Trump, EPA Aim to Remove Finding That Mandates Action on Greenhouse Gas Pollution
Experts expect Trump’s team to lean on legal arguments, not science, to take down EPA’s 16-year-old endangerment finding.
President Donald Trump’s energy-focused executive orders and plan to slash more than half of the Environmental Protection Agency’s staff have made clear his team is mapping a far more radical retreat on climate change in his second term.
In a signal he is ready to lead this reverse charge, EPA Administrator Lee Zeldin in recent days recommended to the White House that the agency should rescind its 16-year-old finding that greenhouse gases endanger human health and the environment, according to several reports citing unnamed sources.
The so-called endangerment finding is the foundation of all of EPA’s actions on climate change under the Clean Air Act. Eliminating it would lift the agency’s mandate to regulate carbon pollution from power plants, vehicles, landfills and oil and gas infrastructure. It would free the administration from the work undertaken during Trump’s first term, when EPA staff spent months crafting weak rules for those sectors that President Joe Biden’s administration ultimately overturned.
Scientists and environmentalists say the effort to revoke the endangerment finding flies in the face of reality in the wake of 2024, the hottest year on record, when 27 confirmed weather and climate disasters with losses exceeding $1 billion hit the United States.
“The embers of the fires in LA are barely out, and people are still struggling to recover their homes and their livelihoods in North Carolina,” said David Doniger, senior attorney for the Natural Resources Defense Council, at a rally in front of the U.S. Capitol on Thursday. “And here we have the Trump administration telling the country’s oil, gas and coal magnates that they are free to keep spewing dangerous pollution into the atmosphere.”
He and other environmental advocates argue the Trump administration is likely to lose in court if it tries to challenge climate science. As a peer-reviewed study six years ago put it, “the amount, diversity, and sophistication of the evidence has increased markedly” for every aspect of the EPA’s 2009 finding on the dangers of greenhouse gases.
Many environmental law experts anticipate the Trump administration will aim to overturn the endangerment finding without a fight over science. Instead, Trump’s team could make the case for striking down the endangerment finding strictly on its interpretation of the law. Zeldin signaled as much during his confirmation hearing, when he agreed that carbon dioxide and methane were heat-trapping gases, but raised doubts about EPA’s mandate to act on them.
Lawyers who vehemently oppose the endangerment finding argue that recent Supreme Court decisions limiting federal agency authority dictate a retreat for EPA. Other legal scholars strongly disagree, but they believe the Trump administration could effectively defer climate action by embarking on an open-ended reexamination of endangerment or a narrow analysis of the impacts of greenhouse gases in specific sectors.
“If they conclude greenhouse gases do not endanger public health and welfare, I think they will lose,” said Richard Lazarus, a professor at Harvard Law School. “There’s a reason why they didn’t do that in Trump I. They talked about it, and we were all there saying, ‘Make our day,’ because on that, the science is fairly overwhelming.”
Lazarus, author of a book on Massachusetts v. EPA, the 2007 Supreme Court case that gave rise to the endangerment finding, thinks it is far more likely that the administration will engage in a form of climate action paralysis through analysis. The EPA will rescind the endangerment finding, he expects, while rethinking the evidence, and in the meantime, delay regulation of the fossil fuel industry.
“I think we’re going to see them do some kind of a statutory end run,” he said.
A Secret Recommendation
In his “Unleashing American Energy” executive order, issued on Inauguration Day, Trump gave Zeldin 30 days to submit a recommendation on “the legality and continuing applicability” of the endangerment finding. On the evening of that deadline, Feb. 19, the EPA press office sent out an email saying EPA was “in compliance” with that aspect of the executive order. In response to further questions, both EPA and the White House have only resent the same cryptic statement.
Environmental Defense Fund, an advocacy group, filed a Freedom of Information Act lawsuit on Monday seeking to compel release of information related to Zeldin’s endangerment finding recommendation. The group had filed a FOIA request earlier, but the administration failed to respond by the legal deadline.
The Trump administration’s concealment of the endangerment finding recommendation and the reasoning behind it is not entirely unprecedented. The endangerment finding has been an administrative hot potato ever since the Supreme Court decided in the Massachusetts case that greenhouse gases fit the definition of pollutants under the Clean Air Act.
At that time, President George W. Bush’s administration had decided not to regulate greenhouse gases from motor vehicles. But the Supreme Court said, in a 5-4 ruling, that the agency had to look at the matter again in light of the Clean Air Act’s requirement that standards be set for any pollutant that EPA finds endangers public health or welfare.
Soon scientists inside EPA made just such a finding, but the Bush administration did not release it. At one point, the White House declined even to open an email from EPA officials regarding the finding. That history came to light after one EPA official resigned over the dispute and Congress subpoenaed agency correspondence.
Only after President Barack Obama took office in 2009 did EPA make its proposed endangerment finding public, and after a comment period, finalize the document. The Obama administration then launched the first set of U.S. regulations specifically aimed at cutting greenhouse gases.
Those rules never took effect because of litigation by industry groups and fossil fuel-producing states. Throughout those and subsequent legal battles, there have been numerous efforts by foes of climate action—none successful—to get either EPA or the courts to revoke the endangerment finding.
“The reason the endangerment finding is so important is it forms a crucial bedrock to EPA authority and responsibility to regulate heat-trapping emissions,” said Rachel Cleetus, senior policy director with the climate and energy program at the Union of Concerned Scientists. “When you take that away, it really guts the EPA’s ability to regulate. And this administration is trying every possible path to weaken any pollution standards for heat-trapping emissions.”
Harry MacDougald, an Atlanta lawyer who has filed a number of petitions and lawsuits challenging the endangerment finding, maintains that Supreme Court decisions would support an effort by EPA to eliminate it. In fact, he believes the high court—now fortified with three Trump-appointed justices—would be ready to reverse its original finding that greenhouse gases were pollutants under the Clean Air Act.
Especially key, MacDougald argues, is the court’s 2022 decision striking down Obama-era power plant rules on the basis of a relatively new judicial standard—the “major questions doctrine.” The court said on issues of great economic significance, federal agencies cannot act without explicit authority from Congress.
The Massachusetts decision and the endangerment finding “unleashed the most significant and far-reaching claim of regulatory authority in the history of the American administrative state—literally over the entire scope of human activity because CO2 emissions are ubiquitous to all human activity,” MacDougald said in an email. “So I don’t see any way that Mass. v. EPA could survive re-examination under the [major questions doctrine].”
The Supreme Court Question
Plenty of legal scholars disagree with MacDougald, noting that the Supreme Court has steered clear of revisiting the Massachusetts ruling multiple times. Lazarus argues that while the court has overturned constitutional decisions such as Roe v. Wade, it is far less likely to overturn its own past interpretations of statutes like the Clean Air Act—especially since it has relied on Massachusetts v. EPA in deciding later cases.
“The odds of them reversing that are virtually nil,” Lazarus said.
But Zeldin made clear at his confirmation hearing that he saw the Massachusetts decision as merely giving EPA authority to act on greenhouse gases, but not an obligation to do so. And Zeldin noted that when the Supreme Court overturned a long-standing doctrine that gave deference to agency decisions last year, EPA’s regulatory role was further limited. Zeldin told lawmakers he saw his job as making “sure that it is, in fact, Congress’s intent that is being implemented, and it is not us as an agency filling in any gaps however we might see fit.”
Could EPA lawyers argue that the agency cannot make a finding that gives it the obligation to act on greenhouse gas emissions because Congress has not explicitly directed the agency to do so?
Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia Law School, believes the answer is no.
“The Clean Air Act as enacted in 1970 envisioned the addition of more pollutants to the list, and it set forth a procedure for that,” Gerrard said. “And the procedure for that is the endangerment finding.”
In fact, a scholarly paper last year that delved into the history of the Clean Air Act showed that even though lawmakers only named six pollutants in the law in 1970, they already knew scientists considered carbon dioxide an air pollutant. The researchers concluded Congress was intent on making the Clean Air Act a tool that could be used to limit carbon emissions.
Lawmakers have been even more explicit in their intent to support climate action in recent years, Gerrard said. In the Inflation Reduction Act of 2022, for example, Congress defined greenhouse gases as air pollutants in nine different sections. Congress also has appropriated money for climate resilience and defense against sea level rise, including in defense bills and the bipartisan infrastructure law of 2021. That all should have some bearing on the EPA’s obligation to act, he said.
“One of the issues in the major questions doctrine is whether an agency is beginning to regulate something that hasn’t previously been regulated,” Gerrard said. “That certainly is not the case anymore for carbon dioxide.”
Division in the Fossil Fuel Industry?
One of the many unknowns about the Trump administration’s handling of the endangerment finding is where the fossil fuel industry stands. Trump enjoyed strong support from many of the companies that have driven the fracking revolution in the United States, and they would benefit from a federal retreat on climate action.
“This is entirely at the behest of the fossil fuel industry,” said Cleetus of the Union of Concerned Scientists. “Let’s be very clear here.”
But reporting by E&E News/POLITICO indicates that some companies and major trade organizations have urged Trump’s team not to abandon the endangerment finding.
In an email to Inside Climate News, Edison Electric Institute, the trade group representing all of the nation’s investor-owned electric companies, said its members support EPA having authority to regulate greenhouse gas emissions under the Clean Air Act. They believe those regulations should be flexible and account for impacts on customer bills and the reliability of the electric grid.
“We have been clear in our position that electric companies need a consistent federal framework in place,” wrote Alex Bond, EEI’s executive director of clean energy and environment. “Otherwise, we would face a patchwork of state regulations and lawsuits from plaintiffs that could raise costs to customers and impact grid reliability.”
As larger oil, gas and utility companies face climate change lawsuits from state and local governments, many have tried to fight them off by arguing that federal action on climate change takes precedence under the law. The lawsuits are “preempted,” the energy companies argue, because the federal government already regulates greenhouse gas emissions as pollutants.
“They think this endangerment finding actually provides them some protection, and they want EPA to have standards, although they would probably like them to be weaker than they have been,” said Doniger of NRDC at Thursday’s rally. Although he said he does not agree with the fossil fuel companies that think the endangerment finding offers them a shield, he hailed them for joining the fight. “Welcome to the resistance!”
Division within the fossil fuel industry and other sectors is an issue the Trump administration will have to navigate if it proceeds with an effort to undo the endangerment finding. And that is in addition to the inevitable legal challenges by environmental advocates and states seeking federal protection from climate risks.
Joseph Goffman, who was the top air pollution official at the EPA during the Biden administration, said in an interview last week that he expected the Trump administration to pursue other approaches for undoing greenhouse gas regulations. For example, he was watching to see if they would borrow an approach tried late in the first Trump administration to undo methane regulations from the oil and gas sector. Trump’s team then argued that the oil and gas industry’s fugitive methane emissions contributed too little to the overall global warming problem to merit action.
Such arguments, he said, are “a subtle way of rigging the system,” since no one regulatory action alone can stem the problem of climate change. “If you take the position that any step that is merely incremental is not justified, then you’ve created an inescapable doom loop of inaction,” Goffman said.
When asked if he thought the Trump administration would steer clear of upending the endangerment finding, he was more blunt. “Look,” Goffman said, “my assumption is that everything is on the table.”
Cover photo: An aerial view of flood damage wrought by Hurricane Helene along the Swannanoa River on Oct. 3, 2024 in Asheville, N.C. There were 27 confirmed weather and climate disasters last year with losses exceeding $1 billion in the United States. Credit: Mario Tama/Getty Images
