By David Wojick
EPA has launched a huge regulatory reform process reconsidering 31 of its biggest energy related regulations.
You can see the list plus some interesting discussion here.
A lot of the war on coal is under the gun plus some really bad automotive stuff. Much of it is climate related so including the bogus CO2 Endangerment Finding is very important. If that goes away a lot of the rest might be easily killed.
Examples include coal and gas killing CO2 limits on power plants. Then there are the impossible CO2 limits on cars and trucks that are designed to force people into electric vehicles.
The really good news is the scope is way broader than just climate. It includes sweeping rules like the completely unscientific PM2.5 limits. There is also my personal favorite the rule on mercury emissions from coal fired power plants where EPA said there was no evidence but we are going to regulate it anyway.
Each of these “reconsiderations” will require a full scale rule making so there is a huge amount of work to do. Who will do this work is an interesting question given the pending job cuts plus the fact that most EPA folks love these bad rules. New hires and contracts may be coming but these multiple rule making processes will take a year or more to play through.
I think EPA has at least three different strategies for killing these bad rules. Some are easier than others and which is best for each case remains to be seen.
The most laborious strategy is a rule making based on new science. This involves a lot of research and a completely new set of technical support documents. It may well be required for reversing the Endangerment Finding but since it was done in 2009 there is plenty of newer science to draw on. That the predicted harms failed to occur is especially useful.
The somewhat easier second strategy is to simply compile the arguments against the questionable rule that were filed as comments during its rule making. In this case the new finding is that the prior finding was mistaken. It may be necessary to throw in a bit of new science but most of the research has already been done.
Mercury from coal is a likely prospect here as EPA previously admitted that they could find no physical evidence that the minor mercury emissions from coal burning were the cause of the mercury found in some lakes. The filings against this foolish rule were extensive.
The wacky PM2.5 rule is another likely candidate as PM2.5 is not even a specific substance, just a particle size. There are whole books about how ridiculous this EPA rule is.
These first two strategies use scientific arguments while the third uses a legal argument. In this case EPA simply says it did not have the legal authority to issue the rule in question. Administrator Lee Zeldin has repeatedly said that prior EPA’s have gone way beyond their mission and statutory authority. This sets the stage for rescinding prior rules as illegal.
Interestingly the recent Supreme Court rejection of the prior “Chevron doctrine” makes this legal argument stronger. That doctrine basically said the Courts must defer to the Agencies when it comes to interpreting the law. It follows that EPA rules previously deemed allowable under Chevron may no longer be allowable and EPA itself can make that determination.
Then too if the Endangerment Finding is repealed the other climate rules might all lose their legal basis. Endangerment is a necessary condition for regulatory authority under the Clean Air Act.
What is certain is that 31 big fights lie ahead making this EPA combined action a truly breathtaking event. Stay tuned to CFACT as this supreme battle unfolds.
Fights worth having. Already about 128 court suits against President 47 before Boasberg on Saturday. What are a mere 31 more?
Invest in popcorn futures. Nationwide injunctions teed up. Birthright citizenship teed up. And now a judge tried to overrule the President concerning the Alien Enemies Act of 1798 despite the fact TdA was declared a foreign terrorist organization.
Looks mostly good. But I don’t get the birthright citizenship fight – seems hopeless.
Not really. The “Under the jurisdiction thereof” clause.
Any human being within the borders of the United States of America is under the jurisdiction thereof. Obviously. Any effort to claim otherwise is simply bullshit and would mean that no foreign visitors are required to comply with US law when on US soil, which of course would be infinitely ridiculous and no other nation on earth would ever put up with such nonsense. The jurisdiction language was not used to restrict citizenship, but to extend citizenship to, for instance, the children of American citizen diplomats or military members or private citizens who happen to be on foreign soil at the moment of their children’s birth. Thus those children are under the jurisdiction of the United States of America by virtue of being born of American citizen parents.
Duane, respectfully your arguments fail for three reasons.
“The jurisdiction language was not used to restrict citizenship, but to extend citizenship to, for instance, the children of American citizen diplomats or military members or private citizens who happen to be on foreign soil at the moment of their children’s birth. Thus those children are under the jurisdiction of the United States of America by virtue of being born of American citizen parents.”
You just proved my point. Mexican illegal immigrants are citizens of Mexico, therefore any children born after they cross the border are also Mexican citizens.
The text of 14A is, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…” While visitors are under the jurisdiction (required to obey the laws) of the US, they are not subject (owing allegiance) to the jurisdiction of the US. If merely being inside US borders qualified a person of being “subject to the jurisdiction”, then the whole phrase is superfluous since it is impossible to be “born or naturalized in the United States” and be outside its borders. Since the conditional “and” is used, “subject to the jurisdiction” must be a separate factor not covered by the first condition.
The “subject to the jurisdiction” language was not used to extend citizenship to children born to US citizens outside the US, since it was one of two conditions that both had to be true. Citizenship for children born to US citizens abroad is controlled by naturalization law passed by Congress, not 14A.
There were two pretty good articles on this… one here [https://redstate.com/streiff/2024/12/08/trump-vows-to-end-birthright-citizenship-and-give-dreamers-a-way-to-stay-in-the-us-n2182953] and the other one, referenced in the article that goes into more detail, here [https://www.heritage.org/immigration/commentary/birthright-citizenship-fundamental-misunderstanding-the-14th-amendment].
This one quote from the second article is, I think, particularly relevant to the discussion:
In 1868 essentially no country in the world had “birthright citizenship” as the US practices it now, and it can be argued that the intention of the framers of the 14th amendment did not intend it to be applied to all babies born within US boundaries. The clear intention was primarily to give citizenship to recently freed slaves. The phrase “under the jurisdiction thereof” differentiates between parents with allegiance to other countries and parents with allegiance to the US. At that time most of the world considered citizenship to follow blood lines: If your parents are citizens of “X” country, so are you, no matter where you happened to be born. The precise and absolute meaning of “under the jurisdiction thereof” has never been adjudicated by the Supreme Court. Eventually it will be.
“But I don’t get the birthright citizenship fight – seems hopeless.”
It just depends on what a few people on the U.S. Supreme Court think about it.
Trump’s aim is to get this issue in front of the U.S. Supreme Court. There is a possibility Trump will get a favorable ruling. He will get at least four favorable votes, imo.
It seems unlikely to prevail in the courts. Congress needs to pass a law and a Constitutional amendment will likely be required.
Need to go way back beyond the civil war era.
The founding fathers were born, raised and educated in an English colony. What was English Law at the time? Basically, any child born on English soil was automatically an English subject, irrespective of the nationality(s) of the parents. The US Congress has never specifically repealed this law.
From Vattel, “The Law of Nations”, published in 1757: Chapter 19, Para. 214: “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner.”
(“Natural born“, as used in the US Constitution, is defined in para: 212.)
“Jury Nullification” is another English law that has carried over.
[An aside: Per the Jamaican Constitution, any child born anywhere in the world of a Jamaican parent (either) is automatically a Jamaican citizen.]
Birthright citizenship is written in the Constitution, and the words mean exactly what the words say. Trump will lose that battle in the courts. Even Congress cannot end birthright citizenship if it wanted to, which it will not want to do.
Trump is going to win the suits that are filed on the actual, if not claimed basis, that the litigants don’t like the policy. He will lose the suits where he is obviously violating either the Constitution or Federal law, such as his efforts to impound Congressional spending authorizations – an exclusive power of Congress. Congress can of course amend Federal law, but Congress will be limited by the Senate filibuster and the extremely narrow GOP majority in the House. And it is more likely than not that the House goes Dem next year, in which case Trump will get nothing out of Congress that is in the least ways controversial or doesn’t suit Dem policies.
I am afraid that Trump is pissing away his mandate and political capital on losing fights that are already costing him in the polls, particularly with independents and Dems who voted GOP last November. They are not rock solid GOP voters, and in particular, the single largest issue for Trump voters in November was reducing inflation and the cost of living. But Trump’s tariffs are a humongous consumption tax that will increase inflation, not reduce it. Dumb dumb dumb.
Calm down. He is not. And your have not comprehended the solid arguments against blanket birthright citizenship, because A14 §1 also includes the phrase preceded and followed by significant commas, ‘and subject to the jurisdiction thereof.’
“Birthright citizenship is written in the Constitution, and the words mean exactly what the words say.”
interesting… now do the 2ed amendment.
Duane, you need to hold off judging Trump’s efforts for about six months. I think the situation will be much clearer then and in Trump’s and our favor.
Trump is not stupid. There is a method to his “madness”.
The “Endangerment Finding” should be metaphorically buried in a crossroads, washed in holy water, with a stake in its heart.
The Boogeyman finding,
The EPA sucks, I don’t think they have any proper science to back up their rules and regulations. Any and all rules or regulations without proper proof should be withdrawn. It is not our place to prove their science is up to snuff. It is their absolute duty to show every rule can absolutely be backed and justified by proper science. All we need to do is form a committee to review their work. It is either quality work and justifies the regulation or it isn’t. If their is any question the rule/regulation is nullified.
Wish it were so simple. Under the 1948 Administrative Procedures Act, there is a specific rule making process including provision for public comment. If followed, a resulting rule is presumed valid even if most comments were against based on ‘shoddy’ science. PM 2.5 is a clear example. Until Chevron was overturned by Loper Bright, there was no way to challenge an agency rule IF APA was followed, no matter ignoring or shrugging off negative comments. Now there is, using the three mechanisms noted in the post. Still gonna be court fights on each.
And there is lots to clean up in the courts. This weekend’s example is Boasberg and TdA. ACLU filing said only invoked 3 times in declared wartime (1812, WW1, WW2) and US not in a declared war with Venezuela. Media is also reporting ‘only used in wartime’. True but IRRELEVANT. 47’s executive order was very clear. I just read it and 50USC21-24. The Alien Enemies Act of 1798 actually says, “in time of declared war, OR invasion or predatory incursion.” Note the COMMA has extra legal significance.
47’s EO expressly used the words “invasion and predatory incursion” into US by TdA. Ignored by Boasberg in a Saturday night TRO with no hearing. If Boasberg now tries to go after Rubio, all hell breaks loose and the left will lose. Checkmate.
“Predatory incursion”! What a grand concept.
Using the words “invasion and predatory incursion” in an EO does not resolve the matter, any more than EPA declaring CO2 – the stuff of life – as a “pollutant”. What “invasion and predatory incursion” is he claiming? No foreign power has invaded the USA and occupied any part of our soil. Trump will lose that one for sure. The words mean what the words say, and creative wordology does not change the meaning of the words in plain English and common understanding in 1798.
It’s really dumb of Trump to pick this fight, as all it would do even if upheld, which it will not be upheld, is a slightly quicker process to do what can otherwise be done expeditiously and still honor due process.
There are vastly bigger fish to fry, and undoing all the wrongheaded rules issued by the Obama and Biden EPA is a vastly bigger priority than arguing over due process.
Duane, sorry you are losing. TdA sponsored by Venezuela is by definition a ‘predatory incursion’. Get over it. Or, maybe just read the brilliantly worded 47 EO concerning same and then educate yourself. I won’t waste more time here with those that don’t.
It seems 47 is causing that end, thru meaning including but not limited to due process.
“What “invasion and predatory incursion” is he claiming?”
Are you kidding!?
Where have you been for the last four years?
Supposedly working from his moms basement/s
Duane, please share your epa email address so we can discuss offline/sarc
Rud I am sure you are right however we expect our government agencies to be aboveboard and honest with us. Nothing should stand that can not be proven to be legitimate and justified. These mongrels have been playing us like a fiddle, time for that to end.
“ignored by Boasberg in a Saturday night TRO with no hearing.”
Yes, he didn’t even give the Trump administration a chance to give their argument.
He is the same judge that gave a slap on the wrist to the lawyer that lied to the FISA Court in the Obama administration’s efforts to get something on Trump.
This judge and a lot more like him should be removed from office. They are judging based on politics, not on the Law. They are undermining our Republic, thinking they can order the President of the United States around in his own domain.
I guess we could impeach these judges if we had enough Republicans in Congress.
The Judicial System is getting out of control and Congress needs to do something about it. Congress created the Judicial System, and Congress can change the Judicial System with enough votes.
I have studied the “scientific” justifications for a number of these rules. Let’s consider just one, the regulations applying to bottom ash from coal plants.
First, some background: Bottom ash falls to the bottom of a coal boiler. It includes slag and larger particles. The rest travels along with the air flow out the top to the cleaning equipment and is termed fly ash. In many boilers bottom ash is carried out by using water which is sent to a holding pond that has effluent limits. Biden’s EPA declared that NONE of the water could be discharged due from that pond to the “toxics” in it.
The problem is the toxics EPA attributed to bottom ash was from ONE sample they collected from a holding pond that collected both bottom ash and fly ash water. Then they apportioned the toxics found to both streams based on their flow! It is well known that fly ash is much more water soluble than bottom ash. So they were able to take some of the toxics from fly ash and give it to bottom ash. Scientifically unsound. But it gave them the answer they wanted and they than ignored all the comments that pointed this out.
Zelden is turning out to be the superstar of Trump’s appointments. Some of the others have disappointed already: Bondi and Patel come to mind.
AM, we already have several superstars. Not just Zeldin, but Rubio, Bessent, Latvick, Duffy, Hegseth. Karoline Leavitt as Press Secretary.
IMO the most difficult problems by far are in DOJ and imbedded FBI. Gonna take time. I have yet to find any reason for disappointment in Bondi and Patel.
My image of Leavitt is blonde Barbie as an NFL defensive lineman. “Come on sucker, try to move me.” Defending what Trump says is a monster task and she does it wonderfully well.
FBI and DOJ have been full of radicalized ‘sleeper’ Democrat operatives for ages.
Those covens are gonna take a lot of witch-hunting and stake-burning to cleanse once and for all.
A.M. – I wouldn’t be too concerned about Bondi, Patel, and – as of Monday – Bongino. The wheels of justice move slowly and it’s only been a few weeks. Building solid cases takes time.
Just for S’s and G’s, thought I’d attach the link to the 2009 EPA GHG Endangerment Finding (EF) Technical Support Documents (TSD’s) for those who may have not reviewed it, and as a reminder for those who may have read it but need to see it again. Here goes: https://www.epa.gov/climate-change/technical-support-document-endangerment-and-cause-or-contribute-findings-greenhouse. The contents of the TSD are the information which need to be argued against, point by point in order to have the entire EF thrown out. Director Zeldin may need to get a contract written soonest to investigate and document data to the contrary of the ’09 EF. Interesting times ahead for sure.
Regards,
MCR
The conclusion of the 2017 paper by Wallace, Christy and D’Aleo states “thus the analysis results invalidates each of the three lines of evidence in its endangerment finding”
Seems this would be a good start.
I know people already working on a point by point rebuttal.
Trump’s cabinet may be the best ever…well coming from where we were I guess it’s not hard to make that claim.
I’ve worked on atmospheric CO2 data for many years since I retired from EPA. The Endangerment Findings are not based on observed data. At least 95% of atmospheric carbon dioxide is from natural emissions that rates continue to increase as the earths surface continues to increase. All life on earth depends on carbon dioxide; along with water, oxygen, and nitrogen.
I can provide loads of scientific evidence that debunks the Endangerment Findings.
Fred Haynie
%
The only change needed by the EPA is to publish the truth about how any CO2 heating effect is logarithmic, the atmosphere is nearly saturated and extra CO2 in the atmosphere will result in almost no further heating.
Once that is freely known worldwide the whole CAGW scam falls to bits.
The big problem will be getting the MSM to carry the story.
And that “heating effect” is STILL PURELY HYPOTHETICAL. There are no observations OF REALITY that indicate warming to be “caused by CO2,” they simply ASSUME it is.
To the contrary, there is plenty of evidence that atmospheric CO2 does nothing to the Earth’s temperature.
Still going comma-less.
Can’t the EPA just do a series of Emily Litella “nevermind!” reversals?
That would be nice, and on some of these reversals possible, but the endangerment finding is now ensconced in law and will take cooperation from Congress to be completely eradicated. And then of course there will be the lawsuits. So don’t hold your breath. Besides the fact that it’s illegal to exhale, this one is going to move slowly.
Focus on the endangerment finding first since repealing it has far reaching effects on all other co2 related restrictions.
I don’t see in the list of 31 the latest EPA refrigerant mandates. It’s probably not possible to return to the old freon-12 and -14, as I believe those are phased out by an international treaty. But the replacements the EPA mandated at the time are now forbidden, and servicing appliances which use them has become punitively expensive. It seems that just about the time the industry adapts to a new refrigerant, the EPA kills it.
Or we could just go to propane/isobutane mixture, which much of the rest of the world does already.
“Or we could just go to propane/isobutane mixture, which much of the rest of the world does already.”
File THAT under the “Law of Unintended Consequences.”
I suggest a small project to round up all the climate catastrophists and capture the heat from their burning hair. Should be able to run the entire US electrical grid for a good few months from that free energy once the EPA gets going on this mission.
The EPA needs to consider the despite the hype, there is no real evidence that CO2 has any effect on our global climate system. There is plenty of scientific rationale to support the conclusion that the climate sensivity of CO2 is too small to be significant. The AGW hypothesis has been falsified by science. For the details one should read “The Rational Climate E-book” by Patrice Poyet which can be easily found and downloaded for free by doing a search on “Patrice Poyet”..