Trump’s biggest climate rollback stalls over fears it will lose in court

Trump officials have delayed finalizing the repeal of a landmark legal opinion key to their effort to eliminating the Environmental Protection Agency’s climate rules because of concerns the proposal is too weak to withstand a court challenge, according to two people familiar with the matter who spoke on the condition of anonymity to discuss confidential information.

The EPA’s 2009 “endangerment finding” concluded that greenhouse gases harm public health, establishing the basis for regulating them under the Clean Air Act. Repealing the finding would end the agency’s regulation of greenhouse gas emissions from cars and trucks.

The White House’s Office of Information and Regulatory Affairs, which reviews agency regulations, has expressed concerns over the strength of the scientific and economic analysis of the proposed repeal, the people said.

EPA officials are resisting revisions to the policy and arguing that the regulation should be finalized and announced publicly in its current form as soon as possible, they added.

“OIRA, EPA, and the entire administration are working in lockstep to execute on the President’s deregulation agenda,” said Allie McCandless, a spokeswoman for the Office of Management and Budget, which oversees OIRA.

EPA spokeswoman Brigit Hirsch confirmed in a statement that the repeal proposal was sent to OIRA on Jan. 7, but did not respond to questions about disagreement over revising the policy. The endangerment finding was used to “justify trillions of dollars in greenhouse gas regulations,” and the agency is following the law in seeking to repeal it, she said.

OIRA’s public calendar lists meetings through Feb. 10 to discuss the proposal with lobbyists, industry groups and health and environmental advocates.

The EPA’s policies to curtail greenhouse gas emissions will not make a large enough difference to the global climate to justify the enormous costs that regulations impose, said Diana Furchtgott-Roth, director of the Center for Energy, Climate, and Environment at the Heritage Foundation, a conservative think tank.

“These rules impose vast costs on the American economy and the American people,” Furchtgott-Roth said. “They need to be abolished.”

Furchtgott-Roth said that repealing the endangerment finding would also bolster the EPA’s proposal to end Biden-era limits on greenhouse gas emissions from power plants, which it issued in June and has yet to finalize.

The agency’s scientific argument for repealing the endangerment finding, released in July, primarily relied on an Energy Department report that was written last spring by a working group of five known climate skeptics. Scientists say the report is riddled with errors. And advocates, including the Environmental Defense Fund, have sued, saying the secretive way the department produced the report violated federal law. The working group has since been disbanded.

“Their work was obliterated. The criticism leaves nothing standing,” said David Doniger, a senior attorney for the Natural Resources Defense Council.

The EPA has pursued an ambitious legal strategy of rewriting and finalizing rules as quickly as possible to force them into the court system, experts say, aiming to receive favorable rulings before the end of Trump’s term.

But the agency missed its goal of finalizing the repeal of the endangerment finding by the end of 2025, and target dates for undoing other Obama- and Biden-era regulations have also slipped.

The people familiar with the discussions said OIRA Associate Administrator Jeffrey Clark is the main official pushing for EPA to strengthen its endangerment proposal.

Clark, formerly a deputy assistant attorney general in the Justice Department during the George W. Bush administration, worked on the case resulting in the Supreme Court’s 2007 decision Massachusetts v. EPA. In that decision, the court ruled the agency had the authority to regulate greenhouse gas emissions under the Clean Air Act. Two years later, the EPA issued the endangerment finding.

Doniger said that the legal arguments have not changed since that ruling, while the scientific basis for regulating greenhouse emissions has been bolstered by more intense heat waves, storms and wildfires.

“People see it right outside their windows. So they’re just not going to win on the science,” Doniger said. “It is EPA’s duty under the Clean Air Act to curb the emissions that are driving those disasters.”