The Trump Environmental Protection Agency’s repeal of the Endangerment Finding – which asserted carbon dioxide and other greenhouse gases threaten public health and welfare – is one of the most consequential actions of President Trump’s second term. Now, however, Department of Justice bureaucrats are sabotaging the legal basis for the repeal.
The root of the Endangerment Finding was a flawed 2007 Supreme Court decision, for which the Supreme Court has since repudiated the underlying logic. In the 2007 decision, Massachusetts v. EPA, a 5-to-4 decision of the Supreme Court held that carbon dioxide fits the Clean Air Act’s definition of a “pollutant” that EPA can or must regulate. The Supreme Court made such a finding even though carbon dioxide is not listed among the Clean Air Act’s many designated pollutants. The Supreme Court then directed EPA to determine whether greenhouse gas emissions threaten public health and welfare, which would require EPA regulation. The Bush administration punted such a determination to the subsequent Obama administration, which predictably held carbon dioxide threatens public health and welfare.
The 2007 Supreme Court was operating under the since-repudiated assumption that federal agencies have nearly boundless discretion to regulate people’s lives unless Congress specifically forbids such regulation. Since then, in the 2022 case West Virginia v. EPA, the Supreme Court has clarified that federal agencies must identify clear congressional authorization to make a major policy doctrine. Regulating carbon dioxide is clearly a major policy doctrine and Congress has never – in the Clean Air Act or anywhere else – explicitly authorized EPA to regulate it.
The Trump EPA under Administrator Lee Zeldin revisited the Obama EPA Endangerment Finding and found many flaws. As an initial matter, carbon dioxide is not listed as – and does not fit – the Clean Air Act’s definition of “pollutant” that is required for EPA regulation. Also, carbon dioxide does not threaten public health and welfare. Additionally, regulating carbon dioxide is ineffectual considering American businesses and individuals are responsible for only a small fraction of global carbon dioxide emissions.
Most importantly, EPA has properly determined that restricting carbon dioxide emissions is a congressional issue rather than an agency issue. Congress has many times considered legislation that would cap, tax, or restrict carbon dioxide emissions and has rejected such legislation every time. EPA points out that any such future restrictions are the purview of Congress, not EPA.
Now, however, the Justice Department is undermining EPA’s repeal of the Endangerment Finding.
In Suncor Energy Inc. v. County Commissioners of Boulder County, the city and county of Boulder, Colorado, sued energy companies in civil court. Boulder asserted it is owed damages by energy companies for asserted global warming harms caused by the energy companies’ products. The question currently before the Supreme Court is whether plaintiffs may sue energy companies in state civil court and recover asserted damages regarding an issue – climate change – that is governed by federal law and federal policy.
Addressing the Suncor case, the Justice Department has filed briefs asserting Boulder has no right to pursue its lawsuit because EPA has the primary authority to regulate carbon dioxide and greenhouse gases. This is flat-out wrong. Congress, not EPA, has the primary authority to regulate greenhouse gases.
If DOJ continues to make such erroneous assertions, this will sabotage the Endangerment Finding repeal.
DOJ can and should argue against Boulder’s Suncor suit. However, DOJ can argue against it by pointing out that federal law and policy govern greenhouse gases through the power of Congress rather than EPA.
Department of Justice lawyers are career bureaucrats – skilled bureaucrats, but bureaucrats nonetheless. It is no secret that the federal bureaucracy is dominated by anti-Trump sentiment and activists.
It is possible that the Department of Justice lawyers overseeing the Suncor case are so siloed into this specific case that they are not thinking about the larger implications of their argument that EPA has primary authority to regulate carbon dioxide. It is also quite possible that the career lawyers within DOJ are intentionally presenting such an argument to the Supreme Court in Suncor with the purpose of derailing the Trump EPA’s Endangerment Finding repeal.
Regardless of whether nefarious motives are at play, President Trump, EPA Administrator Lee Zeldin and Acting Attorney General Todd Blanche must take swift action to ensure DOJ lawyers are making the proper legal arguments in Suncor so as not to sabotage the Endangerment Finding repeal.
James Taylor is the president of The Heartland Institute.
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