{"id":363753,"date":"2025-01-28T14:46:36","date_gmt":"2025-01-28T13:46:36","guid":{"rendered":"https:\/\/climatescience.press\/?p=363753"},"modified":"2025-01-28T14:46:38","modified_gmt":"2025-01-28T13:46:38","slug":"how-to-rescind-the-endangerment-finding-in-a-way-that-will-stick","status":"publish","type":"post","link":"https:\/\/climatescience.press\/?p=363753","title":{"rendered":"How To Rescind the Endangerment Finding in a Way That Will Stick"},"content":{"rendered":"\n
\"\"<\/figure>\n\n\n\n

<\/p>\n\n\n\n

From Manhattan Contrarian<\/a><\/p>\n\n\n\n

By Francis Menton<\/a><\/p>\n\n\n\n

As discussed in my previous post<\/a>, one of President Trump\u2019s first-day Executive Orders \u2014 the one entitled \u201cUnleashing American Energy\u201d<\/a> \u2014 directed a reconsideration of EPA\u2019s so-called \u201cEndangerment Finding\u201d (EF) of 2009. The EF is the EPA regulatory action where it claimed to determine that CO2 and other \u201cgreenhouse gases\u201d qualify as \u201cpollutants\u201d under the Clean Air Act because they are a \u201cdanger to public health and welfare.\u201d President Trump\u2019s January 20 EO directs that EPA, within 30 days, submit \u201crecommendations to the Director of OMB on the legality and continuing applicability of the Administrator\u2019s findings.\u201d<\/em><\/p>\n\n\n\n

Since the EF is the foundation underlying all the Biden-era regulations restricting and suppressing fossil fuels, you can be sure that any attempt to eliminate it will be met with a full-bore litigation attack from the forces of the crazy left. Can the EF really be rescinded in a way that will stand up to these attacks?<\/p>\n\n\n\n

Absolutely, it can. Let me address a few of the issues.<\/p>\n\n\n\n

Massachusetts v. EPA<\/em><\/strong><\/p>\n\n\n\n

This is the Supreme Court\u2019s 2007 decision that held that EPA was required to make a determination as to the status of CO2 and other greenhouse gases as \u201cpollutants\u201d under the Clean Air Act. Here is a link<\/a> to the Supreme Court\u2019s opinion. Some commenters have suggested that Mass v. EPA<\/em> must be reversed before the EF can be undone.<\/p>\n\n\n\n

I disagree. I\u2019m not saying that Mass v. EPA<\/em> is a model of clarity, and there is some language in it that would suggest the opposite. However, I think that the language at the very end of Justice Stevens\u2019s majority opinion is the holding:<\/p>\n\n\n\n

We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA\u00eds actions in the event that it makes such a finding. . .. We hold only that EPA must ground its reasons for action or inaction in the statute.<\/em><\/p>\n\n\n\n

Thus Mass v. EPA<\/em> did not determine that CO2 was a \u201cpollutant\u201d as defined in Section 202 of the Clean Air Act, but only directed EPA to determine whether it was or was not. Thus a new well-reasoned determination by EPA that CO2 and the other GHGs are not<\/em> pollutants would not violate that case.<\/p>\n\n\n\n

West Virginia v. EPA<\/em><\/strong><\/p>\n\n\n\n

The other important Supreme Court decision bearing on the EF is West Virginia v. EPA<\/em><\/a>, the 2022 decision where the Supreme Court held that EPA\u2019s Clean Power Plan was beyond its regulatory authority under the Clean Air Act. The basis for the Court\u2019s decision was what it called the Major Questions Doctrine, by which it held that a \u201ctransformative expansion\u201d of EPA\u2019s regulatory power would require a clear direction from Congress, which had not been given.<\/p>\n\n\n\n

In 2024, despite West Virginia v. EPA<\/em>, and without any further clear direction from Congress, EPA went ahead and finalized two gigantic new regulations to restrict use of fossil fuels, one regarding power plants<\/a> and the other regarding automobiles<\/a>. They essentially decided to dare the Supreme Court to try to stop them (much like Biden with his repeated efforts to forgive student loans).<\/p>\n\n\n\n

West Virginia v. EPA<\/em> did not explicitly overrule Massachusetts v. EPA<\/em>, but the two are fundamentally in tension. The big difference is that the Court that decided Massachusetts v. EPA <\/em>has since been largely transformed in personnel. Of the nine justices on the Court in 2007, only three remain \u2014 Roberts, Thomas and Alito \u2014 and all of them dissented in Mass v. EPA<\/em>. The five justices in the majority plus Scalia have been replaced by three conservatives (Gorsuch, Kavanaugh and Barrett) and three liberals.<\/p>\n\n\n\n

On today\u2019s Court, I think it highly likely that a majority will uphold a well-reasoned rescission of the EF, and will not think it necessary to overrule Mass v. EPA<\/em>.<\/p>\n\n\n\n

Substance of the rescinding determination<\/strong><\/p>\n\n\n\n

Three main points need to be made in an EPA regulatory action rescinding the EF: (1) Empirical evidence accumulated since the original EF invalidates the finding and makes it impossible to conclude that CO2 and other GHGs constitute a \u201cdanger\u201d as required by the statute; (2) due to huge increases since 2009 in CO2 and other GHG emissions outside the U.S. and thus outside the ability of EPA to regulate, no regulations promulgated by EPA could have any meaningful impact on the overall atmospheric concentrations of the gases, and (3) efforts by EPA to control the climate by restricting CO2 and other GHGs, by contrast, would almost certainly have drastic adverse effects on public health and welfare by, for example, destabilizing the electrical grid and causing blackouts, driving up the cost of electricity or mobility, bringing about massive battery fires and explosions, and lots of other such things.<\/p>\n\n\n\n

Only the first of these three points deals with the \u201cscience\u201d of whether GHGs do or do not cause any significant global warming. Most important is that this argument needs to be written carefully to not take on more than needs to be taken on. To rescind the EF, EPA does not need to contend that GHGs will not or cannot cause any global warming. Rather, they can put the burden of proof on the other side to show that GHGs emitted under EPA\u2019s regulatory jurisdiction will inevitably cause dangerous<\/em> warming. EPA need only conclude that there is no sufficient proof of that.<\/p>\n\n\n\n

Framed in that way, this is not a complicated or difficult task. There are hundreds of scientific papers in the peer reviewed literature since 2009 accumulating empirical evidence that the dangers predicted 15 years ago have not happened. For example:<\/p>\n\n\n\n