End Of The Endangerment Finding: Will "Net Zero" Ever Get Back On Track In The U.S.?

This morning, EPA released the official Federal Register version of its Rescission of the Greenhouse Gas Endangerment Finding as to motor vehicles. The Federal Register cite is 91 F.R. 7686. This official version of the Rescission, in printed, single-spaced and triple column format, is only 111 pages, versus the 436 pages the previous preliminary version; however, the text appears to be substantially unchanged.

It only took literal minutes for the first lawsuit challenging the Rescission to get filed. Here, via the website of the Union of Concerned Scientists, is a copy of a Petition that they say was filed today on behalf of a large group of environmental and “health” organizations: American Public Health Association, Alliance of Nurses for Healthy Environments, American Lung Association, Center for Biological Diversity, Center for Community Action and Environmental Justice, Clean Air Council, Clean Wisconsin, Conservation Law Foundation, Environmental Defense Fund, Environmental Law & Policy Center, Friends of the Earth, Natural Resources Defense Council, Physicians for Social Responsibility, Public Citizen, Rio Grande International Study Center, Sierra Club, and Union of Concerned Scientists.

The linked Petition does not bear the earmarks of a document that has actually been filed (like an index number and a date stamp), but I have no reason to doubt that the filing has been done. Still, this Petition does not contain any detailed statement of the basis for the challenge to the regulatory action. Rather, it is just a one-sentence notice of the challenge: “[Listed groups] hereby petition this Court for review of a final action taken by Respondents . . . .” We will need to await subsequent filings to learn the detailed legal basis. Without doubt, among this large group of Petitioners and others in the climate and environmental Left, many people have been working feverishly to come up with the magic litigation strategy to get their beloved Endangerment Finding reinstated and then, they hope, to get their government-mandated national “net zero” energy transformation back on track.

But is there any litigation strategy that can actually accomplish those goals? After all, there are severe legal and practical limits to what a court can do. Yes, a court can reverse any particular regulatory action by the executive branch. But a court can’t take on the task of running the executive branch in all its vastness and complexity. A court can’t devise or implement new regulations. Nor can a court decide which regulations to enforce and against whom. Even more important, a court can’t change the laws of physics or economics. No court can make wind and solar generation work to power an industrial economy, nor can any court force consumers to give up their combustion cars and buy electric cars that they don’t want.

Applying those practicalities to the current situation, a court (here, the DC Circuit) can definitely issue an order overruling the Rescission of the EF. But what will be the practical effect of that? I don’t see any real hope for the Left of getting the national “net zero” thing back on track at least for the next three years. And I would rate at about zero the chance of effectively restarting government-mandated net zero in 2029 after three years of dead stop.

Let’s play out some scenarios. As important background, remember that the immediate regulatory action at issue only revokes the EF as to motor vehicles. Further actions revoking the EF as to other emitters like power plants and factories are highly likely to follow in short order; but for the moment the regulatory action in play addresses only motor vehicles.

The relevant statutes make the DC Circuit the forum to bring litigation challenging the EF revocation. The DC Circuit has some conservative judges, but a substantial majority of liberals. It is highly likely that the DC Circuit, whether via an initial three-judge panel or a subsequent en banc review, will be hostile to the Trump EPA’s revocation of the EF.

First question: If you are the plaintiffs, do you seek immediate injunctive relief to overturn the Rescission, versus letting the litigation play out over the normal time frame of one to two years (or more)?

Normally, asking for a preliminary injunction requires you to claim you will suffer what is called “irreparable harm” from the regulatory action during the time that it would take for the full litigation to play out. What exactly is that “irreparable harm” here, where the claimed “danger” of global warming is occurring, if at all, at an almost imperceptibly slow pace of hundredths of a degree of temperature rise per year?

Maybe you state a “tipping point” theory? If you try that, you will find that your opponents can provide a response filled with the dozens of predictions by alarmists of supposed “tipping points” that have come and gone without anything noticeable happening. Example: Al Gore at the 2006 premier of his movie An Inconvenient Truth, as reported by CBS News: “[U]nless drastic measures to reduce greenhouse gases are taken within the next 10 years, the world will reach a point of no return. . . .” We are already 10 years beyond that fake “point of no return.” For a good collection of other failed and long-expired “tipping point” predictions, check out this Manhattan Contrarian post from 2018.

And if you play this “irreparable harm” card to try to get an expedited ruling, you could find yourself losing in the DC Circuit on grounds that you haven’t established irreparable harm, even though the court may be strongly disposed to rule in your favor on the merits.

Now, suppose that you ask for the expedited relief, and the DC Circuit buys your claim of irreparable harm, and grants relief undoing EPA’s Rescission of the EF. The government immediately seeks a stay of the ruling at the Supreme Court, and probably gets it. Moreover, the DC Circuit’s ruling granting the injunction against the Rescission now goes to the Supreme Court, probably to be heard in 2027 at the latest. Do you really want to be before this Supreme Court that quickly, where you could get a final ruling that will finish off the EF, with no more appeals for you, and with almost two years to go on Trump’s term?

An alternative strategy would be to try to keep the case in the DC Circuit as long as possible. You will be playing to have the case only reach decision in the Supreme Court after Trump is gone. Get lots of extensions on briefing deadlines. Hope that the DC Circuit takes a long time to decide (could be a year or more after argument!). If you don’t get everything you want from the initial panel, ask for en banc review. With any luck, by the time the case comes up for briefing in the Supreme Court there will be a Democratic President who will reverse the government’s position in the litigation, reinstate the EF, and ask that the various litigations be withdrawn as moot.

Well, here is the problem with that. While the case has been stalled in court, the Trump administration has had free rein to undo any and all “climate” regulation, and industry has had three years to adapt to that new world. As specific to motor vehicles, with all the subsidies and tax credits gone, sales of EVs probably will have shrunk to very low levels, and the capacity of the automakers to make them will have adjusted way downward. The previously-anticipated build-out of charging infrastructure will have stalled out. Do you now think that the government in that situation can just go back to mandating an all-EV world within five years or so? The U.S.-based automakers have just taken something like $50 billion of write-offs of their EV-making investments as a result of termination of government subsidies plus lack of consumer demand. Will they just go out and invest another $50 billion next time in the hope that government policy won’t all get reversed again?

And assume that somewhere during this litigation process there comes a time when a court has enjoined the Rescission of the EF, and no stay of that court order is in place. What does that mean the administration must do? I don’t think that any court can or will order the re-instatement of the Biden-era regulations as they existed at the time. Rather, the Trump people will get to write their own regulations to “do something” about the alleged danger of CO2. The “something” may turn out to be very little. I would not expect any such regulations to force an entire transition of the vehicle fleet, as the Biden people were attempting to do. Likely, the environmental plaintiffs will then go back to court and seek injunctions requiring more stringent regulation. They may get the injunctions, but the court is not actually going to write the regulations. The resulting regulations will likely have little effect.

So what is the litigation strategy that, via some hypothetical court order, can actually force the federal government during the next three years to reinstate an aggressive “net zero” climate/energy agenda. I can’t think of what it might be. Maybe readers have some ideas that I have not thought of.