As discussed in my previous post, one of President Trump’s first-day Executive Orders — the one entitled “Unleashing American Energy” — directed a reconsideration of EPA’s so-called “Endangerment Finding” (EF) of 2009. The EF is the EPA regulatory action where it claimed to determine that CO2 and other “greenhouse gases” qualify as “pollutants” under the Clean Air Act because they are a “danger to public health and welfare.” President Trump’s January 20 EO directs that EPA, within 30 days, submit “recommendations to the Director of OMB on the legality and continuing applicability of the Administrator’s findings.”
Since the EF is the foundation underlying all the Biden-era regulations restricting and suppressing fossil fuels, you can be sure that any attempt to eliminate it will be met with a full-bore litigation attack from the forces of the crazy left. Can the EF really be rescinded in a way that will stand up to these attacks?
Absolutely, it can. Let me address a few of the issues.
Massachusetts v. EPA
This is the Supreme Court’s 2007 decision that held that EPA was required to make a determination as to the status of CO2 and other greenhouse gases as “pollutants” under the Clean Air Act. Here is a link to the Supreme Court’s opinion. Some commenters have suggested that Mass v. EPA must be reversed before the EF can be undone.
I disagree. I’m not saying that Mass v. EPA is a model of clarity, and there is some language in it that would suggest the opposite. However, I think that the language at the very end of Justice Stevens’s majority opinion is the holding:
We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPAís actions in the event that it makes such a finding. . . . We hold only that EPA must ground its reasons for action or inaction in the statute.
Thus Mass v. EPA did not determine that CO2 was a “pollutant” as defined in Section 202 of the Clean Air Act, but only directed EPA to determine whether it was or was not. Thus a new well-reasoned determination by EPA that CO2 and the other GHGs are not pollutants would not violate that case.
West Virginia v. EPA
The other important Supreme Court decision bearing on the EF is West Virginia v. EPA, the 2022 decision where the Supreme Court held that EPA’s Clean Power Plan was beyond its regulatory authority under the Clean Air Act. The basis for the Court’s decision was what it called the Major Questions Doctrine, by which it held that a “transformative expansion” of EPA’s regulatory power would require a clear direction from Congress, which had not been given.
In 2024, despite West Virginia v. EPA, and without any further clear direction from Congress, EPA went ahead and finalized two gigantic new regulations to restrict use of fossil fuels, one regarding power plants and the other regarding automobiles. They essentially decided to dare the Supreme Court to try to stop them (much like Biden with his repeated efforts to forgive student loans).
West Virginia v. EPA did not explicitly overrule Massachusetts v. EPA, but the two are fundamentally in tension. The big difference is that the Court that decided Massachusetts v. EPA has since been largely transformed in personnel. Of the nine justices on the Court in 2007, only three remain — Roberts, Thomas and Alito — and all of them dissented in Mass v. EPA. The five justices in the majority plus Scalia have been replaced by three conservatives (Gorsuch, Kavanaugh and Barrett) and three liberals.
On today’s Court, I think it highly likely that a majority will uphold a well-reasoned rescission of the EF, and will not think it necessary to overrule Mass v. EPA.
Substance of the rescinding determination
Three main points need to be made in an EPA regulatory action rescinding the EF: (1) Empirical evidence accumulated since the original EF invalidates the finding and makes it impossible to conclude that CO2 and other GHGs constitute a “danger” as required by the statute; (2) due to huge increases since 2009 in CO2 and other GHG emissions outside the U.S. and thus outside the ability of EPA to regulate, no regulations promulgated by EPA could have any meaningful impact on the overall atmospheric concentrations of the gases, and (3) efforts by EPA to control the climate by restricting CO2 and other GHGs, by contrast, would almost certainly have drastic adverse effects on public health and welfare by, for example, destabilizing the electrical grid and causing blackouts, driving up the cost of electricity or mobility, bringing about massive battery fires and explosions, and lots of other such things.
Only the first of these three points deals with the “science” of whether GHGs do or do not cause any significant global warming. Most important is that this argument needs to be written carefully to not take on more than needs to be taken on. To rescind the EF, EPA does not need to contend that GHGs will not or cannot cause any global warming. Rather, they can put the burden of proof on the other side to show that GHGs emitted under EPA’s regulatory jurisdiction will inevitably cause dangerous warming. EPA need only conclude that there is no sufficient proof of that.
Framed in that way, this is not a complicated or difficult task. There are hundreds of scientific papers in the peer reviewed literature since 2009 accumulating empirical evidence that the dangers predicted 15 years ago have not happened. For example:
- There have been no upward trends in hurricanes, droughts, floods, tornadoes, wild fires, or other dangerous weather events.
- Sea level has not risen beyond the slow rate of rise over the prior century.
- Sea ice has not declined as predicted. The Greenland and Antarctic ice sheets have not meaningfully changed.
EPA can just create lists of dozens or hundreds of such scientific papers, and perhaps add a quote of a line or two from the abstract for each.
Points (2) and (3) are actually more important to the rescission than the point about the science of atmospheric warming. Trying to replace the fossil fuel energy system with something untried and untested actually does pose many real and immediate dangers — far more real, immediate, and dangerous than anything that might result from a hypothetical warming of a degree or two a hundred years from now. California is only up to about 30-40% of its electricity from wind and solar, and yet has suffered multiple instances of rolling blackouts. The extent of these blackouts has been relatively small only because California has the ability to import fossil-fuel-generated power from neighboring states like Arizona and Nevada. If EPA eliminates that safety valve by banning fossil fuel power plants in all the states, the blackouts will become lengthy and catastrophic. Similarly, batteries are proposed as the backup for intermittency of wind and solar generation. California and New York have both begun building massive battery farms to serve this role, although neither state has yet reached nearly 1% of the battery capacity they would need to back up a predominantly wind/solar generation system. But even with that small amount of batteries, both have suffered massive and explosive fires at their battery facilities. California had such a fire just last week at the facility known as Moss Landing in Monterey County. This was the fourth large fire at the Moss Landing facility over the past few years.
I actually have a high degree of confidence that a reconsideration of the EF will be successful. Likely, that will sweep away all of the restrictions on fossil fuels that have been put in place via regulation during the Biden years. One more thing: Once CO2 and GHGs are declared to no longer by “pollutants,” all of the billions of dollars of government grants under the Inflation Reduction Act to “reduce GHG pollution” can be suspended and never spent.
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The major problem with not overruling Massachusetts v EPA is that a hypothetical Democrat green could just change any administrative decision by EPA back to the Endangerment Finding, despite any evidence. The original evidence was very weak anyway, but the greens ruled GHGs are an danger despite that fact.
You’re right The best outcome, from a judicial perspective, is to simply declare that the 1990 Clean Air Act Amendments simply do not address climate regulation, and were never intended by Congress to do so, or it would have said so in the law, which it does not.
It would also behoove Congress to amend the 1990 Clean Air Act Amendments to explicitly exclude regulation of carbon or any regulation of the climate. That would make it impossible for a future SCOTUS to overturn whatever the present SCOTUS rules.
Of course, a Dem Congress and President could always write a new law to regulate climate, in which case the political system would have to correct that by throwing them out of office.
Ultimately, it is the People who rule in the USA. The People just did that. And the thing is, I certainly believe there is no appetite by the People to strangle ourselves in the name of climate change, and eventually even the stupid Dems will come to realize that is not a smart political ideology. They certainly got taught a lesson in November.
No controversial law will be passed until at least 2027. The only thing that can be achieved by Congress in the next two years is a budget reconciliation that cuts spending on certain things. Bills that cannot conform to the reconciliation process will be blocked 100% by Senate Democrats. Clarifying the Clean Air Act cannot be construed as a budget reconciliation so it will be filibustered.
We need to set realistic expectations and work toward a Senate supermajority if we hope to make long-term sustainable change.
The next two years can do a lot through executive action as we have already seen. But if it is not all to be for nought, we must expand control of the House, and win big in the Senate in 2026. Or at least have JD Vance win the Presidency in 2028.
Dems cannot block anything if Republicans reform the filibuster rule. Historically the filibuster did not require 60 votes to surpass and enact legislation. It only facilitated extended debate, but once debate was concluded a simple majority vote ruled. That is what the Senate must restore. It is just a Senate rule that can be changed at any time by majority vote. It is not a Constitutional requirement and is indeed anti-democratic.
Repealing the current filibuster rule is a land mine and why it hasn’t been done yet. If one party repeals the rule then you better believe when the other party next gets into power they will push more through then the previous party. The escalation will continue every time the senate flips.
IO suspect there are more than a few people who would smirk at your idea that
“it is the People who rule in the USA”.
We just witnessed the proof.
Elections matter.
“
MassachusettsWokeachusetts v. EPA”Fixed it.
Well reasoned.
There is another point, related to the major questions doctrine and WV v EPA. At the time the CAA passed, there so no question that acid rain caused by SO2 from burning coal was a pollutant. The UNFCC did not exist; there was no thought anywhere that CO2 was a pollutant. In fact, at the time the provable climate concern was the coming of another ice age.
The ultimate permanent fix is to legislatively amend the CAA definition of a pollutant. If the 2026 election breaks favorable for Trump based on the next two years, that might be possible. So far, looking good.
Rud – agreed. It was always the basis of the clean air act to remove harmful pollutants from the air. It was never the basis of the clean air act to regulate climate which consists of far more than the air, inasmuch as climate involves many more considerations such as solar input, ocean currents, prevailing winds, water vapor – which vastly outweighs carbon in its effects on atmospheric temperatures – and the natural buffers contained in our oceans and biota and geology of the planet. There is no single “temperature control knob” for the climate, and climate is about far more than temperature anyway.
The CAA as an instrument to regulate climate is entirely inappropriate and totally ineffective.
Congress and Trump can amend the 1990 CAA now, if they choose to reform the filibuster rule as they need to do anyway. It is undemocratic to allow a minority to dictate to the majority. It is only necessary under our Constitution that the rights of the minority not be infringed upon … not that they get to control.
The filibuster rule is easily reformed to make it fit the historical use of the rule from back in the 19th century, which was to facilitate extended debate in the upper chamber, our Senate, to moderate the presumed excesses of the lower chamber, the House. So revise the rule to state that any legislation that does not obtain 60 votes in an initial motion must have debate extended for some period of time to allow due consideration … then a simple majority thereafter determines the outcome.
There is absolutely nothing wrong with that approach, and as I stated that used to be the filibuster rule in times past.
It doesn’t matter what I think about this, so I won’t get too far into the argument against neutering the filibuster. The reality is that there isn’t going to be a majority of Senators to agree with you. Zero Democrats obviously and I suspect zero RINOs. Even quite a few conservatives understand that the filibuster is the only thing between us and the next Democrat control of government implementing hard left socialism and ‘the most sophisticated voter fraud system in our history’.
Yes, the apparatus was purposefully set up to make it difficult to implement and easy to stop government action. For the most part, the optimum solution when the government is involved is to do nothing.
Unfortunately, the bureaucratic state has bypassed this and written “Rules” that have the power of law with abandon. That is what needs to be reigned in.
Yes, I always laugh when I point out to people that Genocide Joe had the most votes ever for a President.
Votes, but not necessarily voters. How he got 23% more votes than Obama is a mystery (not really). Then Harris got 7.8% fewer votes than Biden. Meanwhile, Trump’s vote totals were up in each election.
He had the most votes counted. Whether he had the most votes cast is still being debated.
How did the Inflation Reduction Act of 2021 get past a filibuster? All 50 GOP senators voted against it; 48 Dem Senators voted for it as well as 2 “Independents”. The VP (Harris) cast the deciding vote, but she has no voice in shutting down a filibuster.
It was a budget reconciliation bill. Only required a simple majority at a time where the Dems had control of the House, Senate, and White House.
In a similar way a budget reconciliation can cut the spending. But a question like whether CO2 may be treated as a pollutant or whether it should be limited whether or not being deemed a pollutant is not a question of how
much government spending. So it is subject to filibuster (unlimited debate).
Same thing applies with the Outer Continental Shelf restrictions that Dementia Joe’s puppeteers implemented.
It can be tacked onto a budget bill like all the junk that gets tacked on each year.
Yes, it could be, but such a bill is still subject to filibuster. To get Dems to accept such a deal, you know that they would have to be given something far worse.
Correct. The Senate Parliamentarian – essentially the referee for rules compliance – must rule that a bill or part of a bill is germane to the budget process in order to qualify for reconciliation and thus bypass the filibuster. Again, this is a Senate rule that can be changed at any time by simple majority vote of the Senate. It is not in the Constitution. The Constitution provides that each house of Congress may enact its own rules.
All Dems want to kill the filibuster as soon as they are in the majority again. Schumer publicly promised to do exactly that starting this year if they had retained the majority. The Senate filibuster is a dead man walking. One party or the other is going to pull the trigger, sooner or later.
McConnell is a staunch advocate of the filibuster but he is no longer the Majority Leader. Trump called for elimination of the filibuster during his first term when Pubs had the majority in both houses of Congress as they do again now. If Pubs want to really reform our government reforming the filibuster is the only way that can happen.
If we lose the filibuster then in the long run all is lost. All the Dems have to do is pack the Supreme Court and pass amnesty and open borders to turn the rest of the US into California. It’s irreversible once they replace the electorate and have a rubber stamp supreme court. No matter what we do by killing the filibuster, as soon as they get control, the republic is over.
You’re probably right and so we’re probably screwed.
“There never was a democracy yet that did not commit suicide.”
-John Adams
And allow Washington D.C. &/or Puerto Rico to become state(s) with 2 certain Democratic senators each.
Duane
Agreed that regulating “GHG’s” would have to include regulating irrigation by spraying because water vapour is a powerful GHG. The Agriculture Department would get to have a say for sure, if this was taken seriously.
I think there are two more factors that should be included in efforts to reverse the EF. First, in Trump’s first term he tried to eliminate the use of “secret science” to support regulatory action. That is the referencing the conclusions of research studies while keeping the data and methods secret. That, of course, made impossible for opponents of regulatory rules to determine the validity of the study conclusions. EPA should be required to fully disclose all scientific studies and data they claimed supported their finding.
The second factor is SCOTUS over turning “Chevron Deference” which required accepting the agencies interpretation of evidence even when overwhelming evidence contradicted their position.
The use of secret science and Chevron D gave EPA the power to simply ignore all comments and arguments presented by opponents of proposed rules. It is this power that allowed EPA and other regulators to attack and destroy entire industries with impunity.
My understanding of the “secret science” issue is that there have been several EO, starting in the Carter administration, and several legislative fixes, to require EPA to adhere to t he law and provide all the information for review but EPA still refuses.
Biden reversed Trump’s Secret Science EO. Presumably Trump will reinstate his previous order.
Why not declare water as a pollutant in the same way CO2 is to show how ridiculous the EF is.
Very good. I’m sure the alarmosphere will cling like limpets to the projections of their multi-billion dollar, radiative-centric, climate models. But as Menton says in his first point, what matters here is providing evidence of harm – and they don’t have any.
“…. what matters here is providing evidence of harm – and they don’t have any.“
__________________________________________________________________
No, but they’re going to bring up he Fourth National Climate Assessment and the IPCC reports plus a host of PhDs that will claim a whole litany of gloom and doom.
Sort of like the final courtroom scene in ‘Miracle on 34th Street’ where the lawyer for Kris Kringle uses the bags of children’s letters to Santa held by the Post Office (‘an official branch of the US government’) as ‘proof’ of Santa’s existence?
Yes, the theoretical projections of “harmful” warming have been shown to be numerically unreliable. I know there are opposing opinions about this, but Pat Frank’s 2019 “Propagation of Error and the Reliability of Global Air Temperature Projections” does the job formally.
https://www.frontiersin.org/journals/earth-science/articles/10.3389/feart.2019.00223/full
It’s not only about the wide uncertainty envelope that he generates. It is about the successful emulation of GCM air temperature projections by simplified computation from the “forcings.” This illustrates plainly how the “forcing” + “feedback” framing of the issue for investigation of modeled emission scenarios initiated a circular exercise. The models are tuned for “pre-industrial” stability, then the specified “forcings” are applied. It boggles the mind that it is all so openly designed to get the desired result.
I would second the importance of Pat Frank’s paper in demonstrating that the projections of the GCMs are meaningless given that the radiative effects of the input CO2 forcings are significantly less than those of the well-known and demonstrable errors in the models’ cloud fraction outputs.
Notwithstanding the above, I would love to see one of the SCOTUS justices hold up one of the many CMIP spaghetti graphs while asking the lawyer for the alarmosphere to point out to the Court which one of the disparate ‘projections’ is correct.
“1) Empirical evidence accumulated since the original EF invalidates the finding and makes it impossible to conclude that CO2 and other GHGs constitute a “danger” as required by the statute” (dd emphasis)
Done. (Read the description text for the full explanation. I will post it in a reply also)
https://youtu.be/hDurP-4gVrY
This time lapse video of plots of the ERA5 “vertical integral of energy conversion” shows that the static radiative “warming” effect of incremental concentrations of any of the radiatively active gases such as CO2, CH4, N2O cannot be isolated for reliable attribution of an observed warming result. No danger can possibly arise from the negligible effect within the observed dynamics of the atmosphere, as characterized by the computed outputs of the ERA5 reanalysis model. The model is driven by pressure, velocity, temperature, and humidity values obtained from radiosondes and other officially designated sources, along with satellite observations of cloudiness and winds.
There are other approaches that would work too, but to me this one meets the criteria directly.
The full explanation from the description of the short video.
*****************
Are CO2 emissions a risk to the climate? No. The static “warming” effect of incremental CO2 (~4 W/m^2 for 2XCO2) disappears as kinetic energy (wind) is converted to/from internal energy (including temperature) + potential energy (altitude).
This time lapse video shows the daily minimum, median, and maximum values of the computed “vertical integral of energy conversion” hourly parameter from the ERA5 reanalysis for 2022. Values for each 1/4 degree longitude gridpoint at 45N latitude are given. The vertical scale is from -10,000 to +10,000 W/m^2. The minor incremental radiative absorbing power of non-condensing GHGs such as CO2, CH4, and N2O vanishes on the vertical scale as the rapidly changing energy conversion in both directions is tens to thousands of times greater.
So what? The assumed GHG “forcings” cannot be isolated for reliable attribution of reported surface warming. And with all the circulation and energy conversion throughout the depth of the troposphere, heat energy need not be expected to accumulate on land and in the oceans to harmful effect from incremental non-condensing GHGs. The GHGs add no energy to the land + ocean + atmosphere system. Therefore the radiative properties of CO2, CH4, and N2O, and other molecules of similar nature, should not be assumed to produce a perturbing climate “forcing.” The concept of energy conversion helps us understand the self-regulating delivery of energy to high altitude for just enough longwave radiation to be emitted to space.
References:
The ERA5 reanalysis model is a product of ECMWF, the European Centre for Medium-Range Weather Forecasts. The computed parameters “vertical integral of potential + internal energy” and “vertical integral of energy conversion” are described at these links.
https://codes.ecmwf.int/grib/param-db/?id=162061
https://codes.ecmwf.int/grib/param-db/?id=162064
Further comment:
This is for just one latitude band at 45N. Similar results were observed for 45S, 10N/S, 23.5N/S, and 66N/S.
More Background:
From Edward N. Lorenz (1960) “Energy and Numerical Weather Prediction”
https://doi.org/10.3402/tellusa.v12i4.9420
“2. Energy, available potential energy, and
gross static stability
Of the various forms of energy present in
the atmosphere, kinetic energy has often
received the most attention. Often the total
kinetic energy of a weather system is regarded
as a measure of its intensity. The only other
forms of atmospheric energy which appear
to play a major role in the kinetic energy
budget of the troposphere and lower stratosphere
are potential energy, internal energy, and the
latent energy of water vapor. Potential and
internal energy may be transformed directly
into kinetic energy, while latent energy may
be transformed directly into internal energy,
which is then transformed into kinetic energy.
It is easily shown by means of the hydrostatic
approximation that the changes of the
potential energy P and the internal energy l of
the whole atmosphere are approximately proportional,
so that it is convenient to regard
potential and internal energy as constituting
a single form of energy. This form has been
called total potential energy by Margules (1903).
…
In the long run, there must be a net depletion
of kinetic energy by dissipative processes. It
follows that there must be an equal net
generation of kinetic energy by reversible
adiabatic processes; this generation must occur
at the expense of total potential energy. It
follows in turn that there must be an equal net
generation of total potential energy by heating
of all kinds. These three steps comprise the
basic energy cycle of the atmosphere. The
rate at which these steps proceed is a fundamental
characteristic of the general circulation.”
I think Mass v EPA did find that CO2 was a pollutant under the CAA as changing climate was added as a sufficient condition in 1990. But being a pollutant was not sufficient to trigger regulation as that required an EV. Rescinding the EV is the issue not whether CO2 is a pollutant as it’s being deemed such triggers no action by EPA.
note too that EPA did no science in drawing its EV conclusion. It just cited the IPCC which we argued was insufficient. The Court disagreed. That opens another angle of attsck
Sorry that is obviously EF not EV. Too many E’s.
I just checked the CAA amendments of 1990. Per the EPA itself (which has a dedicated CAA amendments page), the amendments did not address changing climate per se. So no way to argue the amendments implicitly enabled an CO2 endangerment finding despite Hansen to Congress July 1988.
Added ozone depletion per Montreal Protocol. All else was to make the original intent easier to administer. Examples include lower sulfur diesel, accidental release of toxics, reformulated fuels (MBTE instead of tetraethyl lead).
Well as I recall climate change is in one of the three definitions of pollutant. I assumed it came in 1990 because it is hard to see it predating that.
I won a bet with Fred Palmer at the time. When I found climate change in one definition I bet they would rule CO2 a pollutant. Hard not to.
David makes a crucial point here. The EPA failed to do its own scientific analysis in reaching an endangerment finding; it relied totally on the IPCC and its conclusions. The EF should be rejected on that ground alone. Fortunately, as Francis Menton points out, the studies establishing the lack of any endangerment from GHGs are legion, so if an honest assessment is made, the EF would have to fall.
It also is worth emphasizing Mr. Menton’s point that getting rid of the EF does not require showing that CO2 and methane do not contribute to the greenhouse effect. Whatever one’s thoughts on that issue, it is a dangerous distraction from the more important, and more easily established, conclusion that GHGs simply aren’t dangerous.
‘Whatever one’s thoughts on that issue, it is a dangerous distraction from the more important, and more easily established, conclusion that GHGs simply aren’t dangerous.’
Correct, there’s absolutely no obligation on the part of those opposed to the EF to provide a better theory, or any theory at all for that matter, on how energy moves about within the Earth’s atmosphere.
Hi David.
I’ve read the SCOTUS ruling sufficiently to know that SCOTUS did not find that CO2 was a pollutant e.g. the Mass v EPA ruling did not say it is. SCOTUS only ruled that EPA had the ‘right’ to issue an EO and went about it the ‘right’ way. They explicitly refused to rule on the science directly holding only that it had to be ‘rational’, this is apparently a long standing precedent (behaviour?) of SCOTUS whereby they recognize they do not have the scientific expertise to rule whether the scientific basis for a claim is ‘true/accurate/correct’.
To that extent I would argue someone should sue the EPA again and ask the court to rule on the ‘rationality’. The evidence to present would be directed at the question “Is it rational to ignore the scientific evidence of the IPCC report in favor of using only the conclusions of the Summary for Policymakers (or whatever the summary is called)”.
At least from what I’ve read on WUWT from many ‘established’ scientists (Dr. Spencer and the like) and others the science section finds ‘low confidence’ in detection of any ‘bad things’ (TM) happening (ex. no increase in hurricane intensity or frequency). So in other words is it rational to claim ‘CO2 is a pollutant that causes bad things to happen but we have no evidence of bad things happening’.
And if that’s not enough I’d present evidence to answer the question “Is it rational to believe that a minor increase in a trace gas whose impact is entirely undetectable can have outsized negative impacts?” e.g. is it rational to believe that a maximum effect of 3% on IR absorption when CO2 is raised from 320ppm to 400ppm is a driver of climate when we can’t even measure the impact of Cloud’s to better than +/- 10%?
There are other even better arguments perhaps, e.g. “Is it rational to claim that CO2 is a pollutant when its absolutely necessary for life on the planet. That plants and thus life grows better with more CO2 not less. That humans and life itself would not exist without CO2″.
To put that in ‘human’ terms for SCOTUS. Is it rational to believe your wife/husband is having an affair just because you don’t know where she/he is 1 day out of the month but ignore that you have no clue what she is doing another 3 days of the month?”
Far be it from me to suggest this would really work, but SCOTUS has paved the road, someone with far better legal skills than me should at least try to attack this rationality argument head on. Its simply entirely irrational to claim a minor increase in CO2 is going to have huge negative impacts on life especially when the benefits are obvious and its far more rational to believe it has no measurable impact.
Fine … but a better outcome is for SCOTUS to entirely reject the notion of EPA having any authority whatsoever to regulate climate. Making the endangerment finding moot. The court needs merely to apply its recent overturning of the Chevron doctrine, as well as the “major decisions” doctrine to find that the 1990 Clean Air Act Amendments did NOT engage whatsoever in “climate regulation”, but merely pollutant regulation. Unless Congress declares that carbon is a pollutant – a patently ridiculous and preposterous concluding – then EPA has no authority to do anything for the purpose of regulating climate.
The fact that non condensing CO2 is in the atmosphere naturally and radiates energy to space preventing any global thermal runaway from occurring should be enough to eliminate any endangerment finding.
Unless you are convinced that polar bears are drowning. Then we must legislate for them as they cannot do it for themselves.
An excellent piece. My only disagreement is with this:
Once CO2 and GHGs are declared to no longer by “pollutants,” all of the billions of dollars of government grants under the Inflation Reduction Act to “reduce GHG pollution” can be suspended and never spent.
CO2 is not a “pollutant” in any sense of the word. It is a naturally occurring substance that is the basis of life on earth.
On the other hand, chlorofluorocarbon, C-Cl2-F2, is a man-made substance that is a pollutant.
So I’d be careful in drafting the pleading to distinguish them.
w.
By what evidence are chlorofluorocarbon, C-Cl2-F2 “pollutants”?
Independent of any legal arguments over the EPA endangerment finding, the climate models are fraudulent and in legal terms, climate model results are hearsay evidence that should not be allowed in court.
The fraud started with the claim by Manabe and Wetherald (M&W) in 1967 that a doubling of the atmospheric CO2 concentration from 300 to 600 ppm would produce an increase in the ‘equilibrium’ surface temperature of 2.9 °C. This is a mathematical artifact created by the simplistic climate energy transfer assumptions made in the one dimensional radiative convective (1-D RC) model. The same artifact was incorporated into every unit cell of the ‘highly simplified’ global circulation model (GCM) described by M&W in 1975. Additional errors related to a ‘slab’ ocean were introduced by Manabe and Stouffer in 1979.
The 1967 M&W model was copied by the NASA Goddard group in 1976 and used to create warming for 10 ‘minor species’ including methane and nitrous oxide [Wang et al, 1976]. Later, in 1981 Hansen et al added a slab ocean to their model and ‘tuned’ it to match a global mean temperature record. They used a combination of increasing atmospheric CO2 concentration and changes in both the solar energy and volcanic aerosols to adjust the model warming artifacts so that they resembled the temperature record. This provided the foundation for the pseudoscience of radiative forcings, feedbacks and climate sensitivity still used by the climate models today. The warming artifacts created by these early climate models became such a lucrative source of research funding that the climate model errors have never been corrected.
The UN Intergovernmental Panel on Climate Change (IPCC) was established in 1988 to address only human induced climate change. The US deep state version of the IPCC, the US Global Change Research Program (USGCRP) was established in 1990 to address both human and natural climate change. Instead, it has copied the IPCC and only considered human caused (anthropogenic) change. The climate modeling fraud is clearly demonstrated in Figures 1.5, 3.1, 3.2 and 3.3 of the Fifth National Climate Assessment Report (NCA5) published by the USGCRP in 2023. Figure 1.5 shows a global mean temperature record that has nothing to do with CO2 induced climate change. Figure 3.1 claims that the observed increase in the meaningless global mean temperature record is caused by radiative forcings. Figure 3.2 shows the various feedbacks used to manipulate the radiative forcings and Figure 3.3 shows the equilibrium climate sensitivity (ECS) created by the climate models from the 1979 Charney Report through all six of the IPCC Climate Assessment Reports.
NCA5 is a pack of lies that was largely copied from the Sixth IPCC Climate Assessment Report. The fraud in NCA5 can be traced back to the 1967 paper by Mabe and Wetherald. Congress should reject NCA5 and initiate a detailed investigation into multiple failures of oversight that started before the USGCRP was even established.
The climate modeling fraud is considered in more detail in ‘A Nobel Prize for Climate Modeling Errors’. The reasons for rejecting NCA5 are discussed in the Tom Nelson podcast # 271. The invalid use of the global mean temperature record as a measure of climate change is addressed in the Researchgate preprint ‘A Proposed Definition of Climate and Climate Change for IEEE PP2030 and Related Standards’
Figure: Conclusions slide from the Tom Nelson podcast.
Great comment, and great video, Roy. ! 🙂
Climate models are junk science from the ground up… literally
Surface data is also junk from the ground up, fabricated from totally unfit-for-purpose urban tainted surface sites, and manic agenda-driven “adjustments”
If the Congress wants the EPA to have the authority to regulate CO2, they should pass a law.
California is only up to about 30-40% of its electricity from wind and solar, and yet has suffered multiple instances of rolling blackouts. The extent of these blackouts has been relatively small only because California has the ability to import fossil-fuel-generated power from neighboring states like Arizona and Nevada.
I don’t know the number of such, nor the total capacity, but California has quietly built multiple medium capacity diesel power plants around the state for emergency backup.
So, the edit facility has been removed again?
deleted
Charles
A very long update was added to this article after you posted it. I had complained that the original article was poor because it ignored the Inflation Reduction Act that replaced the Endangerment Finding. Mr. FM then added a long update on the IRA which I also did not agree with, but at least the right subject was being discussed.
This was my response to the update:
I just read what you added to the article and I admire your optimism. And especially your closing argument:
… “but the odds of your sneaky gambit succeeding in saving the EF are slim to none.”
No one likes a sneaky gambit, dirty trick or a risky scheme.
The idea that one retired lawyer in Manhattan found a huge error in the carefully designed IRA, so it could be reversed in court, without a majority vote in both houses of Congress, strikes me as very hard to believe.
If Republicans operated as a team, like the Democrat Borg do, the IRA would be reversed easily. But the IRA authorizes a lot of spending and some Republicans want that federal spending for their districts or states more than they care about the anti-science demonization of CO2.
The IRA is anti-greenhouse gases. There is no doubt about that. CO2 is the primary greenhouse gas of manmade global warming. Therefore the IRA is anti-CO2
Methane (CH4) may be the weakest greenhouse gas in the presence of water vapor as their absorption frequencies overlap and methane is only 1,937 parts per billion.
Is it possible to control greenhouse gases while ignoring CO2?
NO
Can CO2 be controlled indirectly through the control of CH4?
YES
CH4 emissions do come from fossil fuel operations like oil and gas extraction. According to current estimates, the oil and gas industry is responsible for roughly 25% of global anthropogenic methane (CH4) emissions, with a significant portion coming from venting, leakage, and flaring during production processes.
Can CO2 be controlled indirectly through the control of N2O (nitrous oxide)?
YES, somewhat
According to current research, only a small percentage of nitrous oxide (N2O) emissions, estimated to be around 10-20%, can be attributed directly to fossil fuel burning, with the majority of N2O emissions coming from agricultural practices like fertilizer use and livestock manure management.
Can CO2 be controlled indirectly through the control of HFCs (hydrofluorocarbons)?
NO
Hydrofluorocarbons (HFCs) come from equipment that uses them as refrigerants, in air conditioning, and in other applications. They are also used in foams, aerosols, and fire protection.
Some IRA commets by Beta Blocker from a previous Endangerment Finding post at the Manhattan Contrarian:
Honest Climate Science and Energy: Trump executive order versus the Biden 2022 Inflation Reductio Act
My personal opinion is the IRA is a waste of f money and calling CO2 a pollutant is as stupid as calling water a pollutant. But I do not want Trump to act like a dictator, impound the IRA funds, and arbitrarily cancel a law passed by Congress because he does not like it. That would be worse than the IRA law itself
Let us know when Trump actually violates the U.S. Constitution.
So far, it’s all pure speculation. Like Alarmist Climate Science.
Very nice Francis.
One can only hop that the finding is not overturned and NY/CA suffer the consequences.
It’s the only way
Sorry, I’m too old to hop.
Unfortunately, Democrats shoved a massive bureaucracy down our throats in the grotesquely-named “Inflation Reduction Act of 2022” (which increased inflation, which everyone who voted for it knew it would). For example, $300 million for a “program to quantify carbon sequestration and carbon dioxide, methane, and nitrous oxide emissions.” That’s just one of the small ones.
In the Act:
The term `greenhouse gas’ means the air pollutants carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.
The Wikipedia entry on the Clean Air Act erroneously states:
The EPA’s authority to regulate carbon dioxide emissions was questioned by the court in West Virginia v. EPA (2022) but restored by Congress with the Inflation Reduction Act of 2022, which clarified that carbon dioxide is one of the pollutants covered by the Clean Air Act.
In fact IRA 2022 does not clarify “that carbon dioxide is one of the pollutants covered by the Clean Air Act.” Nor does it grant the Executive Branch authority (usually wielded by the EPA) to regulate carbon dioxide, methane, or any other “greenhouse gases.” It simply enables billions and billions of dollars of federal grants, loans, tax credits, and subsidies for companies that want to claim federal money based on their reduction of greenhouse gas emissions.
It also attempts to implement a Waste Emissions Charge in SEC. 60112 “pursuant to
subpart W of part 98 of title 40, Code of Federal Regulations” to impose a monetary penalty on an “applicable facility” (natural gas well, etc.). If you look up title 40 part 98 subpart W, you’ll find that the EPA enacted this with no authority from Congress granted to regulate methane (CH4) emissions. They just assumed they could, because the Clean Air Act. So IRA 2022 carries forward assumed authority that they don’t have. That’s how government bureaucracies operate. They take the little authority they’re granted, grow like a cancer, assume greater authority, and slowly strangle the life out of the citizens and the economy.
Three solutions:
Trump gets rid of the EPA and names a new agency to replace it to execute the laws in the Clean Air Act and Clean Water Act and their amendments, and no other rules and regulations that were not expressly enacted by Congress. That immediately gets rid of all the people who contributed to this demonic hydra and reverts back to its original mandate. He can hire back any who show a disposition to stick to the authority that Congress grants and no more. I suspect it won’t be a lot of the current staff.Congress repeals the Inflation Reduction Act of 2022 and cancels distribution of funds that have not already been distributed. Money saved.Congress amends the Clean Air Act to explicitly state that the federal government can only regulate the “criteria pollutants” named in the original 1977 Act, and no others. Those criteria pollutants are: ozone (O3), particulate matter (PM), carbon monoxide (CO), sulfur dioxide (SO2), nitrogen dioxide (NO2), and lead (Pb). That’s it.If Congress wants to regulate other atmospheric emissions in the future, they can do that if they have the votes for it, but no Executive Branch agency should be delegated authority to expand beyond what Congress authorized. In fact, the Constitution expressly forbids it in Section I:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
All legislative power, not “some” legislative power, is vested in Congress.
Francis, the full text of the 2022 IRA is available as a pdf here: https://www.congress.gov/117/plaws/publ169/PLAW-117publ169.pdf
Regardless of what you might think of them, the authors of the 2022 IRA are true experts in the theory and practice of high-stakes environmental lawfare.
As one example, fighting the EPA’s continued use of CAA Section 111 to regulate carbon emissions from power plants is a key future battle. How the EPA is now using CAA Section 111 against the nation’s power plants is a prominent example of anti-carbon lawfare strategic thinking at its most effective.
By imposing a technical solution on power plants which the EPA knows won’t work — carbon capture and storage mandated by rules authorized and published under CAA Section 111 — power utilities must either litigate, make some attempt to comply, or else shut down their plants in favor of wind & solar. The IRA supplies powerful financial incentives which ease the pathway to a shut down decision.
Suppose the 2009 Endangerment Finding is in fact rescinded at some point in the future. Suppose as well the Trump administration attempts to abandon the use of CAA Section 111 against the nation’s power plants.
In the absence of an endangerment finding, enviromental litigants will defend the continued use of CAA Section 111 by making these two basic arguments:
(1) In addition to promoting renewable energy, the IRA-amended Clean Air Act explicitly designates carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride as air pollutants — a.k.a. “greenhouse gases” — and it unambiguously provides the EPA congressional authorization to regulate carbon dioxide and other greenhouse gases,
(2) The Congress has backed up its decision to reduce ‘greenhouse gases’ (as defined in the Act) not only by directly labeling them as pollutants, but also by giving the EPA funding to pursue its greenhouse gas reduction initiatives using methods and means chosen at the EPA’s own discretion. That funding is authorized to continue into the year 2031.
Once again, I am saying that these are the two basic arguments that environmental litigants will be presenting; and further, that these arguments are likely to prevail in court.
What it boils down to is this: The IRA’s wording clearly gives the EPA authority to regulate carbon dioxide as a pollutant. The funding given to the EPA for this purpose further demonstates the clear intent of Congress that the EPA should regulate and reduce ‘greenhouse gas’ emissions using the methods and means it deems appropriate, consistent with all other existing provisions of law.
Once again, taking the EPA’s use of CAA Section 111 against the nation’s power plants as an example:
In my opinion, with Congressional authorization as now supplied by the 2022 IRA, the continued use of CAA Section 111 against fossil-fueled power plants does not require an Endangerment Finding for its regulatory provisions to become enabled. That’s my opinion and I’m sticking to it.
What does this mean in practice? It means that if the use of CAA Section 111 is abandoned by the Trump administration, environmental litigants will then sue the EPA for not adhering to clear Congressional intent, as contained in the 2022 IRA, to regulate ‘greenhouse gases’ as pollutants.
As long as the 2022 IRA is on the books, it doesn’t matter what climate science either says, or does not say, about carbon emissions as drivers of climate change. Nor does it matter if the 2009 Endangerment Finding has either been rescinded or it hasn’t.
The authors of the 2022 IRA have legislated a very resilient and highly-effective tool for keeping the EPA in the business of shutting down our nation’s fossil-fuel infrastructure. Repeal of the IRA legislation is the only reliable means of getting rid of it.
In which section does the IRA do this:
“In addition to promoting renewable energy, the IRA-amended Clean Air Act explicitly designates carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride as air pollutants — a.k.a. “greenhouse gases” — and it unambiguously provides the EPA congressional authorization to regulate carbon dioxide and other greenhouse gases”?
It is news to me.
Being a pollutant does not give EPA regulatory authority. It must first find the pollutant dangerous.
The IRA’s wording clearly gives the EPA authority to regulate carbon dioxide as a pollutant.
No, it does not, as I described in detail in the post above. It does authorize the federal government to spend billions of dollars on federal grants, loans, tax credits, and subsidies for companies that want to claim federal money based on their reduction of greenhouse gas emissions, and it authorizes the government to determine the amount of greenhouse gas emissions that qualify for those funds. It does not grant the federal government the authority to regulate carbon dioxide emissions. And CAA Section 111 was never authorized by Congress. It was added to the federal register by the EPA without any vote by Congress. According to the plain reading of the first sentence of Article I of the Constitution, CAA Section 111 is not law because Congress did not make it so, even though for some 80 years we have acted like regulations added to the federal register by Executive Branch agencies have the force of law. They don’t, and I’ll bet that anyone who challenges those regulations never authorized by Congress will find that the current Supreme Court will agree.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Nowhere in the Clean Air Act of 1970 or its amendments (1977, 1990) did Congress authorize the federal government to regulate carbon dioxide emissions.
The rise and rise of ‘manufactured air’ in Oz-
Air conditioning quietly changed Australian life in just a few decades
It’s clear we need leadership from the top with the dooming and Albo should announce that forthwith no publicly paid official will be immersed in manufactured air on his watch for the sake of the grandkiddies.
Menton ==> Very nicely done, sir.
I suggest points (4), (5), and (6).
(4) The environmental harm from “green energy” far outweighs the possible speculative harm from more CO2. These include massive open pit lithium mines, huge numbers of toxic waste solar panels that will need to be disposed of, cobalt mines in Africa worked by child slaves.
(5) More CO2 is creating more plants.
(6) Assuming CO2 is warming the climate, it’s speculative whether a warmer climate is better or worse. The climate has been warmer in the past without “existential” harm.