Trump’s Climate Liberation Act

 The Environmental Protection Agency on Thursday at long last repealed Barack Obama’s so-called endangerment finding that declared greenhouse gas emissions a threat to public health and safety. Cue the apocalyptic warnings unhinged from reality. What progressives really fear is that they won’t be able to dictate the energy supplies, cars and appliances that Americans can buy.

Progressives recognize the importance of Thursday’s news. A New York Times headline says “Trump Allies Near ‘Total Victory’ in Wiping Out U.S. Climate Regulation.” That could be true if the Administration prevails against the inevitable legal challenges.

As a refresher, in 2007 a 5-4 majority of the Supreme Court ruled in Massachusetts v. EPA that greenhouse gases qualify as pollutants under the Clean Air Act. The law requires the EPA to regulate pollutants if it determines they can “reasonably be anticipated to endanger public health or welfare.” Thus arose the Obama endangerment finding, which established the legal basis for the EPA to regulate CO2, which wasn’t mentioned in the Clean Air Act.

But greenhouse gases aren’t toxic and don’t affect air quality, unlike pollutants that the law expressly directs the EPA to regulate. The Obama endangerment finding claims this distinction doesn’t matter because CO2 contributes to rising temperatures, which could indirectly result in downstream harms such as more wildfires, storms and disease.

Most of the “science” in the Obama finding is debatable, as the Trump team notes. The impact of greenhouse gases on global temperatures is intermediated by such factors as cloud cover and urbanization, and the effect on storms is disputed. In any event, curbing CO2 emissions in the U.S. will have scant impact on climate because emissions are rapidly rising in China, India and developing countries.

The real import of the finding was to give the Obama and Biden teams legal license to mandate electric cars and force fossil-fuel power plants to shut down. Trump EPA Administrator Lee Zeldin has moved to roll back the Biden regulatory overreaches. But as long as the endangerment finding is in effect, a future Democratic President could reimpose the Biden climate diktats and go even further—say, by banning petroleum-powered lawn mowers and gas space heaters or stoves.

Repealing the endangerment finding could stop this regulatory ping-pong. The climate lobby is sure to challenge the rescission, which could then tee up a case for the Supreme Court to revisit its misconceived Massachusetts. v. EPA precedent. Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented in that case, and Justice Anthony Kennedy, who supplied the fifth vote, has retired from the Court.

The Great Scalia observed in dissent that “regulating the buildup of CO2 and other greenhouse gases in the upper reaches of the atmosphere . . . is not akin to regulating the concentration of some substance that is polluting the air.” As the Trump team notes, the endangerment finding also violates the Supreme Court’s major questions doctrine.

That doctrine holds that express authorization from Congress is required for economically and politically significant executive actions. A 6-3 majority invoked the doctrine in West Virginia v. EPA (2022), which struck down the Obama-era CO2 emissions limits for power plants. EPA’s arrogation of sweeping authority to regulate CO2 is without doubt a major question.

The scope of CO2 regulation is a decision for Congress. It’s richly ironic for Democrats who denounce Mr. Trump as an authoritarian to howl that he’s relinquishing power to regulate all corners of the economy under the guise of climate that the Biden and Obama administrations unilaterally claimed.