Category: Ecoperspectives

Introduction by Patrick Parenteau

Main Article by Adam Orford

Pseudo-Science and Bad Law: The Trump Administration’s Proposed Repeal of the Endangerment Finding

Patrick Parenteau, Emeritus Professor of Law, Vermont Law and Graduate School

On August 1, 2025, the Environmental Protection Agency (EPA) formally proposed rescinding the “endangerment finding” under the Clean Air Act (CAA).^[1] This is the finding that greenhouse gases (GHG) pose a danger to public health and welfare. The endangerment finding was issued in 2009 in response to the landmark Supreme Court decision in Massachusetts v. EPA holding that GHG were “air pollutants” subject to regulation under the CAA and that once, the EPA makes the endangerment finding, it has a mandatory duty to regulate all the major sources of GHG including power plants, motor vehicles, and a wide variety of industrial sources.^[2]

In addition to revoking the endangerment finding, the proposal seeks to rescind all GHG emission standards for new motor vehicles and engines. This rescission includes GHG emission standards for light-duty, medium-duty, and heavy-duty vehicles and engines for model years 2012 to 2027, and beyond. Separately, the EPA has proposed rescinding the GHG rules for power plants and published a rule extending the compliance deadlines for methane emissions from oil and gas production.^[3] Further deregulatory actions are expected.

In announcing the proposal, EPA Administrator Lee Zeldin stated the Trump administration’s intent to drive “a dagger through the heart of climate-change religion.”^[4] His proposal relies heavily on a new Department of Energy (DOE) report on the impacts of carbon dioxide emissions on the U.S. climate.^[5] The report was produced by the Climate Working Group convened by DOE Secretary Chris Wright and comprised of five “independent scientists” who are widely considered to be climate skeptics.^[6] Their draft report argues that human-caused climate change “might be less damaging economically than commonly believed,” and “aggressive mitigation strategies could be more detrimental than beneficial.”^[7]

In the accompanying commentary Professor Adam Orford provides a legal analysis of how the CWG violates the Federal Advisory Committee Act (FACA). Professor Orford also authored a detailed scientific critique on the DOE report that was signed by several environmental law professors and submitted as comments to the EPA.^[8]

In a related development, the Environmental Defense Fund and the Union of Concerned Scientists have filed suit in Massachusetts federal court seeking a declaration that the CWG violates FACA and an injunction prohibiting EPA from relying on its report. Plaintiffs have filed a motion for preliminary injunction, or a stay and expedited briefing is underway. A hearing before Judge Young is expected this month. Professor Orford’s analysis could prove helpful to the outcome of this case.

This repeal is more than a regulatory rollback; it is a willful abandonment of the scientific, legal, and moral foundations of environmental protection. But the fight to restore the integrity of the EPA’s mission has just begun. The courts will have the final say, and in the end, I am confident truth and justice will prevail.

When Platforming Climate Skepticism Breaks the Law

Adam Orford, Associate Professor of Law, Fordham University School of Law

On July 29, 2025, the U.S. Department of Energy (DOE) released a draft report titled “A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate.”^[9] The report was an exercise in climate science skepticism: contrary to an enormous body of more credible scientific work, it argued that climate change is minimally attributable to human activity, that the negative impacts of climate change are likely to be manageable and outweighed by beneficial effects, and that U.S. regulatory efforts to respond would not make a substantial difference in any event.^[10] It read more like talking points from a think tank than a federal science study.

The DOE’s report was immediately condemned as inaccurate and misleading by scientists from around the world.^[11] A group of researchers whose work the report had cited identified more than one hundred mischaracterizations and false statements contained in its pages.^[12] A later published rebuttal by over 85 scientists identified similar flaws.[13] In my own review, I identified examples of extensive cherry-picking, overgeneralization, analysis outside the scope of the authors’ expertise, self-citation, and failure to address research contrary to the authors’ preferred conclusions, as among its most important analytical deficiencies.^[14] In most respects, the report simply was not a credible scientific document.

Notwithstanding these technical deficiencies, however, and despite the fact that the DOE report was a draft that had never received outside review or public comment, the Environmental Protection Agency (EPA) relied on the DOE’s report extensively in its proposed decision to reverse the 2009 Endangerment Finding, eliminating the nation’s entire greenhouse gas regulatory program under the Clean Air Act, which was published on the same day the draft report was released.^[15]

In relying so heavily on the DOE’s report, however, the EPA seriously undermined its own efforts. As discussed below, the DOE solicited its report from five authors who have each spent much of their recent careers questioning the scientific consensus on climate change. In doing so, the DOE ignored the Federal Advisory Committee Act (FACA), which it was required to follow.^[16] Therefore, the EPA built its endangerment finding analysis on a report produced by an illegal federal advisory committee.

Federal courts have consistently required federal agencies to comply with FACA, have enjoined federal agencies from using advice produced in violation of FACA, and have held unlawful federal agency decisions based on such advice. Concerned litigants should have little trouble demonstrating that the same relief is justified in this case, which appears to be simultaneously the most blatant and most consequential FACA violation ever to have been perpetrated.

The “Red Team” Report: Federal Platforming of Climate Skepticism

On April 20, 2017, Steven Koonin, then a professor at NYU, published an op-ed in the Wall Street Journal arguing that climate science should be subject to a federal “red team” exercise, whereby a group of climate skeptics would “write a critique” of a consensus climate science assessment, and a “blue team” would then defend the assessment against that critique.^[17] Shortly afterwards, inspired by the op-ed, EPA Administrator Scott Pruitt began discussing how to initiate exactly such a process.^[18]

Analysts immediately raised concerns that the EPA’s “red team” plan “could politicize scientific research and disproportionately elevate the views of a relatively small number of experts who disagree with mainstream scientists,” and be used as a pretext for eliminating greenhouse gas regulation.^[19] Others quickly noted the “red team” approach was exactly the strategy employed by The Heartland Institute, a think tank heavily involved in supporting climate skepticism, in its “Nongovernmental International Panel on Climate Change” reports, which similarly tend to elevate climate skepticism over credible scientific debate.^[20] The Heartland Institute, for its part, encouraged the endeavor and sent the EPA a list of proposed members for the red team exercise, including among them Drs. John Christy, Judith Curry, Steven Koonin, and Roy Spencer—four of the five future authors of the DOE’s report.^[21]

Eventually, White House Chief of Staff John Kelly vetoed Administrator Pruitt’s efforts to conduct a red team exercise on climate science, fearing the spectacle would not go well.^[22] But the idea remained. Immediately after President Trump won the 2024 election, reports emerged that he was open to reviving the red team initiative.^[23] According to Steven Koonin, it would involve “four or five researchers on each side.”[24] However, no further reporting on the idea emerged. In July 2025 it was revealed that the DOE had hired Drs. Koonin, Christy, and Spencer as special government employees for undisclosed work,^[25] but nothing about their work was made public. When Dr. Christy was asked about his new role, he stated only that he was “just here to help as needed.”^[26]

In fact, Drs. Christy, Spencer, and Koonin, together with two others, had been recruited personally by Secretary of Energy Chris Wright in March 2025 to conduct a “red team” exercise in secret. Although public information is still scant, what is known is that in late March 2025, Secretary Wright developed a plan for the DOE to conduct such an exercise.^[27] He recruited Cato Institute policy director Travis Fisher to coordinate the effort,^[28] and then personally contacted five people he had pre-selected to author the DOE report, who collectively agreed to the project and were given the official title of the DOE’s “Climate Working Group.”^[29] Although the group worked intensively for several months to produce its report, that work was not publicly disclosed while it was occurring.^[30] The authors completed their work in May 2025, and it was immediately sent to the EPA to support its efforts to rescind the endangerment finding. The DOE report’s publication—and the announcement of the authors’ roles in writing it—was kept secret until the day that EPA released its endangerment finding proposal.^[31]

The members of the DOE’s “Climate Working Group”—Drs. John Christy, Roy Spencer, Judith Curry, Steven Koonin, and Ross McKitrick—are all members of what Dr. Spencer himself has recently called the climate science “red team.”^[32] They are current and former academics, well known for their vocal skepticism of various aspects of consensus climate science and policy:

• John Christy is a Distinguished Professor of Atmospheric Science and Director of the Earth System Science Center at the University of Alabama in Huntsville (UAH).^[33] He rose to prominence in the 1990s for his work on satellite data to build global temperature records, but became convinced that his satellite data showed that the earth was not warming as predicted.^[34] He has also argued that atmospheric temperatures are not as responsive to CO₂ as most scientists believe.^[35] He has frequently provided Congressional testimony opposing greenhouse gas regulation based on his beliefs, and has produced speeches and policy papers for think tanks associated with climate skepticism.^[36]
• Roy Spencer is a principal research scientist at UAH and Dr. Christy’s frequent research collaborator on satellite data projects.^[37] He has claimed that observed climate change is largely due to natural variability.^[38] Dr. Spencer has been very active with think tanks associated with climate skepticism, having served as a policy advisor for The Heartland Institute, as a visiting fellow at the Heritage Foundation, as a board member for the CO2 Coalition (formerly the George C. Marshall Institute), and as a senior fellow for the Cornwall Alliance.^[39]
• Judith Curry is Professor Emeritus and former Chair of the School of Earth and Atmospheric Sciences at the Georgia Institute of Technology.^[40] After producing a great deal of mainstream scientific research, she became known for her increasing critiques of academic culture and her emphasis on the uncertainties of climate impact prediction.^[41] Dr. Curry has been particularly noted for her influence on online media discourse around climate skepticism,^[42] and has contributed to events and publications by think tanks associated with climate skepticism.^[43]
• Steven Koonin is a former professor, former chief scientist at BP, and former Under Secretary for Science at the DOE, and is currently a fellow at the Hoover Institution at Stanford.^[44] He first rose to national prominence for challenging questionable cold fusion research claims in the late 1980s.[45] Today, he is best known for his advocacy for a climate science “red team” project, and for his view that climate science is too uncertain and unsettled to form the basis of federal policymaking.^[46]
• Ross McKitrick is a Professor of Economics at the University of Guelph in Ontario, Canada, and he is currently a senior fellow at the Fraser Institute, a Canadian think tank associated with climate skepticism.^[47] He is particularly concerned with developing statistical critiques of methods widely used to attribute observed warming to human influences,^[48] and has also been active in think tanks associated with climate skepticism for decades.^[49]

That is, the five authors of DOE’s “climate science” report have spent significant parts of their careers questioning broadly held views about climate science.^[50] Notwithstanding their efforts, their own views on climate science have not been widely accepted by the scientific community.^[51] Yet, they were selected as the sole members of the DOE’s “Climate Working Group” and wrote a report elevating their own “red team” minority views to the level of federal climate policy.

In their landmark book Merchants of Doubt, Naomi Oreskes and Eric M. Conway documented a process by which industry interests and industry-funded think tanks engage with academics and researchers to develop public relations campaigns casting doubt on policy-relevant scientific findings.^[52] Other researchers have since contributed to a deeper understanding of the social and political phenomenon of “climate denial” or “climate skepticism,” which has followed this strategy very closely.^[53] Of particular interest, in recent years many climate science skeptics associated with such think tanks have shifted away from contesting that climate change is occurring or that human beings are causing it, toward contesting the magnitude of future harm projections and the appropriateness of various policy response options.^[54] These frameworks seem apt for describing the production of the DOE’s report. Yet Oreskes and Conway did not identify any example exactly as brazen as what the DOE and the EPA have done in this case.

The modern phenomenon of “platforming” means to provide a media platform that facilitates the promotion and dissemination of misinformation or extreme or marginalized views, often in the guise of promoting robust debate over a controversial topic.^[55] The “red team” idea was perceived, correctly, as an effort to platform climate science skepticism. When Congressional committees stack witness lists with skeptics of climate science, they are platforming. When The Heartland Institute organizes a climate conference exclusively for skeptics of climate science, it is platforming. When the DOE solicits a climate science report exclusively from climate skeptics, the DOE is platforming. Similarly, when the EPA adopts that report as if it were the best scientific information available to it, it is platforming as well.

Congress, however, is free to platform. So is The Heartland Institute. The DOE and EPA, however, are federal agencies subject to federal laws regarding not only the content of and rationale of their decisions, but their solicitation of outside opinions in any manner that might influence those decisions. Federal agency platforming of climate skepticism is illegal.

DOE’s Report Is an Illegal FACA Violation, as Was EPA’s Reliance on It

The Federal Advisory Committee Act^[56] was adopted to address government waste and to counteract the capture of federal advisory committees by special interests.^[57] Consequently, Congress restricted the executive’s authority to create and rely on advisory committees, and imposed stringent transparency and accountability requirements on such committees’ operations.^[58] FACA applies to any “committee, board, commission, council, conference, panel, task force, or other similar group” that is “established or utilized by” a federal agency “to obtain advice or recommendations” by that agency or its officers.^[59] Such advisory committees must be managed according to FACA, its implementing regulations,^[60] and, in the DOE’s case, the DOE’s Advisory Committee Management Program policies.^[61]

The DOE’s “Climate Working Group” was an advisory committee. The DOE’s report itself discloses that its members were selected personally by the Secretary.^[62] The group’s purpose, as evidenced by the identity of its authors, the circumstances of its creation, and the structure of its discussion, was to advise and provide recommendations to the DOE and EPA on how to select and communicate justifications for the DOE’s, EPA’s, and the current presidential administration’s, preferred climate policies and regulatory decisions.^[63] The DOE report accomplished this purpose not simply by reporting facts, but by selectively presenting and promoting the authors’ opinions, with the potential for, and evident purpose of, the DOE’s and EPA’s future adoption and use of those opinions as their own.^[64]

The “Climate Working Group,” furthermore, was not exempted from FACA.^[65] The group was not a national intelligence committee, was not exempted from FACA by statute, and was created by the DOE, a federal entity.^[66] The group was not a meeting of attendees assembled to “provide individual advice to a Federal official(s)” or to “exchange facts or information with a Federal official(s).”^[67] The group was not “composed wholly of full-time or permanent part-time officers or employees of the Federal Government.”^[68] Nor was it a local civic group, a group established to advise state or local officials, or a group established by or on behalf of a foreign country.^[69] Finally, the group had no “operational” function, and therefore was not “primarily operational” in nature.^[70] Non-exempt advisory committees must be formed and operated pursuant to FACA.

Yet, there is no evidence that any of FACA’s requirements were followed in the Climate Working Group’s formation or operation.^[71] The group therefore was formed and operated in violation of FACA.

Of particular concern, FACA regulations require the appointment of a “fairly balanced membership, as appropriate based on the nature and functions of the advisory committee, as documented through the agency’s Membership Balance Plan (MBP).”^[72] But, as discussed above, the members of the Climate Working Group all represent a single shared “red team,” climate skeptic perspective regarding the aspects of climate science they advised on. Their inclusion, together, as the exclusive authors of a scientific advisory report therefore represented a lack of membership balance and indicates they were, in fact, chosen precisely to avoid such balance.^[73] This lack of membership balance may also be indicative of the committee’s intended advisory function.

The DOE’s report itself also states that the authors agreed to draft the report only “on the condition that there would be no editorial oversight by the Secretary, the Department of Energy, or any other government personnel.”^[74] While this was framed as a protection of the group’s independence, in this case it appears also to reflect an attempt to protect the authors from engagement with qualified experts at the DOE and elsewhere. The legal way to protect advisory committee independence is to adhere to FACA’s requirements.^[75]

Failure to comply with FACA should render all of the advice and opinions provided to the DOE in the DOE’s report unusable for purposes of federal policymaking and decision-making. Concerned litigants would be justified to seek a use injunction on that basis.^[76] If at any point in the future the DOE’s, or any other federal agency’s, policymaking or decision-making incorporates, adopts, or refers to positions taken in this report, courts would be justified in concluding the department or agency has improperly relied on the report, and in reversing the Department’s or other agency’s actions on that basis.

And yet, it is clear the EPA relied extensively on the DOE’s report in crafting its justifications for its rescission of the endangerment finding. On the same day the DOE’s draft report was released publicly, and prior to the opportunity for any public comment, the EPA cited the DOE’s report repeatedly in its proposed rescission rule, treating the DOE report as a central scientific justification for the EPA’s action.^[77] Even lacking any other legal inadequacies, the EPA’s reliance on the report in this likely fashion violated the Administrative Procedure Act, which requires federal agencies to base their regulatory decisions on credible scientific information.^[78] But given its heavy reliance on the DOE report, the EPA itself should be deemed to have violated FACA for relying on the work of an illegal advisory committee formed in secret by a partner federal agency.

The climate science that formed the basis of the EPA’s original endangerment finding has only grown stronger in the years since 2009. To produce a report contradicting this enormous body of evidence, the EPA and DOE had no choice but to “disproportionately elevate the views of a relatively small number of experts who disagree with mainstream scientists,” as the original critics of the “red team” proposal feared. Fortunately, FACA forbids this, and, again perhaps fortunately, by violating FACA, the DOE and EPA have rendered their subsequent decisions vulnerable to legal attack. The courts should act swiftly to prevent the EPA from using such flawed science to justify its ongoing deregulatory initiative.

[1] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36288 (proposed Aug. 2, 2025) (to be codified at 40 C.F.R. pts. 85–86, 600, 1036–137, 1039).

[2] Massachusetts v. EPA, 549 U.S. 497 (2007).

[3] Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units, 90 Fed. Reg. 25752 (June 17, 2025) (to be codified at 40 C.F.R. pt. 60); 40 C.F.R. pt. 50 (2025).

[4] Press Release, EPA, ICYMI: Administrator Zeldin in WSJ: “EPA Ends the ‘Green New Deal’” (Mar. 17, 2025).

[5] U.S. Dep’t. of Energy, A Critical Rev. of Impacts of Greenhouse Gas Emissions on the U.S. Climate (2025).

[6] Dep’t of Energy, Department of Energy Issues Report Evaluating Impact of Greenhouse Gasses on U.S. Climate, Invites Public Comment (July 29, 2025).

[7] U.S. Dep’t. of Energy, A Critical Rev. of Impacts of Greenhouse Gas Emissions on the U.S. Climate ix (2025).

[8] Adam D. Orford et. al, Comment Letter on Proposed Rule for the Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards (Aug. 25, 2025).

^[9] Notice of Availability: A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, 90 Fed. Reg. 36150 (Aug. 1, 2025).

^[10] Contra Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), Climate Change 2021: The Physical Science Basis (Masson-Delmotte et al. eds. 2021) (summarizing the full body of scientific research establishing a connection between human activities and climate change); Contribution of Working Group II to the Sixth Assessment Report of the IPCC, Climate Change 2022: Impacts, Adaptation and Vulnerability (Pörtner et al. eds. 2022) (summarizing the full body of scientific research establishing the enormous likely future harms caused by climate change); Contribution of Working Group III to the Sixth Assessment Report of the IPCC, Climate Change 2022: Mitigating Climate Change (Shukla et al. eds. 2022) (summarizing the full body of scientific research establishing the manner in which those harms can be avoided, and the important role of law and policy in achieving those aims); see also U.S. Global Change Research Program, Fourth National Climate Assessment (2018).

^[11] Paul Voosen, Contrarian Climate Assessment from U.S. Government Draws Swift Pushback, Science (Jul. 30, 2025, 5:45 PM); Manon Jacob, US Energy Department Misrepresents Climate Science in New Report, AFP Fact Check (Aug. 1, 2025, 5:42 PM); Maxine Joselow & Brad Plumer, Energy Dept. Attacks Climate Science in Contentious Report, N.Y. Times (Aug. 2, 2025).

^[12] Ayesha Tandon et al., Factcheck: Trump’s Climate Report Includes More Than 100 False or Misleading Claims, CarbonBrief (Aug. 13, 2025).

[13] Climate Experts’ Review of the DOE Climate Working Group Report (Andrew Dessler & R.E. Kopp, eds., 2025).

^[14] Adam D. Orford et. al, Comment Letter on Proposed Rule for the Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, at 14 (Aug. 25, 2025).

^[15] Proposed Rule: Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36288 (Aug. 1, 2025).

^[16] 5 U.S.C. § 1001 et seq.

^[17] Steven Koonin, A ‘Red Team’ Exercise Would Strengthen Climate Science, WSJ: OPINION (Apr. 20, 2017, 6:49 PM).

^[18] Emily Holden, Pruitt Will Launch Program to ‘Critique’ Climate Science, POLITICO: E&E NEWS (June 30, 2017, 8:10 AM).

^[19] Id.; see also, Richard B. Rood, Red Team-Blue Team? Debating Climate Science Should Not Be a Cage Match, DeSmog (Aug. 18, 2017, 4:08 PM).

^[20] Graham Readfern, EPA Chief Pruitt’s ‘Red Team’ on Climate Science Is an Eight-Year-Old Talking Point Pushed by Heartland Institute, DeSmog (Jun. 13, 2017, 10:37 AM).

^[21] Kert Davies, Heartland Institute’s Climate Red Team Lists Revealed, CLIMATE INVESTIGATIONS CENTER (Oct. 25, 2017).

^[22] Rob Bavender, Climate Science Debate ‘On Hold’ after White House Meeting, POLITICO: E&E NEWS (Dec. 15, 2017, 8:08 AM); Lisa Friedman & Julie Davis, The E.P.A. Chief Wanted a Climate Science Debate. Trump’s Chief of Staff Stopped Him, N.Y. Times (Mar. 9, 2018).

^[23] Scott Waldman, Trump Allies Want to Resurrect ‘Red Teams’ to Question Climate Science, POLITICO: E&E NEWS (Nov. 20, 2024, 6:33 AM).

[24] Id.

^[25] Maxine Joselow, Trump Hires Scientists Who Doubt the Consensus on Climate Change, N.Y. Times (Jul. 8, 2025); Hannah Northey & Christa Marshall, Researchers Who Question Mainstream Climate Science Join DOE, CLIMATEWIRE (Jul. 9, 2025, 6:21 AM).

^[26] Andrew Freedman & Ella Nilsen, The Trump Admin Just Hired 3 Outspoken Climate Contrarians. Scientists are Worried What Comes Next, CNN: Climate (Jul. 8, 2025).

^[27] See Travis Fisher, Why I Helped Organize the Department of Energy’s Climate Report, The Fishtank: Free Market Insights on Energy Policy (Aug. 6, 2025) (Fisher is the Director of Energy and Environmental Policy Studies at the Cato Institute).

^[28] Id.

^[29] Benjamin Storrow, How Chris Wright Recruited a Team to Upend Climate Science, POLITICO: E&E NEWS (Aug. 11, 2025, 6:15 AM).

^[30] Id.

^[31] Id.

^[32] Roy Spencer, Some Thoughts on Our DOE Report Regarding CO2 Impacts on the U.S. Climate, Dr. Roy Spencer, Ph. D. Blog (July 31, 2025).

^[33] See UAH, John R. Christy Ph.D.

^[34] Elizabeth Royte, The Gospel According to John, DISCOVER: ENVIRONMENT (Feb. 1, 2001, 1:00 AM) (“Years ago he cast doubt on the idea that global warming is caused by humans— or that the phenomenon exists at all— and he has only grown more skeptical as most other atmospheric scientists have grown more certain.”); Dan Schwartz, The Last of the Climate Deniers Hold On, Despite Your Protests, VICE (Nov. 18, 2019, 11:15 AM) (discussing his career); Richard Banks, Alabama’s John Christy May Be the Country’s Best Known and Most Criticized Climate Change Skeptic, wbhm (Sep. 1, 2023) (“In the eyes of mainstream climate science, Christy’s and Spencer’s work has not aged well.”).

^[35] Marianne Lavelle & Dennis Pillion, When Trump’s EPA Needed a Climate Scientist, They Called on John Christy, Inside Climate News: Politics (Nov. 2, 2020) (“Christy argued that Earth’s climate simply wasn’t that sensitive to changes in carbon dioxide. So, neither the weakened federal standards, nor California’s tougher standards, which the Administration repealed as part of its rollback, would make any difference.”). See generally DeSmog: Climate Disinformation Database, John Christy (last visited Sept. 6, 2025).

^[36] See e.g., John Christy, The Global Warming Fiasco in Global Warming and Other Eco-Myths: How the Environmental Movement Uses False Science to Scare Us to Death (Ronald Bailey ed., 2002); John Christy, The Tropical Skies, Falsifying Climate Alarm, Global Warming Policy Foundation (2019); Testimony of John. R. Christy before the U.S. House Committee on Science, Space & Technology (Mar. 29, 2017); Testimony of John R. Christy before the U.S. Senate Committee on Commerce, Science, & Transportation Subcommittee on Space, Science and Competitiveness (Dec. 8, 2015).

^[37] ResearchGate, Roy Spencer (last visited Sept. 6, 2025); Roy Spencer, As Retirement Approaches…, Dr. Roy Spencer, Ph. D. Blog (Oct. 26, 2024) (explaining that he is reliant on funding tied to Dr. Christy’s projects and will likely retire when Dr. Christy retires in 2026).

^[38] His views have been discussed at, e.g., Paul Gattis, UAH Climate Expert Roy Spencer Calls Critics ‘Global Warming Nazis’; Anti-Defamation League Objects, AL.com (Feb. 26, 2014, 5:50 PM); Paul Gattis, 7 Questions with John Christy and Roy Spencer: Climate Change Skeptics for 25 years, AL.com (Apr. 1, 2015, 12:07 PM); Dana Nucitelli, A Revealing Interview with Top Contrarian Climate Scientists, The Guardian (Apr. 6, 2016, 9:00 AM). He also frequently blogs about his views at https://www.drroyspencer.com/. See also Roy Spencer, Global Warming and Nature’s Thermostat, WeatherQuestions.com (2008) (blaming rejection of research papers by journals on “censorship”); see generally DeSmog: Climate Disinformation Database, Roy Spencer (last visited Sept. 6, 2025).

^[39] The Heartland Institute, Roy Spencer (last visited Sept. 6, 2025); The Heritage Foundation, Roy Spencer (last visited Sept. 6, 2025); CO2 COALITION: About (last visited Sept. 6, 2025); Cornwall Alliance, Roy W. Spencer (last visited Sept. 6, 2025). Dr. Spencer was a signatory of the Cornwall Alliance’s Evangelical Declaration on Global Warming, which tied climate skepticism to intelligent design. See Prominent Signers of “An Evangelical Declaration on Global Warming”, Cornwall Alliance (May 1, 2009). He appeared frequently on Rush Limbaugh’s radio show, where he was referred to as the network’s “official climatologist.” Dr. Roy Spencer’s New Book, THE Rush Limbaugh SHOW (Apr. 20, 2010).

^[40] Georgia Tech, Judith Curry (last visited Sept. 6, 2025).

^[41] Dr. Curry’s views are discussed at, e.g., Michael D. Lemonick, Climate Heretic: Judith Curry Turns on Her Colleagues, SCI AM (Nov. 1, 2010); Scott Waldman, Judith Curry Retires, Citing ‘Craziness’ of Climate Science, POLITICO: E&E NEWS (Jan. 4, 2017, 8:03 AM). She currently runs the blog Climate Etc.. Her technical views are summarized most recently in Judith Curry, Climate Uncertainty and Risk: Rethinking Our Response (2023). See generally DeSmog: Climate Disinformation Database, Judith Curry (last visited Sept. 6, 2025).

^[42] See Alexander Michael Peterson et al., Discrepancy in Scientific Authority and Media Visibility of Climate Change Scientists and Contrarians, 10 Nature Commc’ns 3502 (2019). Although this article’s analysis has since been anonymized, Dr. Curry was listed as the fourth-most cited “contrarian” in the study. See DeSmog: Climate Disinformation Database, Judith Curry (last visited Sept. 6, 2025).

^[43] See e.g., Judith Curry, Climate Models for the Layman, Global Warming Policy Foundation (2017); Judith Curry, Contending with Natural Disasters, Global Warming Policy Foundation (2019); Judith Curry, Climate Uncertainty & Risk: 2024 GWPF Annual Lecture, Global Warming Policy Foundation (Feb. 24, 2024) (reporting on presentation to the Heartland Institute’s International Conference on Climate Change).

^[44] Hoover Institution, Steven Koonin (last visited Sept. 6, 2025).

[45] Christopher Joyce, Physics Community Strikes Back in Debate over Cold Fusion, New Scientist (May 6, 1989).

^[46] Dr. Koonin’s views on climate science are summarized in his recent book. See Steven E. Koonin, Unsettled: What Climate Science Tells Us, What It Doesn’t, and Why It Matters (2021); but see Steven Vigdor & Tim Londergan, Debunked? A Review of Steven Koonin’s Book ‘Unsettled?’, DEBUNKING DENIAL (Oct. 4, 2021) (criticizing Dr. Koonin’s work); Mark Boslough, A Critical Review of Steven Koonin’s ‘Unsettled’, YALE Climate Connections (May 25, 2021). See generally DeSmog: Climate Disinformation Database, Steve Koonin (last visited Sept. 6, 2025).

^[47] Fraser Institute, Ross McKitrick (last visited Sept. 6, 2025).

^[48] See Chen et al., A Statistical Review on the Optimal Fingerprinting Approach in Climate Change Studies, 62 Climate Dynamics 1439 (2024) (“We provide a statistical review of the ‘optimal fingerprinting’ approach … in light of the severe criticism of McKitrick. . . . Our review finds that the ‘optimal fingerprinting’ approach would survive much of McKitrick (2022)’s criticism by enforcing two conditions related to the conduct of the null simulation of the climate model, and the accuracy of the null setting climate model. . . . We further provide the reason why the Feasible Generalized Least Square method, much advocated by McKitrick (2022), is not regarded as operational by geophysicists.”).

^[49] Dr. McKitrick’s views on climate science were recently expressed in, e.g., Ross McKitrick, Fight Climate Extremists before They Upend Society, Troy MEDIA (Feb. 5, 2020). See also, Ross McKitrick, The Economic Impact and GHG Effects of the Federal Government’s Emissions Reduction Plan through 2030, FRASER INSTITUTE (July 2024). Dr. McKitrick has also worked with the Cato Institute. See CATO INSTITUTE, Ross McKitrick (last visited Sept. 6, 2025). He was previously active with the Cooler Heads Coalition and was a signatory of the Cornwall Alliance’s Evangelical Declaration on Climate Change. See generally DeSmog: Climate Disinformation Database, Ross McKitrick (last visited Sept. 6, 2025).

^[50] Further reporting on each of the authors is easily available online. For a summary regarding the ways in which their views conflict with much more widely held understandings of climate science, see Skeptical Science, John Christy (last visited Sept. 6, 2025); Skeptical Science, Judith Curry (last visited Sept. 6, 2025); Gary Yohe, A New Book Manages to Get Climate Science Badly Wrong, SCI AM (May 13, 2021); Skeptical Science, Why Curry, McIntrye, and Co. are Still Wrong About IPCC Climate Model Accuracy (Oct. 4, 2013); Skeptical Science, Roy Spencer (last visited Sept. 6, 2025). Many critiques of their positions are also available in published scientific literature.

^[51] E.g., Benjamin Storrow, DOE Questions Climate Change Consensus, POLITICO (Jul. 30, 2025, 6:09 PM); Scott Waldman & Benjamin Storrow, DOE Reframes Climate Consensus as a Debate, POLITICO: E&E NEWS (Jul. 31, 2025, 6:30 AM).

^[52] Naomi Oreskes & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (2010) (reviewing counter-scientific discourse development in cigarette smoking, acid rain, ozone depletion, climate change, and DDT policy contexts).

^[53] Recent reviews include Laila Mendy et al., Counteracting Climate Denial: A Systematic Review, 33 Pub. Understanding Sci. 504 (2024); John Cook, Deconstructing Climate Science Denial in Research Handbook in Communicating Climate Change (Holmes & Richardson, eds., 2020). See also Pascal Diethelm & Martin McKee, Denialism: What Is It and How Should Scientists Respond?, 19 Eur. J. Pub. Health 2 (2009) (defining denialism as “the employment of rhetorical arguments to give the appearance of legitimate debate where there is none, an approach that has the ultimate goal of rejecting a proposition on which a scientific consensus exists.”). With respect to the quantification of consensus, see Krista F. Myers et al., Consensus Revisited: Quantifying Scientific Agreement on Climate Change and Climate Expertise Among Earth Scientists 10 Years Later, 16 Env’t Rsch. Letters 104030 (2021) (reviewing literature quantifying the scientific consensus on climate change, and finding that among scientists interviewed, 98.7% agreed that “the Earth is getting warmer mostly because of human activity such as burning fossil fuels,” while among the most qualified experts 100% agreed). With respect to common methodological issues in the contrarian literature, see Rasmus Bernstad et al., Learning from Mistakes in Climate Research, 126 Theoretical and Applied Climatology 699 (2016).

^[54] See e.g., Eric Bonds, Beyond Denialism: Think Tank Approaches to Climate Change, 10 Socio. Compass 306 (2016) (identifying emerging discourses promoting limited climate mitigation, climate adaptation, and climate opportunism).

^[55] See, e.g., Nicola Bozzi, Platforming the Joe Rogan Experience: Cancel Culture, Comedy, and Infrastructure, 26 Television and New Media 74 (2024); Jay Daniel Thomson & Kurt Sengal, The Platforming Is the Point: News Media, ‘the Oxygen of Amplification’, and Interviewing the Far-Right, Sage Journals: Communication and the Public (2025).

^[56] 5 U.S.C. § 1001 et seq.

^[57] Steven P. Croley & William F. Funk, The Federal Advisory Committee Act and Good Government, 14 Yale J. on Regul. 451, 458-465 (1997).

^[58] Id.

^[59] 5 U.S.C. § 1001(a).

^[60] 41 C.F.R. Part 102-3.

^[61] See U.S. Department of Energy, Manual of Advisory Committee Management Program (Oct. 22, 2017).

^[62] See U.S. Department of Energy, A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, at iii (July 23, 2025) (naming authors); Id. at viii (the Secretary of Energy states that he “asked” for the report and “select[ed]” the group).

^[63] The DOE Report states that the group was asked “to critically review the current state of climate science, with a focus on how it relates to the United States,” with no further explanation regarding the purpose of the review. Id. at viii. The only other stated purpose is found in the report’s Notice of Availability, which states that information submitted in response to the report “may be used to assist DOE in planning the scope of future research efforts,” implying that the report itself was produced at least in part for the same purpose. Notice of Availability: A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, 90 Fed. Reg. 36150 (Aug. 1, 2025). The history discussed above, and its use by the EPA, indicate its purpose was in part to support agency decision-making. See Northwest Forest Res. Council v. Espy, 846 F. Supp. 1009 (D.D.C. 1994) (finding that FACA applied to a group purported only to have produced a technical assessment because evidence indicated that the report had influenced the government’s policymaking in a variety of ways); Nat’l Nutritional Foods Ass’n v. Califano, 603 F.2d 327 (2d Cir. 1979) (finding evidence existed from the advisory committee that FDA relied on limited viewpoints of selected group); Nat’l Res. Def. Council v. Herrington, 637 F. Supp. 116 (D.D.C. 1986) (examining parochial interests of group members in determining application of FACA, and finding FACA did not apply only where expert committee found to have no stake in the outcome, and were widely recognized as credible experts; neither of which is the case here); Heartwood, Inc. v. U.S. Forest Serv., 431 F. Supp. 2d 28 (D.D.C. 2006) (explaining that even where a group made no policy recommendations, advisory committee existed where their report provided the framework, context and information that an agency could rely on in making policy decisions).

^[64] Framing the purpose of the report only as to inform or educate the DOE of minority scientific viewpoints on various topics would not save the report from FACA. The report as written is intended not only to inform, but to promote certain specific scientific viewpoints, and the existence of FACA itself implies that the federal government cannot solicit, sponsor, create, refer to, or rely on reports intended entirely to promote marginal scientific views relevant to federal policymaking and decision-making. Even to the extent that such a report could legally be produced by an advisory committee, the group’s formation would still need to comply with FACA’s membership balance requirements to ensure a thorough, comprehensive, and fully contextualized presentation of the various issues under analysis.

^[65] See 41 C.F.R. § 102-3.40 (listing exemptions).

^[66] Id. §§ (a-c).

^[67] Id. §§ (d), (e). The authors functioned as a group, not individuals. The DOE has indicated the group’s work may be used to direct research. The context of the group’s creation indicates their report is intended to inform policy, and the group’s work was a one-way report, not an exchange of information between the DOE and the group. See Heartwood, 431 F. Supp. 2d 28 (addressing these factors).

^[68] Id. §§ (f), (g). There has been public reporting that some, but not all of the members, may have been appointed to temporary positions at the DOE. See also Maxine Joselow, Trump Hires Scientists Who Doubt the Consensus on Climate Change, N.Y. Times (July 8, 2025).

^[69] Id. §§ (h), (i), (k).

^[70] Id. § (j). Primarily operational groups are those that directly make or implement policy. See, e.g., HLI Lordship Indus., Inc. v. Comm. for Purchase from the Blind & Other Severely Handicapped, 615 F. Supp. 970, 978–79 (E.D. Va. 1985), rev’d on other grounds, 791 F.2d 1136 (4th Cir. 1986) (explaining the group operating pursuant to regulation in various capacities was primarily operational); Pub. Citizen v. Comm’n on the Bicentennial of U.S. Const., 622 F. Supp. 753, 758 (D.D.C. 1985) (stating the commission operating by statutory mandate was primarily operational); Jud. Watch, Inc. v. Clinton, 76 F.3d 1232, 1233 (D.C. Cir. 1996) (explaining the trust primarily engaged in soliciting, managing funds, and providing no advice to government was primarily operational).

^[71] The group has not been listed in GSA or DOE advisory committee databases. The GSA FACA database is available at https://www.facadatabase.gov/FACA/s/account/001t000000DCAopAAH/department-of-energy. The DOE’s online list does not appear to be complete: https://www.energy.gov/secretarial-boards-and-councils/federal-advisory-committee-management. There is no record in either database of FACA compliance for this “Working Group.”

^[72] 41 C.F.R. § 102-3.60(b)(3).

^[73] The Secretary stated: “I chose them for their rigor, honesty, and willingness to elevate the debate.” U.S. Department of Energy, A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, at viii. This does not appear to be true. However, to the extent that it is, the DOE should release information regarding its efforts to develop definitions of these selection criteria, to assess all potentially qualified authors against these selection criteria, and to ensure a fairly balanced membership.

^[74] U.S. Department of Energy, A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, at x (July 23, 2025).

^[75] U.S. Gov’t Accountability Off., GAO-08-611T, Testimony Before the Subcomm. on Investigations and Oversight, H. Comm. on Science and Technology: Issues Related to the Independence and Balance of Advisory Committees (2008)

^[76] See e.g., Western Org. of Res. Councils v. Bernhardt, 412 F. Supp. 3d 1227, 1242 (D. Mont. 2019) (granting use injunction); NAACP Legal Def. & Educ. Fund, Inc. v. Barr, 496 F. Supp. 3d 116, 146 (D.D.C. 2020) (discussing standards for issuance of use injunction); see Lawyers’ Comm. for Civ. Rts. Under L. v. Presidential Advisory Comm’n on Election Integrity, 265 F. Supp. 3d 54, 65-66 (D.D.C. 2017) (explaining that although FACA does not provide an independent cause of action, judicial review is still available through the APA and mandamus act).

^[77] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36292, 36296, 36305, 36308-11 (Aug. 1, 2025) (cited as the “2025 CWG Draft Report”).

^[78] 5 U.S.C. § 551 et seq. See e.g., Bark v. U.S. Forest Serv., 958 F.3d 865, 869 (9th Cir. 2020) (“An agency action is arbitrary and capricious [under the APA] if the agency has . . . entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”).

On the Chopping Block: Trump Administration Moves to Rescind ESA Regulations Protecting Imperiled Species

By Delcianna J. Winders

The U.S. Supreme Court heralded the Endangered Species Act (ESA or Act) as “the most comprehensive legislation for the preservation of endangered species enacted by any nation.” As set forth by Congress, the ESA’s primary purpose is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . . . .”

One of the central operative provisions of the Act is its prohibition on the “take” of listed species. The statute defines “take” broadly as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The activities that rise to the level of a “take” are not further defined by statute. But the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS), the agencies Congress tasked with implementing the ESA, have promulgated regulations defining some of them.

Shaped by Rule: Regulatory Framing of “Harm”

In 1975—half a century ago, and less than two years after President Richard Nixon signed the ESA into law—the FWS promulgated a regulation defining “harm” to include “significant” habitat “modification or degradation” that “actually injures or kills wildlife” by “significantly” impairing “essential behavioral patterns,” including “breeding, feeding or sheltering.” The agency retained this language when it refined the definition in 1981 and the definition has remained constant ever since. In 1999 NMFS followed suit, promulgating a virtually identical regulatory definition of “harm.” The agency underscored that formalizing this definition was “not a change in existing law” and was intended to “provide[] clear notification to the public that habitat modification or degradation may harm listed species and, therefore, constitutes a take under the ESA,” and to “ensur[e] consistency between NMFS and the Fish and Wildlife Service.”

Recognizing the very real threat of injury and death that habitat modification or degradation poses to imperiled species makes good sense. Indeed, habitat destruction is by far the number one threat to imperiled species—posing a greater risk than all other threats combined.

But industry does not like anything that threatens its bottom line, and the Endangered Species Act is no exception.

Challenged and Upheld: The Supreme Court Solidifies the “Harm” Definition

Not long after the FWS promulgated its regulatory definition of harm, the timber industry challenged it in court. The case, Babbit v. Sweet Home Chapter of Communities for a Great Oregon, went all the way to the U.S. Supreme Court, which rejected the industry’s challenge and upheld the agency’s regulatory definition using all the standard tools of statutory interpretation—plain language, linguistic canons, purpose, and legislative history.

First, looking to plain meaning, the Court found that the regulatory definition was consistent with the “ordinary understanding of the word ‘harm,’” which is defined as “‘to cause hurt or damage to: injure.’” As the Court explained, “that definition naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species.”

In response to the logging industry’s contention that “harm” should be limited to “direct applications of force against protected species,” the Court explained that “the dictionary definition does not include the word ‘directly’ or suggest in any way that only direct or willful action that leads to injury constitutes ‘harm.’” Moreover, the Court added, the rule against surplusage—the linguistic canon providing that no word or phrase in a statute should be interpreted as redundant or meaningless—supported the regulatory definition, because “unless the statutory term ‘harm’ encompasses indirect as well as direct injuries, the word has no meaning that does not duplicate the meaning of other words that [the ESA] uses to define ‘take.’”

The Court further noted that this plain language reading is consistent with the broad primary purpose of the ESA—again, “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” Indeed, the Court explained, interpreting “harm” to not include indirect injuries arising from habitat destruction would, for example, give carte blanche to drain a pond, even where it was known that doing so “would actually result in the extinction of a listed species by destroying its habitat.”

In addition, the Court explained that the FWS’s definition was supported by the ESA’s legislative history: “The Senate Report stressed that ‘“[t]ake” is defined . . . in the broadest possible manner to include every conceivable way in which a person can “take” or attempt to “take” any fish or wildlife.’” And “[t]he House Report stated that ‘the broadest possible terms’ were used to define restrictions on takings” and that it included both intentional and unintentional actions. For example, the House Report explained, the Act’s definition of “take” could “prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young.” In response to the suggestion that this definition was too broad the Court recognized that “harm” would need to be foreseeable to fall within the ESA’s prohibitions.

Thus, for decades, with the blessing of the Supreme Court, the ESA has been interpreted to prohibit not just directly killing or injuring a member of a listed species but also doing so indirectly through habitat modification or degradation when that death or injury is foreseeable. Since being upheld by the U.S. Supreme Court thirty years ago, this regulatory definition has remained in place and protected species from the number one threat they face: habitat loss. It is a huge reason that the Act has “saved more than 99% of species under its protection.”

On the Chopping Block: A Proposed Rescission to the Definition of “Harm”

Now, all of that is on the chopping block. In a self-described “deregulatory action,” the Trump administration recently proposed rescinding the regulatory definition of “harm,” bizarrely describing that definition—which, again, the U.S. Supreme Court upheld—as “legally incorrect.”

The government’s reasoning does not even rise to the level of specious, and the real reasons for the proposed rescission are clear: to “relieve[]” businesses of “costs” and “burden[s].” Just as interpreting “harm” to not include indirect injuries arising from habitat destruction would give carte blanche to drain a pond even where it was known that doing so “would actually result in the extinction of a listed species by destroying its habitat,” so too would it give industry complete freedom to kill and injure imperiled species. Loggers would have carte blanche to kill and injure imperiled animals like red-cockaded woodpeckers and Northern spotted owls by cutting down old growth forests. Oil companies would have carte blanche to engage in drilling that foreseeably injures and kills imperiled species like polar bears, numerous whales—including the few dozen surviving critically endangered Rice’s whales—and many, many more species.

And that is precisely the point.

President Trump has made clear, including in day-one executive orders, his intent to override longstanding environmental laws, including the ESA, to expedite the extraction of oil and gas at all costs, including species extinction—a cost that Congress and the Supreme Court have described as “incalculable.”

But the law does not allow such recklessness. As the Supreme Court explained in its first ESA case, “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as ‘institutionalized caution.’” None of that has changed.

Comments on the proposal can be submitted on regulations.gov and are due by May 19, 2025.

State Greenwashing Litigation: California Taking Steps Forward as Federal Enforcement Wanes

By Matthew McGovern

On September 23, 2024, the Attorney General of California sued ExxonMobil (“Exxon”) and its subsidiaries, alleging violations of misleading advertisement, misleading environmental marketing, and unfair competition laws. The misleading environmental marketing (“greenwashing”) claim focuses on Exxon’s involvement in promoting forms of recycling as a viable solution to the plastic waste crisis, while knowing that recycling would never work at scale. California’s allegations hold weight, and other states with similar laws should look to engage in similar litigation to target petrochemical companies for their involvement in this campaign.

The Landscape of Greenwashing Litigation

Individuals and regulatory actors now can target major companies for greenwashing. Most claims involve major corporations that deceitfully indicate that their product has environmental benefits through general advertisement campaigns. The Federal Trade Commission (“FTC”) published “Green Guides” that outline what constitutes unfair or deceptive environmental marketing as well as the possible defenses. Key to the Exxon case is section 260.12, which focuses on recyclable claims. The guides were first published in 1992 and have been continually updated since. The FTC enforces the “Green Guides” under the FTC Act, and usually end up entering a cease-and-desist against the violator.

The Exxon case represents a pivotal change in the scope of greenwashing litigation, which typically focuses on carbon emissions, instead of recycling. California has a specific statute to target greenwashing claims, which gives explicit statutory authority to the “Green Guides.” Businesses are not allowed to make general environment benefit claims, conveying that an item has no negative environmental impact. Corporate insights demonstrate the increasing liability risk greenwashing entails due to ambitious claims like California’s here against Exxon.

California’s Claims

California alleges that Exxon, the largest oil and gas company in the United States, and its predecessors utilized a systematic propaganda campaign over the past half-century to promote recycling. California chronicles the different public relations campaigns that Exxon and its predecessors employed. While promoting this campaign, Exxon has continually increased their production of single-use plastics, exacerbating the plastic waste crisis further. California noted in their complaint that Exxon produced an absurd amount, “roughly equivalent to two trillion single-use plastic cups in [2021] alone.” The complaint differentiates between “mechanical recycling,” which is the conventional form, and “advanced recycling,” in which chemicals break down plastics to molecular levels which can be created into new plastics.

Initially, the plastic producers used tactics to convince the public that mechanical recycling was the correct response to plastic pollution. They first turned toward “mechanical recycling” as the solution, shifting blame from the producers to the consumers. In 2017, the plastic producers even began to blame China for plastic pollution when a Chinese policy stopped plastic waste from being imported. California alleges that Exxon used a three-part strategy to deal with the negative public sentiment in the 1980s and 1990s: (1) spread deceptive information regarding the efficiency of recycling, (2) investments in short-term recycling projects, promising feasibility on a larger scale, and (3) divesting from recycling and continuing to produce more plastics. As data began to emerge demonstrating the inefficiencies of mechanical recycling, Exxon shifted toward promoting “advanced recycling.” However, this process has clear inefficiencies as well, as most of the end product is not usable plastic.

Exxon used every medium available in conjunction with their recycling campaign. They even tried to mislead educators and students, “A scientist from Exxon met with more than 2,000 students and other community members to teach the students that plastic packaging is better for the environment than other materials.” California also alleges that Exxon’s deceptive market practices shift costs to the taxpayer, as States grappling with regulatory schemes are forced to confront the plastic waste problem. Exxon is holding up the litigation’s progression through various procedural methods, but the case was just remanded back to state court.

Inspiration for other States

States should follow in California’s footsteps and initiate litigation under the same rationale. Over the past half-century petrochemical companies have capitalized on the normalization of single-use plastics, while effectuating the plastic waste crisis. Maine, Rhode Island, and Michigan have adopted most, if not all, of “Green Guides” into their laws. The advertising campaign that Exxon promoted was nationwide, as well as the harms resulting from production of single-use plastics.

Landmark litigation, like the Exxon case, publicizes judicial relief and spur debates regarding environmental concerns. Disseminating information like the inefficiency of recycling can create public knowledge leading to advocacy for a truly viable solution. As entities are forced to deal with the effects of climate change, judicial action can act as a safeguard from a corporation’s misrepresentation during their transition to attempting to reach net-zero.

Balancing Environmental Protection with Economic Development: The Greenland Mining Dilemma

By Suhana Roy

“The principle of sustainable development is a principle of international law that reconciles the right to development with the need to protect the environment.”- Christopher Weeramantry, former Vice President of the International Court of Justice (ICJ)

Greenland’s recent decision to halt uranium mining over environmental concerns ignites a significant legal dispute, underscoring the intricate balance between environmental protection and economic development. Energy Transition Minerals (ETM) is seeking either the right to exploit the Kvanefjeld site or compensation of up to $11.5 billion, nearly ten times Greenland’s annual budget. This case highlights the fundamental tension between a nation’s sovereign right to regulate environmental matters and the economic interests of corporate investors.

Environmental vs. Economic Interests

The Kvanefjeld project in southern Greenland is known for its large rare-earth and uranium deposits. These resources offer great economic potential, but environmental issues have been front and center. Those fears of toxic waste contaminating drinking water and harming the area’s agriculture, especially sheep farming, underpin opposition to the mining activity.

Greenland has a long and troubled history with mining pollution, with remnants of lead and zinc mines from the 1970s still contaminating the environment. The local ecosystem, vital for Inuit hunter-gatherers who rely on seals, whales, and other marine life, remains at risk. Recognizing these concerns, Greenland’s 2021 elections became widely known as the “mining election,” where the Inuit Ataqatigiit party campaigned against uranium mining. Upon taking power, the government fulfilled its promise by passing legislation banning uranium extraction, effectively halting the Kvanefjeld project. While celebrated as a victory for environmental and public health, this decision led to a legal dispute with Energy Transition Minerals (ETM), which argues that the mining ban constitutes expropriation and is demanding compensation of up to $11.5 billion. This case exemplifies the growing tensions between sovereign environmental regulations and corporate economic interests, a conflict frequently adjudicated in international arbitration tribunals, where damages for similar disputes have reached staggering amounts.

Greenland’s uranium mining ban is part of a worldwide trend of governments choosing environmental sustainability over short-sighted economic incentives. Yet, jurisprudence of environmental law offers structured mechanisms to resolve such trade-offs. One principle of sustainable development as found in Vellore Citizens’ Welfare Forum v. Union of India (1996)is that the costs of economic growth cannot be externalized to the environment. The Greenland government’s decision aligns with this principle, reinforcing that economic interests must be balanced with long-term ecological sustainability.

Legal and Financial Repercussions

ETM’s legal action uses of the investor-state dispute settlement (ISDS) system, which lets corporations sue countries over actions they believe hurt their profits. Originally intended, as the name suggests, to protect investments in politically unstable nations, this mechanism has morphed into a tool for corporations to challenge national policies (including environmental protections) in international arbitration tribunals against sovereign nations. The abortion ban cases are just the most recent in a long string of environmentally-driven lawsuits running in 2000, such as Vattenfall v. Germany, when a Swedish energy company sued Germany over its nuclear phase-out, showing how environmental policies can create massive financial liabilities for states.

Economic costs notwithstanding, the precautionary principle applied in cases like Pfizer Animal Health v. Council of the European Union (2002) undergirds Greenland’s ban on uranium mining. The principle is that uncertainty in scientific evidence does not justify a delay in measures to protect the environment. Greenland’s policy, which is intended to prevent potential environmental disasters indirectly, is a clear example of this principle in practice.

ETM’s lawsuit also reminds us of the old adage that “the polluter pays”. This principle gained prevalence (by and large) in the Indian Council for Enviro-Legal Action v. Union of India (1996) case where industries were held accountable for damages to the environment. Instead of compensating corporations for lost profits, legal frameworks should balance those rights with requirements for corporations to internalize costs associated with environmental degradation and contribute to restoration.

Global Demand for Rare-Earth Minerals

The global shift towards clean energy technologies escalates the demand for rare-earth minerals. Over the past five years, the market for minerals vital to electric vehicles, wind turbines, and solar panels reached $320 billion. Specifically, demand for lithium  tripled, cobalt increased by 70%, and nickel increased by 40% from 2017 to 2022.

Greenland’s Kvanefjeld project holds one of the world’s largest undeveloped deposits of rare-earth minerals and uranium, positioning it as a potential key player in the global supply chain for these essential resources. However, the ethical considerations of sourcing these materials must be addressed through rigorous Environmental Impact Assessments (EIA), as required under laws like the National Environmental Policy Act (NEPA) in the United States. Courts in Brazil and India mandate strict environmental reviews before approving industrial projects, ensuring that economic development does not come at the expense of ecological destruction.

Conclusion

Greenland’s predicament highlights the complex interplay between environmental stewardship and economic development. As the world transitions to cleaner energy sources, the demand for rare-earth minerals will continue to rise, intensifying the need for responsible and ethical mining practices. By integrating sustainable development, precautionary action, polluter pays principles, and mandatory EIAs, legal frameworks can ensure that economic opportunities do not come at the expense of environmental integrity and social justice.

As seen in landmark environmental law cases worldwide, governments can and should implement robust policies to mitigate the adverse effects of economic interests while upholding environmental protections. The Greenland mining dispute will serve as a critical test of how nations navigate these conflicts in an era of increasing ecological awareness and economic globalization.

War Fuels Ecocide: How Militarism Drives Environmental Destruction

By Kaya Mark

If you asked most people how they feel about war, the odds are they would say war is bad. Yet, when we talk about the military, 60% of Americans* say it has a positive effect. Adults under 30 are the only age group in which a larger share of people say the military has a more negative impact than a positive one (53% compared to 43%). Where does our perception of the military stem from?

The military-industrial complex, a term that President Eisenhower famously introduced to the American public in 1961, refers to the relationship between the military and the defense industry, and their influence on the United States’ highly militarized society. The U.S. is the largest military spender in the world, spending over $800 billion in 2023 alone. This is roughly the equivalent of $2000 per American. U.S. defense is expected to reach 1.07 trillion dollars by 2034. Unlike the wars happening in Gaza, Ukraine, Sudan, and Myanmar, the United States is not independently involved in any active, armed conflicts. So why does the Pentagon’s budget comprise of over half our federal discretionary budget?

Some argue war is costly, and I would agree. Not only is the mass genocide of human life atrocious, but all life suffers its consequences; the environmental impact of war is “indiscriminate and far-reaching,” and impacts future generations, as well as current ones. Militaries clear forests and vegetation for training purposes and actively during war to force local populations to leave. Military lands cover between 1–6% of the globe’s land surface.

We cannot ignore militarism and its effects on the environment. Military activities and trainings create emissions, disrupt landscapes and marine habitats, create air, soil, light, and noise pollution, and more. The physical disruption to natural environments impacts local habitats and their inhabitants–– both human and non-human. Unsurprisingly, according to a 2018 study, wildlife populations are more stable during peacetime and decline during war.

Some argue environmental destruction is an “explicit military tactic.” During the Vietnam War, the U.S. military sprayed chemicals and bombed areas to deny cover and land to opposition forces. For nearly a decade, U.S. military forces sprayed nearly 19 million gallons of herbicides (often called Agent Orange) in Vietnam. Today, both Vietnam and its people suffer the devastating consequences of Agent Orange: cancer; birth defects; soil, water, and air pollution, and more. Ecocide, a term popularized during the Vietnam War, is used to describe the intentional, unlawful destruction of the natural environment by deliberate or negligent human action. With ecocide, there is a substantial likelihood of severe and/or long-term damage to the environment, such as those seen with Agent Orange and the U.S. military’s use of chemical weapons.

Similar tactics have been and are still used by militaries throughout the globe. Ukraine accused Russia of using white phosphorus and riot control agents during the war. Video footage shows Israeli military firing white phosphorus-filled artillery in Gaza and Lebanon. The U.S.’s previous use of nuclear devices in the Marshall Islands and atomic bombs during World War II also resulted in major environmental and human damages. The use of “modern machine guns, heavy artillery, and chemical weapons” has major impacts on the environment. Among the most cited environmental effects of war include deforestation, soil erosion, and biodiversity loss.

In addition, military emissions contribute to nearly 5.5% of global greenhouse gas emissions––double the amount coming from aviation and shipping. War fuels the climate crisis and gas (and other dirty fossil fuels) fuel war. In 2023, the DOD distributed 79.5 million barrels of oil––valued at $13.3 billion––to the U.S. military defenses and its contractors.

The environmental damage post-war also brings huge devastation to communities and the environment. The war in Gaza has already cost over $56.4 billion in damage to the environment, with costs to clear landmines and unexploded ordnance expected to eventually cost $34.6 billion. Today, 40 million tons of rubble, including human remains, asbestos, and other hazardous materials and unexploded ordnance flood Gaza’s landscape.

I’m not sharing this to state the obvious: war is bad, but rather to call attention to the need to demilitarize. The United States cannot ignore the devastating effects of militarism, both within our own country and throughout the globe. Various movies and television shows continue to romanticize the military, causing Americans to believe militarization is necessary. Yet, movies like Top Gun are often funded by the Pentagon as pro-military propaganda. What they don’t show are the devastating aftermaths of war, the environmental consequences of military action, and the long-lasting contributions to the climate crises and our environment. When we romanticize the military, we do a disservice to our country and to the future generations that will continue after us. It’s time to demilitarize our nation and recognize that war fuels ecocide.

*Please note that I use the term Americans to describe North American people residing in the United States.

All dollar amounts are in USD.

Climate Change and World Conflict: A Crucial Juncture

 By Ian Lopez

As the world approaches a critical juncture on climate and energy policies in the face of accelerating global warming, policymakers face difficult choices. Yet, over the past five years, global conflict continues to produce new and pressing concerns for policymakers. Rather than considering these developments separately, they should be understood as intertwined; while not directly correlated, they greatly influence one another. Understanding this dynamic can prepare policymakers and help influence international policy. The unexpected shockwaves of international conflict, both present and potential, might be weathered better with an understanding of how these processes influence one another.

Chicken or the Egg: Which Influences Which?

Anthropogenic climate change is a relatively recent phenomenon; but war, unfortunately, has been a constant of human civilization for as long as history is recorded. Though conflict remains largely motivated by political and cultural movements, resources and scarcity are often top motivators. Due to the rise of concerns over resource scarcity, rapid global productivity, and climate shifts due to climate change, a hot area of scholarly debate focuses on whether concerns like resource scarcity, rapid global productivity, and climate shifts due to climate change increase conflict. The results are a tentative yes, but leading scholars stress that the relationship is not one of direct causation. Rather, climate change heightens certain stressors which can be part of the reason for conflict to begin; and even this is more often regional than between nations. For example, climate change might make droughts or flooding more frequent, displacing large populations, leading to conflict. Likewise, out-of-control resource extraction can devastate ecosystems, leading again to instability and conflict. Some far more direct examples of climate-induced conflict exist, such as the Kyrgyzstan-Tajikistan border clashes during 2021-22, in which a dispute over a climate-impacted, rain deprived reservoir that fed critical agriculture was the main source of dispute. Substantial academic attention has also focused on the role of climate-induced drought, water scarcity, and its relation to crop failures and food shortages which contributed to the Syrian civil war, and the war in Darfur, Sudan. But these examples are rare; whether they are indicative of wider trends is hard to ascertain. More obvious is the devastating impacts of war on energy, commerce, and land, which in turn exacerbate the effects of climate change. An IPCC report on Human Security in 2018highlighted the cause-effect relationship between conflicts and environmental degradation, for example.

In any case, energy and resources are implicated in nearly every conflict today, including the Russo-Ukraine war. This makes a compelling case for climate change influencing conflict in a small but distinct way. When authoritarians consider the state of their country 10, 30, or 50 years from now, will an attractive chunk of arable, productive land across their border seem that much more tempting? They are preparing for a climate-pressed future, and so should we. This dispassionate cost-benefit calculus is undoubtedly influenced by the way climate change will benefit and disadvantage certain regions of the world.

Preparedness for a Climate-Conflict Linked Future

Policymakers must prepare for a world in which the calculus of conflict is changing. This necessitates a recognition that the motives and factors affecting conflict are shifting. The United Nations has already taken the first and most important step, in recognizing the existence of this pattern. Climate change’s most direct contribution to conflict is in the form of destabilization and forced migration away from regions that become unproductive and unlivable. The worldwide pattern of human migration is already deeply troubling and remains a major flashpoint of international politics. Migration naturally brings groups once separated by borders into conflict and already has contributed to the resurgence of right-wing politics in Europe. With climate change accelerating mass migrations, the future instability and damage that will result is likely to be significant. As such, awareness of climate change’s accelerating influence on these developments needs to be a top area of study; the United States should take the United Nation’s example in incorporating the climate-conflict relationship into foreign policy deliberations.

Part of the way for policymakers and leaders to prepare for and prevent conflict is to address their root causes through diplomacy or aid. However, the prospect of foreign aid from the perspective of the United States is in doubt under the current administration, to say the least. The pausing of foreign aid to numerous nations—particularly those under strong climate pressures in the coming decades—carries noteworthy implications for the climate-conflict relationship. Such aid represents our investment in global security, not just in health and food security, but also global stability. Scarcity, depravation, and uncertainty lead to the kind of political and economic instability which is the most potent indicator of imminent conflict. With these factors in mind, international policy—which has already begun to take note of this trend—must further adapt to the climate-conflict dynamic. Preparedness for this trend will not only help avoid the worst consequences. It will allow us to start considering potential solutions, such as foreign aid schemes, migratory and asylum agreements, and more, that will require substantial transnational cooperation.

A Comparison of the Biden and Trump Administration’s Energy Policy and Coal Leasing in the Powder River Basin

by Drew Collins

The 2024 election of President Trump brings rapid changes in the ways America will get its energy. President Trump clearly expressed his intentions to unleash American energy during his second administration. These intentions will undoubtedly affect the Powder River Basin (“PRB”), an area which President Biden banned from new coal leasingin 2024. To better picture the future of coal leasing in the PRB, it’s crucial to understand the PRB’s economic and environmental significance as well as the policies used to manage the PRB under the Biden Administration.

Significance of the Powder River Basin

The PRB is significant because it is a major source of U.S. coal, a major source of jobs across Wyoming, and a major source of potential pollution. The PRB is the largest reserve of coal in the country accounting for over 40 percentof the nation’s coal supply. The PRB makes Wyoming the nation’s largest coal producer. The PRB is home to the world’s largest deposits of low-sulfur subbituminous coal. Low-sulfur subbituminous coal is special because it is cleaner than regular coal, and its low sulfur contents lead to lower emissions levels.

Additionally, coal extraction in the PRB provides around six thousand direct mining jobs alongside 14 thousand indirect jobs. Indirect jobs are often associated with equipment manufacturing, transportation, and local retail. The coal industry provides some of the only meaningful employment in the rural areas where the PRB is located. Further, coal extraction supports five different Wyoming counties’ tax bases, with funding being directed towards schools, infrastructure, and other public services. However, Wyoming’s coal industry has struggled recently to find West Coastcities who have not banned coal generated energy. This struggle alongside President Biden’s ban on new leases in the PRB leaves many Wyoming residents fearful of impacts on their jobs and tax base.

Lastly, the PRB is significant because of its massive potential for emissions and pollution. Energy development in the PRB is responsible for nearly 15 percent of total U.S. carbon pollution, making it the largest single source of carbon dioxide pollution in the country. On top of emissions, strip mining techniques used in the PRB disrupt the habitats and migration patterns of local animal species such as the Sage-Grouse. Strip mining also negatively affects local air and water quality.

The significance of the PRB should not be understated. From these examples, it is clear changes in the management of the PRB could have major effects on U.S. energy generation, local economies, and the environment.

Biden Administration Energy Policies

Before the Trump Administration, President Biden subsidized American clean energy generation through the “Investing in America” initiative and the passing of the Inflation Reduction Act (“IRA”). The Biden Administration took steps to end non-renewable energy generation by regulating coal power plants emissions and increasing taxation on the oil industry. These regulations were significant because they signaled the curtailing of conventional energysources used for generation in America.

In furtherance of these initiatives, the Biden Administration banned new coal leasing in Wyoming’s PRB. President Biden’s ban recognized the market has shifted away from coal as an energy source to sources that are cheaper and cleaner. In other words, this ban is saving tax dollars from being invested into an industry that’s operating in a long-term decline. It is important to note that this ban does not prohibit coal extraction from existing leases in the PRB, but rather bans new leases for coal extraction. Considering the significance of the PRB, President Biden’s ban on new leases will likely have negative impacts on local Wyoming job markets. However, the ban could also save taxpayers billions of dollars from lost revenue and pollution damages (assuming social cost of carbon between $60 and $70).

Trump Administration Energy Policies

Not surprisingly, the current Trump Administration has a starkly different approach to energy policy than the Biden Administration. President Trump emphasizes U.S. energy dominance and security over renewables and clean technology. President Trump’s policies aim to achieve energy dominance primarily by subsidizing and deregulating the U.S. Oil and Coal Industries, while restricting the development of renewables such as wind energy. President Trump also plans to expand oil and gas extraction on public lands.

In the mere months since President Trump was elected to office, he and his Secretary of Interior, Doug Burgum, considered leasing in the PRB alongside other coal developments across Wyoming.  In early February 2025, Burgum released orders that seek to review and revise a list of polarizing land plans consistent with President Trump’s goal to unleash American energy. These orders include a review of the BLM’s Buffalo, Wyoming field office which is responsible for management of the PRB.

However, the PRB and other multi-use public lands are managed based on an established Resource Management Plan (“RMP”). As it stands, the President does not have explicit authority to undo a RMP. In general, to overturn a current RMP, a substitute must be already prepared. RMPs are typically completed by the relevant federal agency with authority and take much time and detail to complete (sometimes up to 1,000 pages).

Considering President Trump’s lack of authority and time to complete a new RMP, it seems unlikely that he will be able to overturn President Biden’s ban of new leases in the PRB without some litigation. Although President Trump’s energy objectives in the PRB are clear, his means to reaching those objectives are murky at best. The future of the PRB and Biden’s ban on new coal leases is uncertain. The current Trump administration has already made strides for increased energy extraction in Wyoming, but the legality of these actions will likely face scrutiny by the court.

With Global Fishing Fleets, Justice Walks the Plank

By Ilinca Johnson

What happens when poorly regulated fishery harvest practices lead industry to exploit vulnerable, impoverished communities? Global Fishing Fleets (“GFFs”) are large-scale industrial operations sustained by harmful fishery subsidiesprovided by their respective governments. The largest fleets are maintained by China, Japan, South Korea, Russia, and theUnited States. GFF operations keep the cost of seafood low for consumers around the globe by raising numerous other costs that marine ecosystems, the climate, and marginalized communities bear instead. Most alarming is how GFFs promote modern-day slavery. The current state of GFFs calls for great reform to prevent resource exploitation and protect vulnerable communities globally.

Working in the theory of Environmental Justice, scholars “tend to cast a broad net to allow consideration of how exploitative relationships between industrial actors and marginalized communities, including workers, transcend into peoples’ everyday lives.” In this current case, the exploitative practices of GFFs unsustainably harvest from marine ecosystems while simultaneously violating the human rights of vulnerable communities, demonstrating the intersection of environmental and social injustices.

Environmentally, industrial fishing has severely depleted fish stocks. In the past few decades, GFFs have tripled the number of over-harvested stocks of fish through illegal, unreported, or unregulated fishing (IUU). Today, one out of every five fish is caught IUU. Approximately 27 million tons of marine life – including an estimated 300,000 whales and dolphins—are caught and discarded as bycatch each year.

 

 

 

 

 

GFFs often illegally harvest in protected areas or the territorial waters of developing nations with weaker regulatory systems. GFFs avoid detection through falsifying reports, deactivating transponders, and transshipments. Transshipments move catch between vessels at sea to large “reefer” ships. These reefers have huge onboard freezers where legal and illegal fish alike mix, hiding their original source. Overfishing threatens the survival of iconic and ecologically important species including the bluefin tuna, cod, and numerous shark species, damaging marine ecosystems and devastating local indigenous communities reliant on subsistence fishing.

GFFs also contribute significant carbon emissions. Since the 1950s, greenhouse gas emissions have more than quadrupled due to unsustainable fishing practices. Today, fleets must expend more energy to maintain catch levels, going further and further from their coastlines in search of enough fish. Now, it takes twice as much effort to harvest the same number of fish as in the 1950s. The loss in fish populations disrupts blue carbon sequestration in the deep ocean, contributing even more carbon dioxide emissions to the atmosphere.

Beyond environmental destruction, GFFs notoriously exploit labor. An estimated one-third of these fleets engage in forced labor, particularly in South Asia, where trafficked workers from Myanmar, Cambodia, Thailand, and Bangladesh then endure inhumane conditions. Many are lured by deceptive job offers, only to have their passports confiscated.

These people then face months to years of twenty-hour workdays without pay while sleeping in a concentration-style bunk room and given largely non-nutritious meals. Supported by reefers and supply ships, a ship crew could be at sea for years. Reports indicate widespread torture, forced confinement, and even the murder of laborers. Between 2019 and 2020, at least 30 Indonesian workers died on Chinese fishing vessels. Today, potentially half a million migrants remain enslaved in Thailand’s shrimp industry.  Additionally, Uyghurs and North Koreans are documented as working under forced labor conditions in Chinese seafood processing plants directly supplying global markets.

The exploitation of forced labor is deeply tied to overfishing. Some studies suggest the use of forced labor is a direct response to the diminished populations of fish in the ocean. By aggressively reducing expenditure on crew by utilizing human trafficking, Global Fishing Fleets save money and can provide cheap seafood to the world.

Western consumer markets, particularly in the U.S. and EU, inadvertently fuel these abuses by prioritizing cheap seafood over ethical sourcing. Major retailers such as Walmart, Tesco, and Costco sell shrimp produced through slave labor in Thailand. Currently, it is virtually impossible to trace the opaque supply chains within the global shrimp industry, though efforts are being made. The U.S. alone accounts for 14% of global seafood imports, with an estimated average potential slavery risk of 3.1 kg (~6.8 lb) of seafood per tonne consumed. That risk is 17 times higher than seafood from domestic fishery sources.

To address these injustices, urgent action is needed. Governments and industry leaders must prioritize human rights and environmental sustainability by implementing stronger labor regulations, increasing supply chain transparency, banning harmful subsidies, and ending or closely managing transshipment practices. Closing the high seas to fishing and investing in small-scale, equitable fisheries would help restore fish populations, create more equitable access to highly migratory species like tuna. Most importantly, adopting such measures would protect both the environment and vulnerable communities globally, leading to a more secure future for millions. Without reform, continued overexploitation deepens economic and social inequalities that threaten global food security, the livelihoods of millions, and the long-term health of marine ecosystems.

The time for change is now—ensuring ethical, sustainable fishing practices is essential for both people and the oceans.