From the first day of his second term in office, President Trump has engaged in a comprehensive effort of historic proportions to reign in the overreaching regulatory state and restore common sense and the rule of law to American government.
Recently, the administration took a dramatic step to advance this process when the Environmental Protection Agency announced that it has opened a formal proceeding to revoke the anchoring tenet of climate religion and remove the linchpin of the irrational campaign that radical environmentalists have waged for years against the hydrocarbon technologies that power our economy.
The EPA is proposing to terminate regulatory activities that Congress never authorized it to undertake in the first place; regulating atmospheric concentrations of carbon dioxide and other so-called greenhouse gases. The federal Clean Air Act, initially passed by Congress in 1963 and amended many times since, authorizes the EPA to regulate the emission of pollutants such as ozone and sulfur dioxide that “may reasonably be anticipated to endanger public health or welfare.”
Prior to 2007, the EPA declined to regulate carbon dioxide and other greenhouse gases. That year, in response to an environmentalist law suit brought to the Supreme Court by Massachusetts and several other states, the Court’s liberal Justices found, in a widely criticized 5 – 4 decision, that greenhouse gases could qualify as pollutants under a broad interpretation of the law and, indeed, the EPA must regulate the gases if it finds they endanger the public health or welfare. The rest, as they say, is history.
In 2009, the Obama EPA seized on the Court’s controversial decision in Massachusetts v. EPA and cherry picked scientific studies to gin up the dubious conclusion that slightly elevated concentrations of atmospheric carbon dioxide, in combination with other greenhouse gases like nitrous oxide and methane, pose a significant danger to public health and the environment and must, therefore, be drastically reduced to mitigate the threat.
This Obama “Endangerment Finding” formed the basis and justification for every single radical progressive climate change regulation and policy initiative that followed: the forced retirement of reliable base load electric power plants, the mandated and subsidized deployment of weather-dependent unreliable wind and solar farms, the EV mandates, the war on gas ranges and other household appliances, and much more.
The supposition that economic and social benefits derive from the reduction of greenhouse gases has for years distorted the government’s benefit-cost analysis of proposed regulations, inflating the projected benefits and underestimating costs of compliance. The same supposition has supported the costly pursuit of “net-zero” greenhouse gas emissions, the unobtainable point at which greenhouse gas emissions are completely offset by the amount of such gases removed from the atmosphere.
Finally, a correction for this rampant regulatory malpractice is at hand. Last week, in announcing its intent to repeal the Obama Endangerment Finding, the Trump administration noted that Congress has never authorized the regulation of carbon dioxide emissions. At the same time, the Department of Energy released a comprehensive scientific analysis of the many uncertainties surrounding climate science and stressed the key point that carbon dioxide is materially different from the toxic pollutants that Congress has expressly authorized the EPA to regulate. Indeed, there may be significant benefits from higher carbon dioxide levels such as increased crop yields.
Environmentalists and progressives have vowed to litigate the repeal of the Obama Endangerment Finding, but recent Supreme Court decisions strongly suggest that the actions of the Trump administration will withstand legal attacks from the Left. Unlike the early two thousands, the current Court is much more likely to require that regulatory agencies have clear and explicit congressional authorization before undertaking significant new initiatives involving major questions of law, economics, and science.
In 2009, with no such congressional authorization, the EPA launched a regulatory initiative to regulate the atmosphere and modify the climate of the entire planet! The repeal of the Obama Endangerment Finding should prevail on appeal. The significance of that repeal cannot be overstated. The Endangerment Finding has been central to the war on carbon. Its repeal will mark an end to that war and a major victory for common sense and the rule of law in American government.
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