Trump Attack on Climate Rules Takes Aim at Crucial Legal Pillar

(Bloomberg) -- For more than 15 years, the US federal government has slapped limits on greenhouse gas emissions based on a conclusion that planet-warming pollution imperils public health and welfare. 

But now President Donald Trump has launched an attack on the government’s 2009 ruling, tasking his incoming environmental chief with determining its continued “legality and continuing applicability.”

The direction — contained in one of several energy-related executive actions by Trump in his first day in office — sets the stage for a potentially vast policy upheaval, one that could immediately sweep away the legal foundation for regulations governing emissions from power plants, oil wells and automobiles. 

“With the stroke of a pen, Trump is attempting to end the EPA’s ability to regulate greenhouse gas emissions,” said Dominique Browning, director of Moms Clean Air Force, an environmental advocacy group. If successful, the gambit would mean the US has “no federal path in place for cutting the pollution that is rapidly destabilizing our climate and putting our weather on steroids,” she said.

Trump’s order doesn’t guarantee the so-called endangerment finding is on borrowed time, as he has merely tasked his Environmental Protection Agency administrator with recommending an approach for it. Yet conservatives have tried for years to eliminate the determination they call legally and scientifically flawed. Opponents have mounted lawsuits challenging it. And a blueprint for policy drafted by conservative groups known as Project 2025 recommended it be updated. 

At issue is the EPA’s conclusion that carbon dioxide, methane and four other greenhouse gases threaten the public health and welfare of current and future generations. That endangerment finding — rooted in scientific determinations about the heat-trapping gases’ contribution to climate change — has provided the legal basis for a host of climate regulations ever since. 

The determination sprang from a Supreme Court ruling two years earlier in Massachusetts v EPA, in which a 5-4 majority affirmed the agency’s authority to regulate greenhouse gases as air pollutants under the Clean Air Act. After the court said greenhouse gases qualified as pollutants, it was up to the EPA to determine whether they constituted a threat that should be regulated, which they did in 2009.

Conservatives argue the EPA should reverse the endangerment finding — effectively amassing fresh evidence and concluding greenhouses gases aren’t a threat after all. 

“President Trump is absolutely right to want the EPA to review the legality and continued applicability of this finding,” said Daren Bakst, director of the Center for Energy and Environment at the Competitive Enterprise Institute. “If it is revoked, this would help end EPA’s baseless greenhouse gas regulations.”

Even some of the president’s most ardent supporters argue it would be a heavy lift, potentially consuming time and resources they’d rather EPA officials devote to work on easing individual Biden-era power plant and automobile regulations. 

Shaky Legal Ground  

Environmental advocates warn the change also would be on shaky legal ground from the start. 

“That 2009 finding stood on an enormous scientific foundation” about the climate threat and, “since then, the science has only gotten stronger and more definitive,” said David Doniger, a senior attorney with the Natural Resources Defense Council. “It’s impossible for me to imagine that EPA could write a decision repealing the endangerment finding that would stand up in court.”

Environmentalists contend any reversal would fly in the face of a growing scientific body of evidence that greenhouse gas emissions are the primary driver of climate change.

“If President Trump orders EPA to issue a technical finding that climate change doesn’t threaten public health and welfare, it would be a major about-face that rejects overwhelming scientific consensus,” said Sam Sankar, a senior vice president with Earthjustice. 

Federal courts have turned back challenges to the endangerment finding, most recently last year, when the Supreme Court declined to hear an appeal from groups known as the Concerned Household Electricity Consumers Council and the FAIR Energy Foundation. 

Activists unsuccessfully lobbied Trump to make the shift in his first term in office. The president’s decision to open the door to changes on day one of the his second term signals the seriousness the new administration is bringing to the effort, said Myron Ebell, chairman of the American Lands Council. “They’re just much more ambitious and getting started much earlier,” he said. 

Senate Democrats sought unsuccessfully to pin Trump’s nominee to lead the EPA, Lee Zeldin, on the issue during his confirmation hearing last week. The agency is “authorized to” regulate greenhouse gas emissions under the Clean Air Act, he said, but he stopped short of affirming the EPA is necessarily obligated to. 

Now, the onus is on senators to verify Zeldin will follow the science on the issue, said Vickie Patton, general counsel with the Environmental Defense Fund. “It is the science-anchored foundation that protects millions of people from oil and gas pollution, tailpipe pollution and smokestack pollution.”

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