"Just making s**t up" — David Roberts sounds off on the EPA
"To say members of Congress didn’t anticipate a specific pollutant is just f**king comical."
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On the heels of Trump’s Environmental Protection Agency announcing that it’s repealing the endangerment finding — the legal foundation for the federal government’s regulation of greenhouses gases — we checked in with the always-colorful David Roberts to get some expert insight on what it means.
Roberts, author of the excellent Volts newsletter and a longtime friend of Public Notice, pointed out that rescinding the endangerment finding is one thing; surviving the inevitable legal challenges is another.
“How the fuck are they going to do that?” Roberts said. “If you can get the Supreme Court to rule that carbon is not a danger to public health, it will mark the point at which they have abandoned all pretense, because that’s just a flat out lie.”
“Are they brazen enough? Does John Roberts feel invulnerable enough at this point that the Court can just say black is white, up is down, and climate is not a problem? That’ll be interesting to watch.”
A full transcript of Roberts’s conversation with Public Notice contributor Thor Benson, lightly edited for clarity and length, follows.
Thor Benson
Let’s start with the background of the endangerment finding, which stemmed from a Supreme Court case nearly 20 years ago. Fill us in on how we got from there to here.
David Roberts
The point of the 2007 trial at the Supreme Court was to determine whether greenhouse gases qualified as pollutants under the Clean Air Act. The result was the Court said the language of the law is ambiguous, and thus they deferred to EPA’s judgment. So, in other words, yes, greenhouse gases qualified as air pollutants because of the Chevron doctrine, which the Court has since struck down, which said the courts should defer to agencies on complex rules of law implementation.
Basically, that 2007 case was a notable example of the Court saying, “Well, the Clean Air Act is somewhat ambiguous, so we’re gonna leave it to EPA.” That triggered a bunch of legal obligations. If it is a greenhouse gas, then EPA is lawfully required to determine whether it’s a danger to public health. They did, and that’s the endangerment finding.
The EPA then spent a couple of years under Obama pulling together a copious body of evidence that climate change is a danger to human beings. That triggered further legal obligations. If greenhouse gases are a danger to human health, then EPA has to regulate stationary sources — power plants and factories. It also has to regulate mobile sources of the pollutant — cars and trucks. That’s what Obama’s EPA did.
Thor Benson
And parts of the right have been agitating to get rid of the endangerment finding ever since.
David Roberts
Right-wingers noticed that the endangerment finding is the hinge. Once you have it in place, everything else is triggered by law — greenhouses gases have to be regulated — so they fought it.
Obama came up with a package of stationary sources regulations. That was called the Clean Power Plan. So right-wingers went after it in court, but they couldn’t tell a judge “the EPA can’t do this,” because the endangerment finding meant they legally had to. What they were left with is “they did it too strongly.”
As long as the endangerment finding is in place, even if you knock down a set of EPA regulations, that just means the EPA has to go back and create new ones. The right-wing legal establishment didn’t want to go through this forever with the EPA just coming up with new attempts at following the law. So they have to get rid of the endangerment finding, because that’s at the root of all this. And here we are.
Thor Benson
How exactly did the endangerment finding backstop climate regulations?
David Roberts
It’s the foundation of literally all federal administrative regulation of greenhouse gasses. That includes stationary sources, mobile sources, methane, oil — everything.
The problem for Trump is that you and I both know the scientific case for climate change is overwhelming. So how is the administration going to put together a contrary case to take before a court?
You may recall that Energy Secretary Chris Wright tried to gather a climate council to produce something that would say climate is not a danger. But a judge told him to knock it off with that shit, because the council was illegally meeting in secret. As much as Trump has fucked up the courts, the basic process is still in place, which is that if they want to undo the endangerment finding, they have to go before a court and make a scientific case.
How the fuck are they going to do that? The scientific case for the dangers of climate change has only gotten immeasurably stronger since they did this the first time in 2009. If you can get the Supreme Court to rule that carbon is not a danger to public health, it will mark the point at which they have abandoned all pretense, because that’s just a flat out lie.
Are they brazen enough? Does John Roberts feel invulnerable enough at this point that the Court can just say black is white, up is down, and climate is not a problem? That’ll be interesting to watch.
Thor Benson
I’m just imagining an argument that Alexander Hamilton didn’t know about the effects of carbon dioxide, so we can’t do anything.
David Roberts
In some sense this is all farce. They’re just making shit up. They don’t care about the merits, so it actually feels silly talking about them.
But briefly, on the merits, what the Trump administration is saying in court is that members of Congress in 1970 did not have greenhouse gasses in mind when they wrote the Clean Air Act. Thus they didn’t intend to regulate them. This is wrong — legally wrong — on a deep and fundamental level.
If you understand the Clean Air Act, its language says whatever is in the air that hurts humans needs to be regulated to safe levels. It explicitly says we don’t yet know everything in the air that hurts humans. It set up a process whereby EPA does these periodic scientific reviews to determine, based on the latest science, what we know about what’s in the air that hurts humans.
In other words, the law was set up explicitly to handle new scientific information about pollutants. That’s how it was written. To say members of Congress didn’t anticipate a specific pollutant is just fucking comical. It’s not obscure legal language. It’s very plain. It says we don’t know everything.
We’ve set up a process where science does its work, and insofar as it determines that new things are pollutants, we then regulate them. It’s written explicitly to be open-ended. That’s why it’s so powerful and has been the basis for just about every bit of environmental progress since.
So to allege that interpreting the Clean Air Act in an open-ended way is some sort of violation of law is ridiculous. I don’t think anybody involved here is confused about the legal merits. Everybody on the right knows that they’re playing Calvinball here and that this is all bullshit.
Thor Benson
Looking back at Trump’s second term so far, there have been a ton of attacks on climate action. Do you see any reasons for hope, and how bad has it been compared to what you expected?
David Roberts
I wouldn’t say it’s been worse than I expected. Obviously, the details can be shocking and gross from time to time, but I’m not surprised.
Climate is one of those classic areas where Trump, I think, doesn’t care that much. We know he hates wind turbines, and likes the coal guys because they kiss up to him.
But that’s about the extent of his interest in climate policy.
It’s a case where the squadron of right-wing lawyers who wrote Project 2025 and have been after the Clean Air Act for decades were ready to go. That’s why there’s an assault on air and water pollution laws across the board, not just climate stuff. Heritage Foundation guys have been planning this for a long time.
There’s nothing good to say about it, but maybe the only bright spot is that the people at the vanguard of the economy right now — the AI people, the data center people, the people with all the money and political influence — they desperately want and need clean energy. They need clean electricity. So Trump, in a sense, is caught between a rock and a hard place.
All of the facts are weighing in behind renewable energy, so he’s hurting very big and wealthy constituents directly. That can’t go on forever. You can completely bracket climate change and try to forget about it. You can bracket air pollution and try to forget about that too. But the US desperately needs clean electricity for economic reasons. It’s at the heart of economic competition in the 21st century.
That’s it for today
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The Clean Air Act was written explicitly to handle new scientific information about pollutants.
Congress in 1970 literally said “we don’t know everything that harms humans yet, so we’re creating a process to regulate threats as science discovers them.”
Pretending greenhouse gases don’t qualify because Hamilton didn’t know about CO2 is legally absurd and everyone involved knows it. The question isn’t whether the argument has merit (it doesn’t). The question is whether the Supreme Court is brazen enough to say black is white because power no longer requires pretense.
We’re watching institutions abandon legitimacy in real time, and the endangerment finding is just the next tile pulled from a democratic structure already collapsing.
—Johan
Keep pushing and keeping it real