By David Wojick
EPA’s arguments for repealing the Obama endangerment finding are simple, clear, and strong. So, they have a likely chance of winning in the Supreme Court (SCOTUS), which is where the final decision will be made.
I am working from the lengthy EPA press release which contains what amounts to a summary legal brief of the arguments.
The primary argument is legal and aimed directly at SCOTUS. The release even cites several relevant prior decisions. The gist of these decisions is that agencies cannot find new meaning in old statutes that suddenly gives them enormous new regulatory powers. Such recklessness is called regulatory overreach.
EPA’s argument is that massive overreach is precisely what the endangerment finding did, and it sure looks that way. It was not mission creep, more like mission explosion.
The statute in question is Section 202(a) of the Clean Air Act which lets EPA regulate harmful tailpipe emissions from motor vehicles. The Obama endangerment finding is entirely based on this narrow rule.
Here is how EPA puts it:
“The agency concludes that Section 202(a) of the CAA does not provide statutory authority for EPA to prescribe motor vehicle and engine emission standards in the manner previously utilized, including for the purpose of addressing global climate change, and therefore has no legal basis for the Endangerment Finding and resulting regulations. EPA firmly believes the 2009 Endangerment Finding made by the Obama Administration exceeded the agency’s authority to combat “air pollution” that harms public health and welfare, and that a policy decision of this magnitude, which carries sweeping economic and policy consequences, lies solely with Congress. Unlike our predecessors, the Trump EPA is committed to following the law exactly as it is written and as Congress intended—not as others might wish it to be.”
This is just the sort of statutory issue the Supreme Court usually deals with.
There is an element of the endangerment finding that is so blatantly wrong that it is hilarious. I would start with it because it certainly makes EPA’s case for repeal, at least in part. EPA mentions it in passing saying this:
“In an unprecedented move, the Obama EPA found that carbon dioxide emissions emitted from automobiles – in combination with five other gases, some of which vehicles don’t even emit – contribute an unknown amount to greenhouse gas concentrations in the atmosphere….”
So they used the tailpipe statute to assess (and then regulate) gases that tailpipes do not emit. There is clearly no statutory basis for these endangerment findings.
These are not scientific issues, and SCOTUS does not normally adjudicate science. There are, however, one and a half scientific arguments in case the science comes up. That is, one argument is fully stated in the release while the other is merely alluded to.
Here is the fully stated argument:
“Using the same types of models utilized by the previous administrations and climate change zealots, EPA now finds that even if the U.S. were to eliminate all GHG emissions from all vehicles, there would be no material impact on global climate indicators through 2100.”
This is actually an endangerment finding, namely that there is none.
Here is the alluded to argument:
“….the Obama EPA found that carbon dioxide emissions emitted from automobiles – in combination with five other gases, some of which vehicles don’t even emit – contribute an unknown amount to greenhouse gas concentrations in the atmosphere that, in turn, play a role through varied causal chains that may endanger human health and welfare.”
The several scientific issues here are the reality of the “varied causal chains” claimed in the Obama endangerment finding. These causal issues include a great deal of alarmism.
As science, the endangerment finding is a complex attribution claim, and these are highly speculative and contentious. These causal chain issues may be elaborated in the technical support documents for the repeal. But if they are at least mentioned, as in the release, it creates a placeholder for them, in case they come up during the SCOTUS arguments.
EPA has mounted some elegant arguments for repeal of the endangerment finding. Stay tuned to CFACT as this drama unfolds.
Let’s hope the SCOTUS agrees. To be honest, I have no faith in their ability to use common sense when making some decisions lately. They are sometimes wrapped up in legalize that escapes me but I am by no means qualified to be an arbiter.
Well the majority are conservative and they have been reining in the agencies so it is a reasonable hope. Mind you my favorite legal maxim is “Litigation is a crap shoot” so I make no prediction.
Didn’t SCOTUS just terminate Trump’s ability to set tariffs the way he wants? That sucks.
He used an emergency law in a way that SCOTUS deemed illegal. Good precedent for the EF repeal.
Trump’s legal and regulatory team wanted the tariff’s he employed to be overturned by the Supreme Court. What the court did hopefully is remove some emergency powers from the federal government in the long term. Solidifying the Major Doctrines Question should hamstring future liberal governments from creating huge and impactful new rules from out out older statutes and whole cloth.
OK, got it. Makes sense.
Normally, I would concur with your wariness of SCOTUS. However, in this one case, I think that at least 6 of the justices are itching to rectify the execrable Endangerment Finding.
let’s hope so.
Thank you for this update. It gets even more interesting. EPA describes three separate statutory/legal arguments, each of which could stand alone to justify rescission.
This is from the official Federal Register entry from two days ago.
“V. Rescission of the Endangerment Finding
In this section, the EPA provides its bases for rescinding the 2009 Endangerment Finding that initiated the Agency’s unprecedented assertion of authority to regulate GHG emissions in response to global climate change concerns. …
… Each of the legal bases finalized in this action is separate and independent from the others, and the EPA would rescind the Endangerment Finding and repeal the GHG emission standards on any one of these bases standing alone. The EPA’s lack of statutory authority for the Endangerment Finding and related regulations would require rescission and repeal even if the major questions doctrine did not apply. Similarly, the major questions doctrine would require finalizing this action even if the EPA had a plausible textual basis for asserting the authority to regulate GHG emissions in response to global climate change concerns. Each of these bases would require finalizing this action even if the futility of the GHG emission standards program were not established in the record or were not an adequate basis for this final action. Conversely, the futility of the GHG emission standards program would support repealing the GHG emission standards even if there were an adequate legal basis to retain the Endangerment Finding.”
Discussion
I understand why the EPA held back from taking a position on any of the scientific claims for or against the 2009 Endangerment Finding, as they had firmly ruled out any authority for the Administrator to weigh in on the matter of the global effect of GHGs at all!
For background, here is CAA (Clean Air Act) section 202(a)(1)
Ҥ7521. Emission standards for new motor vehicles or new motor vehicle engines
(a) Authority of Administrator to prescribe by regulation
Except as otherwise provided in subsection (b) of this section—
(1) The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. Such standards shall be applicable to such vehicles and engines for their useful life (as determined under subsection (d) of this section, relating to useful life of vehicles for purposes of certification), whether such vehicles and engines are designed as complete systems or incorporate devices to prevent or control such pollution.”
Was it EVER reasonable to anticipate harm from emissions of CO2? No, because its minor radiative influence is massively overwhelmed by dynamic energy conversion within the general circulation. The modelers know this, and if this comes before Congress again, the hourly values of the “vertical integral of energy conversion” from the ERA5 reanalysis model can demonstrate the vanishingly weak case for harm.
https://drive.google.com/file/d/1knv0YdUyIgyR9Mwk3jGJwccIGHv38J33/view?usp=drive_link
More here with references and explanation.
https://drive.google.com/drive/folders/1PDJP3F3rteoP99lR53YKp2fzuaza7Niz?usp=drive_link
Thank you for your patience in this important matter.
So SCOTUS has just ruled that Trump’s tariffs are the kinds of imposts that must be passed by Congress rather than by edict from a branch of government other than the legislative branch.
So is this now precedent to support a SCOTUS finding that the Endangerment Finding by Obama’s EPA was unconstitutional?
Seems to me it helps.
It helps but the loss of Trump’s tariffs is a big loss.
Not all tariffs lost.
Watching the talking heads talk no tariffs are lost. SCOTUS removed one avenue that had previously gone untested of imposing tariffs. There remains multiple ways he can still impose tariffs that are already tried and tested in previous administrations some take longer than others to impose.
Good post. This recision was long coming, and carefully constructed to withstand the inevitable Lawfare.
Thanks! It will be interesting to see what the Court of Appeals where the suits are being brought does. No matter what it then goes to SCOTUS.
After today’s decision by the Supremes around tariffs the likelihood that they support the repeal of the endangerment finding increases. It is clear that this SCOTUS sees Congress as the maker of laws, not the Executive. Look for Robert’s et al to rule that Obama did not have the express authority to go beyond the original intent of the Clean Air Act and if future, similar findings are to be considered legal they better go through Congress.
You don’t get to do what you want without getting others to agree. Period.
Power plants don’t have tailpipes.
How do they get from an alleged authority to regulate tailpipe emissions of CO2, to regulating everything that may or may not emit CO2?
Good research question but not simple. An AI chatbot might answer it.
South Park has a funny story about a chatbot.
https://www.reddit.com/r/artificial/comments/1n6g8p8/south_park_on_ai_sycophancy/
A salad made from french fries? Awesome!
I do not know if this is a solid legal argument, but I will suggest it anyway. It is well known that water vapor is the major green house gas that contributes to whatever warming effect might occur due to gases in the atmosphere. To leave out water vapor and include CO2 in the endangerment finding seems to me to be grounds for throwing out all of the endangerment argument.
Let me help a bit. The CAA unfortunately defines a pollutant ‘as that which pollutes’—clearly implied anthropogenic sources. Circular nonsense. SO2 from coal fired generation clearly ‘pollutes’. Ditto Mercury from coal fired generation. Was the original CAA legislative intent.
Water vapor cannot be included in any endangerment finding because is purely natural, arising from the 71% ‘blue planet’. CO2 should not be, but was because rising amounts were arguably not purely ‘natural’.
But SO2 and mercury vapor are found in Nature too!
My problem is that anthropogenic sources are minimal. In essence, everything that does respiration releases CO2. That includes plants and animals. Humans do not “create” CO2 from nothing. It is a byproduct of decomposition. The elements may be shuffled around but we don’t create them.
If CO2 is a dangerous pollutant to life on the planet, then the sources should be ranked in volume and the ability to control. We should cut every tree, mow grass level with the ground, commit genocide on termites, eradicate plankton and algae, etc. Human contribution is going to be far down the list.
That same reasoning should apply to CO2 as well, since it is “purely natural, arising from the 71% ‘blue planet’.”
ICE vehicles (and fossil fuel power plants) exhaust BOTH water vapor and CO2.
Furthermore, all CO2 is natural in origin, even considering that which arises from reacting carbon-containing fuels with elemental oxygen in the atmosphere or as bound in existing chemical compounds (such a nitrates and peroxides).
In simple terms, planet Earth is not receiving any significant additions of hydrogen, carbon or oxygen from outer space . . . all three elements are exclusively “natural”.
Surely, SCOTUS can only make a finding in regard to matters of law, not in regard to any scientific matter. Judges i.e. ex-lawyers, have no expertise in that field whatsoever. If they find the EPA does have the power to make an endangerment finding, then the EPA has the power to retract that finding. If they find the EPA does not have the power to make an endangerment finding, then the original EPA finding is null and void.
“even if the U.S. were to eliminate all GHG emissions from all vehicles, there would be no material impact on global climate indicators through 2100.”
This is a finding of fact, not law. But still true.
Yes there are science arguments backing up the legal ones. The courts do not adjudicate science disputes but they do rule on science intensive issues. Problem here is the alarmists will produce prestigious experts who say other models do show harm. The court is then likely to rule EPA has failed to show they do not.
So EPA has to prove a negative? Ouch!
Yes but only if the legal arguments fail. Uncertainty in the science probably favors alarmism in this case. That is the bad news.
As long as your interpretation of “truth” does not involve The Scientific Method, which says such an assertion/prediction cannot be tested by experiment (that is, it is not “falsifiable”).
It can be tested. Just eliminate all mobile emissions and see if it changes the climate change. Complex scientific issues are not subject to simple testing. That does not make them unscientific. Feasibility of testing is not part of the method.
You really want to assert that eliminating “all mobile emissions” is a realistic possibility? Get real.
Also, who said anything about “feasibility testing”? I just mentioned experimental testing . . . as in, obtaining data to confirm or rebuke your offered hypothesis.
Then too there is this from Google’s AI bot (my bold emphasis added):
“Yes, conducting experiments is a foundational, core component of the scientific method, designed to test hypotheses, minimize bias, and establish cause-and-effect relationships. Experiments provide empirical evidence and allow findings to be replicated, ensuring that scientific knowledge is reliable and not just based on observation.
Key details about the role of experiments in the scientific method:
Testing Hypotheses: Experiments specifically test whether a proposed explanation (hypothesis) for a phenomenon is supported by data.
. . .”
Lastly, from https://en.wikipedia.org/wiki/Scientific_method , here is one of the more extensive listing of steps in The Scientific Method:
Simple and elegant indeed. The arguments are constructed to place a burden of proof on the parties who insist that endangerment exists. It also returns the burden to Congress to take direct responsibility for any and all specific actions regarding regulation; legislators can no longer distance themselves from the repercussions of those actions. They must firmly establish any presumed merits.
If the challengers to recission insist on going beyond arguments to statutory limits and venture into a scientific basis, it then opens up a demand for a very public debate on the merits of alarmist claims and the paucity of direct evidence versus speculative modeling. It would also demand a more detailed cost/benefit analysis.
These are all elements that the alarmist cadre always seeks to avoid or veil in the haze of emotional appeal.
Unfortunately Supreme Court cases do not call for public debate except in the party briefs and oral arguments. Nor does cost benefit become an issue.
No, but a ruling that upholds rescission of the finding on the stated grounds would return the issue to Congress, where those aspects would come into play. Modifying legislation to specifically indict CO₂ as a pollutant under the Clean Air Act, or enacting some new legislation to that effect would be a much rockier road than simple bureaucratic declaration, or so I would hope.
From the above article,
“So they used the tailpipe statute to assess (and then regulate) gases that tailpipes do not emit.”
Am I reading this correctly as an assertion that the EPA (“they” in your claim) is stating that ICE automobiles do not emit CO2 gas as the major part of total tailpipe emissions???
This is very confusing in light of known facts.
No they found danger from 6 GHGs including some the cars do not emit like methane. The quote is clear.
It seems that you are also confused.
The EPA’s 2009 “Endangerment Finding” explicitly included carbon dioxide (CO2)—along with five other greenhouse gases—as a pollutant that threatens public health and welfare.
Again, the quote I cited is about regulating gases that tailpipes do NOT emit. As stated it makes no sense . . . but would if the word “not” was excluded.
BTW, ICE automobiles do emit small amounts of methane. Check it out at https://pubmed.ncbi.nlm.nih.gov/15112800/ .
It is bizarre that we are looking to the Judicial Branch to decide legislative actions and determine what to regulate or not. We are a banana republic. Only Congress can legislate. Only. Congress. Article I of the Constitution says that. But our galactically stupid and inept Congress, that seems to think its main responsibility is holding committee hearings and investigations to grandstand in front of the cameras, has abrogated its basic responsibilities. All they have to do is pass a simple bill declaring that CO2 is not to be regulated and all this ridiculousness ends. That’s it. But apparently they have stupid things to do instead that are higher priority. Or something.