https://envmental.substack.com/p/game-on
Via: ENVIRONMENTAL
Excerpt:
Climate activists and Democrats better hope it never reaches this Supreme Court.
On August 1st, EPA Administrator Lee Zeldin formally kicked off the process to rescind the EPA’s 2009 Endangerment Finding. The EF is the 2009 Obama-era EPA determination that CO2 and greenhouse gases (GHGs) endanger public health and welfare and is the basis for all related U.S. CO2/GHG-related regulation of vehicles, power plants, and other industry.
Zeldin announced the formal Notice of Public Rulemaking (NPR) with a presser at a truck dealership in Indianapolis, Indiana three days earlier with U.S. Department of Energy (DOE) Secretary Chris Wright in tow.
Depending on one’s perspective, Zeldin’s proposal is either a desperate attempt to throw “discredited” science and legal arguments against the wall, or a surgical effort to exploit weaknesses in the original EF exposed by empirical observation, scientific developments, and key Supreme Court rulings in the fifteen years since.
What happens next, and how long is it likely to take? What are the scientific and legal justifications for EPA’s attempt to rescind the EF? And how does story end? Let’s lay out the plot of a drama with many chapters, whose conclusion several years from now could take out the pillar of U.S. “climate change” regulation.
We begin with the process itself, for which Zeldin’s NPR is only the official beginning. The 78-page NPR (link here) lays out EPA’s proposal and rationale to rescind the EF. The diagram below depicts the process the agency must follow when proposing to issue a new rule or rescind an old one like the EF, with estimates as to the duration of each:
Public hearings were completed via Zoom over four days last week. Various legacy media reported that the number of parties testifying against rescinding the EF outnumbered those supporting it by about ten to one. Much of that testimony repeats the same tired, worn, and hyperbolic computer-modeled misinformation fear-mongering Zeldin’s rescission effort goes after head on.
The public comment period is set for 51 days (August 1 to September 22, 2025), which aligns with standard Administrative Procedure Act requirements. While the period for high-profile rules can extend to 90 days if significant public interest or complexity warrants it, EPA has opted for a shorter period because (as explained below) timing is an essential part of the Trump administration’s strategy.
EPA has established a docket with a website for this process. Transcripts of the public hearings will eventually be posted.
The agency anticipates a high volume of public comments. EPA’s scientific and legal review along with the response to those comments may take a year or more, and they must be careful to be fully responsive to public comments or risk giving opponents an easy procedural win in the coming court battles. We estimate EPA’s final rule to rescind the EF will be issued in the last quarter of 2026 or early 2027.
The NPR lists EPA’s three justifications for the rescission. The first proposal is EPA’s primary rationale.
EPA Administrator Lee Zeldin has emphasized the agency’s case to rescind the EF is primarily grounded in the relevant statute – the Clean Air Act. Below we summarize each of EPA’s proposals (all bold emphasis added):
1. We propose that CAA section 202(a) does not authorize the EPA to prescribe emission standards to address global climate change concerns and, on that basis, propose to rescind the Administrator’s prior findings in 2009 that GHG emissions from new motor vehicles and engines contribute to air pollution which may endanger public health or welfare.
The NPR specifically states that this is EPA’s primary proposal. It consists of three interrelated arguments.
First, EPA argues that the CAA limits its authority under the relevant portions of the statute to air pollutants that endanger public health and welfare by local/regional exposure, and that the group of greenhouse gases chosen to address global concerns falls outside that standard. As the NPR notes:
Because the text, structure, and history of CAA section 202(a) and related provisions demonstrate that this language targets air pollution that threatens public health or welfare through local or regional exposure, “air pollution” defined as six “well-mixed” GHGs raising global climate change concerns that adversely impact a subset of regions globally cannot satisfy this standard.
This “best – and only permissible – reading of the statute” argument constitutes a new interpretation that “air pollutants” are only those substances producing direct, localized effects. It relies on three Supreme Court rulings rendered since the 2009 EF.
The first is the 2024 Loper Bright ruling that eliminated the long-standing doctrine (the “Chevron deference” doctrine) that required courts to defer to a federal agency’s reasonable interpretation of ambiguous statutes it administers. Where a statute is ambiguous or silent, Loper made the Courts the arbiter, not the agencies.
The second is Utility Air Regulatory Group (UARG) v. EPA in 2014, where the Court ruled that EPA’s 2010 “tailoring rule” overstepped its CAA authority by requiring permits for stationary sources based solely on their greenhouse gas emissions. There EPA attempted to change emissions thresholds explicit in the statute to tailor its way out of an administrative absurdity that would have captured millions of small emitters (e.g., buildings).
The third is West Virginia v. EPA, where in 2022 the Court ruled EPA exceeded its authority under the CAA when it implemented the Obama-era Clean Power Plan. There the Court invoked the “major questions doctrine,” finding that agencies must have clear congressional authorization for regulations with significant economic and political impact. It also held that EPA did not have the authority to use “generation shifting” (from coal-fired power generation ultimately to “renewables”) as a basis for setting emissions standards (as it also attempted to do with electric vehicles under the Biden administration).
The second component of EPA’s primary argument is that the relevant sections of the CAA require issuing emission standards together with the “cause or contribute” (to endangerment) findings, rather than severing the regulatory action into separate endangerment and standards-setting proceedings as was done for the EF. EPA no longer believes that the approach of taking six “well-mixed GHGs,” bundling them versus analyzing each individually, then regulating their global impacts without considering whether U.S. motor vehicle emissions were de minimis contributors and, as such, whether regulation would be effective is consistent with the statute or their authority under it.
The third component of EPA’s primary argument is that the agency failed to consider the cost or effectiveness of regulating GHG’s from motor vehicle emissions in the 2009 EF. Here it argues that the duty to regulate trigged by the finding obligated EPA to evaluate the cost, availability, and effectiveness of the “requisite technology.”
On one hand, some of the legal arguments or their components have been addressed by previous challenges to the Supreme Court’s 2007 Massachusetts v. EPA decision (which unleashed the Obama EPA to issue the 2009 EF), or in direct challenges to the EF since. On the other hand, the sum of these arguments has not been reviewed by the current Supreme Court, one that rendered two of the three rulings that underpin EPA’s primary rationale for rescinding the EF.
