The Endangerment Finding (EF) is the completely absurd piece of regulatory overreach by which the Obama EPA in December 2009 purported to determine that the trace atmospheric gas carbon dioxide was a “danger to human health and welfare.” That action may have been absurd, but it was by no means benign. CO2 is a principal product of all combustion of fossil fuels. Following on the EF, EPA and other government agencies in the Obama and then Biden Administrations set out to use the EF as the basis to transform our entire energy economy — suppressing drilling, blocking pipelines, forcing closure of power plants, outlawing combustion cars and gas heat and stoves, and much, much more.
In Trump’s first term, EPA never chose to take on the EF; but in Trump’s second term the agency got right to work on the job of rescission, and issued the final rule rescinding the first part of the EF (as to motor vehicle emissions) on February 13, 2026. By February 18, progressive NGOs were already in court (D.C. Circuit) seeking to block the rescission. I covered the rescission of the EF in this post on February 15, and then the status of the litigation in this further post on July 21.
If you are interested in this subject, here is the key issue to watch: Do the progressive NGOs and their blue state co-petitioners, and for that matter the D.C. Circuit itself, want this case to proceed to a quick resolution? Or do they want to stall?
You might think at first that the Petitioners would want the case to proceed quickly. After all, the D.C. Circuit is a highly favorable forum for climate cultists. Seven of the eleven active judges are Democrat appointees and are reliable votes on any issue that is politically important to the Democratic Party, which the EF certainly is. A reasonably expeditious briefing and decision schedule could easily see a decision by the end of the year from this important court striking down the EF rescission. It would be a huge blow to President Trump’s energy agenda.
But my July 21 post noted that the D.C. Circuit appeared to be in no rush at all. More than five months after commencement of the case, the court had set no deadlines for briefing on the merits. Instead it had only set deadlines for motions — “procedural” motions by May 20, and “dispositive” motions by June 4. The May 20 deadline had drawn two of these “procedural” motions, both of which I characterized as “preposterous.” Both motions could easily have been denied out of hand, but as of July 21 both were pending without decision. Somehow, it was looking like no one here was in a hurry.
And now here we are on August 13. I think that it is now definitive that the stall is underway. Certainly, by now it is clear that the main Petitioners do not want the case decided promptly by the D.C. Circuit. It is almost as clear, if not yet completely definitive, that the D.C. Circuit is gladly co-operating in the stall.
The big development since my last post is that on July 29 a large group of the main Petitioners filed a new motion that they give the title “Motion for 30-day Abeyance for EPA to Act on Pending Reconsideration Petitions Before Merits Briefing.” (This and other motion papers referred to in this post can be found at the government’s PACER website under the D.C. Circuit index number of 26-1037.)
It seems that several of the Petitioners, separate from this litigation, have filed other Petitions with EPA itself, asking it to reconsider the rescission of the EF. Those Petitions have not been decided by EPA. Indeed, EPA has no explicit deadline for deciding or even considering such Petitions. (You may recall that back in January 2016 I filed a Petition for Reconsideration of the EF with EPA, and that Petition sat undecided by the agency until the Biden EPA denied it in 2022, more than six years later.).
The government’s response to this motion, filed on August 10, cuts to the heart of the matter:
It is not every day that frequent-flyer litigants blow past a deadline that they themselves asked for. And it is not every day they rush to challenge an EPA rule with great pomp, only to repeatedly find excuses to slow-walk the path to merits briefing.
Yet that is precisely what Petitioners have done here. Having received, over EPA’s objection, an extension of the procedural-motions deadline to May 20, Petitioners waited two more months—until July 29—before moving for abeyance, seeking the same relief (delaying merits briefing until EPA responds to reconsideration requests) that they had asked this Court for back in April. Petitioners could have and should have renewed that request by the procedural-motions deadline. By holding the abeyance motion in reserve, however, Petitioners were able to unveil it well after other procedural motions have been briefed and are ready for decision. Their goal: delay merits briefing and resolution of this dispute for as long as possible. It is part of a broader strategy that Petitioners have been pursuing. . . .
So what is going on? Clearly, the Petitioners — a who’s who of environmental and other progressive NGOs and blue states — have looked at their prospects, and do not think that even a quick and total victory in the D.C. Circuit will be such a great thing for them. Although I can’t read their minds to see how they reach that conclusion, here are a few reasons why they are probably right:
- Even if the D.C. Circuit orders the EF to be reinstated, the Trump administration in the mean time has eliminated all the rules and actions that had the EF as their basis. These rules and actions included: the so-called Clean Power Plan 2.0 (a scheme to force closure of power plants that burn hydrocarbon fuels); automobile mileage standards and related rules forcing conversion of the vehicle fleet to EVs; energy efficiency standards for various devices and appliances ranging from gas stoves to dryers to dishwashers; decisions blocking pipelines from being built; and many more such. Even if the EF were reinstated, these rules and actions would not automatically spring back into effect. The Trump administration would undoubtedly resist reinstating them on many grounds, and there would need to be further petitions and litigation lasting years to try to get any semblance of them back into effect.
- And then there is the U.S. Supreme Court. Any decision on the EF by the D.C. Circuit that is adverse to the Trump administration position has a very substantial likelihood of getting reversed in the Supreme Court. A Supreme Court decision upholding the EF rescission could make it difficult or even impossible for a future Democratic administration to try to reinstate the EF.
So the EF litigation Petitioners, and probably also the D.C. Circuit itself, have likely concluded that there is little to be gained from a D.C. Circuit ruling striking down the rescission of the EF, and much to be lost from a potential Supreme Court reversal of such a ruling. Their better strategy is to leave their challenge to the EF rescission sitting for a while, reaching a D.C. Circuit decision toward the end of Trump’s term; and then pray for a new Democratic President in 2029 to reverse course, withdraw any Supreme Court appeal, and start to reinstate the Biden-era regulations to suppress the fossil fuel economy.
Note that this is not an easy course for these environmental crusaders to take. While the EF litigation remains stalled and out of the news, the whole climate scare is slowly fading. The data center boom is bringing forth huge new demand for reliable electricity, with mostly natural gas generators likely to be the predominant source of the power. The UN-organized “net zero” banking alliances — by which major financial institutions agreed not to participate in financing new fossil fuel projects — have largely been disbanded. The tech giants have basically walked away from their “net zero” promises. The jurisdictions that have tried most aggressively to reach “net zero” (Germany, UK, California, New York) are failing more and more obviously. And so forth.
So the progressive NGOs and blue states that are the Petitioners in the EF litigation seem to think that their best bet is to wait for a new Democratic President and maybe a supportive Congress to get net zero back on track in 2029 and thereafter. That may well be their best bet, but I find it hard to believe that plans for “net zero” can ever really get back on track at that late date, even in the most favorable possible political situation.
And meanwhile, the EF litigation sits basically idle in the D.C. Circuit, with frivolous procedural motions still sitting undecided, and no merits briefing schedule six months after filing of the case.
