In December 2009, the Endangerment Finding was born when the Environmental Protection Agency (EPA) under then-president Obama ruled that carbon dioxide (CO2) endangered human health and thus could be regulated as a pollutant.
The EPA’s action flowed from an expansive and unjustified decision by the U.S. Supreme Court that CO2 was a pollutant simply because it was emitted into the air, and if the agency found it endangered human health or welfare, it could regulate it.
VOX has referred to the court’s decision as the Roe v. Wade of climate policy, and VOX is right. Like Roe, the court invented grounds to grant an executive agency power that neither the Constitution nor Congress ever granted. CO2 is not listed as a pollutant or hazardous chemical under the 1970 Clean Air Act (CAA) or in any of its subsequent revisions.
In the CAA, Congress specifically listed six criteria pollutants and 180 chemicals as hazardous air pollutants. CO2 is not mentioned. Surely that was not an oversight of Congress, but a deliberate decision.
Further evidence that Congress never intended to grant the EPA authority to regulate CO2 as a pollutant comes from the late-rep. John Dingell (D-MI), the longest-serving member of the U.S. House of Representatives, who co-authored the CAA and its revisions. When asked, he specifically said that the CAA was never intended to apply to naturally occurring atmospheric gases like CO2, oxygen, and H2O (water), and was certainly not designed to combat so-called climate change.
Dingell noted that Congress had explicitly considered climate change legislation on several occasions and never passed any, including shortly before Obama decided to regulate CO2 through the EPA. When Congress failed to pass a climate bill Obama had supported, he used the EPA.
I guess the Supreme Court’s majority found the EPA’s power to control life on Earth in a previously never discovered penumbra of the CAA. It was a social policy built on legal fiction, just like Roe.
The EPA’s Endangerment Finding has been an incredibly consequential and expansive determination, granting the agency virtually unlimited power to regulate the economy by limiting the emission of greenhouse gases from fossil fuels. Fossil fuels are the foundation of modern life, making up not just the largest sources of electric power and transportation but also components for more than 6,000 products in everyday use.
Under the Endangerment Finding, the EPA has tried to regulate the nation’s electric power supply, vehicles, and infrastructure projects. Each of the EPA’s efforts have been tied up in court but the Endangerment Finding that justified them is still in place.
In the meantime, automakers, utilities, energy firms, and appliance manufacturers made long-term investment plans amid deep uncertainty concerning the continued legal viability of using fossil fuels. They took government subsidies to “go green” to the detriment of affordable and reliable energy. This has been a disaster, making profitability and the satisfaction of consumer demand secondary concerns to the government’s climate mania.
In the automobile industry, for instance, the electric vehicle (EV) mandate and federal $7,500 credit for EV purchases resulted in a push for electric vehicles that has cost the industry billions of dollars -- malinvestments based on political pressure, as opposed to practicality and real market demand.
Across the economy, the Endangerment Finding has fostered an environment wherein fossil fuel use has been discriminated against, and renewable energy sources and speculative technologies have been heavily subsidized. The result has been higher prices and less choice for average people, and less reliable energy across the board. According to a recent Heartland Institute policy study, which I co-authored, “from January 2021 through December 2023… the average American household has directly paid at least $2,548 in higher direct energy costs.”
On his first day back in the Oval Office, President Trump signed an Executive Order (EO) directing the EPA to reconsider whether the Endangerment Finding is valid and merits continued support. The EPA has yet to issue a response to Trump’s order.
Rescinding an EPA rule is a complicated process, with many steps and hurdles. Rather than getting bogged down in the regulatory process to scrap the rule, perhaps the EPA, and the country, would be best served if the agency used another Trump EO to jettison the determination outside of the convoluted regulatory leviathan.
On April 9, Trump issued an EO directing agencies to rescind regulations that are unlawful under 10 recent landmark Supreme Court decisions. Regarding the Endangerment Finding, in West Virginia v. EPA, the Supreme Court said that for major questions -- policies which would have huge impacts -- an agency cannot claim to discover vast delegations of power on an important issue if a statutory text doesn’t clearly grant such authority. This ruling, known as the Major Questions Doctrine, makes the Endangerment Finding’s wide use to regulate CO2 unconstitutional.
If anything is a major question, it is the power to limit CO2 emissions. West Virginia v. EPA seemingly undercuts the Supreme Court’s decision in Massachusetts v. EPA, since there is no clear statutory grant of authority in the CAA to regulate CO2. How ironic if one Supreme Court decision was the key to voiding an earlier, destructive one.
I can think of almost no other step the EPA could take to benefit the American public than rescinding or voiding the Endangerment Finding. Doing so would free Americans and businesses to make up their own minds about what to drive, how to power their homes and businesses, and what appliances to purchase, without government interference.
The Endangerment Finding was never justified, and it stands in the way of President Trump’s push for energy dominance. The time to withdraw the EPA’s toxic carbon dioxide Endangerment Finding is now.
H. Sterling Burnett, Ph.D., (hsburnett@heartland.org) is the Director of the Arthur B. Robinson Center on Climate and Environmental Policy at The Heartland Institute, a non-partisan, non-profit research organization based in Arlington Heights, Illinois.
Image: EPA