The Trump administration’s Environmental Protection Agency (EPA) took a significant step during its second term by repealing findings that suggested carbon dioxide and other greenhouse gases could endanger public health and welfare. Now, however, legal challenges from the Justice Department are complicating that repeal.
The foundation for these endangered findings stems from a flawed Supreme Court decision made in 2007. In Massachusetts v. EPA, the Court ruled, by a 5-4 vote, that carbon dioxide qualifies as a “pollutant” under the Clean Air Act, despite the fact that it wasn’t explicitly listed among the pollutants. The Court instructed the EPA to assess whether greenhouse gas emissions posed a threat to public health and welfare, which would necessitate regulation. The Bush administration chose not to make that determination, leaving it to the Obama administration, which concluded that carbon dioxide indeed represented a threat.
The reasoning used in the 2007 decision has been challenged; specifically, the premise that federal agencies have almost unfettered authority over regulations unless explicitly blocked by Congress. Fast forward to 2022, and in West Virginia v. EPA, the Supreme Court clarified that agencies need explicit Congressional authorization to create major policy changes. The regulation of carbon dioxide certainly falls into that category, yet Congress never clearly sanctioned the EPA to regulate it in the Clean Air Act or any other legislation.
The Trump EPA, led by Secretary Lee Zeldin, reviewed the Obama administration’s findings and identified multiple inconsistencies. For instance, carbon dioxide isn’t defined as a pollutant in the Clean Air Act and does not fulfill the EPA’s regulatory criteria. Additionally, it contended that carbon dioxide does not pose a legitimate threat to public health or welfare, and given that U.S. emissions make up only a fraction of global emissions, regulating carbon may not be effective.
Crucially, the EPA concluded that limits on carbon emissions are a legislative matter, not something that an agency should handle. Congress has considered various bills aimed at capping or taxing carbon emissions but consistently rejected them. Thus, any future regulations are rightly under Congress’s jurisdiction, not the EPA’s.
Currently, the Justice Department is hindering the EPA’s attempt to repeal these findings.
In Suncor Energy Inc. v. Boulder County Board of County Commissioners, the county of Boulder, Colorado, is suing an energy firm, claiming it owes damages due to its products’ alleged negative impacts on global warming. The Supreme Court is now deliberating whether local governments can pursue legal action against energy companies in state courts for climate-related damages, which fall under federal law.
In this case, the Justice Department filed a brief asserting that Boulder lacks the right to sue, as the EPA holds primary regulatory authority over carbon dioxide. This stance is incorrect; the primary authority actually lies with Congress.
If the Justice Department persists with these inaccuracies, it jeopardizes the repeal of the endangered findings.
The Justice Department should counter Boulder’s claims in the Suncor case by emphasizing that Congressional authority governs greenhouse gases, rather than the EPA.
Attorneys at the Justice Department are experienced but essentially bureaucrats operating within an environment often seen as anti-Trump. It’s possible that the legal strategies regarding the Suncor case are being narrowed too much, not considering the broader implications of claiming EPA’s authority over carbon regulation. There’s a chance that some government lawyers are deliberately framing their arguments to hinder the Trump EPA’s repeal of endangered findings.
Regardless of intention, it’s crucial that President Trump, EPA Administrator Lee Zeldin, and Acting Attorney General Todd Blanche act quickly to ensure the Justice Department is presenting a strong legal case in the Suncor lawsuit without obstructing the repeal efforts.
