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By Sam Kazman [ [link removed] ]
[E]verything airborne, from Frisbees to flatulence, qualifies as an “air pollutant.” This reading of [the Clean Air Act] defies common sense.
These memorable lines come from the late Justice Antonin Scalia’s dissent in the Supreme Court’s 2007 ruling in Massachusetts v. Environmental Protection Agency [ [link removed] ]. That landmark decision started a chain of events that established anthropogenic climate change as an officially recognized threat to human existence. In the years since then, from cities and states to the federal government and international organizations, climate change became the nearly undebatable justification for countless programs that today touch every aspect of our lives: energy restrictions, industrial reorganization, land use controls and even lousy dishwashers [ [link removed] ].
Justice Scalia’s Frisbees-to-flatulence phrase may have sounded hyperbolic when he wrote it, but it has actually come true. Flatulence, in the form of methane released by cows, is now claimed to be one driver of climate change. And since Frisbees are made from plastic, and plastics are derived from petrochemicals, Frisbees are yet another product of those hated fossil fuels.
At issue in Massachusetts v. EPA was whether the agency could regulate vehicle emissions of carbon dioxide and several other gases under the Clean Air Act. EPA argued that it could not, but it lost the case in a 5-4 split. The Court did not actually order the agency to regulate the gases; rather, it found that EPA’s reasons for not regulating were inadequate.
Given what we know about bureaucratic incentives, it may seem odd that EPA had argued against an expansion of its powers in this case, but this was during the mildly deregulatory George W. Bush administration. And it’s likely that some EPA staff were actually happy with the agency’s loss in the Supreme Court; it’s rumored that champagne bottles were popped in several of its offices.
In the wake of the Court’s ruling, EPA could have tried to develop a better justification for not regulating these gases and take its chances in court again. Instead, it chose to regulate. Once Obama took office in 2009, EPA started using its newly approved powers to save the world. In late 2009, after a proceeding in which nearly 400,000 comments were filed, it issued its Endangerment Finding [ [link removed] ], which concluded that atmospheric levels of carbon dioxide, methane and several other gases endanger the public and that emissions from new motor vehicles would worsen this situation. On this basis, EPA and other federal agencies, followed by many state and local government entities, have issued a huge number of incredibly costly regulations.
In short, EPA’s Endangerment Finding didn’t create climate activism, but it became the key document for the huge expansion of climate regulation in the years that followed.
This may all be about to change. Trump’s executive order on “Unleashing American Energy [ [link removed] ],” issued on his first day in office, directed the heads of EPA and other relevant agencies “to submit joint recommendations ... on the legality and continuing applicability” of the Endangerment Finding. On March 12, EPA’s new administrator, Lee Zeldin, announced that his agency was beginning a “formal reconsideration [ [link removed] ]” of the finding in conjunction with the Office of Management and Budget, the Departments of Energy, Interior and Transportation, and the Office of Information and Regulatory Affairs. In addition, Zeldin stated, EPA will “reconsider all of its prior regulations and actions that rely on the Endangerment Finding.”
It’s high time that EPA did so.
After it was first issued in 2009, EPA’s Endangerment Finding and the rules to which it led faced many court challenges from adversely affected companies and consumers. Most of these cases were unsuccessful, and none of them undercut the validity of the finding itself. Some foundered on the deference that courts, until recently [ [link removed] ], were required to give to agencies. Others were halted on the challengers’ failure to show standing—that is, a strong enough connection between their alleged injury and the agency’s action. (Standing is a prerequisite to suing, and one common complaint is that courts are often more lenient in granting standing to environmentalists than to their opponents.)
As of now, the Endangerment Finding still stands as the official summary of the allegedly overwhelming scientific evidence for the climate change crisis, but it suffers from some noteworthy problems. It contains no consideration of human adaptation or mitigation; it rests on outside studies based on inaccurate models and questionable data; it was issued with no review by EPA’s Science Advisory Board. In one infamous event, a long-time senior EPA analyst who reviewed the report before its release concluded that it was seriously flawed. His boss yanked him off the issue and forbade him from speaking about it to anyone [ [link removed] ]: “[Y]our comments do not help the legal or policy case for this decision” and “would have a very negative impact on our office.”
As for the science itself, it’s clear that the debate is far from closed, even though many climate alarmists claim otherwise. At least four Nobel science prizewinners—John Clauser [ [link removed] ], Robert Laughlin [ [link removed] ], Ivar Giaever [ [link removed] ] and Norman Borlaug [ [link removed] ]—have publicly expressed doubts about the alarmist view. In a 2011 Supreme Court ruling [ [link removed] ], the late Justice Ruth Bader Ginsburg noted the existence of climate skeptics and cautioned that the Court “endorses no particular view of the complicated issues” surrounding climate change. (Of course, headcounts alone don’t resolve scientific questions. In 1931 a pamphlet criticizing relativity was published entitled “One Hundred Authors Against Einstein.” Einstein’s response, reportedly, was that if he were wrong, then one opposing scientist would suffice.)
In 2021 Steven Koonin, a highly credentialed physicist, former provost of Caltech and former undersecretary of science at the Department of Energy under Obama, published “Unsettled: What Climate Science Tells Us, What It Doesn’t, and Why It Matters [ [link removed] ],” a detailed critique of climate alarmism and the politics behind its ascendency. It received an overwhelmingly harsh reception [ [link removed] ] from climate activists and the popular press, with little attention paid to its detailed technical content. As one examination of Koonin’s treatment [ [link removed] ] noted about his critics’ failure to deal with his scientific arguments, “[W]hy engage with a heretic when he can be banished from the church altogether?”
One of Koonin’s most telling points involves the life-and-death issue of energy starvation in less-developed countries [ [link removed] ]:
The biggest problem in trying to reduce emissions is not the one and a half billion people in the developed world. It’s the six and a half billion people who don’t have enough energy. ... So fix that problem first, which is existential and immediate and soluble. And then we can talk about some vague climate thing that might happen 50 years from now.
Lee Zeldin, the new EPA head, has not yet publicly announced how the agency will proceed with its reconsideration of the Endangerment Finding, but there will almost certainly be beaucoup litigation. These will not be easy cases for EPA.
First, EPA will no longer enjoy the customary judicial deference from which it benefited when it originally defended its Endangerment Finding in court. Judicial deference to agency interpretations of statutes, commonly known as the Chevron doctrine after a 1984 case, was wiped out by the Supreme Court last June in Loper Bright Enterprises v. Raimondo [ [link removed] ]. The Court ruled that when a law is ambiguous in an administrative case, judges must exercise their independent judgment rather than defer to the agency’s interpretation. Conservatives had long argued in favor of overturning Chevron on the ground that it gave agencies too much power and spurred the growth of the administrative state. Their victory in Loper Bright may now work against them if EPA attempts to deregulate the Endangerment Finding.
Second, EPA presumably will be cutting back or entirely withdrawing the Endangerment Finding. But when an agency changes course, it’s generally subject to more intensive judicial scrutiny than usual. This was made clear in 1983, when the Supreme Court unanimously overturned [ [link removed] ] the Reagan administration’s attempt to rescind the passive restraint rule for cars (a rule that led to the airbag mandate).
Third, courts may view the Endangerment Finding as now being enshrined in congressional statute and thus no longer subject to EPA rescission. The clean energy provisions of the 2022 Inflation Reduction Act [ [link removed] ] refer repeatedly to carbon dioxide as a greenhouse gas whose emissions should be reduced. There are counterarguments to this “congressional endorsement” view, but they can get complicated.
Finally, there’s one issue that may impact judges but probably won’t appear in any written ruling: The administration that claims that carbon dioxide emissions aren’t dangerous is the same one whose president recently contended that Ukraine invaded Russia. The two claims are totally different, of course, but keeping them separate when it comes to an administration’s credibility may be easier said than done [ [link removed] ].
There’s a lesson to be learned from the Reagan administration’s unsuccessful attempt to revoke the airbag rule that its predecessor, the Carter administration, had issued. Reagan’s effort foundered because his Department of Transportation didn’t challenge the effectiveness of the airbags that Carter’s DOT had touted. Instead it came up with a convoluted rationale involving the substitution of questionable automatic seatbelts for airbags. This claim was too cute by half, and it led the Supreme Court to ask why the agency didn’t simply mandate airbags in the first place.
Had the Reagan DOT questioned airbag effectiveness initially, its revocation of the rule might well have been upheld. It didn’t do so, however, because that would have meant challenging the views of an entrenched technical staff. But as our subsequent experience with the first generation of airbags demonstrated, the original assessments of airbags were faulty. Contrary to the Carter-era claims, airbags turned out to be not a replacement for seatbelts but a supplement to them, and airbags were more dangerous than expected to children and out-of-position occupants. The Carter-era estimates were based on models rather than extensive real-world testing, and those models turned out to be deficient.
The same may well be true of the models that underlie climate alarmism. Apparently, that is something that EPA’s new head not only realizes but is forcefully going public with as well.
Sam Kazman is former general counsel of the Competitive Enterprise Institute [ [link removed] ], a free-market public interest organization in Washington, D.C.

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