This is Bloomberg Law with June Grossel from Bloomberg Radio.
Effective immediately, We're repealing the ridiculous endangerment finding and terminating all additional green emission standards imposed unnecessarily on vehicle models and engines between twenty twelve and twenty twenty seven and beyond.
It's the most aggressive move by President Trump to roll back climate regulations. His administration has revoked a key scientific finding that's been the central basis for US action to regulate greenhouse gas emissions and fight climate change. It's undoing what's known as the endangerment finding, or ruling from the EPA in two thousand and nine under former President Obama that carbon dioxide and other greenhouse gases threaten public health and welfare. But Trump says it's all a scam.
Don't worry about it because it has nothing to do with public health.
This was all a scam, giant scam.
Former EPA administrator Gena McCarthy says the endangerment finding wasn't a political decision. It was the result of a Supreme Court ruling that ordered the EPA to conduct an extensive scientific process to review whether climate change was a hazard to health and the environment.
They are trying to make us think that the endangerment finding it can be nullified just because they wanted to, not because the science says so. Are the laws allowed this to happen.
Environmental scientists and experts say that revoking the finding could have generational impacts and may speed up the negative effects of climate change. Attorneys general representing Blue states, environmental groups, and healthcare groups say they're planning to sue over the revocation. Joining me is Michael Gerard, a professor at Columbia Law School and director of the Saban Center for Climate Change Law. Will you explain the endangerment finding?
So?
The Supreme Court said in two thousand and seven that if EPA finds that greenhouse gases posed an endangerment to public health and welfare, EPA has the authority to regulate them under the Clean Air Act. In two thousand and nine, EPA issued that endangerment finding, and since then, especially under Presidents Obama and Biden, EPA has been regulated greenhouse gas emissions.
What are their reasons for rescinding the endangerment finding?
They said that it was beyond the authority of EPA actually to be doing this to be regulating greenhouse gases, even though the Supreme Court said they could do that. Now the Trump administration is saying, no, they can't, that it's such a big issue, an important issue. THATA does and have the authority in less. Congress explicitly says that they can do that.
And what's the real reason, I mean, what's the reason behind the Trump administration rescinding it.
The Trump administration is all about maximizing the demand for and the supply of fossil fuels. Regulation of greenhouse gas emissions gets in the way of that, and so the particular regulations they're most focused on were moving toward more electric vehicles, which are the main source, the main threat to the demand for oil. President Trump says he doesn't really believe that climate change is happening, or that it's
caused by humans, or that it's very bad. So I think that's one of the reasons behind what they're doing. And they think it's bad for the economy to fight climate change.
How long have scientists been convinced that greenhouse gas emissions caused by humans hurt the public's health.
The first science on this was emerging in the late nineteenth century. But I would say, it's fair to say that by the late nineteen eighties or early nineteen ninety there was a general scientific consensus about the science of climate change. When EPA issued the Endangerment Finding in nineteen eighty nine, there was a ton of evidence. There's now ten tons of evidence about climate change.
Is the Endangerment Finding considered sort of the keystone for our environmental regulations? In other words, everything else depends or rests on it.
Everything that EPA does under the Clean Air Act depends on the Engagement Finding. There's some other authorities that the administration has, but it's it's certainly by far the most important one.
Have they gone through the proper procedures for revoking the Endangerment Finding?
Well, they did an out say draft plan, and they opened it up for public comment, and they then issued the final one. So in broad strokes, I'm sure there will be challenges to some of the details of the procedures that they use, such as did they respond in enough detailed all the many public comments that were provided.
The now disbanded Climate Working Group that wrote the report was deemed unlawful in January by a Massachusetts federal court because the group met in secret does that have any bearing on the legality of this recision of the endangerment finding.
EPA's initial proposal was to, among other things, rely on that report and otherwise say they don't believe climate science, or they don't believe that climate change is nearly as bad of the report you mentioned, who was roundly debunked by the scientific community, including the National Academy of Sciences. A federal court, as you said, declared that the committee was unlawfully formed, but the Department of Energy disbanded the group, and in this new report, they do not rely on it,
and they in fact don't deny the climate science. They're issuing this decision without saying we are wrong that climate change is horrible. Okay, maybe it's horrible, but we just don't think it's a legal matter that EPA has the authority to regulate it.
Democratic attorneys general, environmental advocacy groups, medical groups say they're going to sue over this revocation. Can you give us an idea of what the attack might be in the courts.
So, in two thousand and seven, the Supreme Court issued this landmark decision Massachusetts versus EPA. They clearly said that greenhouse gases are air pollutants within the meaning of the statute, and that if EPA finds the danger, they have to regulate.
The administration is now going contrary to that. They're relying on some new legal doctrines, especially something called the major questions doctrine, that even if the words of the statute allow an agency to act, they can't unless Congress is really really explicit if it's something of large economic and political significance. So that's going to be one of the major arguments that will be made before the courts.
Do you think the aim here is to get the Supreme Court to reverse its finding in that Massachusetts v. EPA case.
Yeah. I think that the Trump administration, or at least some of its supporters, do want the Supreme Court to either reverse the finding in the Massachusetts case or construe it very very narrowly so that it no longer means much.
We're in year two of the Trump administration. Could the lawsuits outlive the administration.
In the ordinary course at the first stage at the Court of Appeals, it could take easily a year you're in a half to get a decision, and then another year or you're and a half to get a decision from the Supreme Court, so that could outlass the administration. However, it's also possible that the Supreme Court will take this on an expedited basis, which they have done from time to time, in which case it could all happen much faster.
And so, if it happens and the next administration to come in is democratic administration or an administration that believes in climate science, et cetera, et cetera, would it be easy or difficult to sort of put it back together.
That depends on the way the Supreme Court rules. There are some ways that the Supreme Court could uphold what Trump is doing, but not do it so broadly that it would prevent the next administration from acting. There are other ways that they could uphold the withdrawal of the engangement finding. That would mean the administration could not use the Clean Air Act for climate change unless they get explicit authorization from Congress.
Will this affect the state's ability to regulate pollution?
The federal government has exclusive authority to regulate motor vehicle emissions unless Congress gets a special waiver, which has been taken away. However, the states have comple control over stationary sources like power plants and factories and so forth. So this does not affect the ability of states to have stronger pollution controls on everything but motor vehicles.
This could turn out to be a red state blue state controversy, with the blue state suing and the red states supporting the administration's actions. Why should this be a blue state red state divide.
Well, it's a combination of things. They right now, the Republican Party, as a matter of its doctrine, doesn't believe in regulation of climate change, and the Democrats do. And so in all these lawsuits you have the red states on one side and the blue states of the other. I mean the underlying There are lots of different underlying reasons. Some of it is the economies of the state, some as some of its ideological reasons. That's a whole other conversation.
So it was the Saban Center that came out with these stats that the EPA has already taken more than forty deregulatory actions so far in this second term, compared to almost sixty during the first term. So are they moving quicker.
Yes, they are. They're being much more aggressive in the second Trump administration than in the First, we have a website called the Climate Backtracker that keeps track of all of this. But Trump two is moving a good deal faster than Trump one.
They're moving faster. Are a lot of their moves being held up in court or not yet.
So a lot of their moves in cutting back on funding have been held up in court and at the district court level, and some of that has been reversed by the appellic court, some of it hasn't here. Most of their regulations substance of regulations as opposed to the funding haven't gotten far enough along for there to be really litigation. This is one of the first things that they have done that has gone all the way through the rulemaking process and now is ripe for On.
A scale of one to ten in terms of damage to the environment, how would you rate the seriousness of this revocation?
I'd probably give that an eight, because if it survives, it does take away the Clean Air Act. But there are still other tools that can be used to fight climate change. Despite the opposition by the Trump administration, people are still opening a lot of solar farms and wind farms, and buying electric vehicles and doing lots of other improving energy efficiency, doing lots of other things that also help fight climate change wholly apart from the Clean Air Act?
Is the footprint of the EPA smaller? Is the staff smaller? In other words, is the EPA shrinking?
Yes, EPA is shrinking, so are the is the environmental unit in the Department of Justice which helps enforce the laws. So the Trump administration has worked very hard to diminish the effectiveness and size authority of EPA.
Thanks for joining me today. That's Professor Michael Gerard of Columbia Law School. He's the director of the Saban Center for Climate Change Law. Suing people is not new for
President Trump. Long before he became president, he used litigation as a tool, filing at least sixteen hundred civil lawsuits against individuals and businesses, and since taking office for the second time, Trump has filed suits seeking billions of dollars against several news organizations, including The New York Times and The Wall Street Journal, JP Morgan Chase and its CEO, Jamie Diamond. The pullets are Board, and even the IRS
and the Treasury. Now, when Trump was sued by two co founders of his social media company, he asked a Delaware Court to either dismiss the case or delay it by four years, saying that having to defend the lawsuits would be a distraction from his presidential duties, even though turnabout is supposedly fair play. That argument hasn't worked for the defendants being sued by Trump. So far, at least, no court has delayed one of Trump's lawsuits because it
would distract from his presidential duties. Joining me is constitutional law expert David Super, a professor at Georgetown Law.
Have we had a.
President before that's filed lawsuits? I mean, in so many different areas. It's against media companies, it's against banks, it's against the irs. It's a broad range.
It certainly is, And I am not aware of any president that has found time to litigate while in office. It's a rather big job. And presidents also, I think, have been sensitive that litigating while their president could send the wrong signals and interfere with their ability to lead the whole country. Trump has not embraced the idea of leading the whole country, so doing more partisan litigation has seemed to fit better with his approach.
The last case that I remember was the Clinton case. What kind of protection if any does the president have against civil suits while in office?
The president's very little protection against civil suits. The Supreme Court in Clinton.
Versus Jones upind that the president probably could do at least the basics of defending a case while in office, and allowed that case to proceed.
That case started the series of events that led to President Clinton's impeachment and certainly caused him enormous political damage. Whether Miss Jones was seeking to damage in politically or not, it's not clear, but that others eagerly piled on were so. In principle, it is not entitled to sweeping immunity. But President Trump has claimed that defending lawsuits would be unduly
burdensome to him now that he's president. It's not clear, though, how it's any less burdensome to bring a lawsuit than to defend one, and he seems to be making special rules just for himself.
I don't know that we've reached the point in any of these lawsuits where Trump has said, no, I can't do that deposition because I'm president and I'm too busy. But if that happens, what can a judge do?
The judge can dismiss the lawsuit, although at this point, the defendants will already have had to spend an enormous amount of money the laws. It may already have served its purpose of intimidation. Some of these lawsuits have no chance of winning anyway. He's suing news organizations for news stories that doesn't like. He's suing the Des Moines Register for a poll and a projection that he doesn't like. I don't even know what cause of action that is.
So these cases are not intended to win. They're intended to intimidate. So filing them, forcing the defendants to spend resources on them, rallying his base against the defendants, and then eventually dismissing them when he doesn't want to be deposed seems likely. Here the courts have authority to impose costs on him, but that's probably not that much of a deterrent.
I mean, there's also the fact that when you're sued by the president, there are different kinds of pressures. So you had ViacomCBS settling a lawsuit, and of course they had a pending merger to be approved.
Yes, and this is in the context of the president's unified executive theory, So in priorated ministrations this happened that if an add you could imagine the president saying, well, the people making the decision on your merger are independent from me, so they won't be influenced. But this administration has made the point that everybody in the executive branch
must be completely tuned in with the president's preference. So when he sues or threatens to sue a media organization that wants permission for a merger or for licenses of some kind, he is effectively telling them that they need to give him something in exchange for those licenses. It is a way of supposedly legitimating or legalizing bribe.
Why shouldn't some of these cases be put on hold until Trump's term is over? None of the judges have allowed any of these cases to be suspended during his presidency.
Well, it is true for both the president and people with Thames against the president, the statutes of limitations run.
So there's an argument that the president and private party should be allowed to file suits, but there should be then a freeze on the case until after the president leaves office, having the cases go forward selectively, having the president able to extract material and resources from defendants but not provide the same himself is manifestly unfair and civil litigation with rare exception is designed to treat both parties equally until we have a resolution of the case.
So you mentioned he's suing the IRS. He and his two eldest sons filed a lawsuit against the IRS and the Treasury seeking at least ten billion dollars in damages for the unauthorized disclosure of their confidential tax returns, and in an amicus brief challenging the suit, group of former high ranking government officials said it contains legal flaws and risks becoming conclusive litigation. As the president is suing the government he presides over, this suit hit me as the
most inappropriate. Is the IRS going to fight the president?
No? Again, The unified executive theory says that the president
absolutely controls the defense against the president's own case. There's no way this case can be legitimately litigated now, even if someone wanted to, and if it is litigated to judgment, a future administration could quite properly demand that the case be reopened and then any damage award be reversed and returned, because there will not be any true adversy here, just as when a prosecution is filed by someone who is controlled by the defendant and they throw the case and lose,
or when the jury was tampered with by the defendant, double jeopardy does not attach because there is never any serious risk of losing. In the same way here, the president's judgment would not be entitled to any weight because he controls the defense and never has any possibility of losing these cases.
The other thing in all these cases, particularly HRS case, is that how does he prove damages when his net worth has increased since he became president.
These cases are absurd on the merits. You don't need to know much about them to know that they are ridiculous. There's also serious questions about how he could show fault. The president again claims he runs the entire executive branch, who was president when these leaks occurred. Why he was so Perhaps he ought to sue literally himself for mismanaging the federal government during his first term. He's probably can
afford to pay himself whatever damages are appropriate. Here, the case is completely ridiculous, and one might be tempted to look for an exception if the case was completely compelling. The claim that Paula Jones filed against Bill Clinton. On its face was a serious claim, a plausible claim, and you could understand why she would need to file it
before the statute of limitations expired. If someone were to do something conventionally harmful to the president, to steal his car or something like that, then you could imagine why he might need to go to court. But these cases are obviously absurd.
I don't think I've ever used the word unseemly, but I was trying to think of how unseemly it is for the President of the United States to be suing so often for billions of dollars. It's sort of hard to comprehend why, except that he's trying to make a political point with these I mean suing, as you said, the Des Moines Register for a poll that didn't turn out to be right. If every politician sued over a pole that didn't turn out to be right, the court to be clogged.
And both Hillary Clinton and Kamala Harris would be very, very rich to say how they know Thomas Dewey. But the problem people have I'm not trying to understand this. I'm looking for American parallels, and that's wrong. They should look for international parallels because authoritarian leaders routinely use litigation to silence the press. You see this in numerous countries around the world, where media outlets simply cease to function because they know they'll be sued by the administration and
they will lose and they will be bankrupted. So they either never write about the administration or they move out of the country or the fold. And this country is following some very unfortunate precedents overseas. Just one more thing. The Constitution says the president shall draw a salary at regular intervals and shall not receive any further emoluments from
the States or the United States. And the term emoluments has been hotly debated, but broadly speaking, they're saying the president should work for a salary and a salary only. This is effectively a way of getting more money into the president's hand, which the framers very much did not want to happen. They wanted the president focused on the national good. And certainly, when he sues a justice department
that he controls, he's increasing his pay. But when he sues entities that need his executive brands to give them favors, he's also increasing his pay, and that's something the framer were acutely aware of. And forhibot It.
I've been talking to constitutional law professor David super of Georgetown Law. So the Solicitor General's Office during this second Trump term is filing unsolicited briefs. In other words, in the process of the Supreme Court deciding whether or not to take a case or not, they're filing these briefs. They're not really on areas that the United States or federal government is implicated, and they're on like policy matters,
like they're doing it more than any other administration. What are they up to?
The Lesser General's Office regards the Supreme Court as profoundly sympathetic to their mission and they're trying to get the most possible out of it. This is not something that happened in the nineteen sixties, when the War in Court was relatively liberal and we had a liberal It was understood that the Court handled what it wanted to handle, and there are many cases that were presented to the War in Court that it didn't take that history could
be very different if it had taken. This administration doesn't want to do the reverse. It has a majority that has proven very cohesive and quite reliable for them on all but a very small handful of issues, and is trying to move the ideological framework of law in its direction.
I read some people saying, well, the administration might be using up its capital with the Court, but I don't know if that's possible with this administration and this court with the six Conservatives.
Yeah, I think what they're doing here is trying to get cases pulled out of the pile. The Supreme Court gets an enormous number of cases, and there certainly are four votes out of the six Conservatives to brant review on any number of things that will advance the conservative agenda. This lesser general, I think, is trying to weigh in and identify cases that it wants special attention to, and
it's been fairly successful. If it was using up its capital with the Supreme Court, you would expect the Court to turn down some of these cases as a caution to the administration to stay and explain. But so far we've seen no indication that the Court is uncomfortable at all.
The Supreme Court has scheduled Friday, February twentieth as its next opinion day. Amid this global weight for a ruling that could invalidate most of President Trump's signature tariffs. The tariff clash is one of twelve cases that were argued in October or November and haven't yet been decided. Why do you think it's taking the justices so long to come to a decision In this case.
The oral argument went terribly for the administration. I mean, that's very clear. So I don't think there are five votes to give them a win, and the next best thing for them would be a delay. And the administration has argued, both in public and to some extent of the court that they need this power to extract concessions from other countries. And there may well be justices who
believe in the end they can't sustain this. But the longer they give the administration this authority, the more it can dissolve the tariffs as part of deals rather than as a judgment.
But it heard arguments November fifth on an expedited basis, setting a schedule that suggested an ultra fast ruling might be in the offing. Obviously it wasn't, but all we can do is wait and see. Thanks so much. That's Professor David super of Georgetown Law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts.
You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg