By Steve Milloy
Guest Post by Steve Milloy, from The Daily Wire
It is the kind of blunder that makes you wonder how it ever got this far. Trump’s own Justice Department is undercutting the administration’s effort to rein in federal climate overreach.
In February, Trump’s Environmental Protection Agency (EPA) scrapped the Obama-era endangerment finding, the legal foundation for the whole federal climate regime — the basis for a sprawling federal campaign that Congress never clearly approved. That 2009 finding gave Washington, D.C. the excuse to regulate greenhouse gases and use the Clean Air Act as a blunt instrument against cars, trucks, power plants, and the energy economy itself.
Remove that finding, and the whole regulatory scheme starts to fall apart, leaving the EPA’s climate authority without a real legal footing.
Yet the Justice Department’s position in Suncor Energy v. Boulder County is a mess. While the Trump EPA is trying to unwind the federal climate regime, the DOJ appears to be leaving the door open to the same broad Clean Air Act theory that made the regime possible in the first place. Climate activists will happily exploit that contradiction.
This case is bigger than one bad brief. The Supreme Court is deciding whether Boulder can use state courts as a backdoor to impose a climate policy that Congress never passed. If the Court lets that theory stand, it will encourage copycat suits, drag energy companies into years of litigation, and invite state-by-state climate lawmaking by lawsuit.
This dispute is important because the fight over the endangerment finding is not some isolated legal squabble. It is part of a much larger battle over whether the Trump administration can actually dismantle the federal climate bureaucracy. If the rescission gets knocked out in separate litigation, Trump’s reform effort can be reversed, and every climate rule he is trying to unwind gets fresh legal cover.
Boulder and its allies are using local lawsuits to do an end-run around Congress and rewrite national energy policy in court. That is lawfare, plain and simple.
The Department of Justice’s position gives the game away because it signals that the administration is still hedging on the basic question of the EPA’s authority, and that hesitation is exactly what climate litigants will exploit. Once the government starts speaking in two voices, the other side gets to turn its own words against it.
That is not just a bad look. It is a legal problem. Judges notice when the government is inconsistent. They notice when one branch of the administration says one thing and another branch says something else. Credibility counts in court, especially when the issue is whether the EPA has the power to regulate a major part of the economy under a law Congress never squarely wrote that way.
The administration ought to be fighting with one voice. Congress makes the law, not green activists, trial lawyers, or unelected bureaucrats. Instead, the Trump administration appears to be talking out of both sides of its mouth.
The Left does not need a perfect opening. It only needs inconsistency. It will seize on any stray sentence, quote the government back to itself, and argue that even Trump’s own lawyers admit the EPA has broad authority over greenhouse gases. That is how opponents turn a single bad briefing position into a long-term legal weapon.
That contradiction needs to be fixed now, before it hardens into bad law and leaves Trump’s energy agenda paying the price. The White House and the Justice Department need to speak with one voice, or climate litigants will keep using the administration’s own words against it.
If the government keeps stumbling over its own arguments, the result will not just be bad law. It will be a setback for American energy, American industry, and the entire Trump reform agenda. The Left will not hesitate to exploit it. The only question is whether Trump’s own Justice Department will stop undercutting the Trump agenda in court.
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Steve Milloy is a senior fellow with the Energy & Environment Legal Institute.
