Last July, the Environmental Protection Agency began a formal rulemaking process to reconsider the Obama-era “endangerment finding,” the basis for regulations on motor vehicle emissions, among other things. [some emphasis, links added]
The Trump administration is reportedly poised to announce the final rule this week, according to The Wall Street Journal, and while critics of the rule say it should go, legal experts say the rule will need to withstand litigation challenges, as well as future administrations.
Steve Milloy, senior legal fellow with the Energy and Environmental Legal Institute and publisher of “JunkScience.com,” told Just the News that a repeal is a great first step toward undoing the regulatory regime behind what he calls the “climate hoax.”
However, if the final rule is to last, the Supreme Court will need to overturn Massachusetts v. EPA, a 2007 decision that opened the door for the process by which the Obama administration finalized the original rule.
“It’s not enough for the Trump administration to rescind the endangerment finding,” Milloy said.
Scalia’s Reductio Ad Absurdum: “Frisbees and Flatulence”
When the EPA failed to pursue regulations of greenhouse gas emissions under the Clean Air Act, Massachusetts, along with 10 other states, cities, and nonprofit organizations, petitioned the Supreme Court on the issue.
In a 5-4 decision in 2007, the high court ruled in Massachusetts v. EPA that greenhouse gas emissions fit the Clean Air Act’s definition of an “air pollutant.”
So the EPA needed to determine if emissions endanger public health and welfare of the public, or if the science is too uncertain to make such a determination, the court concluded.
In his dissent, Justice Antonin Scalia argued that, by the majority’s reasoning, “everything airborne, from frisbees to flatulence, qualifies as an ‘air pollutant.’”
The ruling did not order the EPA to regulate greenhouse gas emissions. It only set forth a reasoned basis for making a determination of whether or not the agency should do so.
In 2009, after former President Barack Obama was sworn in, officials at the EPA began working on an endangerment finding.
Chris Horner, an environment and energy policy attorney, obtained emails from a Freedom of Information Act request that not only revealed that some officials were using aliases, but also showed that a finding of endangerment was pre-determined before a rule was proposed.
“You are at the forefront of progressive national policy on one of the critical issues of our time. Do you realize that?” Georgetown law professor Lisa Heinzerling wrote to then-EPA Administrator Lisa P. Jackson on Feb. 27, 2009. “You’re a good boss. I do realize that. I pinch myself all the time.”
Since then, two Supreme Court decisions could impact the ruling in Massachusetts v. EPA.
In 2022, the high court ruled in West Virginia v. EPA that Congress had not granted the EPA the authority to place emission caps on power plants as a means to regulate how Americans generate electricity; in June 2024, the high court struck the “Chevron deference,” which allowed federal agencies broad latitude in interpreting laws when Congress hasn’t provided specific guidelines.
Now is the Time
These rulings, legal experts say, have created an opportunity to overturn Massachusetts v. EPA. Milloy explained that if the final rule rescinding the endangerment finding is going to [survive] legal challenges, this must happen.
“If Massachusetts versus EPA is not reversed — and this is the time to do it — then this whole exercise is going to be an exercise for naught. Next time there’s a Democratic president, the Democrats will have the legal authority, so to speak, to reimpose the endangerment finding,” he explained.
Milloy said he has “genuine concerns” that whoever is writing the final rule will understand the importance of overturning that decision.
“When this thing goes to court, it’s going to require competent lawyering, which the Trump administration doesn’t always have,” Milloy said.
Read rest at Just The News
