Nineteen years ago, toward the end of the George W. Bush Administration, the United States Supreme Court agreed to hear a case prompted by government inaction on climate change. The plaintiffs in the case, Massachusetts v. Environmental Protection Agency, argued that the Clean Air Act compelled the E.P.A. to determine whether greenhouse-gas emissions constituted a threat to the public, and, if so, to regulate them. The Court, in a 5–4 ruling, essentially agreed. Richard J. Lazarus, a Harvard Law School professor who wrote a book about the decision, has called it “the most important environmental law case ever decided by the Court.” The ruling gave rise, in 2009, to what’s known as the “endangerment finding,” which has formed the basis of federal limits on carbon pollution ever since.
Now the Trump Administration wants to overturn the Court’s decision, or perhaps just violate it. Last week, it announced a plan to revoke the endangerment finding. In concert with congressional Republicans, the White House has already laid waste to dozens of programs aimed at limiting climate change. These include fees on methane leaks, tax credits for clean-energy development, and grants to states to install electric-vehicle charging stations. (Recently, a federal district judge in Seattle ordered the disbursement of the charging-station grants awarded to several states, though it’s unclear whether the money has been released.) Still, in taking on the endangerment finding, the Administration has managed to outdo itself.
Speaking last week at a truck dealership in Indianapolis, Lee Zeldin, the E.P.A. administrator, said that “the proposal would, if finalized, amount to the largest deregulatory action in the history of the United States,” and it’s possible that he’s right. The repeal—if it is finalized and also, given the inevitable lawsuits, upheld by the courts—would invalidate several sets of Biden-era regulations aimed at reducing emissions from vehicles and power plants. (The Administration is going after these regulations with separate actions, too.) More significantly, it could make it pretty much impossible for future Administrations to try to curb emissions without new legislation from Congress.
“I think the goal is to have this destruction of climate regulation go beyond Trump,” Michael Gerrard, the faculty director of the Sabin Center for Climate Change Law at Columbia, told me. If the Administration’s arguments prevail, he added, “it’s going to be very hard for E.P.A. going forward to use the Clean Air Act to regulate greenhouse gases. So they’re trying to take that away permanently—not just for the next three and a half years.”
The obvious beneficiary of the E.P.A.’s latest move is the fossil-fuel industry, which, under Donald Trump, seems to get pretty much anything it asks for, and then some. According to the White House, its recent trade deal with the European Union includes an E.U. pledge to purchase hundreds of millions of dollars’ worth of oil and liquefied natural gas from the U.S. A few weeks earlier, in the One Big Beautiful Bill Act approved by Congress, oil and gas companies received new or expanded tax incentives adding up to an estimated eighteen billion dollars. “The final bill was positive for us across all of our top priorities,” Aaron Padilla, the vice-president of corporate policy at the American Petroleum Institute, an oil-industry lobbying group, told the Times. “We are becoming a petrostate” is how Gerrard put it.
The attempt to rescind the endangerment finding combines pandering to the fossil-fuel industry with another of the Administration’s favorite activities: flouting science. The E.P.A., in its proposal to repeal the finding, which was released last Tuesday, relied heavily on a report, made public the same day, that the Department of Energy had commissioned from a handful of scientists clearly chosen for their contrarian views. The hundred-and-forty-one-page assessment downplays the dangers from climate change, sometimes in ways that seem contradicted by the document’s own figures. And several climate scientists whose work is cited in the D.O.E. report have said that their conclusions are misrepresented. One, Zeke Hausfather, told Wired that the assessment seemed to him less like an official document than “a blog post—a somewhat scattershot collection of oft-debunked skeptic claims, studies taken out of context, or cherry-picked examples that are not representative of broader climate science research findings.” In a comment on the website realclimate.org, Christopher O’Dell, a senior research scientist at Colorado State University’s Cooperative Institute for Research in the Atmosphere, noted that a paper attributed to him by the report was actually written by an entirely different set of authors, a mistake that suggests the document was composed with the aid of A.I.
At this point, repealing the endangerment finding on scientific grounds should be impossible: contra the claims of the D.O.E. report, the evidence since 2009 that climate change represents a threat to public welfare has become only that much more overwhelming. (It’s worth noting that on the day that both the report and the E.P.A.’s proposal were released, more than eleven million Americans were under a rare extreme-heat warning from the National Weather Service.)
“Revisiting the science is a frivolous argument,” Lazarus, the Harvard Law professor, said. But, he observed, the Administration’s legal arguments, which center on how, exactly, to interpret the relevant sections of the Clean Air Act, could appeal to the current Supreme Court. None of the five Justices who were in the majority in Massachusetts v. E.P.A. are still on the Court, but three of the dissenters—John Roberts, Samuel Alito, and Clarence Thomas—remain. Meanwhile, three of the Court’s newer Justices—Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett—are Trump appointees.
“There are a couple arguments they make where a hostile Court might bite,” Lazarus said. “My guess is that their aim here is not to have the Court say there’s no endangerment but for the Court to say there’s reason to revisit the endangerment finding,” he added. “There won’t be a revisitation, but that by itself will be enough to collapse everything.”
Just about the only positive spin on the repeal that anyone outside the MAGA world could come up with was that it could have unintended consequences for the fossil-fuel industry. On the website The Conversation, Patrick Parenteau, a professor emeritus at Vermont Law and Graduate School, noted that many cities and states have filed climate-related suits against the major oil companies. The “industry’s strongest argument” against these lawsuits, according to Parenteau, is that they are “preempted by federal law,” which is to say the Clean Air Act. But, if the Administration argues that the Clean Air Act doesn’t allow the E.P.A. to regulate greenhouse-gas emissions, the preëmption argument loses its teeth. Rescinding the endangerment finding could “backfire on the fossil fuel industry,” Parenteau observed.
Other legal scholars, however, are skeptical. They noted that the states’ and cities’ lawsuits would also eventually reach a hostile Supreme Court. “In theory, it’s a good argument,” Lazarus said. “But one cannot help but worry.” ♦