Comment Filed In Support Of EPA's Repeal Of The 2009 Endangerment Finding

Yesterday, along with two excellent colleagues, I submitted a Comment to EPA on the subject of the proposed and pending repeal of the so-called Endangerment Finding of 2009. The Endangerment Finding (EF) is the absurd regulatory action by which the Obama-era EPA purported to find that the trace gas carbon dioxide (CO2) constitutes a “danger” to human health and welfare as it accumulates in the atmosphere from the current level of about 0.04%, to perhaps 0.05% or maybe even (the horror!) 0.06% by some time later this century. The EF is then the basis for all the subsequent regulatory initiatives by the Obama and Biden administrations to regulate and suppress the production and use of hydrocarbon fuels. These initiatives have included things like rules to force the closure of all coal and natural gas power plants by some time in the 2030s; mileage rules for automobiles that would ratchet up over time until no gasoline-powered car could comply (also by some time in the 2030s); restrictions on oil and gas leases on federal lands; blocking the construction of pipelines; and even regulations that have made it so that dishwashers and washing machines don’t work very well any more.

Here is a link to our Comment.

Some background for those who have not been following closely, or maybe who have lost track of the status of this long-running saga: The EF was always absurd, but as long as Obama was in office it was pointless to try to get his EPA to reconsider it. However, after Trump first got elected in 2016, I got together with a group of friends and colleagues to see if we could encourage, or maybe even force, the new Trump administration to get rid of this very destructive regulation. On January 20, 2017 — Inauguration Day of the Trump 45 administration — we filed a Petition for Reconsideration of the EF. The Petition was based on scientific research that had come out during the time after the 2009 EF, and that undermined what was already the slim basis for the finding of endangerment.

But then, sadly, the first Trump administration did not make this issue one of its priorities. In the period from 2017 to 2020, we filed seven Supplements to our initial Petition, each time using citations to new information or research further undermining the basis for the EF in an effort to get EPA’s attention. But the first Trump administration never undertook the effort to repeal it.

Then Biden came into office, and issued a final rejection of our Petition for Reconsideration in 2022. We proceeded to appeal that rejection to the D.C. Circuit. Actually, we had no illusions that a Biden EPA would undo the EF, even if ordered to reconsider it by the D.C. Circuit or Supreme Court. However, we did think that by keeping the issue alive during the four Biden years, we could increase the chance that a new Republican administration in 2025 (whether Trump or someone else) would undertake the task, either on its own initiative or by compulsion from a court.

As it happened, we lost in the D.C. Circuit in 2023, and then got a final rejection in our certiorari petition by the Supreme Court in 2024. But then Trump got re-elected. Apparently, he had been paying attention to this issue during his four years out of office, perhaps in part as a result of our efforts. Promptly upon taking office for his second term, Trump issued an Executive Order directing the new EPA administrator to look into this issue. In July 2025, EPA Administrator Lee Zeldin initiated the formal process of repealing the EF. The EPA document initiating the reconsideration specifically stated that the Biden administration rejection of our Petition had been reversed! The comment period on the proposed repeal is currently open through September 22.

Our Comment focuses on two aspects of the supposed scientific basis for the EF that are just completely wrong, and without which the EF cannot stand. The first is the reliance of the EF on supposed evidence of what is called the “Global Average Surface Temperature” (GAST) records allegedly showing strong warming from the late 19th century to the early 21st; and the second is supposed evidence of increasing severe weather events, allegedly arising from warming derived from increased CO2 in the atmosphere.

Unfortunately for the EF, the GAST records are useless for any policy purpose, because they have been substantially created not by actual observations but by infilling (aka fabrication) by bureaucrats. From our Petition, pages 5-6:

The scientific basis for the 2009 GHG Endangerment Finding has been shown to have been built on quicksand because the Global Average Surface Temperature data have been, and continue to be, totally fabricated because, for a very significant portion of the planet and a substantial portion of the time periods in question, there was no surface temperature data whatsoever. This fabrication was done to support for global warming claims and was carried out by all three entities providing GAST data measurement, NOAA, NASA and the UK’s Hadley CRU. . . . For example, the Southern Hemisphere is 80.9% ocean, and prior to the year 2000 there was virtually no credible monthly ocean surface temperature data whatsoever for this massive area. This fact alone means that until 2000, the surface temperature record had virtually no data whatsoever for over 40% (50%*0.809) of the planet. But the situation is even worse than that because for much of the quoted surface temperature record since about 1850, there are virtually no credible monthly surface temperature data outside of North America and Europe.

Lots more detail on this issue is available in the Comment.

As bad or worse was EPA’s reliance in making the EF on claims of supposedly increasing and worsening severe weather events. Overwhelming amounts of research, ongoing since the 2009 EF, show these claims to be completely false. Our Comment contains multiple quotes from EPA’s EF documenting their reliance on worsening severe weather as a critical source of the claimed “endangerment” from atmospheric CO2. From our Comment, page 11, quoting the text of EPA’s EF:

“The evidence concerning how human-induced climate change may alter extreme weather events also clearly supports a finding of endangerment” [74 Fed. Reg.] at 66497:3. An entire subheading of the Endangerment Finding, Section IV(B)(1)(c), is devoted to explaining that the “Effects on Extreme Weather Events” “Endanger Public Health.” Id. at 66525:2. There is simply no question but that EPA grounded the 2009 Endangerment Findings in part on the claim that GHG emissions cause increased frequency and severity of extreme weather events.

The Comment then at pages 12-14 cites the latest research and data on every sort of extreme weather event — heat waves, tornadoes, hurricanes, droughts, floods, wild fires, snowfall, and so forth. The supposedly worsening trends in every case are missing from the data. You would think that the Biden EPA would have been embarrassed by this as the data continued to accumulate, but these people are beyond embarrassment.

I encourage readers to read the entire Comment, which is 20 pages long, for much more detail. Even at that, we did not by any means try to cover the whole range of arguments for rescinding the EF, but only a subset of the most important pieces of scientific data and logic that invalidate it.

Undoubtedly EPA will get some thousands of comments from various grifters and fake “scientists” living off government handouts, arguing for retaining the EF. If you happen to review any of those, see if they have any answer to the these two main points that we made. I don’t think that any good answer exists.

Many thanks to my colleagues Harry MacDougald and Jim Wallace, who did the main work in drafting this Comment. They were kind enough to let me participate.