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Shall we revisit that?

EPA kills foundation of greenhouse gas regulations

The agency is betting the the Supreme Court will reverse a prior ruling.

John Timmer – | 112
Credit: Aurich Lawson / Getty
Credit: Aurich Lawson / Getty
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In a widely expected move, the Environmental Protection Agency has announced that it is revoking an analysis of greenhouse gases that laid the foundation for regulating their emissions by cars, power plants, and industrial sources. The analysis, called an endangerment finding, was initially ordered by the US Supreme Court in 2007 and completed during the Obama administration; it has, in theory, served as the basis of all government regulations of carbon dioxide emissions since.

In practice, lawsuits and policy changes between Democratic and Republican administrations have meant it has had little impact. In fact, the first Trump administration left the endangerment finding in place, deciding it was easier to respond to it with weak regulations than it was to challenge its scientific foundations, given the strength of the evidence for human-driven climate change.

Legal tactics

The second Trump administration, however, was prepared to tackle the science head-on, gathering a group of contrarians to write a report questioning that evidence. It did not go well, either scientifically or legally.

Today’s announcement ignores the scientific foundations of the endangerment finding and argues that it’s legally flawed. “The Trump EPA’s final rule dismantles the tactics and legal fictions used by the Obama and Biden Administrations to backdoor their ideological agendas on the American people,” the EPA claims. The claim is awkward, given that the “legal fictions” referenced include a Supreme Court decision ordering the EPA to conduct an endangerment analysis.

The EPA accepts that reality elsewhere, where we get to the real goal of this announcement: taking advantage of the anti-regulation majority on the court to get rid of that Supreme Court precedent. “Major Supreme Court decisions in the intervening years… clarified the scope of EPA’s authority under the Clean Air Act and made clear that the interpretive moves the Endangerment Finding used to launch an unprecedented course of regulation were unlawful,” the EPA suggests. In other words, the past few years of court decisions make the administration optimistic that the current court will say that the 2007 ruling was wrongly decided.

Creative accounting

To sell this decision to an American public that is increasingly experiencing the impacts of a warming planet, the EPA has settled on some creative accounting. It pretends that the Biden era car emissions rules, which it had already chosen not to enforce, would somehow raise the costs of new cars. That led to the claim of $1.3 trillion in savings by getting rid of the endangerment finding, which was left as a net gain solely because the EPA has decided to ignore the health costs of the ensuing pollution.

Despite the use of unserious language—the phrase “climate change zealots” appears more than once in its announcement—the EPA’s tactical approach is largely solid. This decision will ultimately end up before the Supreme Court, and the majority that ordered an endangerment evaluation has since been replaced by an even larger majority with an extreme dislike for environmental regulations and their enforcement. That does not guarantee that they will overturn precedent, but it’s probably the best shot the administration has to be free of any legal compulsion to address climate change.

Photo of John Timmer
John Timmer Senior Science Editor
John is Ars Technica's science editor. He has a Bachelor of Arts in Biochemistry from Columbia University, and a Ph.D. in Molecular and Cell Biology from the University of California, Berkeley. When physically separated from his keyboard, he tends to seek out a bicycle, or a scenic location for communing with his hiking boots.
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anonymouschicken
anonymouschicken
It's worth noting that the 2007 decision was 5-4. Three of the dissenters, Roberts, Thomas, and Alito, are still on the Court today.

That would already seem to suggest at least 3 votes would be in favor of allowing the administration to get its way, unless one (or more) of them decides it would be better to respect stare decisis and avoid overturning a prior precedent. The question becomes whether at least two of Gorsuch, Kavanaugh, and Barrett would side with the three liberals. Probably unlikely.
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