Judge Glock This Trump Proposal Will Reverse the EPA’s Climate Overreach Revoking the agency’s Endangerment Finding will lift costly regulatory burdens and restore the Clean Air Act to Congress’s original intent.
https://www.city-journal.org/article/epa-endangerment-finding-clean-air-act-trump
When Congress passed the Clean Air Act in 1970, climate change wasn’t on anyone’s mind. Yet under an Obama-era decision known as the “Endangerment Finding,” the Environmental Protection Agency has claimed authority under the act to micromanage large parts of the American economy in the name of combating global warming.
A new Trump administration proposal to reverse the Endangerment Finding returns the Clean Air Act to its original purpose, marking the end of a failed effort to control the climate through executive fiat.
The Endangerment Finding stemmed from the 2007 Supreme Court case Massachusetts v. EPA, which required the EPA to determine whether carbon dioxide qualified as a dangerous air pollutant under the Clean Air Act. In dissent, Chief Justice John Roberts warned that the decision “ignores the complexities” of addressing global warming through the statute—but suggested its effects “may be more symbolic than anything else.” He couldn’t have been more wrong.
In his first year in office, President Obama recognized the limits of the Clean Air Act and sought to push a bipartisan climate bill through Congress. But when lawmakers failed to act on his terms, he turned to executive authority. In 2009, in response to Massachusetts, the EPA declared that six greenhouse gases, especially carbon dioxide, endangered public health and welfare and therefore required regulation.
Unfortunately, the structure of the Clean Air Act is not conducive to regulating CO2. This is partly because the act is designed to regulate industry. Yet CO2 is not just emitted by factories and cars but by every human, frog, parakeet, and muskrat, among other animals. The act required federal permits for any source that emitted more than 100 tons per year of an air pollutant. By this measure, some families would need permits just for breathing.
Even the EPA realized that the law could sweep up hundreds of thousands of stores, apartments, hotels, and small establishments. As an act of regulatory noblesse oblige, the agency said that it would regulate only sites emitting more than 100,000 tons of CO2—a number it picked out of thin air.
The EPA’s attempts to use the act to regulate emissions unleashed endless litigation. In 2014, the Supreme Court overturned the 100,000-ton permit standard, which two justices called “patently unreasonable.” In 2022, in West Virginia v. EPA, the Supreme Court said that the EPA’s mandate to shut down a substantial part of the nation’s coal-fired power plants and substitute them with gas and renewables also couldn’t be squared with the act.
One sticking point was that the Clean Air Act focused on regulating emissions through technological additions to cars and factories, such as smokestack scrubbers. But, unlike other pollutants, there’s no easy way to stop greenhouse gases from coming out of the end of a smokestack. If you burn fossil fuels, the CO2 must go somewhere, and that generally means into the atmosphere. The only way to control most greenhouse gases is to mandate less use of energy derived from fossil fuels. Such mandates were never the purpose or intention of the act.
Often absurd actions resulted. Cars and trucks are some of the main emitters of CO2, and they were the focus of the original Endangerment Finding. But there are no catalytic converters or equivalent technologies to eliminate CO2 from gas-powered vehicles, so the EPA simply imposed stricter gas mileage standards. It did so despite Congress’s having already established a separate program within the Department of Transportation to regulate fuel economy.
The Biden administration went further, issuing rules under the Endangerment Finding that would require about two-thirds of new cars and trucks to be electric by 2032. This went beyond regulating mileage to reshaping the entire American automobile fleet. The estimated costs of the rules surpassed $1 trillion, making them among the most expensive regulatory actions in history. And because the government also offered separate subsidies for electric vehicle purchases, the regulations stood to add hundreds of billions of dollars to the deficit—again, without any congressional approval.
These regulatory contortions reveal the folly of using questionable statutory language, rather than clear congressional action, to make major decisions that reshape American society. Those who view climate change as an existential threat have a duty to persuade the public of that claim. If addressing climate change truly requires making sweeping changes to how we live, then advocates must build a broad-based coalition to pass laws mandating those changes, not bypass the democratic process through executive fiat.
The Trump administration’s proposal to repeal the Endangerment Finding, detailed in over 300 pages by the EPA this week, will put a stop to regulations that swelled the deficit, raised prices, and hurt consumers. It will also restore Congress’s original understanding of the Clean Air Act and stop a flood of ineffective executive mandates.
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