Conservative backers of the Trump administration’s climate deregulation push say they worry that delayed rulemaking and faulty lawyering may harm efforts to end greenhouse gas regulation.
Right-wing advocates including Steve Milloy and Myron Ebell, both of whom served on President Donald Trump’s first-term transition team, said in interviews Tuesday that they were particularly concerned about a recent Department of Justice brief that appeared to contradict EPA’s repeal of the so-called endangerment finding for greenhouse gas emissions.
In a May 21 amicus brief in Suncor v. Boulder — an important climate case the Supreme Court will decide next term — DOJ argued that the Clean Air Act reserves to EPA the authority to regulate greenhouse gas emissions. The administration is joining red states and industry groups in urging the court to block local governments such as Boulder, Colorado, from suing fossil fuel producers over their contribution to climate change.
Milloy, a senior policy fellow at the Energy and Environment Legal Institute, told POLITICO’S E&E News that the arguments DOJ made to demonstrate federal preemption of state and local climate action are “the exact opposite” of what EPA argued in its February repeal of the 2009 scientific finding that underpinned most Clean Air Act climate regulation.
“They could both wind up at the Supreme Court, and the court could say, ‘Justice Department, you’re on both sides of this issue,’” said Milloy.
In a thread on the social media site X over the weekend, Milloy argued that DOJ’s Suncor brief “threatens a successful defense” of EPA’s endangerment repeal because that rollback rests on an assertion that the agency “does not have the requisite legal authority to regulate greenhouse gases.”
DOJ told the Supreme Court in the Suncor brief that Colorado’s greenhouse gas emissions standards would “disrupt EPA’s regulation of stationary sources.”
“As this Court has concluded, the Clean Air Act reflects Congress’s choices to make EPA — not States — the ‘primary regulator of greenhouse gas emissions,’ and to address emissions by regulating stationary sources, such as factories and power plants,” DOJ said in its brief, citing the Supreme Court’s 2011 decision in American Electric Power v. Connecticut.
DOJ wrote in a footnote that EPA had recently concluded in the endangerment finding repeal that it lacked authority to set greenhouse gas standards for motor vehicles based on climate concerns.
But DOJ argued in the Suncor brief that EPA’s conclusion did not apply to the section of the Clean Air Act that covers stationary sources — “the decisionmaking scheme that AEP interpreted in ways that conflict with Boulder’s claims.”
Richard Lazarus, an environmental law professor at Harvard University who has represented green groups and governments in numerous Supreme Court cases, agreed in an email that there was a ”tension” between DOJ’s brief and “the broadest legal arguments now being made by EPA in support of the endangerment determination repeal.”
But he said the change was all on EPA’s side — not DOJ’s arguments about federal preemption of state regulations.
“The only reason that same-old-same-old argument now presents a tension is the EPA in the endangerment repeal is now effectively arguing for an overturning of” Massachusetts v. EPA, he said, referring to the landmark 2007 Supreme Court decision that said greenhouse gas emissions qualify as pollutants under the Clean Air Act.
Milloy and Ebell both questioned whether the Suncor brief might be a deliberate attempt by career DOJ attorneys to undermine the defense of EPA’s endangerment finding rescission in the face of challenges by environmental groups and blue states.
In his X thread, Milloy mused that “the DOJ Deep State” may have drafted it, aiming “to tank” EPA’s endangerment finding rollback and the repeal of power plant carbon standards, which are now undergoing White House review.
DOJ did not comment for this story, but Deputy Solicitor General Sarah Harris and Adam Gustafson, interim leader of DOJ’s Environment and Natural Resources Division, are both named on the Suncor brief. Both were tapped by Trump. The department has shed career environmental lawyers at a historic rate since the second Trump administration began 16 months ago.
Ebell said in an interview Tuesday that the brief “concedes things that would undermine the case for the endangerment finding” repeal.
He noted that the administration has yet to nominate a permanent head of ENRD, which is responsible for defending EPA regulations.
“There’s a lack of political appointees at the Justice Department,” he said. “Was it just careers doing this to try to sabotage the Trump deregulatory efforts on climate?
“I think some questions need to be asked, and some people at the administration need to give some answers about how this happened and then what they’re going to do about it,” said Ebell.
Lazarus said environmentalists might point to contradictions between DOJ’s defense of EPA’s endangerment finding repeal and its past briefs. But “such gotcha arguments routinely fall on deaf ears,” he said. “At least before SCOTUS, the justices decide for themselves the best meaning of the statute.”
Milloy on Monday also spearheaded a letter to Trump signed by Ebell and five other conservative activists, pressing for speedy finalization of a rule scrapping all greenhouse gas power plant rules and regulatory authorities. EPA proposed such a rollback last June, prior to proposing the endangerment finding repeal.
“Whenever the EPA proposal is finalized, it will certainly be litigated by radical green activist groups,” the letter said. “This litigation should start as soon as possible to ensure that your administration can defend the rescission to final victory at the Supreme Court.”
Jason Isaac, CEO of the conservative American Energy Institute, said in an interview that the power plant rule repeal seemed to be unnecessarily delayed.
“Maybe there are people within the administration, the bureaucrats, that are doing this intentionally — trying to wait out the administration as long as possible,” he said.
The rule that entered White House review May 14 is widely expected to repeal only Biden-era standards for coal- and gas-fired power plants. Obama-era standards for new plants would temporarily remain on the books — though EPA is expected to jettison those via a supplemental proposal.
Isaac said he hadn’t heard that EPA was planning a two-part repeal and would reserve judgment.
“But my initial personal reaction would be disappointment,” he said.
