Last July, the Environmental Protection Agency began a formal rulemaking process to reconsider the Obama-era “endangerment finding,” which is the basis for regulations on emissions from motor vehicles, among other things. 

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, they 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 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, and 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 stick through legal challenges, this has to 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. 

Improper administrative procedures

Government Accountability & Oversight (GAO), a government-transparency advocacy group, argues that the final rule should include an accounting of how the Obama administration EPA had already determined that greenhouse gas emissions were dangerous to human health before they began preparing the conclusion. 

“EPA conducted a truncated and sham internal and inter-agency review process and similarly engineered a notice-and-comment public participation process effectively rendered meaningless, not genuinely open to rational consideration of arguments and evidence presented to the agency, and thereby not executed in a way that allowed it to have a meaningful impact on the final decision. The officials should have recused or been recused,” GAO argues. 

Horner told Just the News that if the repeal of the endangerment finding is going to hold, the EPA will need to throw everything at it, and that includes challenging the process he calls arbitrary and capricious that arrived at a finding of endangerment. 

“That it is the epitome of an all-pain-no-gain gesture of the sort that is impermissible under Michigan v. EPA. That Massachusetts v. EPA was wrongly decided and the Clean Air Act does not provide this authority, Justice Scalia was right. But it also should confess to the error of predetermination, because the evidence is strong that the required notice-and-comment rulemaking process was a sham, i.e., it had no chance of resulting in any other outcome than a finding of endangerment,” Horner said. 

Important historically and politically 

Milloy agrees it’s an important point, but he said it won’t have much weight in court. The rule could have been challenged on this basis when the emails came to light, but it wasn’t. While the argument points to an egregious violation of administrative procedure, it won’t demonstrate the finding is wrong. That would make the argument moot, Milloy explained. 

“It's an important political point to make. It's an important historical point to make. It's a valid point. It's critical that everybody understands that. But it's not going to have an impact in court. What's going to be important in court is […] that EPA did not have authority to regulate greenhouse gasses given by Congress, and West Virginia v. EPA says that the EPA must have expressed authority for major regulatory programs. That should be case-closed,” Milloy said. 

Horner argued that courts may set aside agency decisions made with “unalterably closed minds,” which show a failure to consider other factors as a fatal flaw, just as they may if the agency relies on improper considerations. 

“After all, EPA is directly challenging the court to admit it made a mistake, in its 2007 opinion in Massachusetts v. EPA. EPA has the opportunity to do the same. And confessing error with new evidence is a tried-and-true means of burying rules brought about through unlawful means,” Horner said. 

No endangerment found

It’s unlikely the Trump administration will try to dispute the science behind the endangerment finding in court. Though critics of the finding point out that, for all its conclusions that greenhouse gas emissions pose a risk, climate change hasn’t posed a serious danger. 

Dr. Matt Wielicki, a geologist who writes about science, climate and energy on his “Irrational Fear” Substack, submitted comments on the proposed rule, arguing that treating carbon dioxide emissions as air pollutants produced costly regulations with no demonstrable climate benefit. 

Wielicki argues, among other points, that carbon dioxide has a fertilizing effect that is greening the earth, climate-related mortality is at the lowest levels in recorded history, global sea level rises are moderate, and there are no clear trends in extreme weather. He also points out that the 2009 finding has had no benefits in terms of global emissions, which have continued to rise ever since, largely driven by rising emissions in India and China. 

The final rule is expected this week, which will be the first chance for experts to see what it contains. That will signal the start of what is likely to be a years-long litigation effort and ongoing debate on climate issues.