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TOM WHEELER:

Welcome to the Econews Report. I'm your host this week, Tom Wheeler, Executive Director of EPIC, the Environmental Protection Information Center. And joining me is my friend and colleague, Matt Simmons, Climate Attorney here at EPIC. And also joining me is Conservation Director at Friends of the Eel River, Scott Greacen.

All right, so we are here today to talk about the Trump administration's rescission of the 2009 endangerment finding and what this means for our climate and for climate action here in the United States. I have these two fine gentlemen on the show. It means that this is gonna be a law nerd edition of the Econews Report. And so we are going to break down what the heck this means for folks, hopefully in somewhat plain language.

SCOTT GREACEN:

Might I suggest we start with the whole idea of what this thing is, because most people don't hear the endangerment finding and think, oh right, the EPA's rules for how global warming hurts people and so we've got to protect them from car exhaust.

WHEELER:

... which I could say that we have the Clean Air Act, that people are familiar with. And in 2009 ...

GREACEN:

... or have been to law school ...

WHEELER:

Well, I think most people know the Clean Air Act. And in 2009, the Obama administration said, hey, look, six greenhouse gases, including carbon dioxide, are going to present a risk to human health and safety. And therefore, we have an obligation. We don't have a discretionary ability. We are obliged to issue regulations to try to regulate greenhouse gases, to try to reduce the harm associated with them. From climate change. And so this is what is at issue here, is this decision by the Obama administration that the Clean Air Act covers climate change, effectively.

GREACEN:

And a little deeper in, there's the Supreme Court ruling that said that was okay. Massachusetts, which we call Mass v. EPA.

WHEELER:

All right, so maybe Matt, let's do a brief history of how we got here, because this is a story, it's now 2026, that began during the Clinton administration, way back in 1999.

MATT SIMMONS:

Yeah, so under the Clinton administration, a group of environmental nonprofits petitioned the EPA to have them find that climate pollution, greenhouse gases, endanger public health and welfare, and therefore should be regulated under the Clean Air Act. The Clinton administration didn't want to do that. The George W. Bush administration didn't want to do that. But eventually, through litigation, this worked its way up to the Supreme Court. And in 2007, in a five to four ruling, the Supreme Court said greenhouse gases are air pollutants under the Clean Air Act, and the EPA has to consider whether or not they endanger public health and welfare and decide whether or not to regulate them. And that was a big victory for the climate movement at the time.

I said it was five to four. The conservatives on the court at the time were absolutely furious about this decision and wrote scathing dissents. But for folks who are worried about climate change and the global planet, the idea that the United States would not be using every sort of tool in our regulatory toolkit to fight it was deeply frustrating and disappointing as well. So then fast forward to 2009, and the Obama administration, relying on the Supreme Court decision in Massachusetts for EPA, issues the endangerment finding and says, yes, greenhouse gas emissions do cause climate change, and yes, climate change is endangering public health and welfare, and therefore we can regulate it under the Clean Air Act. Is that a good summary of how we got here?

GREACEN:

Excellent.

WHEELER:

All right. And so since since then, the Obama administration and the Biden administration have used this endangerment finding to try to issue regulations, sometimes successfully, sometimes not. We had during the Obama administration something called the Clean Power Plan, in which the Obama administration was trying to phase out coal fired power plants by requiring improved efficiency at these so-called stationary sources.

SIMMONS:

As well as requiring them to invest in renewables, instead of, and that was the controversial aspect of the Clean Power Plan, or the most controversial aspect of the Clean Power Plan.

WHEELER:

We've also seen the Biden administration issue regulations relative to efficiency, miles per gallon, CAFE standards for cars, such that the Biden administration was attempting to make cars have more than 50 miles per gallon on average by the year 2031. And when the Trump administration withdrew the endangerment finding, they also withdrew those clean car standards at the same time, arguing that since the endangerment finding is gone, the regulations on cars that were tied to that endangerment finding also therefore must fall.

This is important, of course, because emissions from transportation are the number one source of greenhouse gas emissions, both here locally in Humboldt County, it is our number one source of greenhouse gas emissions, and nationally, it is the largest source of greenhouse gas emissions as well. So let's maybe get into why the Trump administration has changed course, which I think the obvious one is they're trying to gin up fossil fuel use, right?

GREACEN:

Well, there's obviously a deep ideological commitment on the part of the Trump administration to first stopping investment in renewables and accelerating and pushing back toward the use of fossil fuels as a dominant part of the economy. And we talked about this when we talked to Jared Huffman about the Project 2025 blueprint. That's deeply baked into this administration particularly, but we see it across a whole range of sectors. This demand that coal plants keep operating.

WHEELER:

Well, the Trump administration, not only coal plants keep operating, but, hey, Pentagon, we're going to order you to preferentially purchase coal at a price that is inflated relative to other energies like natural gas or renewables. Coal's dying a natural death, and that's one of the-

GREACEN:

Meanwhile, like canceling every wind project they can get their hands on.

SIMMONS:

NEPA so that solar and wind pencil out is more environmentally impactful than coal and nuclear power.

GREACEN:

Yeah, and so it's a real across-the-board agenda, and it's very, very radical.

WHEELER:

So the playbook here is obvious, or what they're trying to accomplish is obvious, which is let's try to increase the use of fossil fuels, and what is the political game there?

GREACEN:

I can't help but think about this fairly well established relationship between extractive natural resource economies and authoritarian political systems and extreme wealth inequality. It's often summarized as this idea of the resource curse, basically that in many societies where they have basically this bonanza of fossil fuels especially, it often develops that one part of the society seizes control of a very large share of the resources and uses it to dominate the rest of the society. And that's often to the detriment of that society's general economic development. It's often the case that these societies do much more poorly than more equitable systems which take care of their people and effectively grow much better.

So I'm quite concerned that the Trump administration is pushing us collectively in the direction of sort of a kleptocratic model. You can see that again in many other aspects of their behavior. But I'm also especially concerned about the way that this is reflected in a corruption of the courts themselves. And again, that's something we see in many aspects. But it's especially apparent at the Supreme Court level where we've got a court that is now deeply corrupt in the political sense. Its commitment to the Republican Party agenda is quite clear. And that's where we, I think, come to the deeper problem with this repeal of the endangerment finding. It isn't, when we dig into it, merely a reversal of policy, another swing in this back and forth dynamic between Republican and Democratic administrations.

What it is is an assault on the constitutional foundations of any regulation. And we should probably talk a little bit about how this announcement by the Trump administration calls out the moves that this conservative court has made in that direction. The major questions doctrine, the overturning of Chevron...

WHEELER:

All right, so you gave us two kind of meaty topics to cover. One is, I think, the natural evolution of markets and the natural decline of fossil fuels in the United States, which the Trump administration is trying to stop. So I want to target this one first. And then let's get to the Supreme Court and fit this within the grander ideological anti-regulation movement that we find ourselves. Because the court is radically different today than it was in 2006 when we had Massachusetts v. EPA. But let's start with economy.

So Matt, one of the fun things about the world is that we are making climate progress even if we're not meaning to. Can you talk about the Clean Power Plan, Obama's Clean Power Plan, its targets, and how we got to achieve the targets without even the necessity of regulation?

SIMMONS:

So back in 2015, in the waning years of the Obama administration, the Obama EPA issued something called the Clean Power Plan using this endangerment finding that we're talking about. All of this Clean Air Act regulation of greenhouse gases rests on this endangerment finding. And so using that finding, they issued the Clean Power Plan, which was supposed to encourage coal-fired electric power plants to switch to either a natural gas, which has less carbon per watt of electricity generated, or renewables like wind and solar. That plan never went into effect because conservative states led by West Virginia sued the Obama administration and courts issued an injunction stopping the plan from going into effect. And by the time the plan made its way up to the Supreme Court in 2022, five years later, the plan's goals, the goals that they were supposed to meet by 2030, had already been met entirely due to market forces.

So coal is old and expensive and dirty. And so even without the Obama administration, under the first Trump administration from 2016 to 2020, coal-fired power plants were not being built and were being retired at a fast rate and being replaced with either natural gas or renewables. And that was accomplishing the goals that the Obama administration had set out in the Clean Power Plan, all without any of those goals ever being enforced by anyone at the EPA. It was entirely due to market forces. And there are people in this country who own coal resources or want to see coal continue to be a source of power for political, ideological reasons, who are terrified of that. They claim to believe in the free market until the free market comes to get them. And then they want to see regulation keeping their industry alive, even as it's, as you said, dying a natural death, a market death.

And so what we're seeing right now under the Trump administration is subsidies for coal, attempts to deregulate coal so that they don't have to clean water or clean air, anything they can do to keep this industry, which I just cannot emphasize enough, is the way we generate electricity in the 1860s. It's an old, out-of-date way to get our power, but they're trying to keep it alive.

GREACEN:

So now let's do oil, which is similarly a fossil fuel, was the basis for a lot of industrial development, but is now on its way out. And to forestall that transition, the Trump administration is taking all these extraordinary measures in the teeth of market forces. But let's just note the ask that candidate Trump made of the fossil fuel corporations in 2024 before the election was held. Give me a billion dollars, he says, for my campaign, and I will give you everything you want. That's basically a proposal for corruption. Yeah, I don't, what's the right word here?

WHEELER:

Inclusion, corruption ...

SIMMONS:

Quid pro quo ...

GREACEN:

Yeah, it's a kind of structural, like economy scale bribery.

WHEELER:

And so I think if we all can imagine the economy of the future, right, it's going to require a lot of energy and those energy sources are probably going to be largely coming from renewable sources, right? If we look at where the rest of the world is going, China is manufacturing solar panels at an astounding rate.

GREACEN:

You look at where they already are. Look at where China's energy supply is coming from. Look at where it's going into an electric automobile industry.

WHEELER:

Yeah. And if we talk about a global automobile industry, it's going to be one that demands EVs, electric vehicles. And what the Trump administration is doing is hamstringing America's economy to an older form of doing things that is not going to be the mark of the future. So like the automobile industry, I, I don't think is, is terribly excited about this, you know, a little bit of mixed messaging coming from them, but no one, no one from like Ford is, is necessarily cheering this at this moment, there, there have been a lot of pretty muted statements coming from major manufacturers about the repeal of the entanglement funding. Cause I think that they also see what's happening. And I think that they preferred the Biden era investment in renewables, as opposed to the Trump deregulatory movement in opposition.

SIMMONS:

I'll also just say that when the federal government steps in and regulates something, it reduces the ability for other stakeholders to either regulate or litigate over that issue. And I think for some folks, they saw the federal government regulating as protection against states like California or environmental groups filing lawsuits saying you have to do this for other reasons. The federal government can fill that hole and prevent other litigation. And so if I were a motor vehicle company right now, I'd be extremely nervous that this litigation shield that is, hey, I'm already doing what the federal government is telling me to do, just went away.

GREACEN:

Yeah, and I am reluctant to make excuses for the American vehicle industry. I think we've got some really serious misjudgment going on. And like, it reminds me a lot of the oil industry, and it's deeply linked to it in a lot of ways. But I just think there's not a lot of leadership coming from that sector at this point. And you see that in the fact that we are not making viable electric cars here.

WHEELER:

I mean, BYD, the Chinese automobile manufacturer, is now the largest manufacturer of electric vehicles, surpassing Tesla. They're going to take over the market share. They're going to take over the global market share. They're going to be the dominant company in the 21st century. And the American auto industry, which once led the world, is in decline. And the Trump administration is not making it easy for them to, to compete through things like tariffs as well. So, so I mean, it's all interrelated.

GREACEN:

So I guess backing out a little bit to think about the likely economic effects of this policy move, of repealing the endangerment finding and repealing all these vehicle standards. Of course, the Trump administration is saying, okay, this is gonna make your cars cheaper, this is gonna make everybody happier with better stuff. But what I see is, like you said, Matt, a lot of uncertainty for the auto industry and basically higher transportation costs going forward for the next probably decades as American have to pay more to move around. And finally, of course, there's the underlying costs we were seeking to avoid of the climate change crisis. Here in California, it's hard to avoid those. We're thinking a lot about sea level rise, we're always aware of the possibility that we could see another landscape level forest fire. It's here.

WHEELER:

One thing that's interesting about the Trump administration here in the precision of the endangerment finding is that they don't fundamentally question climate change anymore. In the news releases about this, Trump repeats his green news scam and continues to doubt the existence of climate change, but ...

GREACEN:

The head of the EPA called climate change a religion in their announcement.

WHEELER:

Yeah, but in the legal notice, the Trump administration fundamentally admits that climate change exists because they know that if they were to deny climate change and its effects on health and human safety as a basis for getting rid of this, they would be laughed out of court. So we're at least becoming, silver lining.

SIMMONS:

"I feel like climate change exists, but we can't do anything about it" is not the way I was looking for.

GREACEN:

It isn't, but it's a lot better than usurping reality at that fundamental level and embedding it in statute. Okay, not statute, but regulatory.

SIMMONS:

So speaking of reality, let's let's talk about exactly the basis on which they're rescinding. Because what the Clean Air Act says, section 202 a1 of the Clean Air Act says the administrator shall by regulation prescribe emission standards for any air pollutant from any class or classes of new motor vehicles or motor vehicles. Which, in the administrator's judgment, cause or contribute to air pollution, which may reasonably be anticipated to endanger public health or welfare.

And what Obama's administration said was that greenhouse gases impact the public health and welfare by causing climate change, and what the Trump administration is now saying is that when Congress passed the Clean Air Act in 1970 and they gave this broad definition of "air pollutant" and they said anything that impacts the public health or welfare. They pre-carved out greenhouse gases as one of the kinds of air pollution that we should all be worried about ... that they couldn't have possibly meant this and therefore we're not going to regulate it.

And I I just I want everyone to take a step back and think about what that implies. They're saying is that even as climate change is real and even as we admit that we can't say that climate change isn't real in this document because we would be laughed out of court, because the scientific evidence is so overwhelming, we think that the Clean Air Act -- the act which is supposed to be protecting us from air pollution -- can't be used to regulate it.

It's a really cynical, depressing announcement in some ways, and I just I don't know ... I find myself shocked by the cynicism and the just ... we don't want to try. Not even we think we should do it a different way, but we we don't want to try.

GREACEN:

And the law says we can't now, suddenly.

It reminds me a lot of the way, frankly, the 13th, 14th and 15th amendments, which were passed after the Civil War to build a new constitutional order for an America based on freedom and equality, were repurposed within a decade for to advance not this, the citizenship of Black Americans, the personhood and citizenship of corporations. It's, as you said, Matt, deeply cynical, and incredibly frustrating.

But I have some hope that it may take some decades, but these things can be untangled in terms of putting back together a legal system that would actually make sense. What concerns me so much is the amount of harm that's likely to happen in the next couple of decades, if we don't put in place some substantial restrictions on our pollution. And so just to put a point on it, what is left, assuming that this endangerment finding goes forward and is upheld by the Supreme Court's now empowered majority that was basically the minority in that Massey EPA case, once they uphold this, what is left for a democratic president and Congress to move forward again.

WHEELER:

Well, the answer that I would give to my class is that, in theory, Congress can move forward and issue a statute specifically to address climate change, which we kind of did in the Inflation Reduction Act. But that presumes a Congress that is functional, which is not true anymore.

GREACEN:

It means we got to ditch the filibuster. It means a lot of things that ...

SIMMONS:

The Inflation Reduction Act was all carrot, right? It was all, here's some money to buy an electric vehicle, here's some money to buy a home solar panel system. But what was helpful about the Clean Air Act and using regulations to require more fuel-efficient vehicles or vehicles that were electric was that it was the stick, that it was the other half of this that we need, particularly when there's this organized opposition to any sort of climate action in our country.

WHEELER:

Well, but maybe that was the genius of the Inflation Reduction Act, which was, Hey, we don't really, we are not going to try to have an antagonistic relationship with you energy producers. We know that you're just like a market.

SIMMONS:

Like, uh, you know they repealed it, right? In the big beautiful-

WHEELER:

Okay!

SIMMONS:

So it didn't really work.

WHEELER:

Well, this goes this goes back to us us meeting our our emissions reduction ...

GREACEN:

Let's see the way I'm looking at time. I know, okay ...

WHEELER:

... on actually reducing emissions from stationary sources?

SIMMONS:

Well, no, it's both. You need both. I would never argue that you should only have one. But the idea that we would cede the ground, that you could only have carrots, I think is a problem.

WHEELER:

Yeah, I think politically it's easier to have carrots. Politically, it's easier to do.

SIMMONS:

I think.

GREACEN:

Right, that's the problem, and we've got to find a political path to effective solutions, whether they're politically easy or not, that we've got to get to the effective ones. And that means actually doing something about pollution, otherwise it's Altadina and Eaton from here on out.

WHEELER:

All right, well, if I mean, if we need to have a political solution, we need to win elections.

And by we, I mean, environmental voters, not necessarily Democrats, but we've been largely beholden to the Democratic party because the Republican party has abandoned environmental voters, but, but we need to win elections and we're not, we, we didn't do that in the last election. And so like I, I, that fundamentally that that's where we are is that we need, we need to win elections. We want climate action, but we also need elections.

GREACEN:

We need some, I think, theory of the case here. And it's pretty obvious that the Republican Party's radical commitment to this Trump agenda, it's wholesale, all in, every member of the party votes for everything, and the extreme pace and extent of these changes does not reflect an underlying mandate in terms of the popular vote, in terms of the American voter. So there are some deeper problems here. Our challenge is not just to win elections, but to restructure American politics so that it's not constantly sliding right and never moving left.

WHEELER:

Get on it, everyone. So I think that we've danced around this a little bit. And we had a 5-4 majority in Mass v. EPA saying that greenhouse gases were air pollutants under the Clean Air Act. And therefore, the EPA had an obligation to come up with an endangerment finding. They could come up with. The Supreme Court didn't prescribe that these were a danger to health and human welfare. Since then, we've had a significant shift in the Supreme Court. Now we have a 6-3 conservative majority on the Supreme Court. Matt, do you think that the Trump administration's efforts here are going to be blessed by the Supreme Court?

SIMMONS:

Yes, call me cynical, and I know that my friends at NRDC and Earthjustice are already writing their complaints to file lawsuits on this, but the current composition of the Supreme Court has repeatedly, I mean, they did this in West Virginia v. EPA, which was another climate change case, has repeatedly said we are going to drop traditional statutory interpretation whenever the EPA or the federal government tries to do anything about climate change. We're going to invent new doctrines, like the major question doctrine or the political question doctrine out of whole cloth in order to get to the end result that we want, and I don't see any evidence that this would be a different case. In fact, in this rule, the EPA repeatedly says, hey, we think we can do this now because the Supreme Court has continuously signaled that we can do something like this now.

I actually just taught this to my class yesterday, and it's hard for me to not sound incredibly cynical when talking about the major questions doctrine. One of my law professors in school referred to this as Calvinball, right, because it's just changing the rules as you go, and I think that we were talking about how we need to win elections. We also need to turn over the Supreme Court and have some actual jurists.

WHEELER:

You turn it over to the Supreme Court by way of ...

SIMMONS:

I am aware. I'm just saying that it's a multifaceted problem.

GREACEN:

And can I just underscore the challenge here? I want to note that the authors of the 5-4 majority in Mass v. EPA were Justice Stevens, Kennedy, Souter, Ginsburg, and Breyer, none of whom are on the court today.

WHEELER:

I think only one of them is still alive.

GREACEN:

Yeah, but they're not on the court. The dissent, which as Matt noted, was scathing, was authored by Scalia and by Roberts. Thomas and Alito joined both those dissents. All four of them are still on the court. They are the core of the six ...

WHEELER:

Scalia is not still on the court.

GREACEN:

Oh, sorry. Okay, so three of the four are still on the court. And Scalia has been replaced by Kavanaugh. And we've got six, six votes for that dissenting position.

SIMMONS:

Even if you flipped Amy Comey Barrett, who seems to currently be the swing on a lot of these issues, it would still be 5-4. I mean, that's the. So again, please, Justice, very excited for your lawsuit. And I will read the complaint when it comes out. And I'm going to talk about it probably on this radio show and with my class. But the fact is that the Supreme Court is run by political entities, I was going to say hacks, but maybe that's a little too rough, who are making special cases when they don't want the EPA to regulate something.

GREACEN:

So my hunch is we'll see this come up for Supreme Court decision just in time to put additional restraints on a new Democratic administration.

WHEELER:

All right, China, I guess it's up to you to save us in the planet. Well, no, no, no, manufacturing all those solar panels and states for them across the world.

SIMMONS:

California is going to keep pushing forward. We have cap and invest. We have our own CAFE standards, which we are fighting the Trump administration on right now to keep. We're the fifth largest economy in the world. And so I think that the federal government can try to hold us back in the 1850s and 60s, but a lot of Americans don't want to do that. And I think we can, we can be part of that push.

GREACEN:

And a Supreme Court that is wildly out of sync with the culture it purports to govern will not persist. And it's very clear that Congress can do things to limit the power of the court. A lot of us now think that it should do those things. I think that consensus is going to build.

WHEELER:

Well, this has been another enlightening and depressing issue of the Econews Report. Thank you to my law nerds, Scott and Matt, for joining me. And join us again next week for more environmental news from the north coast of California.