How the WSJ Gets It Wrong on Reconsideration of EPA’s GHG Endangerment Finding

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On April 18, the Wall Street Journal published an editorial supporting EPA Administrator Scott Pruitt’s position against reconsidering the Endangerment Finding (EF) on Greenhouse Gases. The editorial makes six basic points:

1. WSJ: Finding has been upheld by the courts.

My comment: The issue is not whether the current EF was upheld, the issue is whether the courts will uphold a reassessment and revocation, which is clearly allowed by the Clean Air Act on the basis of new information (as in this case).

2. WSJ: Creating a legally bulletproof non-endangerment rule would consume a tremendous amount of EPA resources, especially at an agency with few political appointees and a career staff hostile to reform.

My comment: This is absurd. EPA can argue for and hire whatever size staff it needs to accomplish the goals it wants to pursue assuming approval by OMB. There is no more important goal under EPA’s jurisdiction for an Administration devoted to putting America first than vacating the EF, which makes it possible to resurrect a new EPA CO₂ regulatory effort at any time if not vacated. Imposing regulations on CO₂ would hurt the US by imposing costs and reducing the effectiveness of any effort to improve the US economy. Further, vacating the EF would immediately legally vacate all the Obama regulations based on it without any added effort by EPA, so would actually much reduce EPA’s resource needs.

3. Technical determinations about the state of the science are supposed to be entitled to judicial deference, but the reality is that the D.C. Circuit Court of Appeals that would hear the case is packed with progressive judges. Climate change has become a theological conviction on the left, so Mr. Pruitt would almost certainly lose either with a three-judge panel or en banc.

If EPA vacates the EF, it should be entitled to judicial deference, just as it was when it promulgated the EF. I agree that given the majority of liberals on this Court, thanks to the Democrats’ efforts a few years ago to bring this about, could result in a sudden reversal of their previous position in favor of judicial deference. But that should not stop the Supreme Court from finding otherwise, as it did on the stay it issued on the so-called Clean Power Plan.

4. The Supreme Court’s appetite for such a case is also minimal, since it would run directly at the 2007 ruling in Massachusetts v. EPA that prepared the way for the endangerment finding. Justice Anthony Kennedy was in that 5-4 majority.

Overturning the 2007 ruling is almost as important as vacating the EF. But hopefully the judges who authored the five votes involved have now realized just how unjustified that ruling was and the need for overturning it before it does still more damage to the US economy for negative environmental gains.

5. Mr. Pruitt has the discretion to interpret the Clean Air Act to achieve his favored policy outcomes, including to repeal legally tenuous central planning like CPP.

The great danger is that the Climate-industrial Complex (CIC) will push the resulting inconsistency between the EF and EPA’s attempts to avoid CO₂ regulation, as they are all but certain to do. What defenses would he possibly have with the current EF in place? EPA will be a sitting legal duck. Pruitt can interpret but the courts will decide.

6. Same Administration could restore endangerment too.

Yes, the EF could be restored but likely only in a two-term Presidency. That would be a major help in slowing down a future climate alarmist Administration and thus saving the US from the overwhelming disaster that climate alarmism will result in. Avoiding such an outcome should be Trump’s EPA priority one.

Not mentioned by the WSJ is that there is a desperate need to publicly explore the alarmist scientific case. Reconsidering the EF would provide a unique opportunity to do this. Letting the alarmist science continue to go unchallenged is a recipe for disaster. The alarmist science is not just scientifically weak, it has now been shown to be scientifically invalid. EPA needs to recognize this as soon as possible and not risk the disaster of new CIC-inspired CO₂ regulations the next time that the CIC regains political power.

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April 20, 2017 at 11:35AM