Have you heard of the “Endangerment Finding” (EF)? You have if you have been reading this blog for any period of time. The 2009 EF is likely the most consequential, expensive and destructive regulatory action ever put in place by the federal bureaucracy. In that action, EPA claimed to find that carbon dioxide and several other so-called “greenhouse gases” constitute a “danger” to human health and welfare. Using the EF as the predicate, the administrative state under the Obama and Biden presidencies implemented dozens of major regulations intended to transform the entire energy sector of the U.S. economy. Obama/Biden regulations based on the EF sought, for example, to force the closure of all fossil-fuel based power plants; to end the production of internal-combustion-based cars in favor of electric cars; to restrict drilling for oil and for natural gas; to halt construction of pipelines; and many, many other such things.
The total cost was heading well into the trillions when President Trump returned to office in 2025. One of Trump’s first day Executive Orders in his second term directed all agencies to “review” and then begin to “suspend, revise, or rescind” all agency actions “identified as unduly burdensome” to U.S. energy production. EPA promptly began a lengthy regulatory process to rescind the EF. The final rule doing away with the EF became final on February 13, 2026. I had a post reporting on the rescission on February 15.
If it withstands court challenges, the rescission of the EF is a death blow against the entire and vast climate grift industry. Obviously the rescission was going to unleash a tsunami of litigation. In case you are wondering what is going on in that litigation, I spent some time today reviewing the docket, and there are several things to report. The bottom line is that the court in question — here the Court of Appeals for the DC Circuit — does not appear to be in any hurry to move things along. That is a major concern, because in my view the biggest risk to the Trump administration position is that the case does not reach decision in the Supreme Court before the end of Trump’s term.
I suppose it is good news in this instance that the relevant statutes force all the litigation challenging this regulatory action to go to one court, the DC Circuit. This is in contrast to various other litigation onslaughts against the Trump administration, where the government’s adversaries can shop around the country to find favorable District Court judges to hear the cases. (Example of this phenomenon: cases challenging immigration enforcement.). And thus, even though dozens of plaintiffs have filed cases challenging rescission of the EF, all these cases are getting consolidated, and will be heard together. Also good news is that the DC Circuit is already an appeals court, and only one level below the Supreme Court. Thus, there will not be an intervening level of appeal before the Supremes get the case.
But the bad news is that the DC Circuit is not a favorable forum for the Trump administration. Of its eleven active judges, seven were appointed by Democrats (either Obama or Biden) and only four by Republicans (three Trump and one George H.W. Bush). All of the seven Democratic appointees are reliable partisans.
So what has happened in the nearly four months since EPA finalized the rescission? Remarkably little. In particular, there does not appear to be any scheduling order to start the briefing.
Petitions from every left-wing NGO known to man began to flood in starting on February 18. Initially, eight cases were opened, but quickly consolidated under the index number of the first one to be filed, which is known as the American Public Health Association case. Yes, the American Public Health Association has decided to stake what remains of its reputation on the position that the trace non-toxic gas CO2 in the atmosphere is somehow a danger to public health. These are the same people who covered themselves with shame in the Covid disaster. The number of Petitioners is way too many to list here, but includes most Democrat-led states, all the big enviro groups that you have heard of (e.g., Environmental Defense Fund, Natural Resources Defense Council, Sierra Club, Friends of the Earth, etc.), and plenty of other random lefty NGOs who should stick to things they know something about (e.g., American Lung Association).
By early March, Motions to Intervene started arriving. These basically come from the normal people and entities who don’t want to leave EPA all alone to defend this action against the swarm of crazies. On March 6, 25 Republican-led states filed such a motion. Among many other would-be intervenors are various trade associations (e.g., American Petroleum Institute), and even the CO2 Coalition (of which I am a member).
But other than that, the case has just sat there. The court has not yet issued a scheduling order, telling the parties when their main briefs are due. On April 22 the court issued an Order denying a request that “briefing proposals” be filed by April 27, and instead directed that the parties (Petitioners and Respondents — nothing about Intervenors) file “procedural” motions by May 20, and “dispositive” motions by June 4. In that same Order, the court stated that it would not ask the parties to file “briefing proposals” until after it had decided any procedural or dispositive motions.
May 20 and June 4 came and went without the filing of any “dispositive” motions that I can find. However, there is one procedural motion worth mentioning. On the May 20 deadline, a group of individual petitioners, most going only by their initials, filed a motion asking the court to “stay” EPA’s rescission of the EF pending the court’s review of that action. If that seems innocuous, I think it means that these petitioners are asking the court to force EPA and the administration to continue the Obama/Biden process of shutting down the fossil fuel economy for the next two or three years while the DC Circuit thinks about what to do next.
The petitioners making this motion are a collection of individuals from what are often called the “youth” climate cases — groups of children and teenagers, Greta Thunberg wannabes if you will, claiming that their lives are somehow being ruined by the burning of fossil fuels. And what is the basis on which they seek their “stay”? Here is their first argument:
The Repeal Rule Violates Petitioners’ Fundamental Free Exercise Rights Under the Religious Freedom Restoration Act. The Repeal Rule substantially burdens Petitioners Elena, J.K., M.D., and E.S.’s sincerely held religious beliefs. “Government shall not substantially burden a person’s exercise of religion” unless it can demonstrate the burden furthers “a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” . . . The Repeal Rule pressures E.S., J.K., and M.D. to modify their behavior in a way that seriously violates their sincerely held religious beliefs by forcing a choice between adherence to their religious tenets, and protecting their health and safety. Petitioners E.S. and J.K. are observant Jews whose religion requires them to walk to synagogue on the Sabbath. . . . M.D. is an observant Muslim whose religion requires her to fast during Ramadan. . . . Each Sabbath that is made too hot for E.S. and J.K. to walk safely to synagogue, and each day of Ramadan that is made too hot for M.D. to safely fast and wear hijab, is a day they are prevented from observing important requirements of their religions.
You literally can’t make this stuff up. And here is their second argument:
The Repeal Rule Violates Petitioners’ Rights to Life and Liberties Under the Fifth Amendment. . . . Petitioners may not be “deprived of life . . . without due process of law.” U.S. Const. amend. V. . . . GHG emissions from the Repeal Rule further disrupt Earth’s energy imbalance [sic] in a way that increases heat, wildfires, and wildfire smoke that injures Petitioners’ lives and health. . . . More wildfire smoke exposure exacerbates Elena’s and Maya’s asthma and Elena’s serious infections, which are life-threatening conditions.
It goes on and on (and on and on) from there.
As of today, it does not appear that the government has filed a response to this motion. As absurd as it seems, this entire enormous case is being held up by this ridiculous motion.
Of course, the case doesn’t have to be held up for this. It is being held up because the DC Circuit is allowing it to be held up. Which gets to the real issue: Is the DC Circuit going to game the scheduling of this case in order that it can’t be decided by the Supreme Court until after Trump has left office? If that occurs, it would of course give a potential incoming Democratic administration in 2029 the ability to reverse course on the regulations. Such an administration might, for example, announce that it is re-instating the EF and agreeing with the position of the petitioners in the litigations.
Perhaps I am being too cynical. But sometimes it is impossible to be too cynical.
