From Government Accountability & Oversight
2009 Obama EPA appointees internally called the Endangerment Finding a “decision ready to go,” a “basic fact” and “nothing more than science and common sense”; discussion went straight to timing, suggesting predetermination and a sham notice-and-comment rule making process
Executive Summary: GAO strongly encourages the Environmental Protection Agency to include in any rescission of the Obama Administration’s 2009 Endangerment Finding (EF) the reality, documented below, that it was the product of unalterably closed minds and thereby unlawful. Agency Emails dated as early as two weeks after the January 21, 2009, inauguration, and at least one memorandum, reveal that the political appointees who orchestrated the April 17, 2009 proposal did not in fact deliberate over whether greenhouse gases endanger public health or welfare. Correspondence shows the decision makers calling “endangerment” a “decision ready to go,” a “basic fact” and “nothing more than science and common sense.” Discussions were about the timing of going through various individual motions required to impose a significant notice-and-comment rulemaking, and how to credibly pull that off on a rushed timetable dictated by political anniversaries and a scheduled UN conference in Copenhagen. The EF was the product of a sham regulatory process and violated the Due Process Clause of the U.S. Constitution, the Administrative Procedure Act, and D.C. Circuit precedent. At minimum, any court seeing this evidence should remand the EF to a Special Master for discovery into the Agency’s state of mind and the propriety of the EF which the Agency seeks to rescind.
GAO is reading about increasing concerns over which arguments the Environmental Protection Agency will deploy in rescinding the 2009 Endangerment Finding (“EF”). The EF is the keystone in the global warming edifice, having precipitated numerous Agency regulations, whether purportedly made necessary due to the EF or simply grounded therein and ‘incorporated by reference.'[1]
Supporting that regulatory assault was the purpose behind what records subsequently released by the Agency reveal was a “ready to go” finding of endangerment brought to the Agency by political appointees in the then-new Obama administration.
The courts have subsequently struck down Agency claims of vast regulatory powers to implement at least one regulation triggered by the EF, the 2015 “Clean Power Plan.”[2] The Agency now properly seeks to rescind the Endangerment Finding itself.
A Job for SCOTUS
One concern expressed by opponents of the EF is the weight EPA is placing on the argument that the only interpretation of the relevant statutory language is that the Agency does not have the authority to regulate greenhouse gases (GHGs) under the Clean Air Act (rather than, say, it has the authority but there is no endangerment from motor vehicle emissions). This scripts a frontal challenge for the Supreme Court to overturn its 2007 Massachusetts v. EPA opinion holding that the Agency does have this authority. This not only assures that the D.C. Circuit will be mere way station on the path to SCOTUS review, as the circuit court, however resistant it might on occasion be to getting SCOTUS’s messages, surely will have no problem applying Mass. v. EPA here and ruling against EPA at least on that lead argument.
One problem the Agency will face is that Justice Stevens’ tendentious 5-4 opinion (remember when those were illegitimate? Selected, not elected, etc.?) included assertions that “There is no reason, much less a compelling reason, to accept EPA’s invitation to read ambiguity into a clear statute,” and “Because greenhouse gases fit well within the Clean Air Act’s capacious definition of “air pollutant,” we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles.” However unsupportable (as the Scalia dissent makes clear), this contemplation of the question facing all such adventurism under West Virginia v. EPA[3] means Mass. v. EPA will have to be ripped out by the roots, as the Court recently did with another Stevens creation, the 1984 Chevron v. NRDC (which opinion seemingly precluded his outcome in Mass. v. EPA). Tackling this error now is preferable to decades of creating exceptions and other avenues to avoid admitting mistakes were made, which was the path the Court chose in Chevron almost as soon as it released the opinion. Already, the Court seems to have quietly walked away from one of two Mass. v. EPA holdings, that of a “special solicitude” on states’ standing to sue. That threshold finding made the entire mess possible and yet, about this, the Court now appears to be saying never mind.
Pour it On, Salt the Earth
There is no reason to not throw everything at rescinding the EF. This applies to arguments including that that the Obama EPA’s predetermination shows the corruption of the administrative record in developing the EF. Establishing how flawed the process was would salt the earth for any activist administration in the future seeking to revive the GHG-endangerment finding (assuming the Supreme Court doesn’t shut the entire project down as beyond the scope of EPA’s authority, but somehow leaves open the possibility of such future action).
GAO points to noted “law whisperer” “Joe Goffman, the air chief under former President Joe Biden, sa[ying the Trump] EPA would likely lean into arguments that it thinks could persuade the D.C. Circuit Court of Appeals or the Supreme Court to issue a decision that “precludes or dispositively sandbags a future administration from regulating greenhouse gas emissions under the Clean Air Act.” Predetermination is one of those arguments.
In fact, the most fervent EF supporters have unwittingly—and with breathtaking lack of self-awareness—agreed that predetermination is disqualifying.
As such, GAO strongly encourages the Agency to include in its formal rescission an acknowledgement, with the documentary evidence some of which only EPA possesses, that the EF was the product of unalterably closed minds. Agency Emails dated as early as two weeks after the January 21, 2009, inauguration, and at least one memorandum, reveal that the political appointees who orchestrated the April 2009 proposal and December 2009 final rule formalizing the EF did not deliberate over whether greenhouse gases endanger public health or welfare. Instead, they asserted in correspondence that endangerment was a “decision ready to go,” a “basic fact” and “nothing more than science and common sense.” Discussions were limited to scripting the timing of going through various individual motions required to impose a significant notice-and-comment rulemaking, and how could they credibly pull that off on a timetable these appointees had concluded should be dictated by political anniversaries and a scheduled international conference.[4]
The below Agency records now in the public domain confirm there was no realistic chance the Obama-era process, or these motions, would achieve any other outcome.
EPA conducted a truncated and sham internal and inter-agency review process and similarly engineered a notice-and-comment public participation process effectively rendered meaningless, not genuinely open to rational consideration of arguments and evidence presented to the Agency, and thereby not executed in a way that allowed it to have a meaningful impact on the final decision. The officials should have recused or been recused.
This leaves the Endangerment Finding in violation of the Administrative Procedure Act (APA) as arbitrary and capricious and warrants a court to uphold the Agency’s rescission of the EF for being in violation of the APA and the Due Process Clause, or at minimum remand it to a Special Master for discovery into the Agency’s state of mind and propriety of the Endangerment Finding which the Agency seeks to rescind. Telecomms. Research & Action Ctr. v. FCC, 242 U.S. App. D.C. 222, 750 F.2d 70, 78 (1984) (“if an agency record is insufficient, the Court of Appeals may either remand the record to the agency for further development or appoint a special master under 28 U.S.C. § 2347(b)(3).”).
A. The EF Was Unlawfully Predetermined and the Product of Unalterably Closed Minds
- The Unalterably Closed Mind Standard
The Due Process Clause to the U.S. Constitution, the Administrative Procedure Act, and the D.C. Circuit’s precedent require that decisionmakers meaningfully consider the evidence and arguments presented during a proceeding. This is the hallmark of Constitutional due process and a fair and open administrative process. Officials who proceed with predetermination, without being genuinely open to reconsideration of facts and policy, violate the public’s rights.
Although the presumption of regularity generally protects agency decisionmakers unless there is strong evidence of bad faith or improper behavior, Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1102, Hercules, Inc. v. EPA, 598 F.2d 91, the APA provides mechanisms for judicial review of agency actions that are arbitrary, capricious, or otherwise not in accordance with law. The D.C. Circuit Court has held that decisionmakers violate the Due Process Clause and must be disqualified when they act with an “unalterably closed mind” and are “unwilling or unable” to rationally consider arguments contrary to their pre-existing position. Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1170, 1174 (D.C. Cir. 1979). Courts may set aside agency decisions made with an “unalterably closed mind” just as they may if the agency failed to consider relevant factors or relies on improper considerations.
The “unalterably closed mind” test balances the need for impartiality with the recognition that agency officials often have policy views or preconceptions due to their roles in implementing statutory programs. An unalterably closed mind is demonstrated, the presumption of administrative regularity is rebutted, and remedy is warranted when there is a “clear and convincing showing” that an agency member’s unwillingness or inability to fairly consider views on matters critical to the disposition of a proceeding other than their pre-existing policy views, beliefs, and political agendas. Association of Nat’l Advertisers, Inc. v. FTC.
Instances of officials announcing their considered position early in a process, then carrying out a legitimate process does not satisfy the test. Consumers Union of U.S., Inc. v. FTC, 801 F.2d 417, 427 (D.C. Cir. 1986). Agency records show that the rather the opposite to have been the case with the Endangerment Finding: while the agency publicly insisted it had not decided to make a finding of “endangerment,” it had, and the only outstanding matter under consideration was the staging of the performance, to ensure and pre-arrange an expedited internal review process revolving around dates and events of political significance to the appointees, rendering the supposed notice-and-comment process as a sham. The documentary record suggesting bad faith is overwhelming, and sufficient to overcome a presumption of good faith, or regularity.
EPA should cite to and document both reasons in rescinding the Endangerment Finding.
2. Records establish a clear appearance that EPA’s Endangerment Finding was unlawfully predetermined.
The possibility of predetermination in the 2009 regulatory “finding” that greenhouse gases endanger human health and welfare was first raised by emails and logs produced in a 2012 FOIA lawsuit over then-Administrator Lisa Jackson’s unlawful, false-identity email account purporting to belong to a “Richard Windsor.”[5] Subsequent release of some of those records which had been withheld in part or in full, including portions we now know were improperly withheld as “deliberative,” strongly support a conclusion that the Agency making its Endangerment Finding was predetermined by political appointees well before the declared, formal notice-and-comment process could plausibly have yielded any reasoned decision. Internal deliberations were all along simply a matter of presentation including but not limited to the matter of timing the announcement for optimal political orchestration. That is, these records provide a sound and documentary basis for concluding that there was no realistic chance the notice-and-comment process would achieve any other outcome.
Prior advocacy, pre-existing policy views, beliefs, and political agendas among the principals surely were present in this instance, with Lisa Heinzerling, “ the lead author of the briefs of Massachusetts and other petitioners in Massachusetts v. EPA,” brought in to serve as Associate Administrator for the Office of Policy, Economics, and Innovation, or “policy chief”[6] ‑—a position that did not require Senate confirmation. In that capacity, as these records confirm, Ms. Heinzerling drove the formalization and adoption of the position she had advocated for years. That is not delegitimatizing under D.C. Circuit precedent. The records, however, further establish in a clear and convincing way that Ms. Heinzerling’s zeal to impose the standard she had previously fought for as private counsel was never set aside to consider other viewpoints, was shared by other relevant appointees, and guided a predetermined outcome. These records conclusively rule out the prospect that at any time prior to its April 2009 proposal was the issue of whether to publish the Endangerment Finding in question or the subject of debate; the questions that run through all of these records are political timing and optics, including how quickly the Agency could publish the Finding given the requirement of an interagency review process (which other political appointees promised to expedite to days rather than months so as to satisfy the desire to publish the Endangerment Finding by one of two politically symbolic target dates in April). These records not only strongly suggest these appointees behind the Finding were incapable of considering the issue with an open mind, but they also leave no question that the purported deliberation, reviews and notice-and-comment processes were shams, with the outcome predetermined and even verbally assured in advance to allies. Public comments were not going to influence the final decision, and indeed the process did not involve fairly assessing comment.
Exemplar Correspondence Evincing Predetermination
On January 21, 2009, the Obama administration officially assumed office at noon. Approximately two weeks after the inauguration, on February 8, 2009, Lisa Heinzerling sends Lisa Jackson a “power plant memo” stating, in pertinent part (bold added):
“To: Lisa Jackson
From: Lisa Heinzerling
Date: February 8, 2009
Re: EPA Activities Relevant to Power Plants
Our “power plants” conference call with Carol Browner and her team is scheduled for tomorrow morning at 10:00. In preparation for that call, I have put together the following description of recent and near-term EPA activities related to power plants: …
Endangerment: We expect to be able to issue a proposed finding of endangerment for greenhouse gases within the next 100 days. Within the same document, we expect to find that certain major categories of greenhouse gases – in particular, motor vehicles – cause or contribute to air pollution (GHG emissions) which endangers public health and welfare. An endangerment finding combined with a causal finding will trigger regulatory obligations under the Clean Air Act.”[7]
Approximately three weeks into the administration, on February 16, 2009, Administrator Jackson/“Richard Windsor” writes to Heinzerling, Subject: Good news re: Johnson memo[8]:
“The Sierra Club and other petitioners who have challenged the Johnson memo on PSD will NOT be asking the court to stay the memo tomorrow. So we should all be celebrating together tomorrow, and the Green Group meeting should be cause for a group hug. Have a good night.”[9]
Heinzerling responds that same day, “Wow. How did you pull THAT off?”[10] GAO suggests that this reflects that the Administrator assuaged environmentalist pressure groups from forcing the issue via litigation in the D.C. Circuit rather than on the appointees’ own terms, by informing the activists that the Endangerment Finding would be made.
On February 22, 2009, a mere four weeks into office, Ms. Heinzerling again references the matter of timing or when the Agency should issue the finding of “endangerment,” the near-term fact of which is already assumed. Her email to Ms. Jackson stated in pertinent part:
“Hi Lisa – Two questions on endangerment: … 2) What date should we shoot for for our own proposed endangerment finding? A number of press outlets have surmised, based on your excellent NYT interview [published February 18, 2009], that the finding will be issued April 2, the Mass v EPA anniversary. You have also saif [sic] the first day of Earth Week would be good. Which do you prefer? Dina Kruger says her team can do April 2 IF the OMB review process goes quickly.”[11]
Jackson responds in pertinent part, “2) I would like to shoot for an April 16th event at EPA that features POTUS” (President of the United States).[12]
On March 14, 2009, less than two months into the administration, Heinzerling emailed Jackson and Associate Administrator McIntosh about a memorandum she drafted for Jackson to send to the President, in pertinent part (bold added), “We have a politically fraught but scientifically and legally straightforward decision ready to go: that is, that greenhouse gases endanger public health and welfare and that mobile sources contribute to the pollution that is dangerous.”[13]
That the EF was “ready to go” is conclusive of predetermination.
On March 15, 2009, Heinzerling emailed Jackson, indicating these officials’ own predetermination and concern that it might not be approved if others in the administration were given the chance to intervene, stating, in pertinent part:
“I’ve worried that perhaps if we “lose” on the [POTUS] memo, we lose not only on the possibility of a Presidential announcement but also, because of the way the memo is written, on the timing and perhaps content of the finding itself.”[14]
This memo as edited includes the following pertinent points (bold added, truncated for space considerations):
MEMORANDUM FOR THE PRESIDENT
FROM: LISA P. JACKSON
SUBJECT: POTENTIAL PRESIDENTIAL ANNOUNCEMENT OF EPA’S
“ENDANGERMENT FINDING” ON GREENHOUSE GASES
I am writing to ask you to give your most serious consideration to the idea of personally announcing the Environmental Protection Agency’s impending determination that greenhouse gases endanger public health and welfare. Climate change is the most pressing environmental issue of our time, and the “endangerment finding” soon to be issued by EPA will be the United States Government’s first official recognition of this threat. I would urge that this announcement be the major Presidential event of this year’s Earth Week. …
A draft endangerment finding will be sent to OMB [Office of Management and Budget] for interagency review on March 20. OMB has indicated that they will endeavor to complete the process of interagency review in three weeks, so that the endangerment finding would be ready to be issued in mid-April….
Analysis and Policy Considerations
You have made climate policy a central part of your domestic and international agenda. The premise of this policy is that greenhouse gases do indeed threaten human well-being. Yet the United States Government has never officially and formally proclaimed this basic fact… I believe that when the Government does so, through the endangerment finding EPA soon will make, you should be the one to deliver this long-awaited message.
If Earth Day passed without a finding, the domestic and foreign criticism would begin immediately and mount steadily. When, eventually, your Administration made the finding – something that, I will be so bold to say, is a near-certainty ….[T]he beauty of making the endangerment finding during Earth Week is that it would elate the Left without offering targets of opportunity to the Right. After all, the finding is comprised of nothing more than science and common sense.”[15]
On March 16, 2009, EPA National Center for Environmental Economics (NCEE) senior scientist Dr. Alan Carlin, whose complaints about a hurried and non-rigorous review process and lack of supporting data were soon made public,[16] pressed for a more thorough consideration, contradicting what the administration has decided to do.[17] The next day, March 17, 2009, NCEE director Al McGartland emailed Carlin, stating that he did not forward Carlin’s input and, inter alia, “The administrator and the administration has decided to move forward on endangerment, and your comments do not help the legal or policy case for this decision.”[18]
A truism, as noted in a June 8, 2009 memo to prepare Administrator Jackson for her upcoming meeting with Democratic Senators, is that, “if EPA were ever to give the impression that its ongoing greenhouse-gas regulatory activity were motivated by anything other than a desire to apply today’s best science to today’s statutory law, then it would de-legitimize EPA’s actions in the eyes of many stakeholders and members of the public.”[19]
The EPA’s proposed rule properly rescinds the Agency’s earlier action which was predetermined and thus procedurally flawed. When the Agency issues the Rule in final form, it should detail and document this additional evidence of unlawfulness, boosting its chances of surviving legal challenge and salting the earth for a future administration that would want to build on the corrupted administrative record to reinstate a finding of endangerment.
[1] “Previous administrations used the Endangerment Finding to regulate emissions from automobiles, aircraft, agriculture equipment, power plants, and fossil fuel producers in order to drive partisan, left-wing policy goals such as electric vehicle mandates.” Sept. 3, 2025 letter, House Committee and Government Reform to Ms. Marcia McNutt, President, National Academy of Sciences, https://oversight.house.gov/wp-content/uploads/2025/09/National-Academies-of-Sciences-President-McNutt-re-Endangerment-Finding-Letter-09032025.pdf. Several rules flowing from the EF were imposed as a “suite of standards” all designed to force the premature retirement of coal and gas-fired electricity generation. Press release, “Biden-Harris Administration Finalizes Suite of Standards to Reduce Pollution from Fossil Fuel-Fired Power Plants,” U.S. Environmental Protection Agency, April 25, 2024, https://www.epa.gov/newsreleases/biden-harris-administration-finalizes-suite-standards-reduce-pollution-fossil-fuel. The unlawful campaign of using a cascade of rules to force “expedited retirement” of power plants was admitted to by then-Agency Administrator Michael Regan in 2022, affirming that the Endangerment Finding itself represents unlawful agency adventurism, claiming authority far beyond that which Congress actually delegated. See, e.g., Jean Chemnick and Mike Lee, “What the EPA’s New Plans for Regulating Power Plants Mean for Carbon,” Scientific American, March 11, 2023, https://www.scientificamerican.com/article/what-the-epas-new-plans-for-regulating-power-plants-mean-for-carbon/ (“The industry gets to take a look at this suite of rules all at once and say, ‘Is it worth doubling down on investments in this current facility or operation, or should we look at the cost and say no, it’s time to pivot and invest in a clean energy future?” Regan told reporters after his keynote address. “If some of these facilities decide that it’s not worth investing in [control technologies] and you get an expedited retirement, that’s the best tool for reducing greenhouse gas emissions,” he added.”). See also, “Administrator Michael Regan, Remarks to CERAWeek About EPA’s Approach to Deliver Certainty for Power Sector and Ensure Significant Public Health Benefits, As Prepared for Delivery,” https://web.archive.org/web/20220503220839/https://www.epa.gov/speeches/administrator-michael-regan-remarks-ceraweek-about-epas-approach-deliver-certainty-power.
[2] West Virginia v. EPA, 597 U.S. 697 (2022). A decade of U.S. Supreme Court jurisprudence, including also Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014), Michigan v. EPA, 576 U.S. 743 (2015), and Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) is highly relevant to assessing the EF as well as all rules necessarily flowing therefrom. Those opinions clarify the scope of the EPA’s authority, admonish against regulating in complete disregard of cost (particularly Cf. benefit), affirm that deciding how Americans get their electricity (i.e., seeking to force “generation shifting”) is not within EPA’s mission, and/or restate the basic principle that major policy determinations are the prerogative of Congress and not administrative agencies.
[3] Did Congress speak clearly to the issue? If not, it is up to the courts to decide whether an agency was granted this authority.
[4] Concerns were not exclusively limited to optics. Senior Agency officials behind the Finding also struggled with the risk that their desire to include the President of the United States in an event proposing the Finding could upset “the timing and perhaps content of the finding itself”—which Finding the then-Administrator wrote to the White House, knowingly, was “something that, I will be so bold to say, is a near-certainty.”
[5] Competitive Enterprise Institute v. EPA (DDC), Case No. 1:12-cv-01617 (JEB), the litigation over then-EPA Administrator Lisa Jackson’s false-identity email account in the name of Richard Windsor (see, e.g., Neela Banerjee, “EPA administrator’s email account raises concern,” Los Angeles Times, Nov. 12, 2012, https://www.latimes.com/world/la-xpm-2012-nov-20-la-na-epa-emails-20121121-story.html) which, due to the volume of more than 100,000 records involved, led the Court to reviewing a randomly selected (by EPA) index of responsive records. All emails to or from Administrator Lisa Jackson cited hereafter are to or from her false-identity email account in the name of “Richard Windsor,” and the Agency has long publicly admitted that Jackson is the author/recipient of emails on that address. See, e.g., Senate Environment and Public Works Comm., Minority Report, “A Call for Sunshine: EPA’s FOIA and Federal Records Failures Uncovered,” (Sept. 9, 2013) at 9, https://www.epw.senate.gov/public/_cache/files/5/0/5091690a-1c27-4e07-98aa-e4074a117dab/BF9D594B66EBA773D15F23EC2FEC547786CB6ADB4C2DD1862C0C90B6D44D8B5A.callforsunshineinepasfoiaandfederalrecordsfailuresuncovered.pdf.
[6] Ms. Heinzerling, who authored Massachusetts et al.’s brief in the Massachusetts v. EPA case, was brought in to the administration immediately and set to work on this matter for the first approximately seven months as “Administrator Jackson’s chief advisor on climate matters” (apparently until “reinforcements have arrived” (Feb. 10, 2009 email from Lisa Heinzerling to Eric Wachter, et al., Subject: pending items), https://archive.epa.gov/publicinvolvement/web/html/epaappointmentactivities.html. See also Robin Bravender, “EPA policy chief steps down,” Nov. 4, 2010, Politico, https://www.politico.com/story/2010/11/epa-policy-chief-steps-down-044708.
[7] Feb. 8, 2009 Memo Subject: Re: EPA Activities Relevant to Power Plants, To: Lisa Jackson From: Lisa Heinzerling.
[8] On December 18, 2008, then-EPA Administrator Stephen Johnson issued an 18-page memorandum titled “EPA’s Interpretation of Regulations that Determine Pollutants Covered By Federal Prevention of Significant Deterioration (PSD) Permit Program,” detailing EPA’s position on regulating carbon dioxide (CO2) emissions under the PSD permitting program. The memo states that EPA does not consider a pollutant to be “subject to regulation.”https://www.epa.gov/sites/default/files/2015-07/documents/co2_psd.pdf
[9] Feb. 16, 2009 email from Heinzerling to Jackson, Allyn Brooks-LaSure, Subject: Good news re: Johnson memo.
[10] Feb. 16, 2009 email from Jackson to Heinzerling, Subject Re: Good news re: Johnson memo.
[11] Feb. 22, 2009 email from Heinzerling to Jackson, Subject: Endangerment.
[12] Feb. 22, 2009 email from Jackson to Heinzerling, cc: Allyn Brooks-LaSure, Subject: Re: Endangerment. A White House official let slip this predetermination, which was reported the next day in a Dow Jones news story quoting White House advisor and former EPA chief Carol Browner admitting that the decision had already been made to make the endangerment finding. Ian Talley, “EPA Set to Move Toward Carbon-Dioxide Regulation: Climate Czar Says Agency Will Determine That Greenhouse Gas Endangers Public, Propose New Emissions Rules,” Wall Street Journal, Feb. 23, 2009. Administrator Jackson forwarded that story by email, Subject: CB, to Associate Administrator for Congressional Affairs David McIntosh who responded, in toto, “I went less far than this, and unlike her, I did not make the statement publicly. And unlike her, I was responding to a direct question from a Member of Congress. I’ve prepared Allyn” [Brooks-LaSure, EPA spokesman]. Mar. 6, 2009 email from McIntosh to Jackson, Subject: CB.
[13] Mar. 14, 2009 email from Heinzerling to Jackson, cc: McIntosh, Subject: Re: Fw: memo to President.
[14] Mar. 15, 2009 email from Heinzerling to Jackson, cc: McIntosh, Subject: Re: Fw: memo to President.
[15] March –, 2009 Decision Memo, From Lisa P. Jackson, Subject: Potential Presidential Announcement of EPA’s “Endangerment Finding” on Greenhouse Gases.
[16] In March 2009, Dr. Alan Carlin authored a 98-page study which severely criticized the scientific basis for the Agency’s handling of this matter. This story became public when the Competitive Enterprise Institute released a series of emails to Dr. Carlin from NCEE director Al McGartland, stating that Carlin’s study would not be disclosed and that he was to stop working on global warming issues because criticizing EPA’s position would only cause trouble. See, e.g., https://cei.org/blog/epa-considers-closing-ncee-dr-alan-carlins-unit/. See also, e.g., “In their recent draft of an endangerment-finding technical support document (TSD), scientists at the U.S. Environmental Protection Agency (EPA) conclude that carbon dioxide emissions are a public health hazard and should be regulated under the Clean Air Act. Federal law requires that regulations be based on scientific information that is “accurate, clear, complete, and unbiased”; the most recent available; and collected by the “best available methods.” The EPA’s TSD on carbon emissions violates all of these requirements. Staff researcher Dr. Alan Carlin, given just a few days to review the draft TSD, took EPA to the woodshed because the report offered little more than a bibliography of out-of-date reports and research rather than a rigorous scientific inquiry into the subject. The Carlin report’s preface clearly shows that the EPA abdicated its position of scientific authority on the subject.” Robert Peltier, “Politics vs. Science at EPA: The Carlin Matter Revisited,” MasterResource.org, August 6, 2009, https://www.masterresource.org/epa-endangerment-finding/politics-vs-science-at-epa-the-carlin-matter-revisited/.
[17] Mar. 16, 2009 email from Carlin to Steve Newbold, cc: McGartland, John Davidson and Chris Dockins, Subject: Fw: Comments on the Endangerment TSD.
[18] Mar. 17, 2009 email from McGartland to Carlin, cc: John Davidson, Steve Newbold, Subject: Re: endangerment comments??
[19] June 8, 2009 Memorandum to Administrator Jackson from David McIntosh, RE: “Tuesday 12:00 Meeting with Democratic Senators about Climate Policy,” released by EPA in response to FOIA request 2026-EPA-00237_1434262. https://govoversight.org/wp-content/uploads/2026/01/2026-EPA-00237-Records.pdf
The endangerment finding was preposterous scientific fraud. They took the worst case scenarios from models that had been invalidated by empirical observations and then imputed fictional costs to an unknowable future. They completely ignored the benefits side of the equation. It can’t be overturned fast enough!
Alan Carlan (working for as a Senior Operations Research Analyst for EPA in 2009) wrote a report detailing a number of scientific and procedural problems with the EF. He was discouraged by his superior “from filing comments on the proposed finding and told … that whatever he submitted was not likely to affect the final report.”
The fix was in.
I guess it is no coincidence that a similar thing happened Benoit Pare in terms of Ukraine.
Whatever he reported to his OSCE Bosses got ignored or cancelled and never made it into the official statistics.
It’s actually quite simple.
Get your people into top positions and then ignore and/or get rid of critical voices and push the agenda disguised as science.
Sins of omission dominate media propaganda and captured journals. Cherry picking is scientific fraud but is standard practice today. Agenda’s are the reason money is only available for the desired conclusions.
Thanks for the reminder of Alan Carlin’s contributions. An EPA Senior Staff Employee with over 30 years of experience in analyzing proposed rules. This is from Carlin’s, “Comments on Draft Technical Support Document for Endangerment Analysis for Greenhouse Gas Emissions under the Clean Air Act” detailing scientific errors in the Technical Support Document:
This excerpt is from his original submittal to his employer, the EPA, in March 2009:
“As discussed in these comments, I believe my concerns and reservations are sufficiently important to warrant a serious review of the science by EPA before any attempt is made to reach conclusions on the subject of endangerment from GHGs. I believe that this review should start immediately and be a continuing effort as long as there is a serious possibility that EPA may be called upon to implement regulations designed to reduce global warming. The science has and undoubtedly will continue to change and EPA must have the capability to keep abreast of these changes if it is to successfully discharge its responsibilities. The Draft TSD suggests to me that we do not yet have that capability or that we have not used what we have.” Clearly, a scientific review had not taken place when these comments were prepared.
Here is an excerpt from his comments on the Endangerment Finding expressing frustration and disappointment in the process in June 2009:
“It is very important that readers of these comments understand that these comments were prepared under severe time constraints. The actual time available was approximately 4-5 working days. It was therefore impossible to observe normal scholarly standards or even to carefully proofread the comments. As a result there are undoubtedly numerous unresolved inconsistencies and other problems that would normally have been resolved with more normal deadlines. No effort has been made to resolve any possible substantive issues; only a few of the more evident non-substantive ones have been resolved in this version.”
EPA railroaded even their Senior Staff.
And here we are 17 years later with the same possible substantive issues unresolved. Which ones? The same ones.
News tip!!!
Caroline Levitt confirmed that Trump will rescind the Endangerment Finding Thursday!!!!
Non-scientist non-expert political hacks pushed the EF through the door at light speed. The Obama admin EPA sought to rip the USA economy to shreds — while themselves grafting $billions in fake contracts. This was toxic government at its worst. The same corrupt actors ran the Deep State and the WH under Joe Dementia. I pray that these seditious kleptocrats never come to power again. The best way to avoid that is to prosecute, convict, and incarcerate them all ASAP.
It is the same party responsible for the 2020 Presidential election – state of Georgia decided by less than 12000 votes when over 300000 votes in Atlanta area were not properly verified.
Fulton County 2020 election is under full scale review.
It seems the irregularities were sufficient to get DOJ attention.
https://www.atlantanewsfirst.com/2025/12/23/fulton-county-admits-verifying-315000-votes-2020-without-poll-worker-signatures/
“Fulton County admits to verifying 315,000 votes in 2020 without poll worker signatures”
We keep battling leftists on their turf, using their arguments, putting our hopes in the Supreme Court to solve legislative issues. It’s not their job. Congress never authorized regulation of CO2 in the Clean Air Act and its amendments and the Executive Branch’s agencies—the EPA, for example—don’t have legislative (rule making) authority and can’t simply grant themselves power to regulate CO2 without explicit authorization from Congress. According to the Constitution. The first sentence of Article I of the Constitution grants all legislative power to Congress, not to any other branch of the federal government. There is no ambiguity. All. Legislative. Power. We need someone to step up and challenge the EPA, and more specifically, the President, in court over the lack of authorization by Congress to regulate CO2 and reverse the anti-constitutional Massachusetts v. EPA (2007). And Congress needs to write a simple bill declaring that CO2 is not to be regulated so that no future administration tries to grant itself regulatory power it does not have. Congress can always change their minds in the future if there is a critical mass of stupid people in Congress, but I suspect that those against regulating CO2 outnumber the delusional ones. For now.
The problem with getting congress to do anything is that there is *not* a critical mass of intelligent, sane members of congress. Specifically, the lack of 60 such individuals in the Senate.
Ultimately, I agree that we need congress to do its job, but until you get the needed critical mass in congress that’s not happening, so we are left fighting the fight that is currently going on. At least the Trump administration has the balls to engage in that fight, something the RINOs have never been willing to do
The problem with both parties is the drive to create a one party autocracy.
Democrats started first and have the lead. Republican recognized the only counter offensive was to pursue the same goal.
Gone are the days were Representatives represent the voters and Senators represent the States. Now it is toe the party line or be discarded.
George Washington was prescient on this matter.
True, however the Supreme Court ruled that it didn’t matter. They created a standard whereby if anyone in the EPA says something needs to be regulated, then the EPA has the authority to regulate it.
As long as that court standard stays in place, the Endangerment Finding can easily be resurrected by the next Democrat/Socialist administration.
Correct, congress has not done its job for a long time, eg when was the last proper federal budget, eg when was the last balanced budget. Alas in one-party states, we have to wait for Senators to expire before they can be replaced – eg Edward Kennedy of Massachusetts died of a brain tumor while ‘actively’ serving.
The left doesn’t play fair. They will do anything to win. We must not become like them but we cannot ignore the reality of who they are.
I am, or try always to be, a truth-seeker. From what I have seen the majority of leftists are not. Power and control seem to be what drives them, cloaked in the rhetoric of doing what is good and right for the collective. You must be on board for those goals above all and the truth doesn’t matter for them if it goes against their agenda.
We can reach people who have an open mind, and we should try. That means we must temper our reactions to their actions – but at the same time we must not let them steamroll us because they dam sure will if we let them!
First, we must cease using the alarmist lexicon and go back to the fundamental of using established, precise, scientific definitions. It’s a long list.
Second, we must infuse critical thinking back into our schools.
Intelligent though rather than emotional knee jerk responses is mandatory.
Typo: Intelligent thought rather than…..
Same problem as US Senate. The teachers who are teaching kids today are going to teach until the retirement plan matures. The professors training teachers to teach tomorrow are going to teach until the retirement plan matures.
The Endangerment Finding was one of the most striking examples of a characteristic of the climate movement: the demand to implement policies ‘because climate’ which have no effect on climate.
Another striking example, even more destructive and pointless, is the UK Net Zero policy. Though there they have lately stopped talking about climate and moved on to different but equally nonsensical justifications.
The problem with all these programs is that even if they are right about the global climate and the dangers posed by global CO2 emissions, the measures they try and implement are local and have no effect on either.
An honest account of the situation by the EPA would have said that,
The characteristic of the policies is that they are advocated without regard to their real world consequences. Its as if…. well, its as if the authors have concluded that banning emissions is righteous no matter what the consequences. That emitting CO2 is intrinsically wicked and so must be stopped.
Its a form of argument that in the end depends on an appeal to religious authority, because there is no rational or consequentialist justification for it.
Its like arguing that your child should not be given antibiotics because of the global antibiotic resistance problem. There really is such a problem, but denying the kid antibiotics is not going to make any difference to it. And it may kill them. In the light of this, only religious fanaticism will justify withholding it.
Hold your breath. The air in your lungs is 20,000 ppm or higher of CO2.
Do you get sick? No? No health issue.
Mr. 4: ………….can I let it..go……now?
You must wait for the announcement tomorrow. Most of us have been holding our breath since 1992. 😉
Second bullet. In spite of the EF, the US has reduced its CO2 emissions, primarily via transition from coal to natural gas.
We don’t have an official thing like the EF, but we do have the Guardian…
Economic growth is still heating the planet. Is there any way out?
Rising GDP continues to mean more carbon emissions and wider damage to the planet.
https://www.theguardian.com/environment/ng-interactive/2026/feb/09/economic-growth-carbon-emissions-impact-global-heating
Stop whatever you are doing.
I heard an interesting theory about the sudden backdown here in US from climate madness in places such as Washington Post where the climate “journalists” (and I use the titles with a great deal of guffawing). AI—the next good or con, if you will, will need energy way beyond what renewable will EVER be able to make. Beyond oil and gas and water power of today. AI is the next bigly thing. Perhaps every drop of energy and power we can create to satisfy this. Elon musk knows this, hence doing it in space. Climate change? What climate change? Bezos at the WP would like some of that action. The left will find a way to put it into their own pockets and fool us, control us, or kill us, like they did with Covid.
Story tip:
The world’s first sodium-ion battery designed for cars has entered mass production and will be sold in China in the Changan Nevo. Sodium-ion batteries perform better than lithium batteries in low temperatures, and present less risk of thermal runaway.
Sodium ion batteries have lower energy density which means that the battery packs will be larger and heavier. Sodium ion batteries also have a shorter cycle life. They don’t sound like an improvement to me.
Once the supply chain for them is established they might end up being less expensive than lithium batteries.
Bank on “might” at what interest rate?
Sodium carbonate: $400 per ton
Lithium carbonate: $8,000 per ton
Aluminium: $3,200 per ton
Copper: $11,000 per ton
Sodium-ion batteries have already nearly achieved cost parity per kWh compared to LFP batteries.
The cost of raw materials is one of the least important factors in manufactured products.
Your average car has only a few hundred dollars worth of iron and aluminum in it, yet costs over $20,000.
Yes.
With batteries, manufacturing yield is also a factor.
$8000/$400 = 20 times the number of sodium batteries based on cost parity per kWh.
$11000/$3200 = 3.4 times the number of sodium batteries based on cost parity per kWh.
You left out weight and size, but both of those will be on parity with the increased numbers needed.
That’s a stupid argument. It’s like saying E-85 gas is cheaper than regular gas. True, but you have to buy a lot more of it to go the same distance and if your car isn’t designed to handle it it will destroy your engine.
Even if they are a bit less expensive than Li-Ion, they are still larger and heavier.
And nothing good will happen about the problem of flammabiliy.
larger and heavier only if the cars are specified to have the same range per charge. Change the range and the batteries needed are reduced.
It is an engineering trade-off driven by economics and by policies pushed by “it’s got electrolytes” mentalities.
I read the article.
The technology is too new to be proven in industrial scale manufacturing.
It might pan out.
It might have problems yet to be identified.
FYI, this is a novel sodium battery chemistry.
There are some fascinating technical innovations going into it.
It will be fun to watch.
One of the selling points is no thermal runaway, no battery fires, at least according to the article.
Any government department that should be based in science that would ignore science should be closed.
If the department has a defined role, then purged, gutted, and rebuilt. If not, yes then closed.
This is interesting and revealing.
But whatever arguments the EPA now includes in finalizing its rescission of the 2009 Endangerment Finding, the community of skeptics of climate alarm should be pointing out that the physical basis of the claims of climate harm was lacking all along, and remains so. The modelers know this.
https://www.regulations.gov/comment/EPA-HQ-OAR-2025-0194-0305
Story tip – From the WSJ late yesterday:
“The Trump administration is planning this week to repeal the Obama-era scientific finding that serves as the legal basis for federal greenhouse-gas regulation, according to U.S. officials, in the most far-reaching rollback of U.S. climate policy to date.”
https://www.wsj.com/politics/policy/trump-to-repeal-landmark-climate-finding-in-huge-regulatory-rollback-ff7d58db?mod=policy_news_article_pos4
We’ll see what happens.
Thank you for your patience in this important matter.
I always run a mile when a politician tries to lecture me that his science is a basic fact and ‘nothing more than science and common sense’. Since when has common sense ever been a attribute of western gov’ts?
Endangerment is what present gov’ts do to their public.Panic sells amongst the sheeple.
I think Mencken had a thing or two to say about that.
How do you know a politician is lying?
His lips are moving.
What is your best option if a politician says, “Trust me?”
Grad your wallet and run like hell.
Most politicians are lawyers, not scientists. That may be a root of most problems.
I hope the people on the correct side of this will avoid leaning too hard into the “closed minds” argument, because that could be turned around to reinstate the climate/equity regime when the party of absurdities gains the upper hand again. There should be plenty of ammo, at least, in the failure to demonstrate harm, gross exaggeration of potential calamity and the very real economic dangers of net zero.
Wokeachusetts vs EPA 🙂
(still not getting any responses to my posts in my email box- if this can’t get fixed I’ll have to give up on WUWT)
I haven’t asked for emails. I just check for responses. I don’t want any more things sent to me via email.
It seems I got it fixed by changing my email registered to this site. It didn’t like the old email address. Crazy. Luckily, I’m sort of a self taught computer nerd and usually solve such problems but it’s not fun.
Mine restarted after duelling whines to a post and to the contact WUWT ambassador.
Whether CO2 “drives the climate” or not it not the issue at hand.
The un-Constitutional and illegal means employed to force this on this country (and subsequently the world) is treasonous.
The whole purpose of Co2- driving-Climate narrative i to undermine national laws,sovereignties and constitutions – as a global tax/currency/government would not be possible otherwise.
And the Economist already said in 1988 that nations have to cede sovereignties in favor of a global digital currency.
And the major stakeholder of the Economist was a family that held the major speech at the UN climate summit 1992 in Rio.
(Edmonds de R. speech has somhow disappeared from the Internet in the meantime, therefore t should have the official status of a conspiracy theory by now)
A Memory Hole for Rothschild in Rio – OffGuardian
Maybe of interest. ?
‘Whether CO2 “drives the climate” or not it not the issue at hand.’
By all means rescind the EF, but remember the Left is not going away, hence we’d better have the facts ‘in hand’ for when their useful idiots mount their inevitable counter attack.
Concur.
The 2009 Endangerment Finding is legally defective. The Clean Air Act requires that an endangerment finding be followed by publication of a National Ambient Air Quality Standard. The NAAQS has not been developed and published in the 16 years since the EF.
An NAAQS for a globally well mixed trace gas, particularly one emitted primarily by other nations, would be challenging to produce and even more challenging to enforce,if even possible. However, the law requires the NAAQS and it is “missing in action and presumed dead”.
Clearly, a CAA EF was the wrong vehicle to use to control CO2 emissions.
and now the EPA announced that it would indeed rescind the EF – happy days are here again
And who is surprised by this? Only idiots.
The newish ‘major questions’ doctrine, as exemplified by WV v EPA, is dispositive here. It implies overturning Mass v EPA as erroneously decided.
Will be as contentious as overturning Roe v Wade and overturning Chevron deference. Both reversals were solidly reasoned. An enduring benefit from Trump 45.
No reason not to have EPA ‘throw the book’ at rescinding the EF, as argued here. Makes the inevitable SCOTUS decision easier, as can be multiply grounded.
The upcoming decision to toss the 2009 Endangerment Finding will certainly be contested in the courts. We can guess that the lawsuits have already been prepared and the briefs will be filed the day after the EPA announcement is made.
We can also predict that a friendly federal judge will immediately stay the EPA’s decision to rescind the finding, at which point the Trump administration will appeal.
The most likely avenue of lawfare attack will come through citation of the 2022 Inflation Reduction Act (IRA), which specifically identifies CO2, methane, and other carbon compounds as ‘pollutants’ which the Act directs must be reduced.
The authors of the 2022 IRA said in 2023 that the legislation is a self-contained insurance policy against any future attempts by Republicans to end carbon regulation.
They claim that the act, all by itself, authorizes the EPA to reduce America’s carbon emissions independent of any other enabling law, endangerment finding, or any other procedural means of justifying those reductions.
We will probably know by next week what tack the climate alarmist lawfare community will be taking in fighting the EPA’s revocation of the finding.
End result of BB -> case goes to Supreme Court, who say “it’s up to congress”, forcing congressmen to clarify what is meant by the EPA charter. Points back at Istvan’s dispositive WV v EPA.
It could happen that way. Or not. (Whatever.) Just like everything else related to regulating atmospheric emissions of CO2, it’s all up in the air.
“dis·pos·i·tive adjective
bringing about the settlement of an issue.”
Mr. Layman here.
My understanding is that SCOTUS ruled that IF the EPA decided that CO2 was a pollutant then, under “The Clean Air Act”, it could be regulated.
So…if the EPA says CO2 is NOT a pollutant, then all the regulations based on that assumption are null and void.
What did I miss?
As I remark here, the Congress passed the IRA in 2022 which contains language that directly identifies CO2 and other carbon compounds as ‘pollutants’ completely independently of any other body of law, court ruling, EPA endangerment finding, etc. etc.
At some point in the future, after a climate alarmist lower-tier federal judge blocks the EPA’s revocation of the 2009 finding, the Supreme Court will eventually be deciding what it all means.
‘the Congress passed the IRA in 2022 which contains language that directly identifies CO2 and other carbon compounds as ‘pollutants’ completely independently of any other body of law, court ruling, EPA endangerment finding, etc. etc.’
So what? The IRA was a budget reconciliation bill, meaning that it was able to pass the Senate without obtaining the usual number of votes to obtain cloture. This means that any policy items therein, including the CO2 mumbo jumbo you cited is NOT valid law. Nice try.
Oh, now, it is valid law, but it is vulnerable to the same reconciliation process under which it was rammed through.
There is nothing I am aware of in the Constitution that requires passage of anything to 60% of the Senators. The 60 votes applies to a Senate filibuster rule.
Wrong …. Whether the wording identifying CO2 as a ‘pollutant’ was in a reconciliation bill or was in some other form of legislation passed by the Congress in 2022, it is still a legal body of legislation until the Congress repeals that specific wording and/or until the Supreme Court says otherwise.
As far as I know, those parts of the IRA which identify CO2 as a pollutant are still on the books as valid law.
We will know this week or next what tack the environmental lawfare community will be taking in challenging the EPA’s decision to rescind the endangerment finding, including an argument that the 2022 IRA directs the EPA to regulate carbon.
It was for that bakery-fresh, climatey goodness.
GAO did an excellent job in this review.
I am almost to afraid to ask but why judges need these kinds of extremely basic 2 braincells can figure this out guidance?
Is it to di with the case law thing, which as far as I understand is rather questionable as well?
(*) I’m from a country and even a continent where statutory law is practiced.
Obviously not from USA where lawyers get rich any way they can.
The lawyers have expanded their footprint from mere ambulance chasers to whatever litigation they can get their 10% pursuing.
Perhaps a flaw in our US Constitution.
The assumption was that Federal Judges would be honest, unbiased and rule based the laws and The Law of the Land.
But now we have some judges that rule on their own political bias. (We even have a SCOTUS judge who refused to answer the question “What is a woman?” when questioned in her confirmation hearing.
Exacerbated by the media constantly pointing out under which party the judges were appointed, amplifying rhetoric that the judicial system is partisan politics throughout.
It was back in 1961 that President Eisenhower said:
“The prospect of domination of the nation’s scholars by Federal employment, project allocations, and the power of money is ever present and is gravely to be regarded.”
How did he know?
CBS Evening News
https://www.youtube.com/watch?v=1ab5fez6Zlo
In the video, EPA Administrator Lee Zedln is saying CO2 is causing climate change and climate change is causing more intense fires, more intense droughts, more intense floods?
WTF?
I followed the link and it did not contain Zeldin at all – just some CBS correspondent who claimed the EF was the US government’s “most important tool” – not its most important CLIMATE tool, but its most important tool. Period.
Thank you.
I apologize for the error.
The person I thought was Lee Zedin is actually David Schechter, a “CBS National Environmental Correspondent.”
I would not have been surprised if youtube had changed the video.I don’t like conspiracy theorizing, descending into diatribes that use words like “they” a lot, speculating on impossibly large invisible organizations with internally inconsistent political powers with self defeating goals… but the answers AI gives me sometimes make me wonder – what’s going on here?
The guy in the video was not Zeldin, but he sure seemed old enough and educated enough to have done the research he should have done before saying such obviously incorrect things on a television broadcast. Probably his clip is broadly redistributed via social media links. It will now be embarrassing for him to meet people who know anything about what he was talking about.
Should “Richard Windsor” be prosecuted for crimes against humanity?
I have a vague recollection of Obama asking her about his environmental stuff and her replying that, basically, “fix was in”.
I wonder what she was talking about?
Curious, I see a lot of organizations are putting their name on resistance to the repeal, but no _people_ seem to want that historical association.
Associated Press released an article Monday concerning the Trump administration Environmental Protection Agency (EPA) revoking a scientific finding that has been the backbone for US regulation on greenhouse gas emissions and quoted Mann saying the EPA would be cementing Republican climate denial with this measure. Associated Press later removed Mann’s statement from the article the same day it was published without stating why they did so.
Maybe Mann was concerned about a defamation lawsuit?
Nah. He is not that smart.