Rescinding key Obama EPA finding may prove tougher than Trump admin thought

This column has been cheering the Trump Environmental Protection Agency’s (EPA) decision to rescind the Obama EPA’s 2009 endangerment finding for greenhouse gas emissions. If successful, it would end what President Trump calls the climate “hoax.”

But I differ with the Trump EPA over the process for doing so. Now, two new developments threaten to delay or even derail the Trump EPA.

The Trump EPA formally proposed to rescind the endangerment finding on Aug. 1. The proposal seeks public comments (due Sept. 15) on these two alternative rationales for rescinding the endangerment finding: (1) that the endangerment finding is illegal under recent Supreme Court decisions; and/or (2) that the Obama EPA improperly issued the endangerment finding by failing to follow proper rulemaking procedures, including failure to properly consider the relevant science.

In response, two radical green groups filed a lawsuit on Aug. 12 to stop the rulemaking in the Democrat-friendly federal district court of Massachusetts. Greens somehow also convinced the taxpayer-funded National Academy of Sciences to do a surprise and rush review of the EPA’s proposal.

The lawsuit has no substantive merit and is just a nuisance filing. Yet it injects much unnecessary uncertainty into the inevitable legal wrangling over the rescission of the endangerment finding. Let’s look at the lawsuit first.

In April, President Trump issued an Executive Order ordering the repeal of regulations made illegal by recent Supreme Court decisions. The endangerment finding qualifies as one of these. The Executive order says that illegal regulations can be summarily terminated without the usual public notice and comment procedure required by the Administrative Procedures Act. An illegal rule, after all, cannot be enforced.

In the case of the endangerment finding, any litigation over that process would be required by the Clean Air Act to be filed in the Court of Appeals for the Washington, D.C. Circuit. An appeal by the loser could go straight to the Supreme Court, where the validity of the controversial 2007 SCOTUS decision in Massachusetts v. EPA would almost certainly be the deciding issue.

The Trump administration would likely prevail on this because of the 2022 SCOTUS decision in West Virginia v. EPA that held major EPA regulatory programs require express authorization from Congress. Massachusetts v. EPA was all about the EPA not having such authorization. In that case, a narrow 5-4 majority invented a basis for the EPA to regulate greenhouse gases despite there being no express congressional authorization.

In addition to the applicable law now being materially different, Chief Justice Roberts and Justices Thomas and Alito dissented from the majority, along with the late Justice Scalia. None of the majority’s five justices remain on SCOTUS. Three have been replaced by Justices Gorsuch, Kavanaugh, and Barrett, all of whom were in the majority for West Virginia v. EPA.

The newly filed lawsuit alleges the Trump administration has violated the obscure Federal Advisory Committee Act, a lawsuit that can be filed in any federal district court. The Massachusetts federal district court judge conceivably could issue an injunction at any time to stop the rescission rulemaking or decide to conduct a trial that may take a year or more.

The district court circus could be followed by appeals to the Trump-unfriendly First Circuit Court of Appeals. And no one knows how long that could take. For perspective, consider that it took seven years to resolve the West Virginia v. EPA case.

The green groups would not have filed in the Massachusetts district court unless they had some confidence that they would prevail there and in the First Circuit on appeal. This uncertain, unpredictable, and undesirable outcome could have been prevented by simply just rescinding the endangerment finding as provided by President Trump’s April 9 Executive order.

The review of the EPA proposal by the National Academy of Sciences is absolutely unheard of. Although the NAS was established by Congress in 1863 to advise the federal government on scientific issues, it usually does so at the request of agencies like the EPA, which contract with it for the advice. This self-initiated and self-funded rush review is unprecedented. Yet it is somehow not a surprise.

Like many government-dependent organizations, the National Academy of Sciences has become politicized, if not just woke, over the past few decades. Moreover, the NAS has played a central role in developing and promoting the climate hoax. Its review of the EPA’s proposal will not be a de novo review of the climate issue with differing viewpoints or basic issues being considered. It is certain to be just another climate report with a pre-determined conclusion boosting the climate hoax.

There is no way the NAS will have its report completed and submitted to EPA by the comment deadline of Sept. 22. The period for public comment on the proposed membership of the NAS committee doesn’t close until Sept. 2, and the public comment period for submitting material to the committee is even earlier, Aug. 27. All this is highly unusual to say the least.

Here’s how the lawsuit ties in with the NAS review: The green group plaintiffs may hope to convince the Massachusetts district court judge to halt the rescission rulemaking until the NAS “review” can be completed. They will then insert the rigged NAS report into the litigation so as to argue that the Trump administration has no scientific basis for rescinding the endangerment finding. The NAS review will carry weight not because it is any good, but because it comes from the public’s probable default perception of the NAS committee as a legitimate group of highly qualified scientists.

If science becomes the issue in the endangerment finding litigation, the outcome becomes essentially a jump ball, given our leftist-loaded judicial system. Ironically, the recent SCOTUS decision in Loper Bright Enterprise v. Raimondo — barring judicial deference to federal agency decisions on issues like science — actually robs the Trump EPA of a useful defense against the NAS review.

And then, who can say there will be no other anti-rescission litigation filed in other district courts in other circuits? These would only further and unnecessarily complicate matters.

Implementing President Trump’s April 9 Executive Order to simply rescind the endangerment finding would have prevented the uncertain litigation mess now being faced. Maybe I’m wrong and all will turn out well. I hope so.

But I would consider withdrawing the current proposal so as to terminate the ongoing litigation, cut out the NAS, and preempt new litigation on anything other than the desired legal issue. Then, start over. Do the right thing. Just rescind the endangerment finding.

Steve Milloy is a biostatistician and lawyer, publishes JunkScience.com, and is on X @JunkScience.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.