Readers here well understand the view of CPR Initiative and expert allies that current federal rules aiming to restrict greenhouse gas (GHG) emissions amount to an insufficient response to the climate crisis. Indeed, they entirely fail to acquit our special obligation as the nation responsible for the largest share of historical emissions.
But that does not mean these existing hard-fought federal rules – in particular, those restricting emissions from power plants, oil and gas production, and light-duty vehicles — should be jettisoned. Especially where there is in law no more stringent set of protections that would spring to take their place.
Save for the national interest in public health and a viable climate, nothing stands in the way of the President or the Environmental Protection Agency Administrator, should they wish to undue those moderate protective programs piece by piece.
How would they do that, in the normal course of events? The answer is clear: they would propose replacement rules and, in those proposed rules, attempt to establish that they would be at least as effective in limiting pollutants that “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Clean Air Act §202(a).
It is still an open question, I think, whether the upending will be in the form of
a replacement rule-making or some type of quasi-legal directive.
But there may be another option, one that is far-more aggressive and sweeping. That is, they may opt to attack the underlying justification for virtually all of EPA’s recent actions to restrict GHG emissions under the Clean Air Act.
As a reminder to our readers, it took years of citizen petitioning, EPA rejectionism, and public interest litigation going all the way to the US Supreme Court before the Agency finally issued its “endangerment finding” on Dec. 15, 2009, that “six greenhouse gases taken in combination endanger both the public health and the public welfare of current and future generations.”
What clearly seems to be in pursuit of the far more aggressive path, on his first day back in office, President Trump ordered (by Executive Order 14154) Administrator Zeldin to “submit joint recommendations . . . on the legality and continuing applicability” of the 2009 endangerment finding. The idea, undoubtably, is to reverse EPA’s expert 2009 finding, and thereby call into question the very ability of EPA to regulate CO2, methane and the rest of the Kyoto six greenhouse gases as pollutants under the Clean Air Act.
Why would the new administration seek out this more sweeping but, perhaps, more legally fraught, route?
Ann Carlson, a UCLA scholar of environmental law, recently discussed the range of possible reasons, including that the effort might fit in well with the Administration’s “overall strategy to flood the zone — and to ‘own’ the libs.” But another possibility, also discussed by Professor Carlson, and attributed to Joe Goffman, former EPA Assistant Administrator for Air and Radiation, is that taking down the endangerment finding “would really make it almost a virtual formality to take down all the rules for CO2 and methane.”
And so: on February 26, 2025, the Washington Post reported that Administrator Zeldin, in compliance with the Jan. 20, 2025, Executive Order, in fact has already briefed the White House, in which he urged that his Agency be empowered or directed to upend that 2009 Endangerment Finding in some way.
It is still an open question, I think, whether the now-anticipated endangerment finding upending will be in the form of a replacement rulemaking – with required notice and comment — or some type of quasi-legal directive.
We will keep close watch, including as to what reasonable options exist for citizens and public interest groups alike to challenge, or at least slow-down, this remarkably misguided juggernaut.