This is more than a minor coda to my earlier note, Endangered Protections, concerning the threat to the Environmental Protection Agency’s fundamental Endangerment Finding.
EPA had determined, by that 2009 Clean Air Act determination, that “six greenhouse gases . . . endanger both the public health and the public welfare of current and future generations.” That finding subsequently has served as a key part of the legal basis for subsequent EPA rules restricting GHG emissions from various sectors, including in energy generation and transportation.
Back on March 6, 2025, however, we did not yet know how far EPA Administrator Lee Zeldin intended to go in pursuit of his drive to satisfy the White House’s Executive Order to “Unleash[] American Energy.” But now we know. It is, regrettably: All The Way. Indeed, the drive has morphed into a challenge to virtually all major federal air pollution restrictions.
How far do they intend to go? Regrettably, it appears: All The Way.
How so?
First, to be fully fair, in its announcement of March 12, EPA averred that its intent in reconsidering the Endangerment Finding “and EPA’s regulations that have relied on it” was, at least in part, to ensure “that any finding and regulations are based on the strongest scientific and legal foundation.” EPA also stated that “[t]he agency cannot prejudge the outcome of this reconsideration or of any future rulemaking.” Moreover, the Agency further announced that it “will follow the Administrative Procedure Act and Clean Air Act, as applicable, in a transparent way for the betterment of the American people and the fulfillment of the rule of law.” These formulations, on their face, seem lawful and unobjectionable.
However, in a separate release of the same date, entitled “EPA Launches Biggest Deregulatory Action in U.S. History,” the Agency also announced that it “will undertake 31 historic actions in the greatest and most consequential day of deregulation in U.S. history. . . [which] historic actions will roll back trillions in regulatory costs and hidden “taxes” on U.S. families. . . .” There then followed a list of climate and other pollution-restricting rules and actions, all newly targeted for replacement or elimination — alongside the Endangerment Finding. Here, we enumerate some of them, and the announced plan for each:
- Restrictions on carbon pollution from power plants – reconsider;
- Restrictions on oil and gas industry methane emissions – reconsider;
- Restrictions on Mercury and Air Toxics emitted by coal-fired power plants – reconsider;
- Restrictions on GHG emissions from light, medium and heavy-duty vehicles – reconsider;
- Biden’s restructuring of the social cost of carbon – reconsider. . . .
Reconsider, reconsider, reconsider, reconsider, and . . . reconsider. A pattern plainly emerges.
But wait. If “the agency cannot prejudge the outcome” of its mere reconsideration of the 2009 Endangerment Finding, then what is its basis for reconsidering the other 30 “rules and regulations that have relied on it”? And further, how can EPA bray so loudly that it is engaged in “historic actions that will roll back trillions in regulatory costs,” if it is not prejudging the outcome of these “reconsiderations”? Clearly, some considerable prejudging is afoot.
These are not the only burning curiosities.
Moreover, an April 9 unsigned Presidential Memorandum reminded federal agencies that, back on February 19, Trump had issued Executive Order 14219. That EO had “directed the heads of all executive departments and agencies to identify certain categories of unlawful and potentially unlawful regulations within 60 days and begin plans to repeal them.” [Emphasis added.] That specified repeal time has now arrived. Moreover, the April 9 Memorandum specified that “[i]n effectuating repeals of facially unlawful regulations, agency heads shall finalize rules without notice and comment, where doing so is consistent with the “good cause” exception in the Administrative Procedure Act. That exception allows agencies to dispense with notice-and-comment rulemaking when that process would be “impracticable, unnecessary, or contrary to the public interest.” [Emphasis added.]
And so, will Administrator Zeldin adhere to his March 12 commitment to follow the law and ensure meaningful public involvement? Or, will he take the April 9 White House instruction as binding, and simply dispense with notice-and-comment rulemaking as “impracticable, unnecessary, or contrary to the public interest”?
These are not the only burning curiosities. EPA’s March 12 deregulatory target list enumerated 22 rules and actions, but its release repeatedly proclaimed that 31 such rules and actions are to be reconsidered or rescinded. Perhaps, overcome with joy in birthing “the most consequential day of deregulation in U.S. history,” EPA officials simply lost count. In the alternative, it may be that an additional 9 climate or environmental protection rules and actions may be on the Agency’s chopping block, even if they yet remain unnamed.
No doubt, we will have occasion to return to these questions soon enough.