Every week in this second Donald Trump presidency is such a whirlwind of major events that it is always a challenge to pick a topic for the next contribution here at the Daily Caller News Foundation.
But, despite this having been one of the most frenzied weeks of all since Jan. 20, picking the topic for this column was easy, because no energy-related action by this administration would have a bigger impact on American society than a successful effort to reverse the Obama EPA’s 2009 endangerment finding on greenhouse gas regulation.
The Washington Post reported Wednesday that Environmental Protection Agency (EPA) Administrator Lee Zeldin “has privately urged the White House to strike down a scientific finding underpinning much of the federal government’s push to combat climate change, according to three people briefed on the matter who spoke on the condition of anonymity because they were not authorized to comment publicly.” Zeldin’s recommendation was a response to Trump’s Day 1 executive order tasking Zeldin to conduct a review of “the legality and continuing applicability of the Administrator’s findings, ‘Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act,” Final Rule, 74 FR 66496 (December 15, 2009).’”
The Obama EPA’s finding was enabled by the 2007 5-4 ruling by the Supreme Court in the Massachusetts v. EPA case allowing the agency to regulate greenhouse gases as pollutants in the context of the Clean Air Act. In that case, Justice Anthony Kennedy, who long served as the swing vote on the Court, joined with four liberal justices to give EPA this authority.
Given that the main so-called “greenhouse gases” — water vapor, methane and carbon dioxide — are all naturally occurring elements, a ruling classifying them as “pollutants” as that term was intended by the authors of the Clean Air Act in 1963 was absurd on its face, but that didn’t stop the five justices from imposing their political will on U.S. society.
Since implemented by the Obama EPA, the endangerment finding has served as the foundational basis for the vast expansion of climate change regulations impacting every nook and cranny of the U.S. economy, dramatically increasing the cost of energy for all Americans. The climate alarm hysteria over carbon dioxide, otherwise known as plant food and the basis for all life in Planet Earth, was also the motivational basis for every aspect of the Biden-era efforts to force taxpayers to bear the cost of hundreds of billions of dollars in renewable energy subsidies.
So, what has changed between 2007 and today to make Administrator Zeldin and President Trump think their attempt to reverse this endangerment finding would survive all the court challenges that would arise from the climate alarm community?
First, there is the dramatic shift in the makeup of the Supreme Court. Justice Kennedy is no longer on the court, nor are the other four justices who issued the majority decision in Massachusetts v. EPA. Where the Court was evenly divided in 2007, today’s Supreme Court is made up of a decisive 6-3 originalist majority with three justices appointed by Donald Trump himself during his first presidency.
But an even more decisive difference now stems from last year’s reversal of the Chevron Deference by the Supreme Court in the Loper Bright Enterprises v. Raimondo case. As I wrote here at the time, the Chevron Deference, established as a legal doctrine in a unanimous Supreme Court decision in 1984, required the federal judiciary to defer to the regulators’ judgments about the governing statutes whenever the statutory intent was vague and open to interpretation.
That doctrine of law led directly to the vast expansion of the regulatory state for the 40 years it was in effect. The question now becomes whether, in the absence of that doctrine, regulators at the EPA truly have the authority to regulate atmospheric plant food in the same way they regulate particulate matter and other forms of real air pollution.
A successful effort to reverse the Obama EPA endangerment finding would then put every element of the Obama/Biden climate agenda in jeopardy.
Mr. Trump likes to say he wants to bring common sense back to government. This is one big way to do exactly that.
Featured Image Credit: The White House from Washington, DC
