EPA Overreach Exposed

The Trump Administration’s Feb. 12 repeal of the Environmental Protection Agency’s 2009 finding that so-called greenhouse gases, notably carbon dioxide, constitute a “pollutant” subject to EPA regulation has met with unremitting outrage from leading liberal media and Democratic politicians. (RELATED: The Welcome Demise of Climate Change Catastrophism)

The New York Times’s lengthy Feb. 17 story, “Regulatory Rollback Tears Down Barrier to Gas-Guzzling Cars,” contained barely a sentence from any authority (scientific or political) defending Trump’s move — despite the president’s estimate that the change will save Americans an average of $2,400 on the price of a new car, primarily by eliminating increasingly high mileage standards that require auto manufacturers either to build far more electric cars than consumers are interested in buying, or pay “cap and trade” fees to electric-car manufacturers such as Elon Musk.  (The mileage standards originated in Congress’s 1975 Corporate Average Efficiency [CAFE] standards, the intention of which was simply to reduce America’s dependence on foreign oil — not to wipe out use of internal combustion engines.) (RELATED: What’s an ‘EREV’?)

According to California Governor Gavin Newsom, a front-runner for the 2028 Democratic Presidential nomination, Trump’s move is nonetheless a “death sentence” for America’s auto industry, while so-called air pollution (in the form of carbon or “CO2” emissions)  is “an act of theft in the health of a nation.”

This is not the forum for debating how serious a threat carbon emissions pose to the Earth’s climate. I will note here simply the following facts that are relevant to assessing Newsom’s ominous warning: (1) Reliable estimates of global temperature changes, suggesting a gradual increase, date back only to the late 19th century; (2) over a broader time span, dubbed the “Little Ice Age,” and dated variously as extending from the 16th to the 19th centuries, or (alternatively) from about 1300 to 1850, the northern hemisphere experienced an extended period of cooling, which scientists attribute variously to such causes as cyclical lows in solar radiation, heightened volcanic activity, and variations in the Earth’s orbit — none of which, of course, had anything to do with the internal combustion engine; (3) in particular, northern Europe suffered a catastrophic decline in average temperature leading to widespread crop failure during the Great Famine of 1315–1317, resulting in  widespread population loss and social upheaval across northern Europe; (4) as Bjorn Lomborg, head of the Copenhagen Consensus, continues to point out, to this day, annual global deaths from excessive cold vastly outstrip those caused by  heat. (Lomborg believes that world temperatures are slowly rising, but advocates increased research on how to address the problem rather than imposing extreme and costly restrictions, such as the EPA has sought to impose on the basis of limited knowledge.)

Such facts surely suggest the need for greater caution on the part of politicians like Newsome and Al Gore (who, in his Nobel Prize-winning 2006 book An Inconvenient Truth, predicted that the Arctic Ocean could be completely ice-free by 2013).

The most reliable current judgment continues to be that expressed by Dr. Steven E. Koonin, a theoretical physicist who served as undersecretary for science in the Department of Energy under President Obama, in the title of his well-researched 2021 book on the subject: Unsettled. Among the outright myths repeated in the Times story but debunked by Koonin is the claim that global emissions are the “main driver” of extreme weather events such as “intensifying heat waves, droughts, hurricanes, and floods.”

I write these words as the Middle Atlantic states and other parts of the nation are undergoing one of their worst periods of cold and snow in quite a few years. In fact, given the disposition of large swaths of the American and European population to accept exaggerated claims by politicians like Newsom and Gore, along with the widespread decline in the caliber of elementary and secondary education in the U.S., I wonder what percentage of the population realize that CO2 is something that human beings and all other higher animals emit every time they breathe — and that without such emissions, there could be no edible plant life either?

What I wish to focus on here, however, is the legal basis for Trump’s repeal of the EPA’s 2009 finding — or rather, the lack of any such basis in the first place. Under the authority of the Environmental Protection Act of 1955, the EPA was charged with setting and enforcing standards aimed at combating such recognized threats to human health as urban air pollution, acid rain, toxic air emissions, and ozone depletion, as well as water pollution. While the Act was amended several times through 1990, on no occasion did Congress broaden the EPA’s mandate to cover the alleged threat of climate change. (RELATED: Trump Reloads an ‘America First’ Energy Agenda While Reasserting Sound Science)

Nonetheless, in the 2007 case of Massachusetts v. EPA, responding to plaintiffs’ complaint about the U.S. government’s failure to pursue policies that would reduce climate change, the Supreme Court ordered the agency to determine whether “greenhouse gases” constituted a threat to public health. And early in 2009, at the start of the Obama presidency, clearly following the Court majority’s preferences, the EPA, under its new director Lisa Jackson, concluded that six such gases — including carbon dioxide, methane, and hydrofluorocarbons — did pose such a threat, thus authorizing it to regulate such emissions from cars, trucks, and power plants. (Jackson’s lack of scientific expertise in this area was suggested by her proclamation that the agency’s aim was “to permanently remove carbon from the atmosphere” — apparently unaware that such an action would entail wiping out all life on earth.)

There followed, under the Obama and Biden administrations, a series of increasingly restrictive rules regarding motor vehicle and industrial emissions. With respect to power, the new policies aimed at eliminating the use of coal in power plants and reducing the reliance on other, less-polluting fossil fuels (gas and oil), in favor of such “climate-friendly” power sources as wind and solar. (Nothing was done under the Obama administration to promote the development of emission-free nuclear power; instead, responding to liberal prejudices, states like New York and Vermont foolishly shut such plants down. Fortunately, in mid-2024, Biden signed the bipartisan ADVANCE Act to encourage the development of new nuclear plants.)

When it came to automotive transport, under the Biden administration’s atrociously misnamed “Inflation Reduction Act,” Congress enacted a system of tax subsidies to reduce the price of electric vehicles, while the EPA mandated steadily increasing mileage requirements that, as already noted, required the producers of gas-powered vehicles to either manufacture more electric ones (regardless of consumer demand) or pay electric-car producers like Tesla in a “cap and trade” scheme. (Among the reasons deterring most people from choosing electric vehicles was not only their higher cost — even after the subsidies — but their limited range before requiring a time-consuming battery recharge. Advocates of battery-powered cars also tend to disregard the environmental effects of mining the materials needed to produce their batteries, as well as the high cost of replacing those batteries.)

Finally, in 2022, when it came to the EPA’s latest power-plant regulations, the Supreme Court decided that it had gone too far. In West Virginia v. EPA, responding to a suit by 19 states challenging the legality of the Biden Administration’s “Affordable Clean Energy Rule,” Chief Justice Roberts, speaking for a 6-3 majority, agreed with the states that “it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme.” “A decision of such magnitude and consequence,” he added, “rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” Roberts emphasized that the EPA was claiming the right to regulate greenhouse gas emissions even after Congress had specifically declined to give it such authority through legislation.

Here, then, is the nub of the issue. Following the Court’s “major questions” doctrine, according to which courts are not obliged to defer to the judgment of officials of administrative agencies in interpreting broad statutes, Roberts was calling, in effect, for a return to the system of representative government, according to which the elected leaders of our government — the president and Congress together — are authorized to make policy, subject only to the limits imposed by the Constitution. Under that same rule, President Trump is eminently within his rights to repeal the vast network of intrusive and costly regulations that the EPA has imposed on its own authority.

Of course, what one president and Congress can repeal, another can restore or extend. And indeed, the governor that some call “Bobo” Newsom (borrowing the nickname of a longtime baseball pitcher from a century ago, or perhaps for some other reason), in denouncing Trump’s decision, assured his audience, “Trump is temporary. He’ll be gone in three years. California is a stable and reliable partner in this space, and it’s important for folks to understand the temporary nature of this current administration in relationship [sic] to the issue of climate change and climate policy.”

Well, if Democrats choose to make electric vehicles and solar panels a chief issue of the next election, it will be interesting to see how that turns out. (But remember that for individuals like Newsom — who partied with his friends at the French Bakery during COVID while banning public meetings even for religious worship — different rules often apply.)

READ MORE from David Lewis Schaefer:

Representative Democracy and Convoluted Elections

The True Lessons of the Iraq Invasion

Do Rivers Have Rights?

David Lewis Schaefer is a professor emeritus of political science, College of the Holy Cross.