Environmental Protection Agency Administrator Lee Zeldin announced Tuesday that the EPA would propose rescinding the 2009 so-called "Endangerment" finding by the Obama administration. This finding underpins every "climate change" and most automobile regulations issued since 2009 and, if successful, would effectively eradicate "climate change" regulation as a federal policy consideration. 

Using a visit to a truck dealership in Indianapolis with Governor Mike Braun as a backdrop, EPA Administrator Zeldin announced EPA's anticipated attempt to unravel the fragile underpinning for such things as EPA's electric vehicle mandate and the war on efficient air conditioners, water heaters, furnaces, and small gasoline tools like lawnmowers and leaf blowers.

“With this proposal, the Trump EPA is proposing to end sixteen years of uncertainty for automakers and American consumers,” said EPA Administrator Zeldin. “In our work so far, many stakeholders have told me that the Obama and Biden EPAs twisted the law, ignored precedent, and warped science to achieve their preferred ends and stick American families with hundreds of billions of dollars in hidden taxes every single year. We heard loud and clear the concern that EPA's GHG emissions standards themselves, not carbon dioxide which the Finding never assessed independently, was the real threat to Americans’ livelihoods. If finalized, rescinding the Endangerment Finding and resulting regulations would end $1 trillion or more in hidden taxes on American businesses and families.”

If finalized, according to Zeldin, this would be " the largest deregulatory action in the history of the United States."

Naturally, this was not greeted with cheers by everyone.“This is not just an attack on science but on common sense,” said Zealan Hoover, a former senior adviser to the EPA administrator under President Joe Biden. “The National Climate Assessment provides over 2,000 pages of detailed evidence that climate change harms our health and welfare, but you can also ask the millions of Americans who have lost their homes and livelihoods to extreme fires, floods, and storms that are only getting worse.” 

Hoover, unsurprisingly, is being more than a little disingenuous. None of the things he mentions, such as fires, floods, storms, crop failures, and suppurating boils on backsides, are directly linked to climate change. This is how we got here.

In 2007, a 5-4 Supreme Court majority (Stevens writing the opinion, joined by Kennedy, Souter, Ginsburg, Breyer) ruled in Massachusetts vs. EPA that the EPA had authority under the Clean Air Act to regulate carbon dioxide emissions if "in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." The case was sent back to the EPA to provide an answer to that issue. While this was going on, the Obama administration came into office. Then the mischief started.

When the Court sent the matter back to EPA, the agency proceeded in an unorthodox manner. Slicing and dicing the language of the statute, it made an “endangerment finding” totally separate from any actual rulemaking setting standards for emissions from cars. EPA argued it had the authority to do this because Congress didn’t specifically forbid it from taking this approach. By taking this approach, the Endangerment Finding intentionally ignored costs of regulations that EPA knew would follow from the Finding—and indeed ignored any other policy impacts of those regulations. 

The Finding also took an unorthodox approach with the alleged “pollutant” at issue. It focused not solely on carbon dioxide, but on a mix of six gases—some of which cars don’t even emit. Contrary to popular belief, the Finding never makes a straight-line conclusion that carbon dioxide from new motor vehicle engines is causing endangerment. Instead, it looked at this mix of six gases, from all sources over the world, and used multiple mental leaps to determine that this mix contributed, not caused, an unknown amount above zero to climate change, and that climate change contributed, not caused, an unknown amount above zero of endangerment to public health. Then, the Finding looked at U.S. vehicle emissions—the only thing this section of the Clean Air Act actually authorizes EPA to regulate— and said that they were a big enough piece of the pie (some 4 percent of global emissions) to be “causing or contributing” to the mix of six gases—not to the endangerment itself. 

Since then, the EPA has used the "Endangerment Finding" as a cudgel to regulate many common household appliances. However, the hardest hit have been automobile manufacturers, who have had to cope with increasingly exotic fleet mileage regulations, particularly for their off-road and heavy-duty vehicles, power plants, and oil and gas extraction operations.

If Zeldin pulls this off, and his EPA seems well prepared to do so, it will represent a sea change in the EPA's meddling in the US economy. As I noted, the Court decision that set this travesty into motion was a 5-4 decision. All five of the majority are gone. The minority was Roberts, Scalia, Thomas, and Alito. Not only has the makeup of the Court changed, but numerous cases have arisen since Massachusetts v. EPA. The EPA points out that "Loper Bright Enterprises v. Raimondo, West Virginia v. EPA, Michigan v. EPA, and Utility Air Regulatory Group v. EPA, have significantly clarified the scope of EPA’s authority under the CAA. The decisions emphasized that major policy determinations must be made by Congress, not by administrative agencies."

 The comment period closes in 45 days, after which the EPA will need to draft the new regulation and ensure it withstands legal scrutiny. If Zeldin pulls this off, it will cement President Trump's legacy of deregulation and represent a generational defeat for climate alarmists.

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