Quick Take
While it’s possible that the EPA might rescind the endangerment finding, it would be an uphill battle to convince federal judges in 2025, even conservative ones, that the scientific record on climate change is wrong.
Instead of taking this legal risk, the Trump administration may opt for a different strategy – one it tried late in the president’s first term, which was never legally tested. In January 2021, just before Trump left office, the EPA adopted a threshold test for whether it would regulate a sector’s greenhouse gas emissions, based on a calculation of how much that sector emits on an absolute basis and the sector’s emissions as a share of global emissions. Only power plants crossed the chosen threshold for regulation, and the standards the EPA ultimately adopted to control power plant emissions were extremely weak. The Trump administration might try this approach again to avoid having to regulate emissions from the transportation sector and the oil and natural gas industries.
Another option would be for the EPA to leave the endangerment finding alone and simply weaken climate rules across the board. This is the least legally risky approach but also takes the longest, since rescinding and replacing rules for each sector will take considerable agency resources and several years. The final rules inevitably will be challenged by states, industries, and environmental groups if they rely on contestable legal interpretations or dubious technological and economic analyses.
A final option was alluded to by incoming EPA Administrator Lee Zeldin, who signaled in his confirmation hearing that he might favor a maximalist approach to the EPA’s discretion. In his testimony, Zeldin argued that the Supreme Court does not require the EPA to regulate greenhouse gases but rather authorizes the EPA to regulate. This reasoning tracks Justice Scalia’s dissent in Massachusetts v. EPA, which Chief Justice Roberts and Justices Thomas and Alito joined. Scalia argued that there may be reasons not to regulate greenhouse gas emissions beyond scientific uncertainty, and that the Clean Air Act authorizes the EPA to determine whether to regulate. Perhaps Zeldin thinks that it is worth taking another swing at this argument now that Court’s composition has changed. Notably, none of the justices from the Massachusetts majority remain on the Court. He might also believe that the Justices would tolerate a lengthy period during which EPA simply reconsiders the endangerment finding in light of many developments since 2009, which would buy the agency time and significantly delay any climate rules.
From a policy perspective, rescinding the endangerment finding, setting a significant contribution threshold, gutting climate rules or delaying them could prove to be bad for business and U.S. competitiveness. Many companies in a wide range of industries have made strategic business decisions and investments in anticipation of an ongoing transition to a cleaner global energy economy; regulatory churn only adds cost and creates uncertainty, undermining incentives for innovation.
There is, of course, no scientific doubt that ongoing global climate change is already harming public health and safety in the United States and around the world in a multiplicity of ways: increasingly powerful storms, longer droughts, bigger wildfires, deadlier heatwaves, and more. Nor is there any doubt that these harms will escalate more rapidly if remedial action in the United States and other larger emitters is slowed. Overturning the endangerment finding would be a particularly blatant denial of these realities and a significant expansion of the steps the Trump administration has already taken to cripple U.S. and global efforts to meet the climate-change challenge. It would be seen internationally as yet another demonstration of the monumental and monumentally dangerous fecklessness of this President.