On February 13 this year, the federal EPA rescinded one of its regulatory actions known as the “Endangerment Finding.” (EF). The EF, originally adopted in 2009 early in the Obama administration, was likely the single most costly and destructive regulatory action ever to spring forth from the administrative state. The EF became the fundamental underpinning for all the subsequent regulations that sought to restrict and ultimately ban use of fossil fuels in the economy — everything from regulations seeking to force closure of power plants, to efforts to mandate only electric cars, to restrictions on drilling and pipelines, and much, much more. The Trump administration is now systematically dismantling all those regulatory wrecking balls.
But the opposition has not been idle. Once the rescission became final, the Climate Blob immediately sprang into action with a barrage of lawfare. The first litigation challenging rescission of the EF was filed in the D.C. Circuit on February 18. Over the succeeding several weeks, dozens of additional petitioners joined the fray. Since then, however, the case, although pending, has not moved quickly. I last provided an update in this post from June 8.
For discerning observers of this process, here is the key question of interest: Will the D.C. Circuit schedule this matter to move at a pace consistent with enabling final review of EPA’s action to be concluded by the Supreme Court before the end of President Trump’s term? Or, alternatively, does the D.C. Circuit intend to stall resolution of the case in order to potentially give a new Democratic administration a chance to come into office in early 2029 and do another 180 degree course reversal? At this writing, it is still too early to know fully how the D.C. Circuit will deal with this issue. However, from evidence so far, it looks like those betting the court will slow walk the case have the odds on their side.
The first indication that the court is not in a hurry came in a scheduling Order on April 22, setting dates for the next events in the case. April 22, about two months after the case had begun, would have been a normal time for the court to set deadlines for the parties to file their briefs on the merits. But this Order did not do that. Instead, it only set deadlines for the making of certain motions — “procedural” motions by May 20, and “dispositive” motions by June 4. The court in that Order also specifically declined a request to direct the parties to propose deadlines for the main briefing, and stated: “any order directing the parties to file briefing proposals will be entered after any procedural or dispositive motions are resolved.” You might say that the court was sending a clear signal that parties could file any crazy motions that they could think of, and thereby get several months of free delay in the case.
And indeed the May 20 deadline did bring two motions that you might think are completely ridiculous — until you realize that the real point is probably to buy a few months of delay. One of those motions requested a “stay” of the rescission of the EF. I covered that one in my June 8 post, and won’t repeat that here, except for this great quote on the claimed basis for the stay:
The Repeal Rule substantially burdens Petitioners Elena, J.K., M.D., and E.S.’s sincerely held religious beliefs. . . . 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.
The second “procedural” motion filed on May 20 styled itself as a “motion to complete the record.” That sounds minor and technical. Such motions are not uncommon, and often just ask to add one or a few documents that may have been omitted from a record, perhaps by mistake. But of course this one is not like that, and rather is a very strategic effort to throw a monkey wrench into the whole process.
For starters, check out this list of parties who signed on to this motion:
Alliance of Nurses for Healthy Environments, American Lung Association, American Public Health Association, Center for Biological Diversity, Center for Community Action and Environmental Justice, Clean Air Council, Clean Wisconsin, Conservation Law Foundation, Environmental Defense Fund, Environmental Law & Policy Center, Friends of the Earth, Natural Resources Defense Council, Inc., Physicians for Social Responsibility, Public Citizen, Rio Grande International Study Center, Sierra Club and Union of Concerned Scientists in 26-1037, ZETA in 26-1039, Service Employees International Union in 26-1051, City and County of Denver, Colorado, City and County of San Francisco, California, City of Albuquerque, New Mexico, City of Boston, Massachusetts, City of Chicago, Illinois, City of Cleveland, Ohio, City of Columbus, Ohio, City of Los Angeles, California, City of New York, New York, Commonwealth of Massachusetts, Commonwealth of Virginia, DC, Harris County, Texas, Martin Luther King Jr. County, Washington, Santa Clara County, California, Josh Shapiro, State of Arizona, State of California, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Maine, State of Maryland, State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of New York, State of North Carolina, State of Oregon, State of Rhode Island, State of Vermont, State of Washington, State of Wisconsin and Virgin Islands in 26-1061, Bay Area Air Quality Management District in 26-1090.
It’s an entire who’s who of environmental NGOs and blue states.
So what is the big complaint? When an agency like EPA rescinds a regulation like the EF, one of the things it needs to do is take public comments and respond to the comments. That process is the main reason why there was a nearly thirteen-month period between President Trump’s Executive Order directing EPA to reconsider the EF (January 20, 2025) and EPA’s final rescission of the EF (February 13, 2026). The public comment period here extended from the end of July through September 22, 2025. A big part of the game of the environmental NGOs is to gum up the process by orchestrating the submission of so many tens or hundreds of thousands of comments as to make it next to impossible for the agency to respond thoroughly within any reasonable time frame. Here, many tens of thousands of comments were received. When EPA issued the final rule, it also issued a document responding to the comments. That document was 1,794 pages long! Here is the gripe from the petitioners’ motion:
EPA included a version of EPA’s Response-to-Comments document that was created some 10 hours after Administrator Zeldin announced that the Rescission was “signed, sealed, delivered.” When asked if the document was supplemented or modified after the Administrator signed the final rule, the agency refused to say—suggesting the document reflects post-decisional additions of or edits to EPA’s responses.
Nefarious! With trillions of dollars of economic activity in the balance, this case is getting held up by a demand to fly-speck the final edits of the nearly 2000 page response-to-comments document to see if anything embarrassing can be found.
The government submitted its response to this motion on June 12. Here is the gist of the response on that main point:
[T]he Response to Comments—finalized, as required by the Clean Air Act, on the “date” that the rule was promulgated—is properly part of the record. 42 U.S.C. § 7607(d)(6)(C). In this Circuit, as in everyday speech, “date” means date. The Court should reject Petitioners’ invitation to rewrite the statute to require the Response to Comments to be finalized, docketed, and time-stamped at either the hour or the exact moment of promulgation.
And then the moving parties got to submit a Reply on this motion, which came in on June 29.
So here we are on July 21, more than five months since the case began. The court has not issued a decision on either of these preposterous “procedural” motions. And while we await those decisions, there is no scheduling order as to when the real briefing in the case will begin or end.
If you are a betting person, you will likely bet that the D.C. Circuit will rule against the Trump administration on the merits of this case. After all, the climate scam is a central tenet of Democratic Party orthodoxy, and 7 of the 11 active judges on the D.C. Circuit are reliable partisan Democrats. But the Supreme Court is likely to support the position of the Trump administration. The case needs to reach final resolution in the D.C. Circuit by, at the absolute latest, some time in late 2027, in order for the case to reach resolution in the Supreme Court before President Trump leaves office in January 2029. (Some Supreme Court specialists may say that the drop dead date for D.C. Circuit resolution is even earlier.). Will the D.C. Circuit game the scheduling to make this case take that long to resolve? Place your bets!
