Curtailing Federal Control Over Emissions Should Be Done by Congress, Not the EPA
By going through the courts, the Trump administration risks perpetuating the regulatory ping-pong that has plagued Washington, D.C., for decades.
The Environmental Protection Agency (EPA) will soon repeal the endangerment finding, a landmark rule which has allowed the agency to regulate greenhouse gas (GHG) emissions, The New York Times reported Wednesday.
The endangerment finding was established in Massachusetts v. EPA (2006), when a group of states sued the George W. Bush EPA for not regulating GHG emissions on new motor vehicles. The EPA argued that it did not have the statutory authority to do so. In a 5–4 decision, the Supreme Court ultimately sided with the states, ruling that the EPA could regulate GHG emissions under certain portions of the Clean Air Act, so long as the agency's administrator could determine these emissions "may reasonably be anticipated to endanger public health or welfare." (A very low bar to prove.)
"While the ruling did not technically require the EPA to regulate such emissions, the Court did say that the agency would have to make a determination of 'whether greenhouse gas emissions contribute to climate change,' and, if so, proceed with appropriate regulations," explains Josiah Neeley, an energy scholar at the R Street Institute. "While not regulating anything itself, the endangerment finding thus became the necessary prerequisite for all subsequent regulations on GHGs issued by the EPA."
In March, EPA Administrator Lee Zeldin announced that the agency would begin reconsidering the endangerment finding, which was established in 2009. "The Trump Administration will not sacrifice national prosperity, energy security, and the freedom of our people for an agenda that throttles our industries, our mobility, and our consumer choice while benefiting adversaries overseas," Zeldin said at the time.
Now, Zeldin's announcement is materializing. However, the EPA's draft rule does not appear to call into question the climate impacts of GHG emissions (which some suspected it would). Instead, "it argues that the E.P.A. overstepped its legal authority under the Clean Air Act by making a broad finding that greenhouse gas emissions endanger the public welfare," reports the Times.
Reconsidering the ruling on procedural grounds rather than scientific ones may be a wiser strategy for the EPA, argues The Volokh Conspiracy's Jonathan H. Adler, who has called the task a "fool's errand." But it would still have to pass strict legal scrutiny, especially since the Supreme Court overturned the Chevron deference last year. Now federal agencies have less leeway to interpret broad regulations—including the Clean Air Act. Still, Zeldin may think it's worth trying given the Court's conservative majority that has recently reined in federal agencies' overreach in energy issues.
The likely failure of going through courts, rather than Congress, doesn't mean the endangerment finding shouldn't be reconsidered and updated. As climate scientist Roger Pielke Jr. writes, "There are good reasons, scientifically, to update the 'endangerment finding,' as almost more than fifteen years have now passed and its justifications are out-of-date." Still, Pielke agrees with Adler that there is no legitimate scientific or legal reason to rescind it altogether.
The Trump administration has taken effective steps to reduce regulations that hurt American energy security and affordability for minimal environmental benefits. In June, the EPA moved forward with rescinding a Biden-era power plant rule that would have imposed an estimated $15 billion in regulatory costs over 20 years. In July, the One Big Beautiful Bill Act was signed into law, which eliminated penalties for car manufacturers that don't comply with expensive and ineffective tailpipe emissions standards.
Despite these successes, the Trump administration is taking the wrong approach to fixing the endangerment finding. By repealing it through executive rule making, the effort is sure to be held up in courts and rescinded by a future presidential administration, perpetuating the regulatory ping-pong that has plagued Washington, D.C., for decades. A more durable approach to fixing federal regulatory overreach is by reducing it in Congress.
