EPA’s Attempt To Roll Back Climate Regulations May Come Down To One Key Legal Point

Authored by Kevin Stocklin via The Epoch Times (emphasis ours),

In his new role as head of the Environmental Protection Agency (EPA), Lee Zeldin has proposed changes that would fundamentally alter government regulation of America’s energy and transportation industries—if the changes can survive legal challenges from environmental groups. 

On March 12, Zeldin announced what he called “31 historic actions in the greatest and most consequential day of deregulation in U.S. history.”

“We are driving a dagger straight into the heart of the climate change religion to drive down cost of living for American families, unleash American energy, bring auto jobs back to the U.S., and more,” Zeldin said in an official statement. 

These changes, he said, would “roll back trillions in regulatory costs and hidden ‘taxes’ on U.S. families” and make it “more affordable to purchase a car, heat homes, and operate a business.”

The announcement sparked both applause and condemnation.

“The EPA’s recent deregulatory shift reflects a philosophy of regulatory humility and away from Washington micromanagement,” Sarah Montalbano, energy and environmental policy expert at the Center for the American Experiment, told The Epoch Times. “The EPA is reconsidering unworkable greenhouse gas regulations on power plants.

“This rule would have forced reliable coal plants to retire and impeded new natural gas plant construction unless they capture 90 percent of their emissions by 2032. It’s great news for utilities and American consumers that reliable generation like coal and natural gas can stay on the table and avert devastating blackouts.”

Environmental groups saw it differently.

“Mr. Zeldin seems to have lost sight of the mission of the Environmental Protection Agency,” Jason Rylander, legal director at the Center for Biological Diversity’s Climate Law Institute, told The Epoch Times. “EPA’s job is to protect the environment and public health, not to promote American industry. 

“EPA’s rules already reflect a balance that more than takes into account the interests of America’s automakers, power plants, and manufacturers.”

The Endangerment Finding

Of all the changes that Zeldin has proposed regarding EPA regulation, “the greatest one by far is the ‘Endangerment Finding,’” Dan Kish, policy expert at the Institute for Energy Research, told The Epoch Times. “It’s the entire premise of the regulation of carbon dioxide as a pollutant, which is the underpinning of everything that the government has targeted” regarding climate action, he said.

This concerns whether or not carbon dioxide (CO2) and other greenhouse gases (GHGs) can be regulated as a pollutant under the 1970 Clean Air Act.

In 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA that GHGs, including CO2, methane, nitrous oxide, and others, were pollutants that the EPA had the authority to regulate under the Clean Air Act. In 2009, during the Obama administration, the EPA relied on this ruling to implement its “Endangerment Finding,” which declared that current and projected concentrations of GHGs “threaten the public health and welfare of current and future generations” by causing global warming. 

This provided the foundation for the EPA, the Energy Department, and other federal agencies to impose climate-related regulations over auto emissions; power plant emissions; airline emissions; the production of oil, gas, and coal; and other GHG-emitting industries.

Environmental groups now say that any moves by Zeldin to reverse the classification of GHGs as pollutants will face lawsuits in court.

“Instead of protecting communities reeling from the havoc caused by climate disasters, Trump and Zeldin seek to shatter the foundation that undergirds our climate safeguards,” Joanne Spalding, legal director at the Sierra Club, stated on the environmental organization’s website. “Sierra Club has been expecting and preparing for this unlawful action, and we will use every legal means available to challenge it.”

Legal challenges would likely go through the District of Columbia Circuit Court, according to Steve Milloy, senior legal fellow with the Energy and Environment Legal Institute and a critic of many climate-related policies.

“There’s some probability, if not a likelihood, that the D.C. Circuit will try to stop the Trump EPA,” Milloy told The Epoch Times, noting, however, that he expects the Supreme Court will likely side with the Trump administration upon appeal.

“Federal courts have a policy in effect that they don’t review science; they defer to the agencies. But now that Chevron has gone away, that deference will be gone.”

In a 1984 case, Chevron v. Natural Resources Defense Council, the Supreme Court ruled that federal agencies had broad leeway to interpret the mandates given to them by Congress. This became known as “Chevron deference,” and set a precedent for courts deferring to agencies regarding the extent of their authority and the content of their regulations.

But a 2024 Supreme Court ruling in Loper Bright Enterprises v. Raimondo overturned Chevron deference and limited agency authority to what was specifically granted to them by Congress. 

In addition, in a 2022 ruling in West Virginia v. Environmental Protection Agency, the Supreme Court referenced what is called the “major questions doctrine,” which states that for issues of major significance to the American public, authorization from Congress for an agency to act must be explicit.

“Under this body of law, known as the major questions doctrine, given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims,” the majority opinion stated. 

“There’s no doubt that preservationist activist groups will challenge [Zeldin’s] changes, and I’d need a crystal ball to see how it will shake out,” Montalbano said. “Recent Supreme Court decisions like 2022 West Virginia v. EPA will be a likely avenue for the administration to argue that the EPA was never granted ‘clear congressional authorization’ to regulate carbon dioxide emissions under the Clean Air Act.”

These recent court decisions will likely put a stronger burden on lawsuits against Zeldin’s EPA, both to convince the courts that Congress authorized the EPA to regulate CO2 emissions and to provide a compelling scientific case that CO2 is causing harm. 

Experts have differing opinions on whether science will support Zeldin’s point of view.

“Mr. Zeldin is going to have a very hard time reversing the Endangerment Finding,” Rylander said. “Since EPA first found that carbon dioxide, methane, and other greenhouse gases contribute to climate change and harm public health, the science has only gotten stronger.

“EPA would have to refute an overwhelming scientific consensus and reject the government’s own findings across multiple presidential administrations to reverse the finding. Courts are going to find that about-face arbitrary and capricious.”

Read the rest here…