No Due Process For Illegal Regulations

Issues & Insights ^ | 22 Apr, 2025 | Steve Milloy

[MtnClimber]

As other opponents of the climate hoax do, I eagerly await the Trump administration’s termination of the Environmental Protection Agency’s so-called endangerment finding (EF). I had imagined that the reversal would be accomplished over the course of at least a year and probably more through the conventional administrative process of notice-and-public-comment. But things may get much more exciting, much more quickly.

Some brief history is in order. The EF is a December 2009 determination by the Obama EPA that emissions of greenhouse gases harm the public health and welfare. Since that time, the EF has been the factual and scientific foundation of virtually all climate activity undertaken by the federal government.

The EF was made possible by a combination of scheming by the Clinton EPA, bungling by the Bush EPA, and judicial activism resulting in the 5-4 2007 Supreme Court decision in Massachusetts v. EPA. The Court ruled that EPA may, but was not required to, regulate greenhouse gases under the Clean Air Act. This decision was and remains controversial because Congress had never authorized EPA to regulate greenhouse gases.

The legendary late Rep. John Dingell, D-Mich., a believer in global warming but a harsh critic of EPA, thought that he and his fellow Clean Air Act co-authors had made it clear that EPA was not authorized to regulate greenhouse gases. Dingell said that they never imagined the Court would be so “stupid” as to imagine otherwise. But it was and so here we are.

Before the Trump administration’s shock-and-awe approach to shrinking government commenced in January, my colleagues and I imagined that the EF would be reversed more less in the same way that the Obama administration had promulgated it, through the cumbersome Administrative Procedures Act. There would be a proposal seeking public comment published in the Federal Register, mandatory consideration of the likely hundreds of thousands of public comments, a final decision and then years of litigation with an uncertain outcome.

But that has all now changed.

On April 9, President Donald Trump issued an executive order, “Directing the Repeal of Unlawful Regulations,” directing agencies to come up with lists of regulations that run afoul of recent Supreme Court decisions. Select illegal regulations, as determined by the Trump administration, will then be terminated without the notice-and-comment process of the Administrative Procedures Act. The rationale is simply that: (1) the regulations are illegal per the Supreme Court decision; (2) they are no longer operative; and (3) terminating them does not require any sort of due process, so to speak.

One of these recent Supreme Court decisions listed in the executive order is 2022’s West Virginia v. EPA. In that case, the Court held that the Obama EPA’s 2015 Clean Power Plan, an ironic progeny of the EF, was unconstitutional. Under the Court’s newly adopted “major questions doctrine,” significant regulatory agency programs require express congressional authorization. The Court deemed the Clean Power Plan to be a “major question” that lacked congressional authorization and, therefore, invalid.

It seems the Trump administration intends the same fate for the EF. The regulation of greenhouse gas emissions from fossil fuel burning is axiomatically a “major question” and Congress never expressly gave EPA authority to regulate greenhouse gases. So the EF violates West Virginia v. EPA, is illegal, and can be summarily done away with. It’s as simple as that.

The beauty of this is approach extends beyond the quick termination. Whether the EF is terminated quickly or slowly, there will be litigation. If the EF is terminated under the Administrative Procedures Act, the process will definitely extend beyond the Trump administration, will have many twists and turns and the outcome will be uncertain. It may not even make it to the Supreme Court, or make it to the high court on an unfavorable legal issue.

In contrast, the quick termination route raises the core issue immediately – the validity of Massachusetts v. EPA. Under West Virginia v. EPA’s major questions doctrine, Massachusetts v. EPA would have been decided the other way since there was (and remains) no express congressional authorization for EPA to regulate greenhouse gases. This should be case closed with a 6-3 conservative majority. Additionally, in Massachusetts v. EPA, Chief Justice John Roberts, who was in the losing minority, didn’t even think Massachusetts had standing to sue in the first place.

The final point to bring up is the collateral benefit of getting rid of the EF as soon as possible. President Trump would like to eliminate Inflation Reduction Act spending, especially the part he refers to as the “Green New Scam.” Congress may or may not do this as President Joe Biden was smart enough to send much of the IRA money to red states to buy their politicians.

But with the EF deemed illegal, there would no longer be a factual or scientific justification for the trillion dollars or so of IRA climate spending. Congress would be irrelevant as the president would be on firm legal and political ground to terminate the pointless pork barrel spending.

At this point, only Trump administration insiders know what they plan to do. The rest of us will just have to wait. But it sure looks interesting.

Steve Milloy, a biostatistician and lawyer, served on the Trump EPA transition team in 2016 and is on X @JunkScience.

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TOPICS: Business/Economy; Society
KEYWORDS: epa; illegal; junkscience; regulations

[MtnClimber]

Better late than never. The climate hoaxers need to be prosecuted if we want to prevent more hoaxes from proliferating.

[marktwain]

Milloy has been on the correct side of these issues for a long time.

He has done excellent work.

[fruser1]

They should bus in a bunch of immigration judges to the detention center.

Hopefully they have plenty of rubber stamps.

Alternatively, since the court doesn’t seem to recognize the scope of the problem, perhaps DOJ can copy and paste (differing only by name) 20 million requests for a Declaratory Judgement that each individual be deported without further due process that the deportation order.

Let the courts deal with that and maybe it’ll dawn on them what the Exec branch has to deal with and the rest of us have to pay for while we wait (handouts to illegals).

In fact, such a flood of requests may delay all the other suits the leftist lawyers have up their sleeves.

[George from New England]

Stop the financial attack and drain on freon. r22 is surcharged so as to force us into woke gasses. Gasses that are flammable. Bring back to r22.

[MtnClimber]

I think the judiciary, congress and executive departments should be defunded my the same amount spent on illegal immigrant services. That would add some speed to the processing.

[Amendment10]

Thank you for referencing that article MtnClimber.

"The regulation of greenhouse gas emissions from fossil fuel burning is axiomatically a “major question” and Congress never expressly gave EPA authority to regulate greenhouse gases."

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FR: Never Accept the Premise of Your Opponent’s Argument

While federal policing of the environment is arguably a good idea, both the Supremes and the Trump Administration, as a consequence of misguided, institutionally indoctrinated presidential advisors imo, seem to be overlooking that the states have never expressly constitutionally given the post-17th Amendment ratification, unconstitutionally big federal government the specific power to police the environment.

"From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added]." —United States v. Butler, 1936.