EPA’s Attempt to Roll Back Climate Regulations May Come Down to 1 Key Legal Point

Of all the changes that Lee Zeldin proposed to EPA regulations, ’the greatest one by far is the “Endangerment Finding,”' energy policy expert Dan Kish said.

Illustration by The Epoch Times, Shutterstock

In his new role as head of the Environmental Protection Agency (EPA), Lee Zeldin has proposed changes that would fundamentally alter government regulation of the United States’ 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,” Sarah Montalbano, energy and environmental policy expert at Center of the American Experiment, told The Epoch Times. According to her, this signifies a move away from Washington micromanagement.

“The EPA is reconsidering unworkable greenhouse gas regulations on power plants,“ she said. ”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 EPA regulations that Zeldin has proposed changing, “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.

A gas flare from the Shell Chemical LP petroleum refinery illuminates the sky in Norco, La., on Aug. 21, 2019. Whether the EPA’s reconsideration of the 2009 Endangerment Finding will boost fossil fuel production or lead to significant changes in autos and appliances remains to be seen. Drew Angerer/Getty Images

This concerns whether or not carbon dioxide (CO2) and other greenhouse gases (GHGs) can be regulated as pollutants 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, are pollutants that the EPA has 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.

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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, [President Donald] 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 U.S. Court of Appeals for the District of Columbia Circuit, 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. However, he said that 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,” he said, referring to the 1984 Supreme Court ruling in Chevron v. Natural Resources Defense Council.

President Donald Trump participates in a roundtable discussion with Lee Zeldin, nominee for EPA administrator, in Drexel Hill, Pa., on Oct. 29, 2024. Chip Somodevilla/Getty Images

Key Supreme Court Rulings

In the Chevron case, 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 to defer 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 agencies 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 U.S. 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.

Montalbano said: “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.

“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.

The Supreme Court in Washington on May 25, 2023. Recent court decisions will likely put a 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. Mandel Ngan/AFP via Getty Images

What Does the Science Say?

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.”

NASA states on its website that “record-breaking heat waves on land and in the ocean, drenching rains, severe floods, years-long droughts, extreme wildfires, and widespread flooding during hurricanes are all becoming more frequent and more intense.”

However, others have said that the Trump administration has a strong scientific case for overturning the Endangerment Finding.

“Consensus is not science, and science is not consensus,” Greg Wrightstone, executive director of the CO2 Coalition, told The Epoch Times. “We believe that carbon dioxide is a greenhouse gas and causes some warming, just not very much.”

Compared with previous eras, Wrightstone said, the Earth’s atmosphere has relatively low levels of CO2 at present. NASA reports that atmospheric CO2 levels are currently about 420 parts per million, up from 320 in the 1960s.

“The average throughout Earth’s history was about 2,600 parts per million,” Wrightstone said.

The CO2 Coalition has also argued that, looking over past millennia, there have been dramatic changes in both CO2 levels and the Earth’s temperature, but high levels of CO2 have generally not correlated with high temperatures.

Milloy challenged the premise that atmospheric CO2 causes an increase in hurricanes, tornadoes, floods, droughts and other natural crises, or other threats to human health.

A senior hurricane specialist works on tracking Hurricane Beryl, at the National Hurricane Center in Miami on July 1, 2024. Hurricane Beryl historically became the strongest hurricane to form this early in the season in this area of the Atlantic. Joe Raedle/Getty Images

“Emissions don’t correlate with any sort of extreme weather event,” he said.

Despite the declaration by U.N. Secretary-General Antonio Guterres in 2024 that the Earth’s “climate is imploding,” the U.N. Intergovernmental Panel on Climate Change (IPCC) reports that there has been little observed increase in extreme weather events to date.

The 2023 IPCC assessment of the effect of extreme weather events states that while temperatures have risen and climate models predict increases in extreme weather, there has not been a significant increase to date in floods, rainstorms, landslides, drought, “fire weather,” cyclones, hurricanes, tornadoes, sand and dust storms, hail, sea level rise, coastal flooding, and erosion.

Similarly, an analysis of tornado trends by the National Oceanic and Atmospheric Administration states that “the number of strong and violent tornadoes hasn’t varied much since 1970.”

While the number of reported tornadoes did increase in recent decades, this report states that this “increase in reported tornado frequency during the early 1990s corresponds to the operational implementation of Doppler weather radars; ... the advent of cellular telephones; the development of spotter networks by NWS [National Weather Service] offices, local emergency management officials, and local media; and population shifts,” as well as “the growing ‘hobby’ of tornado chasing.”

And a 2022 report in Nature found a “declining tropical cyclone frequency under global warming.”

In addition, Wrightstone said, “when they issued the Endangerment Finding under [President Barack] Obama’s EPA in 2009, they did not consider any positives, and there are a huge number of positives from increasing CO2.”

“We’re seeing huge increases, year after year and decade over decade, in virtually every kind of agricultural production, and it’s because of the CO2 fertilization effect,” he said.

Companies Watching and Waiting

Whether the EPA’s reconsideration of the 2009 Endangerment Finding will boost fossil fuel production or lead to significant changes in autos and appliances remains to be seen. Analysts say that many companies are waiting to see if the EPA’s new assessment of GHG emissions survives court challenges before investing in new fossil fuel production.

The Environmental Protection Agency in Washington on Nov. 18, 2024. Madalina Vasiliu/The Epoch Times

“There is a lot of uncertainty about when these changes will come into effect,” Montalbano said. “Some actions will need to go through several years of reconsideration, new rule-making, and litigation that might stretch to a new administration.

“Companies are acting cautiously for now, but their positions will become clearer with time and as they participate in public comments and rule-making processes.”

According to Wrightstone, there are about 100 different regulations regarding GHG emissions, which will likely be reviewed on a case-by-case basis under the Trump administration.

“What these regulations have done is restrict citizens’ freedoms,” he said. “They’ve restricted the freedom to choose what kind of car to drive; they’ve tried to mandate EVs; they now are limiting what kind of shower heads, washing machines, dryers, dishwashers, you name it, and a lot of those go through the Department of Energy, not EPA.”

But according to Rylander, those restrictions are necessary to protect the public.

“If they succeed in overturning [the Endangerment Finding], it will affect air pollution rules for cars and trucks, power plants, and oil and gas development,” he said. “Not only will that increase greenhouse gases, but it will make our air and water dirtier, and damage public health in communities across the country.”

Ultimately, absent new legislation from Congress, it will likely fall to Supreme Court justices to decide between these opposing points of view and to determine whether the many climate-related regulations will remain on the books or be jettisoned.