On February 13 this year, the federal EPA rescinded one of its regulatory actions known as the “Endangerment Finding.”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!
This is becoming a pattern. The deep state delays cases that they know that they can’t win, hoping that the plaintiff either dies, or leaves office.
Regarding the Repeal Rule and hot weather how do Zionists and Muslims manage in Israel and Saudi Arabia in “summer”?
So they think their religions can control the USA?
Yes, they do.
Their argument will probably be that they’re U.S. citizens (don’t know if they are or not) and grew up and acclimatized to the weather in the U.S. Therefore, it’s their legal right to demand that the government provided them with the comfortable weather they deserve.
“It’s true! It’s true! The crown has made it clear.
The climate must be perfect all the year.
A law was made a distant moon ago here:
July and August cannot be too hot.
And there’s a legal limit to the snow here
In Camelot.
The winter is forbidden till December
And exits March the second on the dot.
By order, summer lingers through September
In Camelot.
Camelot! Camelot!”
Cloward-Piven extended to lawfare.
I fear the judicial branch has become as political as the legislative and executive. Court decisions should be made on the merits not who is in office. It’s a bad thing.
Where have you been since FDR packed the Supremes a century ago…..?
He threatened to pack the court.
The court caved first.
Of course most Democrats believe that there would be nothing wrong with adding enough seats to the US supreme court to guarantee that whatever laws they pass will be declared constitutional.
If I remember correctly, the issue FDR was pushing and threatened to pack the Court over was Social Security and does the US Constitution give the Federal Government the authority to impose such a system on The People.
Also FDR’s “New Deal”.
Recently, a the chief justice of the Hawaiian supreme Court declared that it was absurd that the US SC had rejected a law that the legislature had passed and the people wanted. Also he was instructing the state courts to ignore any ruling from the Robert’s court.
The idea that a judge in a state’s highest court doesn’t realize that the constitution is not something that can be ignored at will is something only the far left could come up with.
Yy
Nationally, the EPA Endangerment Finding only applied to the 340 million that live in the USA, i.e., it applied to only 4% of the 8 billion people on the planet.
· The federal spending surrounding the Endangerment Species Act (ESA) ballooned to over $1.135 billion a year – a staggering sum largely hidden from the public view
Shockingly, Pew Research Center shows about 70% of the 8 billion on this planet, or almost 6 billion, are living on less than $10/day and have yet to join the industrial revolution!
Even the native Americans ‘knew’ about ‘chimneys’. Examples include plains Indian buffalo hide traverse teepee top flap rain adjustable openings, and Eskimo igloo apex winter fist holes. So there is ‘no excuse’ for rest of world not also figuring out ‘chimneys’ despite their poor fuel use. For Plains Indians, it was dried buffalo dung. For Eskimos, it was seal blubber.
It may be true that there are millions of poverty related excess ‘indoor cooking’ related deaths. Have not researched it, nor will. I think poverty, rather than chimney, related.
IEA say
“730m still live without electricity and nearly 2bn, 25%’ of the global population, rely on cooking methods that are detrimental to human health.”
They don’t give any numbers for deaths.
IEA ‘World Energy Outlook 2025’ (Nov, 2025)
IEA? Is that the International Energy Agency?
Is that the group where Biden’s Otto Pen got the idea that gas stoves in the US were causing asthma?
The well documented court ‘delay’ Lawfare strategy on the EF repeal is, IMO, misguided and going to fail. There are two separate reasons having little to do with the transparently obvious and pathetic Lawfare delay strategy documented in this guest post. Both remind me of the old trial lawyer adage: If the facts are against you, pound the law. If the law is against you, pound the facts. If both are against you, pound the podium. This EF repeal lawfare is mostly podium pounding.
The only reason the DSA is growing in influence is because everything they do is anti-Trump, and a lot of the public hates Trump. That public hate will dissipate for the 2028 election and the Dems haven’t done anything to prepare for a post-Trump world.
Part of the reason for these DSA (Dip Shits of America) wins is due to very low voter turnout in the primaries, at least in NY
Almost spewed my coffee with your interpretation of DSA.
Made me laugh too
Except Mamdani rallied the DSA voters, which carried the day.
As you correctly point out, it was not the voting population that elected DSAs, it was the DSA sect that did it because most New Yorkers, for whatever reasons, did not vote.
Or, maybe they did vote. Who did the counting?
Not going down that path.
The report on voter turnout remains unverified by yours truly.
I wish I were as optimistic as you, but the out of power party usually wins the midterms and I don’t think Vance or Rubio will gain traction in 28. And I don’t think anyone can solve the intractable economic and social problems afflicting the USA, ie, debt and inflation, divorce and low fertility.
I fear the Dems will rush back into power and on climate activism pretend the last two years didn’t happen, and we need to be ready for it.
Somehow you have to make sure that conservatives / republican voters go and vote in droves in both the mid-term and in 2028.
That was one of the main reasons Trump won in 24.. Republican voter turn-out.
Many Democrats are screaming for them to stack the court the next time they control the White House and the Senate.
I saw a recent poll that has AOC leading the pack for the Democrat presidential nomination, with Buttieg coming in a close second.
If a new administration determines the EF is valid and reinstates it, the lawsuit is a no longer necessary.
Unfortunately a lawsuit does not have to be necessary to go forward.
Unnecessary, illegal and immoral wars will do in the Republicans.
Good thing we aren’t in any of those.
I suppose you are talking about the Iran conflict.
We’ve been at war with them for over 40 years. One of the first things they did is kidnap U.S. citizens. Since they returned them, administrations have not dealt with them even though they are responsible for funding terrorist attacks that has killed thousands of people, including their own citizens.
Let me ask you, how many times will you let someone to punch you before you fight back?
1979 is 47 years, closer to 50 than 40.
Personally, I do not like that Iran has an atomic bomb and the means to deliver it.
Currently has. It is untested, so it may not work.
Even if that is wrong, 80% enriched uranium makes are very nasty radiological weapon.
They claimed 60% enrichment. Whether they went higher or lower is not determined because they lie as often as they breathe.
I believe the government of Iran is evil and should have been taken out by Reagan or any other administration whether they have nuclear capabilities or not.
I don’t know if this guy is DSA or not, but an influential far-left guy who suggested Kamala replace Sleepy Joe has said said that AOC is the Dems’ obvious choice for President! (He didn’t mention the VP choice that I saw.)
But speaking of the “DSA (Dip Shits of America)” (h/t Jeff Alberts), they announced their flatform is to eliminate SCOTUS and The Senate (maybe also the Constitution?).
In other words, Mob Rule.
Professor Jonathan Adler of the Volokh Conspiracy has an article about it today: https://reason.com/volokh/2026/07/22/will-courts-uphold-the-epas-rescission-of-the-endangerment-finding/
“The legal arguments put forward by the EPA are weak and unpersuasive, and could undermine the Administration’s position in other climate litigation.”
The Marxists know they can’t win on the battlefield so they rely on subversion and lawfare. Enough fellow travelers have been positioned in the courts and governments to give them a chance at upsetting democracy and Capitalism and they’ll continue until they get their way. McCarthy was right.
Are Democrat climate and energy policies hostile to capital-intensive fossil-fuel infrastructure? Yes, that’s what the Endangerment Finding is all about: Killing FF and the associated infrastructure and at the same time refusing to endorse nuclear, including SMR.
Does the resulting policy instability reduce investment and industrial capacity? Yes, except for subsidized guaranteed by statute income producing essentially worthless solar and wind.
Pipelines as a case in point
From an investor’s perspective, a pipeline is unusually sensitive to political durability because:
That means policy uncertainty can matter almost as much as the underlying economics. —Keystone XL and Dakota Access—became symbols of that broader durability problem.
Regardless of one’s view of the merits, those episodes demonstrated that major energy infrastructure projects can remain exposed to political and legal risk long after sponsors think they have secured the necessary approvals.
The “durability discount”
The primary cost imposed by policy instability is not necessarily the loss of individual projects. It is the increase in the discount rate investors apply to future projects.
Suppose a company believes:
Even if the project ultimately succeeds, the uncertainty itself raises the required return.
For long-lived infrastructure, durability may be more important than the immediate policy outcome itself. A favorable policy that is likely to be reversed in four years can have surprisingly little investment value because firms know it may not last. Should anyone be surprised that long term heavy industry investment in China has more ‘durability” than in the U.S?
The Biden EPA’s Clean Power Plan 2.0 (CPP 2.0) published in the summer of 2024 was designed specifically to create regulatory uncertainty in ways which would make long-term investments in fossil-fueled power plants a very risky business indeed.
The 2024 CPP 2.0 was published under the protective umbrella of the 2022 Investment Recovery Act (IRA) which contains text that specifically identifies CO2 and methane as atmospheric pollutants. That text remains on the legislative books.
Here are some relevant points to whet a public policy wonk’s appetite for the gory details:
— The Obama EPA’s Clean Power Plan 1.0 from 2013 used a Clean Air Act Section 111 process which does not require an endangerment finding to become operative. However, CPP 1.0 did violate the Major Questions Doctrine which made it vulnerable to lawsuits.
— The authors of the 2022 Inflation Reduction Act state unequivocally that the IRA gives authority to the EPA to regulate carbon emissions as pollutants, thus overcoming the Major Questions Doctrine.
— Before it was cancelled by Trump’s EPA in 2025, the Biden EPA’s Clean Power Plan 2.0 from 2024 relied on the 2022 IRA for Congressional authorization. Like 2013’s CPP 1.0, 2024’s CPP 2.0 also invoked a CAA Section 111 process, one which does not require an endangerment finding to become operative.
— There is every possibility that the Democrats will be in full control of Congress in 2027. If that happens, they will most certainly pass legislation which explicitly and unequivocally directs the EPA to regulate atmospheric carbon emissions as pollutants, and which supplies funding to the EPA to do so.
— The courts will not spend time working on current litigation involving the 2009 Endangerment Finding when there is every possibility the issue will be quickly rendered moot by a new Congress.
As long as Congressional legislation is on the books which directly identifies carbon emissions as atmospheric pollutants, which 2022’s IRA does, the major questions doctrine has not been violated.
Furthermore, if the 2022 IRA remains active, the EPA doesn’t need an endangerment finding to legally regulate CO2 and other carbon compounds if it employs a CAA Section 111 process.
As things stand today in the summer of 2026, here is what it all boils down to …. the carbon regulation landscape has moved on from the mid-2000’s requirement to have a technically legal mechanism available in the form of an endangerment finding and subsequent NAAQS for carbon.
And so either fighting the 2009 Endangerment Finding in court, or else defending it in court — each of these two opposing actions are now mere kabuke theater.
I do not consider it likely that the Democrats could have a veto proof majority.
If they control the Congress in 2027, they are likely to attach their carbon regulation legislation to must-pass spending bills to avoid the probability of a veto.