The executive order effectively directs the new heads of EPA and other agencies to consider whether climate change is a “hoax,” as Trump has often claimed. Section 6(f) says:
“Within 30 days of the date of this order, the Administrator of the EPA, in collaboration with the heads of any other relevant agencies, shall submit 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,’ Final Rule, 74 FR 66496 (December 15, 2009).”
On the heels of the world’s hottest year, and with Americans still suffering from catastrophic disasters like the fires engulfing Los Angeles and the hurricane flooding in North Carolina, it is stunning that the Trump team would even consider this.
Yet, bringing thrills to a small cadre of fringe climate science deniers, they are. No one should be surprised. These deniers got their wishes into Project 2025 (p.425), which calls for “[e]stablish[ing] a system, with an appropriate deadline, to update the 2009 endangerment finding.”
Their joy will be short lived, however.
In the face of overwhelming science, it’s impossible to think that EPA could develop a contradictory finding that would stand up in court. Even Trump’s first-term EPA administrators understood this was “a fool’s errand,” in the words of one conservative former agency official.
Will they try anyway? The likely new EPA administrator, Lee Zeldin, danced around the issue at his confirmation hearing. Now he’s tasked with making recommendations to OMB in 30 days. Will he recommend going ahead? Or will he tell the White House this is still a fool’s errand? We’ll be watching.
Here’s the background.
The 2009 finding. Under the Clean Air Act, EPA is legally required to limit the emissions of any “air pollutant” that the agency determines “causes or contributes to air pollution that may reasonably be anticipated to endanger public health or welfare.” “Public health” plainly includes pollution-related death or illness. The law defines “welfare” to include any kind of environmental and economic harms beyond human health.
In 2007 the Supreme Court held in Massachusetts v. EPA that carbon dioxide and other greenhouse gases unambiguously are “air pollutants” under the Clean Air Act. The Court also held that the EPA’s refusal to regulate them in the Bush administration was based on reasons it was not allowed to consider. The Court then ordered EPA to decide, up or down, based on the science, whether greenhouse gases endanger health or welfare.
President Bush initially said he’d abide by the ruling, and his EPA then prepared a positive finding. But the Bush OMB refused to open the email sending the EPA finding to the White House.
So it fell to the Obama EPA. In 2009, EPA determined that carbon dioxide, methane, and four other greenhouse gases do indeed endanger health and welfare, and that vehicle emissions contribute to that harm. The endangerment finding, and subsequent “contribution” findings for other sources, triggered EPA’s legal duty to set standards for cars, trucks, power plants, aircraft, and oil and gas operations.
When climate deniers, fossil fuel companies, and their red state allies challenged the EPA finding, the D.C. Circuit Court of Appeals upheld it, explaining that it was backed by an overwhelming scientific record and rejecting the deniers’ contrary arguments. The Supreme Court denied review.
While the Supreme Court put significant limits on precisely what EPA regulations can do in later climate change decisions, none of those decisions casts any shade on the underlying endangerment finding and EPA’s legal duty to act.
Later developments.
The scientific basis for the endangerment finding has only strengthened since 2009 finding. And the impacts have become more and more obvious to ordinary Americans suffering through more severe and more frequent storms, droughts, wildfires, and other extreme weather events.
When issuing standards for vehicles, power plants, oil and gas, and aircraft in the Obama and Biden administrations, EPA also updated the endangerment finding to reflect the ever more compelling science and reiterate the agency’s legal obligation to act.
And Congress amended the Clean Air Act in 2022 to state expressly that the six greenhouse gases “air pollutants,” thereby adopting the Massachusetts holding into statute.
The climate denier cadre did not go away, however. In Trump’s first term, they petitioned EPA to rescind the endangerment finding. Neither Scott Pruitt nor Andrew Wheeler took the bait. When the Biden EPA denied the petitions, the D.C. Circuit turned away the challengers again, and again the Supreme Court denied review.
The latest attack. Trump’s Unleashing American Energy executive order launches a process that could try to root out the endangerment finding once and for all.
As expected, the order directs agencies to “implement action plans to suspend, revise, or rescind” all regulations that impose an “undue burden” on oil, gas, coal, and other Trump-favored energy resources. (Sec. 3(a) and (b).) The targets include Clean Air Act standards for vehicles, power plants, and oil and gas, as well as other pollution and efficiency standards.
As quoted above, however, Section 6(f) also orders the heads of EPA and “other relevant agencies” – presumably Energy, Interior, Justice, and maybe Transportation and Commerce – to give OMB “joint recommendations” in 30 days on “the legality and continued applicability” of the endangerment finding.
We can now see why Lee Zeldin, Trump’s EPA nominee, equivocated when asked at his confirmation hearing if he accepts the Massachusetts decision and the endangerment finding. He said Massachusetts “authorizes” but does not “require” regulation of greenhouse gas emissions. He was technically right – Massachusetts decided they were air pollutants and that they must be regulated if EPA makes an endangerment finding, but the Supreme Court did not, in that decision, compel a positive endangerment finding.
But his answer evaded the fact that regulation became “required” when EPA subsequently made the endangerment finding and the courts upheld it.
Zeldin likely knew he was about to be tasked with recommending whether to reverse the finding.
He should also know that remains a fool’s errand. The endangerment finding was based on thousands of scientific studies, including analyses by the National Academy of Sciences, the Intergovernmental Panel on Climate Change, and others. It has only gotten stronger.
The latest IPCC report, for example, says climate change is “widespread, rapid, and intensifying,” and there is “very high confidence” that the risks and adverse impacts of climate change will escalate without major emission reductions. That’s stronger than any prior conclusion.
Can you imagine writing a rational decision, supported by a record, that refutes this mountain of evidence? Any attempt to do so will surely be struck down as arbitrary and capricious by the D.C. Circuit (the only lower court where the decision can be challenged). And even though the Supreme Court is more conservative than before, it will not likely come to their rescue. It is unlikely to revisit Massachusetts now that Congress has expressly put its holding into the Clean Air Act. And it unlikely to further stretch its public credibility by contradicting the scientific consensus and announcing that climate change isn’t real.
The only rational recommendation to OMB would be “don’t do this.” But who knows what Zeldin and the other agency heads will conclude?
Now, this could be just a shiny object for distraction. The Trump team threw the climate deniers a bone in the executive order, and could then allow the blame to fall on Zeldin for insufficient zeal.
Or the Trump team could set EPA off towards the edge of the cliff…
We’ll be watching.
