By Mark Gongloff / Bloomberg Opinion
In March, the humor publication The Onion ran a story with the headline “EPA to Drop ‘E,’ ‘P’ From Name.” Sometimes things are funny because they’re true. Other times satire buckles beneath the weight of reality. This was arguably an example of the latter: About a week earlier, I had run a column for this very serious publication with a similar headline.
At most, there’s only gallows humor to be derived from the move by the Environmental Protection Agency under President Donald Trump and Administrator Lee Zeldin to abandon any pretense of protecting the environment. Human suffering and economic loss will inevitably follow. The only question now is how much damage “The Agency” will be allowed to do. The good news is that this dangerous state of affairs doesn’t have to be permanent.
It will last at least another few years: In its latest of many blows, the EPA is reportedly drafting a plan to disavow its 2009 finding that greenhouse-gas emissions endanger human well-being. In the Rube Goldbergian architecture of U.S. climate law, this “endangerment finding” unlocks legal authority under the 1963 Clean Air Act to regulate emissions from auto tailpipes, factories and other polluters. Doing away with the finding means that magical ability goes away forever. Supposedly.
In reality, all of this is so much Kabuki theater, at least for now. Trump has made it clear from his first day back in office that the EPA’s sole constituent would be the fossil-fuel industry, and Zeldin has zealously carried out that mandate. Decades-old laws and practices are at most speed bumps on the way to that goal.
“The short-term practical implications of this are limited because most of rules that use the endangerment finding are rules the Trump administration isn’t using anyway,” Michael Gerrard, a Columbia law professor and environmental lawyer, pointed out. “It’s more performative.”
The very first executive order Trump signed on inauguration day, “Unleashing American Energy,” told the EPA to investigate overturning the endangerment finding. To nobody’s surprise, Zeldin quickly recommended doing so as part of a flurry of environmental deregulation announcements in March that inspired both my column and The Onion’s headline. The next act in the play, the EPA presenting a formal proposal to overturn the finding, will be no surprise.
What has surprised is the suggestion in some quarters that this action will tie the EPA’s hands more or less forever. That’s not exactly true. If a reality-based president ever returns to the White House, he or she can tell their EPA chief to reboot the endangerment finding and restart the regulation engine.
That process might be slow. It will take Trump and Zeldin several months to formally repeal the finding, including public comment and rulemaking periods. And that’s before the inevitable lawsuits, which could delay the action even more (with one huge exception, which I’ll discuss soon). Reversing what Trump and Zeldin have wrought could be similarly agonizing. But it can be done in theory.
Those lawsuits open up a new multiverse of possibilities, however. Environmentalists will certainly feel they have no choice but to sue to stop the EPA, and they’ll have solid scientific and legal footing. There’s no doubt among scientists that greenhouse-gas emissions are slow-cooking the planet and gravely harming human health and wealth.
The law is also on board. On Wednesday, even as the EPA was concocting its plot to end U.S. climate regulations, the International Court of Justice ruled nations are legally obligated to fight climate change or face repercussions, including reparations. Closer to home, the 2022 Inflation Reduction Act repeatedly declared greenhouse gases were subject to EPA regulation under the Clean Air Act; and the just-passed tax and spending bill let those declarations stand, Gerrard pointed out.
Throw in the Supreme Court’s 2007 finding in Massachusetts v. EPA that the Clean Air Act requires the EPA to regulate greenhouse gases, along with several EPA reaffirmations of its initial endangerment finding, and you’d think there would be an airtight case against Trump and Zeldin.
But the dissent in that 5-4 Massachusetts decision was written by Chief Justice John Roberts, who now leads a 6-3 conservative majority. You’d have to be pretty naive to think this court isn’t eager to find reasons to overturn the Massachusetts decision. And that really could tie the hands of future administrations.
Even then, there would still be some possible workarounds.
The EPA’s endangerment finding has long shielded oil and gas companies from environmentalists’ lawsuits. You don’t have the right to make us pay for our climate damage, they’ll say, because that’s the EPA’s job. The EPA getting out of that business could be a dinner bell for plaintiffs’ lawyers. Again, a conservative Supreme Court might find a way to build fossil fuels a new shield, but that’s several steps down the road.
Alternatively, our theoretical rational future president could work with a theoretical rational future Congress to simply pass a law, properly bullet-proofed against a conservative Supreme Court with the necessary spells and incantations, ordering the EPA to regulate greenhouse gases. Such a law might require a filibuster-proof majority, which might not be possible.
On the other hand, a carbon tax — which, properly designed, would collect money from fossil fuels and push automakers, factories and other polluters into curbing emissions — could be accomplished by a simple budget reconciliation bill. That might be the best, or at least the funniest, outcome of all.
Mark Gongloff is a Bloomberg Opinion editor and columnist covering climate change. He previously worked for Fortune.com, the Huffington Post and the Wall Street Journal.
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