The Republican campaign to stop the U.S. EPA from protecting the climate

In a stark juxtaposition, while nearly half of all Americans sweltered under a life-threatening extreme heat wave made several times more likely by climate change, the Environmental Protection Agency declared this week that it will roll back the agency’s 2009 determination that climate pollution endangers public health and welfare.

Known as the “endangerment finding,” this determination has been the basis of the EPA’s efforts over the past 15 years to regulate climate pollutants from vehicles, power plants, and other major sources.

“Today is the greatest day of deregulation our nation has seen,” said EPA Administrator Lee Zeldin, the head of the agency whose mission is to protect human health and the environment, using regulations as a primary tool. “We are driving a dagger straight into the heart of the climate change religion.”

It’s an audacious move that the EPA did not pursue in President Donald Trump’s first term, despite being led for several years by former coal lobbyist Andrew Wheeler. But the new Trump administration appears emboldened by Supreme Court decisions in the intervening years that may enable opponents of climate regulations to successfully roll back their legal basis.

This action is the latest in the Trump administration’s six-month onslaught against the climate that has included efforts to gut federal climate science research, bury federal climate reports, withdraw from the Paris Climate Agreement, claw back federal funding for clean energy, and repeal dozens of regulations designed to keep pollution out of Americans’ air and water.

“Trump’s EPA is trying every trick in the book to deny and avoid their mission to protect people and the environment from the ravages of unchecked climate pollution,” former EPA administrator and White House National Climate Advisor Gina McCarthy said in a statement. “Instead of doing their job, this EPA is putting the safety of our loved ones at risk while ratcheting up grid instability, energy bills, and disaster costs.”

What is the endangerment finding?

The endangerment finding came into being after a coalition of environmental groups and states led by the Massachusetts attorney general’s office sued the EPA under then-President George W. Bush.

The plaintiffs argued that the agency was legally obligated to regulate climate-warming greenhouse gas emissions as air pollutants that endanger public health or welfare. The case made its way to the Supreme Court, which in 2007 ruled in a slim 5-4 decision that “the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a ‘judgment’ that such emissions contribute to climate change.”

Notably, Chief Justice John Roberts dissented at the time, arguing that there was no traceable causal connection between the EPA’s refusal to enforce pollution standards and specific climate harms and that other countries like China are responsible for most climate pollution. (Meanwhile, China is crushing the U.S. in the race to adopt clean, climate-friendly technology.)

After President Barack Obama came into office, the EPA examined the body of scientific evidence and concluded in December 2009 that climate pollutants “threaten the public health and welfare of current and future generations.” The agency then finalized its first regulations on climate pollution from vehicles in 2010.

In the 2022 Inflation Reduction Act, Congress further codified EPA’s mandate by explicitly defining climate-warming greenhouse gases as air pollutants and amending the Clean Air Act to enable the EPA to further regulate climate pollution.

In the 15 years since the endangerment finding, the scientific evidence has only grown that climate pollution endangers public health and welfare in every corner of the country, as seas rise and wildfires, heat waves, droughts, and floods grow more frequent and extreme.

“The science of human-caused climate change has not only become increasingly solid over the past decade and a half, but the impacts have become visceral and pervasive,” said University of Pennsylvania climate scientist Michael Mann via email. “It takes a special sort of cognitive dissonance to deny, as the current administration is doing, that fossil fuel burning endangers us at a time when this is plain as day to the person on the street.”

But on Day One of his second term in office, Trump issued an executive order that directed EPA Administrator Zeldin to investigate the endangerment finding’s “legality and continuing applicability.”

Zeldin delivered the proposed rollback six months later.

The Trump EPA’s arguments for rolling back the basis of climate regulations

In order to justify a decision that seems to fly in the face of legal precedent and overwhelming scientific evidence, the EPA relies primarily on a two-part argument. First, it notes that historically, the EPA only applied the Clean Air Act to direct health impacts from local and regional pollution, whereas climate-warming greenhouse gas emissions have an indirect impact on public health and welfare. The new proposed rollback then reinterprets the law as only applying to these direct local and regional health impacts. In this way, it argues that the law does not permit the EPA to regulate climate-warming pollution.

Second, the administration points out that after the 2007 Massachusetts v. EPA Supreme Court decision, and after Trump appointed several conservative, regulation-hostile justices, the Supreme Court invented and began applying the “major questions doctrine.” Under this new doctrine, Congress must clearly and explicitly delegate to federal agencies the authority to address an issue of major political or economic significance. So the Trump EPA is now arguing that because Congress did not explicitly delegate to EPA the authority to regulate pollutants based on their indirect global impacts on public health, the agency cannot do so.

University of Oregon Environmental and Energy Law Professor Gred Dotson did not find these arguments persuasive.

“This local and regional language is not something you find in the Clean Air Act and conflicts with the Act’s purpose of protecting the public’s health and welfare,” Dotson said in an interview. “Additionally, it runs counter to numerous Supreme Court cases over the last 20 years.”

He has published research on Congress’s long history of supporting EPA climate-related regulations, including very recently in the Inflation Reduction Act, or IRA.

“The IRA really showed that Congress understood how the Clean Air Act was being used to address climate change and supported that approach, and they asked the EPA to do more. And if you look at this history dating back to the 1990s, you see a lot of Congressional engagement,” Dotson explained.

Read: Our elected officials have known about climate change for decades

But Dotson said the administration is hoping the Supreme Court will look favorably on its arguments.

“They’re trying to capitalize on the fact that the composition of the Supreme Court has changed,” he said.

Disputing consensus science

In a secondary justification for undermining the endangerment finding, the Trump EPA questions the accuracy of consensus climate science. The agency relies in part on a new draft ‘critical review’ report commissioned by the Department of Energy and written by five fringe scientists. It has not been peer-reviewed.

As Texas A&M climate scientist Andrew Dessler noted, “The authors of this report are widely recognized contrarians who don’t represent the mainstream scientific consensus. If almost any other group of scientists had been chosen, the report would have been dramatically different. The only way to get this report was to pick these authors.”

The administration did cite one mainstream climate science paper. But that paper’s lead author, Zeke Hausfather, a former Yale Climate Connections contributor, immediately said that the EPA had gotten his findings “completely backwards.”

“This is a general theme in the report,” Hausfather told E&E News, which fact checked some of the report’s many faulty scientific claims. “They cherry-pick data points that suit their narrative and exclude the vast majority of the scientific literature that does not.”

“Both the scientific certainty around climate change and evidence of the dangers it is causing have grown stronger since 2009,” he added.

What’s more, the administration relies on cherry-picked economic data in claiming that regulating climate pollution from tailpipes increases vehicle costs. This argument neglects the cost savings from reduced vehicle fueling bills and lessened climate damage. The Biden EPA estimated that its 2023 vehicle tailpipe rules would have generated about $1 trillion in net benefits over the next three decades.

What happens next?

The EPA’s proposed rollback of the endangerment finding is open to public comments until September 15, and the agency will hold virtual public hearings on August 19 and 20. After responding to the public comments, the EPA will finalize the rule.

Assuming the EPA moves ahead with the rollback, lawsuits will soon follow, and the case will gradually be appealed up to the Supreme Court. This whole process is expected to take several years. In the meantime, Trump’s EPA will likely proceed with unwinding dozens of federal regulations related to climate pollution that were supported by the endangerment finding.

There are three broad potential outcomes from an eventual Supreme Court decision.

First, the justices might rule that the EPA’s proposal violates the Clean Air Act and decades of Congressional support for EPA climate-related regulations. Such a decision would require the EPA to reissue a broad swath of climate pollutant regulations in the ensuing years.

Alternatively, the court could issue a relatively narrow decision in the EPA’s favor, ruling that one of its secondary justifications for questioning the endangerment finding is valid. This could mean that the EPA would have the discretion to decide whether to regulate climate pollutants – a decision that could potentially change with each new presidential election, creating long-term uncertainty for the regulated industries.

Or a majority of the court could decide that the EPA is correct in its interpretation that it does not have the authority to regulate climate pollutants under the Clean Air Act. This would mean that, unless Congress writes a new law or amends the Clean Air Act to even more explicitly grant the EPA the authority to regulate climate pollution, the EPA could no longer issue climate regulations. This would leave American climate policy almost exclusively in the hands of Congress.

The Trump administration had always planned to undo as many climate regulations as possible, as it did during his first term. Now the long-term fate of those rules likely hinges on a Supreme Court decision that may not come until near the end of Trump’s second term.