Steve Milloy
Contributor
This column has been cheering the Trump Environmental Protection Agency’s (EPA) decision to rescind the Obama EPA’s 2009 endangerment finding for greenhouse gas emissions. If successful it would end what President Trump calls the climate “hoax.”
But I differ with the Trump EPA over the process for doing so. Now, two new developments threaten to delay or even derail the Trump EPA.
The Trump EPA formally proposed to rescind the endangerment finding on Aug. 1. The proposal seeks public comments (due Sept. 15) on these two alternative rationales for rescinding the endangerment finding: (1) that the endangerment finding is illegal under recent Supreme Court decisions; and/or (2) that the Obama EPA improperly issued the endangerment finding by failing to follow proper rulemaking procedures, including failure to properly consider the relevant science.
In response, two radical greens groups filed a lawsuit on Aug. 12 to stop the rulemaking in the Democrat-friendly federal district court of Massachusetts. Greens somehow also convinced the taxpayer-funded National Academy of Sciences to do a surprise and rush review of the EPA’s proposal. (RELATED: MELANIE COLLETTE: The AI Energy Crunch Has A Cure: End The Endangerment Finding)
The lawsuit has no substantive merit and is just a nuisance filing. Yet it injects much unnecessary uncertainty into the inevitable legal wrangling over the rescission of the endangerment finding. Let’s look at the lawsuit first.
In April, President Trump issued an Executive order ordering the repeal of regulations made illegal by recent Supreme Court decisions. The endangerment finding qualifies as one of these. The Executive order says that illegal regulations can be summarily terminated without the usual public notice and comment procedure required by the Administrative Procedures Act. An illegal rule, after all, cannot be enforced.
In the case of the endangerment finding, any litigation over that process would be required by the Clean Air Act to be filed in the Court of Appeals for the Washington, D.C. Circuit. An appeal by the loser could go straight to the Supreme Court where the validity of the controversial 2007 SCOTUS decision in Massachusetts v. EPA would almost certainly be the deciding issue.
The Trump administration would likely prevail on this because of the 2022 SCOTUS decision in West Virginia v. EPA that held major EPA regulatory programs require express authorization from Congress. Massachusetts v. EPA was all about the EPA not having such authorization. In that case, a narrow 5-4 majority invented a basis for EPA to regulate greenhouse gases despite there being no express congressional authorization.
In addition to the applicable law now being materially different, Chief Justice Roberts and Justices Thomas and Alito dissented from the majority along with the late Justice Scalia. None of the majority’s five justices remain on SCOTUS. Three have been replaced by Justices Gorsuch, Kavanaugh and Barrett, all of whom were in the majority for West Virginia v. EPA.
The newly filed lawsuit alleges the Trump administration has violated the obscure Federal Advisory Committee Act, a lawsuit that can be filed in any federal district court. The Massachusetts federal district court judge conceivably could issue an injunction at any time to stop the rescission rulemaking or decide to conduct a trial that may take a year or more.
The district court circus could be followed by appeals to the Trump-unfriendly First Circuit Court of Appeals. And no one knows how long that could take. For perspective, consider that it took seven years to resolve the West Virginia v. EPA case.
The green groups would not have filed in the Massachusetts district court unless they had some confidence that they would prevail there and in the First Circuit on appeal. This uncertain, unpredictable and undesirable outcome could have been prevented by simply just rescinding the endangerment finding as provided by President Trump’s April 9 Executive order.
The review of the EPA proposal by the National Academy of Sciences is absolutely unheard of. Although the NAS was established by Congress in 1863 to advise the federal government on scientific issues, it usually does so at the request of agencies like EPA, which contract with it for the advice. This self-initiated and self-funded rush review is unprecedented. Yet it is somehow not a surprise.
Like many government-dependent organizations, the National Academy of Sciences has become politicized, if not just woke, over the past few decades. Moreover, the NAS has played a central role in developing and promoting the climate hoax. Its review of the EPA’s proposal will not be a de novo review of the climate issue with differing viewpoints or basic issues being considered. It is certain to be just another climate report with a pre-determined conclusion boosting the climate hoax.
There is no way the NAS will have its report completed and submitted to EPA by the comment deadline of Sept. 22. The period for public comment on the proposed membership of the NAS committee doesn’t close until Sept. 2, and the public comment period for submitting material to the committee is even earlier, Aug. 27. All this is highly unusual to say the least.
Here’s how the lawsuit ties in with the NAS review: The green group plaintiffs may hope to convince the Massachusetts district court judge to halt the rescission rulemaking until the NAS “review” can be completed. They will then insert the rigged NAS report into the litigation so as to argue that the Trump administration has no scientific basis for rescinding the endangerment finding. The NAS review will carry weight not because it is any good, but because it comes from the public’s probable default perception of the NAS committee as a legitimate group of highly qualified scientists.
If science becomes the issue in the endangerment finding litigation, the outcome becomes essentially a jump ball given our leftist-loaded judicial system. Ironically, the recent SCOTUS decision in Loper Bright Enterprise v. Raimondo — barring judicial deference to federal agency decisions on issues like science — actually robs the Trump EPA of a useful defense against the NAS review.
And then, who can say there will be no other anti-rescission litigation filed in other district courts in other circuits? These would only further and unnecessarily complicate matters.
Implementing President Trump’s April 9 Executive order to simply rescind the endangerment finding would have prevented the uncertain litigation mess now being faced. Maybe I’m wrong and all will turn out well. I hope so.
But I would consider withdrawing the current proposal so as to terminate the ongoing litigation, cut out the NAS and preempt new litigation on other than the desired legal issue. Then, start over. Do the right thing. Just rescind the endangerment finding.
Steve Milloy is a biostatistician and lawyer, publishes JunkScience.com and is on X @JunkScience.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
All content created by the Daily Caller News Foundation, an independent and nonpartisan newswire service, is available without charge to any legitimate news publisher that can provide a large audience. All republished articles must include our logo, our reporter’s byline and their DCNF affiliation. For any questions about our guidelines or partnering with us, please contact licensing@dailycallernewsfoundation.org.
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How about eliminating it on the simple grounds that it is imbecilic!
There is no case for it, prima facie. It is utter nonsense.
Obviously, those pretending to eliminate the “finding” have no understanding of reality either.
Democrats get their way, even when it is ridiculous, why? It is simple – MONEY!
This CO2 idiocy underlies ALL the efforts to ‘decarbonize’ society and make an ‘energy transition’. The energy transition has been falling further and further behind demand for 40 years. Its ONLY consequence will be to starve 3-4 billion people, maybe more. THAT is, of course, the goal; while restoring an eternal feudalism with the ‘elite’ and their minions on top.
“There is no case for it, prima facie. It is utter nonsense.”
_______________________________________________
If being imbecilic was disqualifying for a regulation, 90% of regulations would disappear overnight.
You are on point. This is merely another example of the administrative state doing what it does best – and that is not to solve “the” problem. I believe that as this blog has demonstrated for years, there are lots of brilliant people that can sort through the science to solve problems. However, the problem is not climate change. It is a system designed to grow an administrative state that incorporates the following features:
Solving the “problem” would bankrupt the managers.
Bureaucrats measure their status and success by the number of subordinates, the size of their budgets, and how many new regulations they issue (if they issued none, they would be advertising themselves as obsolete).
The last thing any bureaucrat wants to do is solve the problem that created their job and sustains their status.
Confirmed.
The problem also lies on how our system works… in this case it would be like “the pot calling the kettle black.” Agree that with the current composition of SCOTUS this should be overturned.
Laws written by men can also be unwritten.
In general I don’t see the point of the political right in not eradicating on their first day if power EVERYTHING previous left governments implemented over their reigns.
But hey, since when does one crow harm another?? Good to know they consider their voters dumb sheep.
‘In general I don’t see the point of the political right in not eradicating on their first day if power EVERYTHING previous left governments implemented over their reigns.’
For starters, albeit with some notable exceptions, we don’t really have a political ‘Right’ along the lines of the classical liberals who founded this nation and who would probably be shocked by the size and scope of today’s Federal government.
We do, however, have a significant number of self-styled ‘moderates’ and ‘conservatives’, who have discovered over time that they can not only attain and hold office by taking up positions slightly to the right of those held by the radical Left, but also garner praise from the latter’s captive media whenever they join forces with the them to pass ‘bipartisan’ legislation.
The issue is that there are insufficient votes in the Senate to properly overturn what the left has been doing. Only legislation can put a dagger in to the heart of all the nonsense and without 60 votes in the Senate it isn’t happening.
Yes laws can be unwritten, what can’t be done is just nullifying everything the previous administrations have done with the sweep of a pen. Those same very laws are used to slow down or stop progress of unwinding what’s already in place. Even though many of us here don’t like the endangerment finding the Obama administration more or less followed the process (even though it was a rigged process) to put the endangerment finding in place. To properly undo the endangerment finding the process needs to be followed. The more the process isn’t followed the more of a legal standing groups have to sue.
Dream on Twiggy-
Fortescue wants Aussie businesses to use the term ‘Real Zero,’ ditch carbon storage fantasies
It’s not about the plant food stoopids.
Time to sell FMG
Although the 3% fully franked (4.46% in real terms) dividend this semester might make me hold for a bit.
My FMG shares were bought at $4.33.. I have to be careful when I sell, to avoid paying too much capital gains tax.
And yes, the dividends are nice 😉
“Men, it has been well said, think in herds; it will be seen that they go mad in herds, while they only recover their senses slowly, one by one.”
― Charles MacKay
Extraordinary Popular Delusions and the Madness of Crowds
Did the EPA ever specify how CO2 was a “threat and endangers human health and welfare”? It has not hindered the population growth of humans.
CO2 is beneficial to humans because it is a required chemical for the growth of food plants.
Of course it will be. The legal basis forwarded by the admin is asinine. The whole thing reads like throwing crap at the wall to see if any sticks. The main thing holding the Trump admin back from doing any number of terrible things to the country is the fact that they’re all incompetent morons. Let’s hope it’s not just tough but impossible.
ROFL the best bit is he annoys you and all the lefty loons.
Look I am not saying we should kill all lefties but if we give you your own state I am pretty confident nature will do what nature does. Perhaps we should move all lefties to California they are already half way there.
I think we can safely say the American experiment is on its last legs when Republicans spend their days lustily fantasizing about half the country dying.
You leftards are the ones lustily fantasizing about killing half the country.
In lefty states like Wokeachusetts, Republicans are considered “untouchables”. So it’s not surprising that some conservatives are mirroring that attitude.
What about you socialists fantasizing about throwing everybody who voted for Trump into jail?
Annoys? More like apoplectic. 🙂
You really just can’t help proving how big a moron you are, can you?
That’s your best science based critique?
That’s what they think science is, and they get very emotional when challenged. Those of us who respect the method know it is just an organized system of asking questions and testing our limited understanding. When someone resorts to using bluster and demanding force rather than providing evidence, you know, and they know, they have nothing else.
The EPA did not use science to make their case, they subverted academic standards and scientific frameworks and just said whatever they thought might help them succeed in their political objective. Me responding with a bunch of scientific evidence won’t change anything, because they don’t care what the science says. It’s not like they accidentally made a a factual error, they are purposefully being deceptive.
It will matter when these cases get to court and the EPA is foundering trying to substantiate their egregious position, but here on this blog, there is little to say except to call it out for what it is.
“Me responding with a bunch of scientific evidence”‘
Is something that will never happen..
Evidence of CO2 harming or warming at any possible atmospheric levels, does not exist.
“The EPA did not use science to make their case,”
True.. the “Endangerment Finding” is NOT based on any real science..
It is purely a leftist political finding that subverts academic standards and real science.
Good at name-calling. Weak on substance. But it is fun to watch the faithful accuse others of what they are and what they have always done. There is no foundation for claims of a climate crisis, or for demands for restrictive and damaging policy. That is the simple basis for rescinding the absurd endangerment finding. They threw it at the wall, and it won’t stick.
No major scientific academy, professional society, or international scientific body on planet earth agrees with the EPA’s current position. SCOTUS ruled that CO2 meets the legal definition of a pollutant under the clean air act. The EPA’s “scientific” basis for rescinding the finding is that the DOE got five contrarians to say they don’t think it’s a problem.
Whether they succeed in rescinding the endangerment finding or not, it certainly won’t be on the merits of the idiotic case they’re making. Even hard-core, bought and paid for denialists like Milloy have to acknowledge it isn’t a good case.
Ah yes, Alan falls back to ‘argument from authority’, not surprising. And yes SCOTUS (rightfully) concluded that as written pretty much ANY effluent of any type or quantity is considered a ‘pollutant’ according to the CCA. BUT SCOTUS did not REQUIRE the EPA to regulate it, only to issue an opinion as to why it should or shouldn’t.
Since such noted denialists as Dr. Pelke Jr. fully admit that there would be NO measurable change in the climate even if all vehicles in the US were forced to be zero emissions, then there was 0 scientific basis to issue the Endangerment finding or for the EPA to regulate CO2 emissions from vehicles (the ONLY thing the Endangerment finding was ever required to apply to).
EPA bases its decisions on assessments from scientific organizations. That’s not a fallacious appeal to authority, it’s reliance on the only bodies with the mandate and expertise to evaluate the evidence. Policymakers aren’t scientists; their job is to defer to the systematic reviews done by those who are. The Endangerment Finding reflected the consensus of every major scientific academy and society worldwide. The rescission effort discards that in favor of five contrarians handpicked for their dissent.
The “zero-emissions vehicles wouldn’t measurably change climate” line is a red herring. The Clean Air Act doesn’t require EPA to prove a specific temperature outcome, it requires a finding that pollutants may reasonably be anticipated to endanger health or welfare, and that a source contributes. CO2 and other GHGs clearly meet that test, and courts have upheld it.
And it’s wrong to say the finding “only applied” to vehicles. It originated under the vehicle section, but it is the foundation for regulating greenhouse gases across both mobile and stationary sources.
Again, even friend of the blog and bought and paid for science denier Steve Milloy concedes that it is a stupid case the government is making.
As expected a reply devoid of substance. Appeal to popular authority and political dogma will never be evidence, and it will never justify a finding of endangerment. The case they are making is that no evidence exists to support the finding.
You also misunderstand Milloy’s criticism. He did not take issue with the report, only that the process provides a means to delay the recission. It should have simply been declared.
And they’ve made it very, very poorly.
Policymakers defer to assessments from scientific experts when making science-base policy decisions. This is not a fallacious appeal to authority. Indeed the EPA in its rescision argument claims to rely on just such an assessment, it just happens to be an assessment written under cover of darkness by a group of just five contrarians hand-picked to produce a predetermined conclusion, and it runs counter to every single other scientific assessment ever produced, and completely fails to engage with or rebut them (and indeed, how on earth could non-scientist policymakers at the EPA possibly evaluate if it had?).
Right, he thinks they don’t need to make stupid arguments, but he still concedes that the arguments are stupid. Milloy wants Trump to rule by executive fiat, which is stupid and terrible for democracy itself.
“terrible for democracy itself.”
You mean like everything signed by Mr Autopen.. 😉
It is fallacious when the appeal is selective to suit an agenda. It is suspect when other voices are not only ignored, but actively silenced. It is fallacious when it is accompanied by an appeal to emotion, the invocation of fear, and recourse to the threat of force.
Science is not a democracy, nor is this nation founded on that principle. It is founded on justice and accountability. It matters not if fiat is done by an individual or by a committee. Recission by executive order would simply nullify a previous dictate by a bureaucracy, returning the situation to its previous state, a state subject, not to whim but to scientific scrutiny. I wonder if you truly understand the distinction.
The report you continue to mischaracterize was done in the full light of publicly available evidence. If you or anyone else can refute its conclusions with evidence as opposed to speculation or opinion, they are free to attempt it. As for pre-determined conclusions, that is the definition of the entire climate alarm narrative and its attendant coterie of priests masquerading as “experts”.
Further, Milloy made no reference to what he thinks about the administration’s report. That report by the five scientists absolutely rebuts the finding of endangerment by supplying specific references to observational evidence that clearly refutes any such claim. There is no evidence that a climate crisis exists, or will in the future, or that burning fossil fuels, and the resulting CO2 emissions, are anything other than a net benefit to humanity and the biosphere.
So like when the Energy Secretary explicitly hand-picked a group of five contrarians to cobble together a bs assessment report to serve a political agenda? Fallacious like that?
A lot of faff. Policymakers do not do science. They take what scientists tell them and use it to inform policy. To do this properly, they need to synthesize what all the scientists are saying, and this requires massive assessments involving hundreds of scientists across many discplines. Doing this is not doing the work of science – the scientists writing the assessments have already done that. It is not a fallacious appeal to authority, it is relying on the assessment of experts, which is exactly how the process is supposed to work.
The scientists whose research underpins the DOE report have already said their work was misrepresented. Like, the people who did the actual science said, “you are lying about what we said.” Stop playing the part of ignorant tool.
“The case they are making is that no evidence exists to support the finding.”
CO2 is not a pollutant at any possible level it can get to in the atmosphere.
It has absolutely ZERO DANGER, and is in fact absolutely beneficial to the whole planet.
There is absolutely no scientific evidence to back an endangerment finding.
To which AJ will no doubt appeal to non-existent authority.
The fact that these so called “professional” socieities have never been anything more than political bodies, repeating whatever the government that funds them wants to hear.
Yes, once scientists accepted the king’s coin, they became the king’s men.
There are many here, supposedly on our “side”, who constantly call people names. So that’s a weak response.
Anyone calling names has a weak argument. The fact that others use said tactic does not diminish the pathetic nature of Alan J’s argument, nor does it make my criticism of it weak.
My calling the Trump admin stupid is not an “argument.” I’m just calling a spade as spade. It is not meant to be a vehicle of persuasion.
Now AJ is claiming to be a legal expert.
Why not, he believes himself to be an expert in every other subject.
Is that kind of like how you believe yourself to be a physics expert, Professor? How’s that definition of the Second Law of Thermodynamics that I asked you for coming along?
Does the word “hypocrite” mean anything to you?
Talk about throwing crap at the wall! What else are your posts, but crap thrown without regard to its usefulness?
He’s baaaaaak.
https://youtu.be/WVn-JEIrVBE?si=Vex-6_mQ3sdcFrMS
I’m old, and I found long ago hating in public is repugnant, so I’ve stop doing it. At least I’ve cut way back. Another thing I’ve come to realize is social media is a black hole of negativism. You go in and you might not come out, at least not where you thought you might. And what’s the point? My point Alan, you put all of this mental energy into expressing your hate and what does it get you? Of course, it gets you nothing and nowhere. I do pity you.
Back in 2015 I was truly tired of Bush/Clinton/Clinton/Bush/Bush/Obama/Obama. The prospect of HRC in 2016 was so dismal I did something I had never done – I wrote some hefty political contribution checks. Since then, I’ve made it my policy. I’m not some billionaire that’s funding shadowy NGO’s, but my effectiveness compared to the usual small person is orders of magnitude higher than “one vote”. I don’t spend my waking hours formulating hate, I don’t have to, I simply productively further the causes I think are rational and helpful.
Randle, hating on evil people in public is a moral duty and not repugnant in the slightest. I agree that throwing huge sums of money into politics as you do is the best way to get what you want. Alas I am not as old or wealthy as you. I’m one of those “small people” you look down on with just my one vote and little else.
You are bitter, stewing in your own juices.
Old, yes. Wealthy? Ah, bless you.
What I’m saying is you are wasting your life and your happiness. What you are doing – pumping hate – is a self-sustaining habit. What do you hate today? Tomorrow? What did you hate when you were young? Did your teachers teach you to hate? I do think you are self deluded. I see it in what you write.
Randle, do not hate you, I feel indifference toward you. I do believe what is happening in this country is deeply wrong, on many levels. I have believed that the US, and much of the world, has been headed in this direction for as long as I can remember, and it is happening in about the way I expected it to. I will feel this way tomorrow.
“hating on evil people in public is a moral duty and not repugnant in the slightest”
Yet you still vote Democrat. !
Well of course AlanJ is the arbiter of intelligence…someone who is so intelligent he believes a trace gas fundamental to the existence of all life on the planet is a ‘pollutant’…We are so fortunate to have your great intellect on this board.
Yet the Biden administration DID do any number of terrible things to the USA.
…. through rabid incompetence, and on purpose.
The Dems ARE complete morons, or do you worship AOC, Jazzy, Tim Walz, and Kamala.
They have truly sunk to the very bottom of a sewer of their own making… and you seem to want to join them. !!
It is going to take many years of hard work to undo all the moronic crap that the previous administration did.
Trump et al are making incredible headway, because they are competent and hard working for the American people… despite the pathetic far-left putting up fake legal roadblocks all the way.
I’m not a Democrat, and certainly do not believe any of those people are perfect. None of them planned to dismantle American democracy, so they are infinitely preferable to Trump, who is doing so apace.
These are interesting points by Milloy. Congress should act immediately to amend the Clean Air Act to explicitly exclude regulatory authority for any class of harm related to so-called “greenhouse gases.”
But in any case, the core reason why the Endangerment Finding should be rescinded is that the scientific basis of the claim has been unsound all along. The observations of wind and weather demonstrate the error, as energy conversion within the general circulation massively overwhelms the claimed influence of emissions of otherwise harmless IR-active gases toward “dangerous” “warming.” We’ll see what happens.
https://www.regulations.gov/comment/EPA-HQ-OAR-2025-0194-0305
Milloy mentioned a public comment input opportunity for the crash NAS “study” ending tomorrow August 27. So I entered a comment, referring to the same core material.
But regrettably, I forgot to end my comment with “Thank you for your attention to this matter.”
Mr. Dibbell: I posted my call for congress to act before I saw this. Your comments are spot on and supply ample grounds for rescission. I note another striking similarity in dem lawfare technique. Obama ran in 2008 on a promise to impose an endangerment finding (as I recall, the EPA was moving fwd with the opposite finding at that time). Once elected, the EPA reports did a 180 deg. turn, science-free. Similar to 1) Obama getting intel report saying russia NOT helping Trump was sent back for re-work in Dec. 2016; and 2) Letitia James running on a platform of “Get Trump”, whether the law supported it or not. Lefty Dems use science and law as mere tools.
Thanks for letting me rant.
Thank you for your reply, Mr. Courtney. About what was happening in 2009 and Obama’s stated intentions to (ab)use the EPA’s authority under the Clean Air Act, I recall quite clearly that our NY Senator Chuck Schumer had expressed an opinion against using the EPA in this fashion. He thought it should be up to Congress to decide measures addressing the carbon dioxide “warming” issue. But Obama failed to push through any measures in Congress, so we ended up with the December 2009 Endangerment Finding. Now the internet, it seems, has been scrubbed clean of any of those comments by Schumer. Incidentally, in that same year I passed Senator Schumer in a hallway as he attended a meeting in our facility having to do with its proposed purchase by a local up-and-coming cultured dairy products company here in Central New York.
I asked Grok AI about Schumer’s stance in 2009 and got this answer:
“In 2009, Senator Chuck Schumer co-introduced bipartisan legislation (S.527) with Senator John Thune (R-SD) to amend the Clean Air Act and prohibit the EPA from issuing permits for carbon dioxide (among other emissions) resulting from biological processes associated with livestock production. The bill was introduced in response to concerns that the EPA might regulate greenhouse gases from agriculture as pollutants under the Clean Air Act, following a 2007 Supreme Court ruling (Massachusetts v. EPA) that required the agency to consider such regulation. The legislation explicitly aimed to prevent what critics called a “cow tax,” which could have required farmers to purchase permits for emissions.
A joint press release from Senators Thune and Schumer on March 5, 2009, announced the bill and included the following statement from Schumer: “Times are hard for families across New York State, and they are particularly hard for our farmers. The idea of imposing a cow tax on our farmers and adding one more crushing burden is absurd. This bill will put an end to this inane ‘cow tax’ once and for all.” The release also estimated that such EPA regulations could cost New York farmers around $120 million annually and put family farms at risk of closure.
This action and statement reflect Schumer’s view that the EPA should not impose such regulations on agricultural emissions under the Clean Air Act, effectively reserving that authority for Congress through legislative changes. The bill’s text explicitly includes carbon dioxide in the list of emissions to be exempted from permitting requirements.
Contemporary news coverage of the bill’s introduction also highlighted Schumer’s opposition to potential EPA regulation of these emissions:
No TV news reports, video clips, or additional newspaper articles from 2009 were located that include direct quotes from Schumer explicitly stating that Congress, rather than the EPA, should handle carbon dioxide regulation more broadly (beyond agriculture). However, his co-sponsorship of the bill and public statements against the “cow tax” implicitly support the position that such matters should be addressed legislatively by Congress, as the legislation sought to limit the EPA’s authority under the Clean Air Act. The bill did not advance beyond introduction in the 111th Congress.”
So it seems I was not wrong to remember the essential point that Schumer did not want the EPA to address such matters without action by Congress.
Mr. Dibbell: Thank you for that info, I didn’t know Schumer did that. Obama must have assured Schumer that NY dem farmers would be exempt to get him back on the reservation and his heresy scrubbed.
Commenters here say legislation can’t happen due to 60 votes needed in our Senate, but your research suggests possibilities. There may be some dem senators who could be convinced (fingers crossed!) that EPA activists are crazy and will regulate farmers etc. Any ray of hope! This issue should not be left to courts.
I’m one of those commenters indicating its not happening due to needing 60 votes. In some world it MAY be possible to get ‘bi-partisan legislation’ but what do you think the Republicans would have to agree to give up in response to get Schumer & his ilk to flip-flop again? Nothing short of say ‘Universal Basic Income’ for all ‘inhabitants of the US’ (e.g. not just citizens) is my guess. And that is a bridge way too far…
While it may take longer than we hope, the economics and physics clearly indicate ‘Nut Zero’ will collapse under its own stupidity. The economies of the UK and much of the EU (especially Germany) are nearing free fall due to the cost of unreliable energy. While I don’t agree with everything Trump is doing, his ‘drill baby drill’ mentality should help the US weather the collapse of the EU+UK economy that is on the way.
“While it may take longer than we hope, the economics and physics clearly indicate ‘Nut Zero’ will collapse under its own stupidity.”
I agree with you on that point.
There is 0 chance that Congress as currently constructed will pass such an amendment to the CCA. Until Republicans can get 60 seats in the Senate (and of course hold a majority in the House) there’s no way to modify it. Consider what the Republicans might have to agree to to achieve ‘bi-partisan’ legislation that explicitly removed infrared absorbing gases from the EPAs (or anyone else’s) regulatory authority.
Heck, if we’re going to wish for unicorns, I wish that Congress will wake up & reassert their Constitutional authority as the ONLY body of the US government that can pass laws. Regulations are LAWS, if you don’t follow them you can be fined & even thrown in jail. The US Constitution does not empower Congress to give up their power to any other body to ‘make law’ short of a constitutional amendment. The US bureaucracy should be relegated to implementing the laws passed by Congress or acting as advisory boards to Congress as to laws they should pass. If something is SO damn important to regulate that it needs a law, there is little doubt it would achieve bi-partisan support.
Or we may also wish for SCOTUS to wake up and go ‘hey, wait a minute, only Congress can pass laws, there’s nothing in the Constitution allowing them to abrogate that responsibility to an unelected bureaucracy’.
“In response, two radical greens groups filed a lawsuit on Aug. 12 to stop the rulemaking in the Democrat-friendly federal district court of Massachusetts.”
Wokeachusetts- the Mecca of the climate cult.
Mr. Milloy makes a critically important point- we are only just starting to undo this false finding, and there’s too much money on the other side to assume the truth will prevail. We should not rely on the courts, it can and should be resolved by legislation.
Just rescind the endangerment finding
Exactly. Mr. Milloy has laid out a persuasive argument. Any legal challenge to simply rescinding it may eventually end up with The Supremes and their recent decisions strongly suggest they would rule in favor of the Trump Administration. The Executive Branch—in this case, the EPA—has no legislative authority. Only Congress does. The EPA cannot start regulating something that Congress didn’t explicitly give them authority to regulate.
Your tactical description is spot on.
Had the Endangerment Finding been rescinded, the lawfare would be to get it re-instantiated and the years of lawyers yacking would have allowed it to be in the stasis of recission.
As it is, the years of lawfare will prevent a recission decision until the smoke clears.
Not to be rude to Steve as he’s generally a thoughtful contributor but his misunderstanding of Loper Bright Enterprise v. Raimondo does not lend confidence to the rest of his analysis. Loper Bright is the decision that overturned Chevron deference, its about courts not automatically deferring to government agencies in regards to their interpretations of statutes, its got nothing to do with interpretation of science.
In fact if it wasn’t Massachusetts vs EPA it was a ruling in relation to it that SCOTUS explicitly ruled that the courts are NOT ‘arbiters of science’ and that any ‘reasonable interpretation’ must be accepted by the courts.Its the ruling that people mistakenly claim SCOTUS ruled that CO2 is a pollutant, they didn’t rule any such thing.
This is not to claim that the Trump admin will have an easy path, we all knew there would be law suits, so the question is did Trump hire the proper people this time such that his lawyers are better than the crazies filing the lawsuits. For example, the ‘group of 5’ established by the EPA is explicitly referred to as a ‘Working Group’ and is thus not an ‘advisory committee’. Whether any particular judge, especially one in Massachusetts, will bend the law into pretzels to get the outcome the climate crazies desire is a different question.
Furthermore only the courts can find a law ‘illegal’ or ‘unconstitutional’, so just saying the Endangerment finding is one of those SCOTUS may find illegal is open to debate until SCOTUS makes a ruling on it. Had the EPA not followed the tried & true requirements of ‘rule making’ then they would have been open to lawsuits under that basis.
The problem with today’s US ‘legal landscape’ is that there is 0 ‘consistency’ and thus no telling what any particular judge/court will rule and THAT is not a legal landscape that is supportive of a free and open society to allow it to blossom. If you have no clue if any particular action you take is ‘legal’ or not, society and actions taken by people in society will stagnate.
“Its the ruling that people mistakenly claim SCOTUS ruled that CO2 is a pollutant, they didn’t rule any such thing.”
I’m not a lawyer but it’s my understanding that SCOTUS ruled that IF CO2 is a pollutant then the EPA can regulate it.
Obama’s EPA under “Richard Windsor” are the ones that claimed it was.
The Endangerment Finding was a politically motivated and crafted excuse to support that claim.
Given trends in lawfare, actually following the law is secondary. Abuse of process is the main goal, not reaching a reasoned decision.
A parallel would be the response to NYSRPA v Bruen, which anti gun groups decidedly lost. New York doubled down with a law making concealed carry licenses nearly useless anywhere, and various lower courts flatly refuse to follow the precedent.
Steve Milloy: “The Trump administration would likely prevail on this because of the 2022 SCOTUS decision in West Virginia v. EPA that held major EPA regulatory programs require express authorization from Congress. Massachusetts v. EPA was all about the EPA not having such authorization. In that case, a narrow 5-4 majority invented a basis for EPA to regulate greenhouse gases despite there being no express congressional authorization.”
The authors of the 2022 Inflation reduction Act (IRA) included the following definition of a greenhouse gas in several places within that law: The term `greenhouse gas’ means the air pollutants carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.
Those authors state unequivocally that the IRA’s wording constitutes direct authorization by Congress for the EPA to regulate carbon emissions, thus overcoming the problem of West Virginia versus EPA.
Simply stated, with passage of the 2022 IRA, the science of the question no longer matters. Carbon dioxide is a pollutant simply because Congress has said that it is a pollutant. This is exactly what the authors of the 2022 IRA intended.
If a court eventually finds this to be the case; i.e, that authorization for EPA regulation of carbon is contained in Congressional legislation, 2022’s IRA, then the need for an Endangerment Finding goes away.
The authors of the 2022 IRA knew full well when they wrote the legislation that the need for an Endangerment Finding would go away. That’s why they wrote it in the way that they did.
Now here is the interesting thing. The plaintiff’s lawsuit focuses on the Endangerment Finding and makes no reference whatsoever to the 2022 IRA as a justification for the lawsuit — even though technically, the need for an Endangerment Finding has gone away as a basis for authorizing EPA regulation of carbon.
Why are the plaintiffs doing it this way? IMHO, two things are going on here.
(1) Both the plaintiffs and the Trump administration are engaged in a game of information warfare concerning the scientific validity of today’s mainstream climate science. The EPA’s proposed rescission of the Endangerment Finding, the plaintiff’s lawsuit against the EPA, and the Trump administration’s response to the lawsuit are all elements of this game of information warfare.
(2) If President Trump does do what Steve Milloy advocates and issues an Executive Order which recinds the Endangerment Finding without any direct process involvement by the EPA; and if the EO also directs the EPA to end regulation of carbon altogether, then the plaintiffs will come back with a second lawsuit which does cite the 2022 IRA and which does argue that Congress has in fact given explicit authorization and direction to the EPA to regulate carbon emissions.
If this is what happens, the entire carbon regulation drama will become even more lengthy and complex than it already is.
The IRA was a ‘budge reconciliation’ bill and as such the definition of ‘greenhouse gas’ is only applicable to the spending of the money authorized under the IRA it is not a generally applicable term authorizing the EPA or anyone else to regulate it. The Endangerment Finding and the CCA are the applicable regulatory framework. Updating the CCA to restrict the EPA’s mandate would be best but for now we must hope that the repeal of the Endangerment Finding will have enough legs to make a difference
In the mean time ‘drill baby drill’…plant life will thank us…