Posted on 01/23/2025 6:01:19 AM PST by MtnClimber
The first couple of days of the new Trump administration have seen the President sign a blizzard of Executive Orders. These provide more material than a humble solo blogger like myself can ever comment on comprehensively. So I’ll just have to start with one particular item that I am deeply familiar with: the EPA’s so-called Endangerment Finding of December 2009.
I have seen differing counts of the number of Trump’s first-day EOs. ABC News here counts 42. One of the most consequential has the title “Unleashing American Energy.” There is a large amount of important material in this EO. In overall summary, it directs the reversal of all of the Biden administration efforts to restrict and suppress the production and development of America’s energy resources. But one provision, I would argue, is important above all the rest. That is Section 6(f), which directs a reconsideration of the so-called Endangerment Finding (EF) of December 2009. That provision of the EO reads as follows:
(f) 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).
This provision is of overriding importance because, as long as the Endangerment Finding remains on the books, it gives a license to the courts, and to activist left-wing judges anywhere in the federal system, to enjoin and undo all the other de-regulatory efforts of this and other energy-related EOs. However, if the EF is rescinded with a well-reasoned and well-supported basis, then all the other energy-related initiatives will have a far clearer path to success.
Background on the EF will help readers to understand its significance. Back in the early 2000s, as the climate scare was cranking up, activists got the idea of trying to get the courts to compel EPA to regulate (and suppress) fossil fuels through getting CO2 declared a “pollutant” under the Clean Air Act. A group of states, led by Massachusetts and New York, petitioned EPA to declare CO2 a “pollutant,” which would then give EPA the ability, and arguably even the obligation, to regulate CO2. Since CO2 is an inherent product of fossil fuel combustion, “regulation” of CO2 emissions could include anything up to and including banning fossil fuel combustion entirely if EPA so decided. Such a ban would outlaw 80+% of the current U.S. energy system.
Those opposing this gambit responded that the Clean Air Act was never intended to deal with CO2, which is colorless and odorless and non-toxic and is an inherent product of the large majority of energy production and consumption. But the language of the Clean Air Act, passed in 1970, was of course vague enough to give an opening. Here is the relevant language of Section 202(a)(1) of the Clean Air Act as it existed at the time the Massachusetts/New York case made it to the Supreme Court:
“The [EPA] Administrator shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare … .”
Other similar provisions gave the EPA Administrator comparable authority to regulate “pollutants” from sources other than motor vehicles.
So the statute defines “pollutant” to mean anything that, in the “judgment” of the EPA Administrator, “may reasonably be anticipated to endanger public health or welfare.” During the administration of George W. Bush, despite the states’ petition, EPA declined to make such a finding as to CO2. So Massachusetts, New York, and co-plaintiffs sued to try to compel EPA to make that finding. In 2007, that case reached the Supreme Court. Here is the Court’s Opinion, issued under the caption Massachusetts v. EPA. In summary, the Court ordered EPA to make a determination whether CO2 was or was not a “pollutant,” in the sense of constituting a “danger to public health or welfare.”
To its shame, the GW Bush people punted this determination over to the Obama administration, which then took office in 2009. The Obama people got right to work, and to no one’s surprise, issued a long regulatory document in December 2009 finding that CO2 did indeed pose a danger to human health and welfare, and thus was a “pollutant” subject to regulation under the Clean Air Act. This is the document known as the Endangerment Finding, that is referenced and cited in Trump’s EO.
The EF then gave the Obamanauts license to go wild regulating CO2. As one extreme example, the Obama people promulgated what they called the Clean Power Plan, which, by ratcheting down allowable CO2 emissions over time, would have forced the closure of essentially all fossil fuel power plants.
That is where things stood when the Trump 1.0 administration took office in January 2017. I and many others were hopeful that the new administration would roll back many of the destructive anti-energy policies of the Obama people, but at the same time we were wary that any de-regulatory initiatives would get blocked by the courts, using the EF as the basis. After all, if EPA had found CO2 to be a danger to human health and welfare, then how could it fail to take efforts to restrict emissions?
As Trump took office in 2017, it was unclear to us whether the new President or his people had any concept of the drastic significance of the EF. And thus, a group known as the Concerned Household Electricity Consumers Council (CHECC) was formed to petition EPA to rescind the EF. That entity filed a Petition to EPA on January 20, 2017 — the first day of the Trump 1.0 administration. I acted as one of the lawyers for CHECC. Fundamentally, the idea was to bring this issue to the attention of the new Trump EPA and make sure that they paid attention to it. We also presented compelling scientific evidence as to why the idea that CO2 was a “danger” was preposterous.
Somewhat to our surprise, our Petition was then completely ignored. Over the course of four years, we continually tried to get information as to what was going on (with little success), and also filed seven supplements to our Petition, each bringing to bear new scientific articles or evidence making clear that CO2 was not at all a “danger” to human health and welfare. But through the entirety of Trump 1.0, there was no action on this issue. On January 19, 2021 — that is, one day before leaving office — the Trump EPA denied our Petition with a one-paragraph summary dismissal. The incoming Biden administration then took another year and three months and came out with a much longer and more devious denial of our Petition in April 2022.
Many readers here are undoubtedly familiar with the saga of our efforts after that denial. We could have just given up, but we had the idea that if we saw this through the D.C. Circuit and the Supreme Court, we might get a decision compelling a reconsideration of the EF just in time for a new Trump administration to take office. With such a decision, the Trump people could no longer ignore this issue, and would be forced to look at it. However, our efforts were unsuccessful in both the D.C. Circuit and Supreme Court. Our petition for review to the U.S. Supreme Court was denied on December 11, 2023. For those interested, here is a link to the court dockets of the D.C. Circuit and Supreme Court for these cases.
During the months since the recent election, I have been involved in many discussions about whether a new petition process should be started to try to get the EF rescinded this time around. And now suddenly,, upon entering office, Trump 2.0 immediately is taking on the Endangerment Finding, without any new petition getting filed at all. Hallelujah! Somebody over there must finally understand the importance of this. Maybe even the Donald himself! I would like to think that our previous efforts had something to do with educating Trump and his people, although I have no way of knowing that.
The job of rescinding the EF does not have to be difficult. The EF itself is totally full of holes. All EPA has to do to make for a bullet-proof rescission is to cite some dozens of scientific papers in the fifteen years since the EF that collect evidence contradicting the hypothesis of catastrophic CO2-caused warming. Lots of very knowledgeable people stand ready to help, including the members of the CO2 Coalition, which is a collection of eminent scientists that consider the EF to be thoroughly flawed.
I don’t mean to be overly optimistic, but I’ll make this prediction: If the EF is rescinded with a well-reasoned regulatory action, the courts will have little to no ability to stop the Trump roll-back of all the Obama/Biden restrictions on fossil fuels and energy transition. And after four years in which essentially all of those restrictions have been undone, and in which the EPA has been swept clean of climate activists, the ability of the government ever again to try to force an unwanted energy transition will be gone for good.
The EPA will fight rescinding the endangerment finding. It is something that gives the marxists great power to destroy Western Civilization.
Sounds like embedded Deep State bureaucrats deep-sixed the initial petition.
The Senate or the House need to hold hearings on “Global Climate Change.” There are plenty of real scientists who can come in & testify that it’s all nonsense & money designated to stop it is wasted. Make the media cover it, so people are reassured that it’s nothing to worry about.
It’s criminal how the schools have scared our kids with the ‘we’re all gonna die’ nonsense.
I’m expecting that all bureaucrats who fight against what the Chief Executive wants, will be put on a list and ways will be found for those individuals to lose their jobs. The resistance needs to be purged.
Thanks for posting the legal-ease background of how the EPA makes EF’s that have some kind of authority to be used as a basis in court.
Who is Trump nominating for head of EPA?
Fjb handlers have taught president Trump everything he can and can’t do.
For that thank you very much deep state!-)
Cant Trump instruct the EPA to cease and desist any legal actions?
“The EPA will fight rescinding the endangerment finding. It is something that gives the marxists great power to destroy Western Civilization.”
At their own risk this time as Trump is LITERALLY taking names, at least in his DEI EO.
Most will do whatever the boss says to do, finally we are clearing the undersecretary boss and the lower level managers. The average govt worker will complain at the garden parties, but most are there to appear to work for 8 hours, collect a check, and move on.
I think that is a great idea. The global warming/climate change SCAM has gone on long enough at enormous cost to Americans.
This ruse of ensuring "public health" has been the aegis of any number of regulatory rackets both at the State and Federal levels, including permitting housing. The banks love it because people will pay what they can for settlement and shelter, which then pumps the larger resulting loan portfolio. The game needs exposure, as "public health" has little to nothing to do with the resulting specifications. Poor Cain!
Consider the "National Electrical Code." This is a medium for industrial and union collusion to make housing electrical systems "better." And just what makes them intrinsically better in application? There is little more reliable or more cost effective about it, but it does have people doing hideously expensive rewiring jobs to bring their houses "up to code" every time they issue a revision. It's great for the division of labor into ever more complicated specialties, then requiring ever more high-energy transportation of goods and services.
Are these "upgrades" confined to the Several States? No. What makes them "national"? The County bureaucrats agree. Who authorized that? It's too big for them to resist, and look at all the business they get!
This is the same kind of pipeline for mischief we see in environmental regulations, now worlwide, complete with a network for coordinating said bureaucracies (ICLEI) with its nexus at the UN. This is the architecture for global government with ZERO accountability or recourse on behalf of the "global citizen."
The intrinsic problem (besides making wage slaves of just about everybody) is that there is no competition within the system by which to check the compulsion to make everything more grand and glorious. Not all human needs are organized that way. As a system, it certainly operates against low environmental impact or even mobile housing by which to facilitate human care for land and seas, a principal which is obviously contrary to the rationale for the existence of ICLEI in the first instance, which has NOTHING to do with human health and safety.
They're wrong. Said raison d'etre is causing mass extinctions and making people sicker. I'm damned tired of its stupid compulsions. There is a fix for this (liberty), but nobody's asking me how that works despite that I published that book 25 years ago.
Perhaps the Trump EPA will not fight it.
Trump can issue EO’s, but CONGRESS needs to get its s*** together and pass specific laws that can NOT be undone by future Presidents’ EOs
This an excellent article to understand how devious Fed.gov regulatory politics work
it proves one thing for certain - Government “SCIENCE” isn’t science at all. Its political ideology and corrupt crony-favoritism colored in the cloak of fake science.
Yup
I would eliminate Nixon’s EPA.
That was my thought, also. Get rid of EPA.
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