the impact such entry would have on other Executive Branch programs and on foreign policy. There is no basis in law for the Court’s imposed limitation.
The White House may make this into an even broader fight against this cycle of lawfare, which is precisely what Massachusetts v EPA was and is. "If successful," I wrote in July, "this will give Trump another step in recovering his constitutional executive authority and force legislative activity back to Congress rather than abdicating it to special interests and the plaintiff's bar. And that is a reform that is very much overdue."
Let's hope that the progressive activists sue as soon as possible. The quicker this gets to the Supreme Court, the better – as long as Zeldin has made sure to dot the Is and cross the Ts.
Editor’s Note: The Democrat Party has never been less popular as voters reject its globalist agenda.
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