[Lead image courtesy ChatGPT]

Science helped us win WWII. Science helped us build the world’s most dominant economy. Science helped us survive measles, AIDS and COVID-19. Now are we willing to sacrifice science in exchange for a campaign contribution from the fossil fuel industry?

The U.S. Environmental Pillaging Agency (EPA) is attempting to repeal the “endangerment clause.”  Let’s carefully understand what this means. But first, a brief history of the clause.

In a 2007 case Massachusetts v EPA, the Supreme Court ruled that the EPA can regulate Greenhouse Gases (GHGs) as part of the Clean Air Act of 1970, provided it issues a “finding” that GHGs are harmful. Starting in April 2009, the EPA issued such a finding, saying in essence, “GHGs are harmful, therefore we can regulate them as part of the Clean Air Act to protect our citizens.” This endangerment finding gave the EPA the power to regulate emissions from power plants, motor vehicles and furnaces, to regulate methane leaks, and the like.

Fast forward to July 2025 and Lee Zeldin, the Administrator of the EPA, said that he intended, in accordance with Project 2025, to repeal the endangerment finding, thus in his own words “driving a dagger into the heart of climate change religion.” Unfortunately for him, he is up against dagger-proof science. Besides, history has proven that daggers don’t do a good job of proselytizing either.

Since that remark, the EPA has taken concrete steps to repeal the endangerment finding by announcing its intention with a 302-page proposed regulation. The EPA will lose its ability to regulate GHGs if this finding passes legal muster. According to Prof. Michael Gerrard, founder of the Sabin Center for Climate Change Law at Columbia, the argument is “legally plausible,” and hence should be taken seriously. So, what is the legal basis to repeal endangerment? There are three main pillars on which the regulation is based.

The first is a “divide and conquer” approach to re-interpret Massachusetts v. EPA more narrowly. First, according to the regulation, only U.S. GHGs can be considered, belying the global nature of the climate crisis. Further, each greenhouse gas (like carbon dioxide and methane) must be considered separately. Even further, every source of each gas (cars belching carbon dioxide, oil wells leaking methane, power plants emitting soot) must be considered separately. Yet further still, the carbon dioxide from Joey’s car and the methane leak from Jill’s stove and the soot from Melissa’s furnace have to be teased apart. OK, I made up that last one. But the point is that the EPA claims that the harm from each of these individual sources does not merit endangerment. On its face, the argument is quite absurd. It is like saying a swindle of $1 is de minimis and not worth regulating and then freely allowing millions or billions of such swindles, thus concluding that swindles are not harmful.

The second argument appeals to the “major question doctrine.” The claim here is that the original endangerment clause is a finding with “major economic impact,” and such findings require congressional approval which was not sought in 2009, rendering the finding moot.

The third pillar upon which the regulation is built is a hastily-written, error-strewn 151-page Department of Energy technical document rife with cherry picking of data and out-of-context factoids written by a hand-picked team under Secretary of Energy, Chris Wright, himself a fossil fuel entrepreneur. The document would not pass muster in any peer-reviewed journal. The authors are just the same old climate deniers turned climate minimizers, because there aren’t many new names that could be added to the list. The same specious voices making the same tired arguments about variations in sunspots. The report, whose development was cloaked in secrecy, has already been challenged in court by the Union of Concerned Scientists and the Environmental Defense Fund. To be sure, there’s a modicum of truth or believable argument here or there, but, as Michael Gerrard puts it, “the courts will hear a ton of endangerment evidence, and a pound against.” Unfortunately, we live in a distorted and dystopian world in which our own Government publishes documents that are contrary to accepted scientific opinion. History will judge this harshly. Rather than rebutting the merits of this document, I will publish the names of the authors with my wholehearted nomination for the 21^st Century Science Hall of Shame:

• John Christy, University of Alabama, Huntsville
• Judith Curry, Georgia Tech. Emerita
• Steven Koonin, Hoover Institution (and former Chief Scientist of BP)
• Ross McKitrick, University of Guelph, Ontario
• Roy Spencer, University of Alabama, Huntsville

So, what happens next? Fortunately, a lengthy process that most likely won’t terminate before the next general election. First, there will be a public comment period until September 15. We encourage you to submit comments here. As of the publication date of this blog, 48,536 comments have been received. Based on a recent court case, if the EPA doesn’t adequately address all comments, its regulations can be overturned!

Next, the Federal Government has to publish the regulation, after which it will most likely be challenged immediately in the Washington D.C. circuit court. A 3-judge panel selected at random from the 7 Democrat-appointed and 4 Republican-appointed judge pool will hear arguments. That process could take at least a year. Whoever loses will inevitably challenge the decision in the Supreme Court, where pundits predict that the Administration will win 5-4 irrespective of the merits. Given the time involved in these steps, however, there’s a good chance that there will not be closure by the end of the Trump term, which means that you the voter will decide this matter in the next general election! A new EPA Administrator, a new Attorney General, or a new balance in Congress could well reinstate the endangerment finding.

The legal arguments against the regulation are obvious. It is not clear how slicing and dicing environmental harms by gas and by source can be interpreted as appropriately protecting U.S. citizens. The major questions doctrine is a dangerous legal argument for the Administration, because finding that GHGs are not harmful undoubtedly has major economic impact, and thus needs Congress ratification. While there are pusillanimous members of Congress who will gamble away our planet’s future out of wanton self-interest and in exchange for illusory job security, it will not be possible to find 60 such Senators. The underlying technical document will be met with a mountain of opposition in court. A 2024 Supreme Court case, Loper Bright Enterprises v. Raimondo, overturned Chevron, a 40-year precedent about the Courts’ role in resolving disputes about ambiguous terms in federal statutes like the Clean Air Act. Therefore, these interpretations may be decided by judges rather than experts in administrative agencies like the EPA, making the process more tedious. This means that federal judges would have to review and interpret potentially hundreds of thousands of pages of scientific evidence, reports, and comments to decide whether GHGs are dangerous, and the courts could then craft regulatory remedies. Alternatively, Congress could enact clear legislation based on an endangerment finding to regulate GHG emissions.

To summarize,

• The EPA is attempting to repeal the endangerment finding regarding GHGs.
• The EPA relies on slicing and dicing impacts, the “major question doctrine” and a flimsy and unscientific technical document.
• After a comment period, there will be a 2-step legal battle in the D.C. Circuit Court followed by the Supreme Court.
• In the meanwhile, we will likely have a new President-elect who can withdraw this whole mess and reinstate the truth that GHGs are harmful.

A curious twist: the fossil fuel industry is in legal jeopardy from lawsuits in various states which claim that the companies caused climate damage while intentionally misleading the public. The industry’s main defense is that the EPA regulates GHGs and that they operated within EPA regulations. If EPA’s regulation of GHGs were to go away, in a quirk of fate, the lawsuits will become much less defensible, although perhaps the EPA’s finding that GHGs are not harmful will be helpful to the defense.

While these new regulations won’t take effect for a while, they are sending a clear message to industry and markets. The lack of regulatory stability, concerning mileage standards as well as tariffs, will cause an uncertain business environment. In the meanwhile, the rest of the world is being flooded with high-quality inexpensive Chinese EVs. They are ramping up solar, wind, batteries and heat pumps while we keep pushing dirty 19^th century technology.