The federal government is a big, big organization. Even the executive branch alone is pretty huge, and it's not terribly surprising that sometimes the left hand is unaware of what the right is doing. But honestly, two cabinet-level agencies working at what seems to be cross purposes- that's a little alarming; one would think that this administration, which is normally pretty good about staying on the same page, would do better.
And yet this seems to be what has happened. President Trump's own Environmental Protection Agency (EPA) recently dumped a piece of Obama-era nitwittery, but the Department of Justice (DOJ), in a recent legal brief on a Colorado energy case, seems to have left the door open towards reinstating it.
In February, Trump’s Environmental Protection Agency (EPA) scrapped the Obama-era endangerment finding, the legal foundation for the whole federal climate regime — the basis for a sprawling federal campaign that Congress never clearly approved. That 2009 finding gave Washington, D.C. the excuse to regulate greenhouse gases and use the Clean Air Act as a blunt instrument against cars, trucks, power plants, and the energy economy itself.
Remove that finding, and the whole regulatory scheme starts to fall apart, leaving the EPA’s climate authority without a real legal footing.
The Trump EPA chief, Lee Zeldin, reversed that finding in February, and that was a good thing; it allowed the EPA to regulate carbon dioxide as a pollutant, amongst other nitwittery.
The 2009 "endangerment finding" identifies six greenhouse gases that the Obama administration said pose "a threat to public health and welfare." That harm finding was then used to justify sweeping climate regulations from the Environmental Protection Agency (EPA), such as raising fuel economy standards and limiting power plant emissions, The Wall Street Journal reported Monday.
And if things had just stopped there, there would not have been any further issue. But now, the DOJ has become involved in a legal case, Suncor Energy v. Boulder, and it sure looks like the DOJ's left hand is unaware of what the EPA's right hand is doing.
Suncor Energy v. Boulder is a case currently pending before the United States Supreme Court. In this case, the city of Boulder, Colorado, known locally as the "People's Republic of Boulder" or "Seven Square Miles Surrounded by Reality," has sued Suncor Energy and ExxonMobil entities, claiming that their production and sale of fossil fuels causes climate change and causes harm to Boulder residents, property, and so on, through extreme weather and related events. The Supreme Court has granted certiorari in the case and will reportedly address two key points: whether federal law precludes state laws seeking relief for injuries caused by the effects of interstate commerce in energy, and whether the Supreme Court has statutory jurisdiction over the case.
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Here's where things appear to be going south.
Yet the Justice Department’s position in Suncor Energy v. Boulder County is a mess. While the Trump EPA is trying to unwind the federal climate regime, the DOJ appears to be leaving the door open to the same broad Clean Air Act theory that made the regime possible in the first place. Climate activists will happily exploit that contradiction.
This case is bigger than one bad brief. The Supreme Court is deciding whether Boulder can use state courts as a backdoor to impose a climate policy that Congress never passed. If the Court lets that theory stand, it will encourage copycat suits, drag energy companies into years of litigation, and invite state-by-state climate lawmaking by lawsuit.
That's the problem. As noted above, one of the two key points that SCOTUS will be examining has to do with whether state laws can be used to dodge federal regulation — or deregulation.
This dispute is important because the fight over the endangerment finding is not some isolated legal squabble. It is part of a much larger battle over whether the Trump administration can actually dismantle the federal climate bureaucracy. If the rescission gets knocked out in separate litigation, Trump’s reform effort can be reversed, and every climate rule he is trying to unwind gets fresh legal cover.
Boulder and its allies are using local lawsuits to do an end-run around Congress and rewrite national energy policy in court. That is lawfare, plain and simple.
Boulder and its allies, were I to offer a prediction, will be scuppered by SCOTUS. Yes, a finding for Boulder would result in a legal disaster, costing the energy companies billions in legal fees defending against lawsuit after lawsuit. But the real issue is that the DOJ finding seems to indicate that the EPA does have authority to regulate greenhouse gases, which contradicts the Trump EPA's removal of the endangerment finding.
Congress further precluded Boulder’s claims by enacting the Clean Air Act, 42 U.S.C. 7401 et seq., which preempts contrary state regulation. Congress “delegated” to the Environmental Protection Agency (EPA) “the decision whether and how to regulate carbon-dioxide emissions from powerplants.”
The Trump administration can and should get its Schiff together on this case.
