Climate complainers attack endangerment finding repeal, but gear up for the legal fight

Anti-fossil fuel groups, states and local governments are throwing lawsuits at the repeal of the 2009 endangerment finding. The rule gave federal agencies extensive control over oil and gas facilities, what cars Americans drive, and what sources generate their electricity. Supporters of the regulations that followed the finding weren’t going to let it go down without a fight. According to the Environmental Protection Agency (EPA), which finalized the repeal in February, the rule cost businesses $1.3 trillion dollars. 
Many of these costs fell upon energy producers. Now, they are fighting to have their say in the attacks on the repeal. The Pacific Legal Foundation (PLF) and Competitive Enterprise Institute filed a motion to intervene on behalf of the Domestic Energy Producers Alliance (DEPA), which represents more than 10,000 producers and organizations nationwide. 
Unleashed a cascade of rules
When people think of oil companies, they often think of the pejorative term “Big Oil.” While oil majors are impacted by the endangerment finding, the rule is particularly harmful to the small operators who can’t as easily absorb the cost of compliance. 
Tyler Fry, environmental and natural resources attorney with the PLF, told Just the News that DEPA is composed of thousands of independent oil and gas companies, and 75% of those are small operators. 
“They really are the ones that get hit hardest as far as these regulatory burdens, and especially this 2009 greenhouse gas finding. It really unleashed a cascade of rules that touched every single part of what they do,” Fry said. 
Within a week of the EPA finalized the rule repealing the endangerment finding, 17 health and environmental organizations filed a lawsuit. Last week, a coalition of 25 attorneys general, the governor of Pennsylvania, and 10 local governments filed their own lawsuit. 
Critics of the repeal argue the rule is necessary to stop climate change, which they claim is causing widespread harm to people and the economy. 
“The wildfire smoke polluting our air and the harm being done to our state’s winter tourism industry and farmers who rely on stable seasons to make a living are just some of the ways we’re already seeing climate change impact our daily lives,” Michigan Attorney General Dana Nessel, who is part of the coalition suing the EPA, said in a statement. 
Farmers also rely on diesel, as well as natural gas-based fertilizers. It’s not clear in Nessel’s statement how increasing the cost of oil and gas helps farmers. Petroleum is also important for winter sports and tourism, including travel, equipment and apparel.
Shift in the legal environment: Less deference to gov agencies
The DEPA motion argues that the EPA exceeded its authority and wrongly exercised legislative power when the Obama administration determined that greenhouse gas emissions were a danger to the public. Fry said that as interveners, oil and gas producers will bring to the table something the EPA likely won’t do in the course of defending its repeal. 
“We feel like we have a different perspective of arguing on behalf of a client that feels these economic costs, whereas EPA is arguing for more of a political perspective,” Fry said. 
Fry explained that the overturning of the “Chevron deference” in 2024 creates a different legal environment in which the repeal can be defended. Prior to the decision in Loper Bright Enterprises v. Raimondo, courts generally deferred to federal agencies’ interpretations of the law when Congress hadn’t provided clear guidance. The ruling in Loper Bright means that courts will determine if a federal agency acted within its statutory authority.  
In a 5-4 decision in 2007, the high court ruled in Massachusetts v. EPA that greenhouse gas emissions fit the Clean Air Act’s definition of an “air pollutant.” So the EPA needed to determine if emissions endanger public health and welfare of the public, or if the science is too uncertain to make such a determination. 
In 2009, the Obama administration determined that those emissions endanger public health. Emails obtained through a Freedom of Information Act request show that the agency heads had made the determination before any scientific process was carried out upon which the proposed rule was based. 
In its repeal, the Trump administration’s EPA recognizes the shift in the legal environment following Loper Bright, Fry said. The Clean Air Act, as it was written in 1970, was meant to address local and regional air pollution like smog and acid rain, as opposed to an impact to the climate from global emissions. 
“There’s really no congressional statement authorizing EPA to use an administrative trigger like that to completely overhaul the regulatory system of the energy economy,” Fry said. 
As far as it needs to go
The D.C. Circuit Court of Appeals has a permissive structure as far as allowing interveners in cases like this one. The CO2 Coalition, which disputes that carbon dioxide emissions are dangerous, has also filed motioned to intervene in the case. “The basis of the wrongheaded endangerment finding put ideology ahead of science,” Gregory Wrightstone, executive director of the CO2 Coalition, said in a statement. 
The Texas Public Policy Foundation has also filed a motion to intervene. “By making the Endangerment Finding in 2009, EPA impermissibly arrogated to itself enormous powers over virtually every nook and cranny of the nation’s economy in an effort to regulate carbon dioxide, a ubiquitous natural substance essential to life on Earth.” Ted Hadzi-Antich, senior attorney with the foundation, said in a statement. 
Legal experts like Steve Milloy, senior legal fellow with the Energy and Environmental Legal Institute and publisher of “JunkScience.com, argue that the repeal of the finding won’t be on solid ground unless the Supreme Court overturns Massachusetts v. EPA. 
Fry said the Pacific Legal Foundation is prepared to take the case as far as it needs to go, including all the way to the Supreme Court. “Especially something like this that really can have not just ramifications on energy policy and the energy economy, but branching out to touch all the other administrative agencies as well. Yeah, we’re prepared,” Fry said. 

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