In the 2009
Endangerment Finding, the U.S. Environmental Protection Agency (EPA) confirmed that the current and projected concentrations of six key well-mixed greenhouse gases in the atmosphere threaten the public health and welfare of current and future generations.
Recently, President-elect Trump
picked Lee Zeldin to lead the EPA and a Republican-controlled Senate subsequently
confirmed Zeldin's appointment. More recently, in an
EPA news release, Zeldin said that President Trump’s
Executive Order gave the EPA Administrator a deadline to submit recommendations on the legality and continuing applicability of the 2009 Endangerment Finding. Having submitted these recommendations, the EPA can now announce its intent to reconsider the 2009 Endangerment Finding.
Patrick Parenteau, Professor of Law Emeritus, Vermont Law & Graduate School,
comments that for Zeldin to revoke the Endangerment Finding, procedures must be followed and that could take months, while lawsuits will immediately challenge the move. Even if Zeldin is able to revoke the finding, that does not automatically repeal all the rules that rely on it. Each of those rules must go through separate rulemaking processes that will also take months. To the extent that Zeldin is counting on the conservative Supreme Court to back him up, he may be disappointed. In 2024, the court overturned the
Chevron doctrine, which required courts to defer to agencies’ reasonable interpretations when laws were ambiguous. That means Zeldin’s reinterpretation of the statute is not entitled to deference. Nor can he count on the court overturning its
Massachusetts v. EPA ruling to free him to disregard science for policy reasons.
Dictatorship versus democracyNonetheless, it is worrying if a President, backed by the Senate and through appointment of judges and heads of agencies such as the EPA, is able to effectively act like a dictator. It is even more worrying to see this happen in a country like the U.S., which after all has long taken great pride in having replaced the rule of a monarch by "We, the people" and having put in place many safeguards to avoid arbitrary rule, safeguards such as separation of powers, delegation of decision-making to lower governments and inclusion of clauses in the Constitution to protect fundamental rights of life, liberty and the pursuit of happiness, next to the right to vote and equal right to justice.
The War for Independence from the British Monarchy ended in 1783 by the
Treaty of Paris, in which 'His Brittanic Majesty' acknowledges the United States to be free sovereign and Independent States. This was followed by the
United States Constitution, which in its first three words – 'We The People' – affirms that the government of the United States exists to serve its citizens, while the Constitution also separates the government into three branches to prevent any one branch from becoming too powerful.
The need for policies to comply with best available scienceThe current situation should act as a wake up call. This is not merely a debate about interpretation of law or following a political ideology. This touches everyone and everybody should get involved in efforts to do the right thing. Dictatorship in itself is bad enough, but it's even worse when it serves climate change denial. The danger of climate change is real and this reality can and must compel any government, whatever its ideological background, to look for and adopt policies that are in line with best available science. This constitutes a necessity that, where there appears to be a conflict, must overrule even what the Supreme Court, the President or Congress may decree—something so obvious that people at the time didn't see a need for it to be enshrined in the Constitution. People did clearly recognize the importance of putting in place safeguards against arbitrary rule, but clearly more should be done now.
Principles for all to followIn many Commonwealth jurisdictions, the provision for laws to be for the
peace, order and good government is highlighted in their constitution, defining the principles under which legislation must be enacted by the respective parliament. As an example, the
Australian Constitution vests the legislative power of the Commonwealth of Australia in its Federal Parliament, stating that Parliament has the power, subject to this Constitution, to make laws with respect to matters such as taxation, bounties, trade and commerce, while highlighting that such laws must be for the peace, order and good government of the Commonwealth. Surely, "good government" comes with the imperative for all three branches of government (legislative, executive and judicial) to accept the dangers of climate change and act accordingly.
Europe has long embraced the principle of
subsidiarity (preference for decision-making to occur at the lowest level of authority capable of addressing the issue, thus promoting local autonomy and participation). Additionally, some nations have ensured that the duty for government to support the environment is enshrined in their constitution, e.g. in the Netherlands, article 21 of the
Constitution imposes the duty on government to keep the country habitable and to protect and improve the environment.
For the sake of democracy and the urgent need to act on climate change, good principles must be adopted and followed. Scientists should follow principles when doing research. Journalists should follow principles when writing reports. Politicians should implement forms of democracy that support decision-making at local level. Local areas can best develop sets of local feebates and institute Local People's Courts in which randomly-chosen local residents deliver verdicts to ensure that policies are indeed in line with best available science. Where needed, progress with climate action should be supported by a Climate Emergency Declaration.
Climate Emergency DeclarationThe situation is dire and the precautionary principle calls for rapid, comprehensive and effective action to reduce the damage and to improve the situation, as described in
this 2022 post, where needed in combination with a Climate Emergency Declaration, as discussed at
this group.
