President Donald Trump on Feb. 12 announced the “biggest deregulatory move in history” — the Environmental Protection Agency rescission of the 2009 Obama administration EPA endangerment finding for greenhouse gases with respect to vehicles.
It is a great move to end the climate hoax, to spur American energy dominance, and to boost the economy and economic growth by trillions of dollars. But there’s much more to the game than just making the announcement.
Former President Barack Obama’s endangerment finding declared that emissions of greenhouse gases, including carbon dioxide and methane, threatened public health and welfare through mechanisms such as global warming, climate change, and extreme weather.
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Although Congress never ordered or authorized EPA to regulate emissions of greenhouse gases, radical green groups had schemed since the Clinton administration to bring about such regulation through litigation. This scheme succeeded and resulted in the 2007 Supreme Court decision in Massachusetts v. EPA, in which the court held that EPA could — not that it had to — regulate greenhouse gas emissions despite the absence of congressional authorization.
Though former President George W. Bush’s EPA opted not to regulate greenhouse gases, Obama’s EPA did, issuing the endangerment finding in December 2009.
The endangerment finding has since been used to underpin federal action, promote climate alarmism, and reduce emissions. The Obama EPA used the endangerment finding to launch its “war on coal” and to destroy 50% of the U.S. coal industry. In 2008, before Obama became president, coal was used to generate more than half of U.S. electricity. When Obama left office, that percentage had been cut in half. Virtually all the largest coal companies were forced to file for bankruptcy.
Red states and the coal industry sued in 2015, winning an injunction from the Supreme Court in early 2016, in the late Supreme Court Justice Antonin Scalia’s last decision before his unexpected death. Nevertheless, a final decision on the litigation didn’t occur until 2022 in West Virginia v. EPA, long after the coal industry had been wrecked. But that decision did serve as the basis for what Trump has just done by requiring that the EPA have the express authorization of Congress before embarking on major regulatory programs.
The only problem with West Virginia v. EPA is that it didn’t explicitly overturn Massachusetts v. EPA because the red-state litigants never specifically raised the issue, and the Supreme Court chose to rule as narrowly as possible.
So, here’s the problem: While the Trump EPA is now saying that the Obama endangerment finding is illegal under the holding in West Virginia v. EPA (i.e., no congressional authorization), Massachusetts v. EPA remains on the books as good law.
Simply rescinding the Obama decision, as the Trump EPA just did, is technically just a change in policy, not a change in the operative law. In the event that Democrats win the White House in 2028, you can bet they will reinstate the endangerment finding as soon as possible in 2029, citing Massachusetts v. EPA in doing so.
What needs to happen next is that the Trump EPA rescission of the endangerment finding must be taken up by the Supreme Court as soon as possible. The Court must rule that West Virginia v. EPA trumps Massachusetts v. EPA. This must be done before the 2028 elections or before the potential inauguration of a Democrat president in 2029. This way, if a Democrat president wants to regulate greenhouse gas emissions, they will need an act of Congress to do so. And that will be no easy task, even in the event of a Democrat-controlled Congress.
THE EPA’S ENDANGERMENT FINDING WAS ABOUT CONTROL, NOT THE ENVIRONMENT
Finally, the Trump EPA must now also rush to rescind the separate endangerment finding for greenhouse gas emissions, stationary sources such as power plants, refineries, industrial facilities, and oil and gas wells, so that they can also benefit from a reversal of Massachusetts v. EPA.
There is a lot to do. Time and competent lawyering by the Justice Department — too often a challenge, it seems — is of the essence.
Steve Milloy is a biostatistician and attorney. He posts on X at @JunkScience.