EPA Finally Proposes To Rescind The Endangerment Finding

It’s been a long time coming. But today the EPA, through its Administrator Lee Zeldin, finally began the formal process of rescinding the so-called “Endangerment Finding” (EF). The EF is the 2009 regulatory action by which the Obama-era EPA purported to determine that CO2 and other greenhouse gases constitute a “danger to human health and welfare.” That Finding then formed the basis for all subsequent federal greenhouse gas regulations, including efforts of Obama and Biden regulators to force the closure of all power plants running on coal and natural gas, and to mandate increased vehicle mileage to levels that no internal combustion engine could meet.

EPA initiated the rescission process today by means of an announcement in a speech by Zeldin, who appeared at an event in Indianapolis, and also through this document, titled “Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards.” The document looks to be about a couple of hundred pages long, although it’s hard to know exactly, because the pages aren’t numbered.

Long time readers here will know that I have been an active participant in efforts, beginning when President Trump first took office in 2017, to get the EF rescinded. Immediately after Trump’s inauguration in January 2017, co-counsel Harry MacDougald and I filed a Petition to EPA, on behalf of the Concerned Household Electricity Consumers Council (CHECC), seeking the rescission. Here is a post I wrote in April 2017, describing the initiation of the petition process, and also linking to our Petition. But during Trump’s first term, despite the critical importance of the EF in supporting all of the burdensome “climate” regulations, EPA never undertook the rescission process. We continued to press the point, filing some seven supplements to our Petition during the four years of Trump’s first term. For example, here is a post from July 2017 announcing the first of the Supplements to our Petition, based on new research at the time.

Ultimately our Petition was denied in 2022 by the Biden EPA. We then appealed that denial to the DC Circuit, where our appeal was denied in 2023, and to the U.S. Supreme Court, where certiorari was denied in 2024.

Well, the proposal in today’s document will reverse the denial of our Petition. I can’t give you a page cite, but this quote is from the page of the EPA document that contains footnote 15:

If finalized, this action would also rescind denial[] of petitions for reconsideration of the Endangerment Finding in 2022 . . . entitled “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act; Final Action on Petitions,” 87 FR 25412 (Apr. 29, 2022). . . .

Vindication!

As to the grounds for the prospective rescission, EPA appears ready to take on both the legal and scientific bases of the EF. As to the legal analysis, the following quote comes from the page preceding footnote 42:

Section IV.A of this preamble describes our primary proposal to rescind the Endangerment Finding by concluding that CAA section 202(a) does not authorize the EPA to prescribe standards for GHG emissions based on global climate change concerns or to issue standalone findings that do not apply the statutory standard for regulation as a cohesive whole. If finalized, this proposal would require rescinding the Endangerment Finding and resulting regulations because we lacked statutory authority to issue them in the first instance. . . . Next, we propose that the Nation’s response to global climate change concerns generally, and specifically whether that response should include regulating GHG emissions from new motor vehicles and engines, is an economically and politically significant issue that triggers the major questions doctrine under UARG and West Virginia, and that Congress did not clearly authorize the EPA to decide it by empowering the Administrator to “prescribe … standards” under CAA section 202(a). Throughout this section, we propose that the Endangerment Finding relied on various forms of Chevron deference to depart from the best reading of the statute and exceeded the EPA’s authority in several fundamental respects, any one of which would independently require rescission to conform to the best reading of the law.

On the subject of “climate science,” the following quote comes from the document’s pre-amble:

[T]he Administrator has serious concerns that many of the scientific underpinnings of the Endangerment Finding are materially weaker than previously believed and contradicted by empirical data, peer-reviewed studies, and scientific developments since 2009.

Then, on the page with footnote 87 there begins a lengthy section titled “Climate Science Discussion.” The gist of this entire section is that the alarmists have not proved their claims. There are lengthy paragraphs reviewing data on all the major “extreme weather” claims, and citing work showing no increasing or accelerating trends in things like hurricanes, tornadoes, wildfires, sea level and the like. Here is a paragraph that reiterates a theme of our Petition, namely that the amount of human caused global warming cannot be separated from what may be caused by natural factors:

The Administrator is also troubled by the Endangerment Finding’s seemingly inconsistent treatment of the nature and extent of the role human action with respect to climate change. The Endangerment Finding attributes the entirety of adverse impacts from climate change to increased GHG concentrations, and it attributes virtually the entirety of increased GHG concentrations to anthropogenic emissions from all sources. But the causal role of anthropogenic emissions is not the exclusive source of these phenomena, and any projections and conclusions bearing on the issue should be appropriately discounted to reflect additional factors. Moreover, recent data and analyses suggest that attributing adverse impacts from climate change to anthropogenic emissions in a reliable manner is more difficult than previously believed and demand additional analysis of the role of natural factors and other anthropogenic factors such as urbanization and localized population growth (2025 CWG Draft Report at 14-22, 82-92).

The process here will likely take until around the end of this year for EPA to formally enact the rescission. And then the legal battles begin — first to the DC Circuit, and then to the Supreme Court. The big question: Can the administration get this process to the Supreme Court in time to avoid a reversal of this whole regulatory effort by a Democratic administration that could be elected in 2028? I would think that if the Supremes have upheld this effort of Trump’s EPA before January 2029, it will be very difficult for a subsequent administration to reverse. On the other hand, if the status as of January 2029 is that the DC Circuit has struck down EPA’s rescission and the matter is pending in the Supreme Court, it would be much easier to attempt a reversal. But the ongoing failure of “net zero” energy transition plans in places like New York, California, Germany and the UK may make reversal a dead letter anyway.

I want to offer my thanks and gratitude to the small band of independent thinkers who have fought this lonely battle all these years, in the face of the billions of dollars at the hands of the climate industrial juggernaut. For particular mention: the members of CHECC (including its moving force, James Wallace); my co-counsel Harry MacDougald; the few think tanks that have taken on this issue, including the Competitive Enterprise Institute (who filed a Petition for rescission of the EF along with ours) and the Heartland Institute; the CO2 Coalition, including its Chair Will Happer and Executive Director Greg Wrightstone; CFACT; the Global Warming Policy Foundation (I serve on its Board); and Anthony Watts and Charles Rotter at Watts Up With That. I’m sure that there are a few that I have forgotten. Congratulations to all!