On February 12, 2026, the Environmental Protection Agency promulgated a final rule rescinding its finding that greenhouse gases (GHGs) endanger public health and welfare. The keystone in the regulatory architecture of GHGs, the 2009 endangerment determination brought heat-trapping gases under the purview of Title II of the Clean Air Act (CAA), allowing EPA to regulate them for the first time. In a single stroke, the second Trump Administration has pushed GHGs beyond the scope of federal regulation and gleefully cast the “‘Holy Grail’ of the ‘climate change religion’” into the outer darkness.
The endangerment rescission has emerged as the most prominent example of what I call anticipatory deregulation.1 Under this legal strategy, the Administration seeks to repeal regulations not on the grounds that conditions have shifted or priorities changed but that the rule is illegal and was promulgated ultra vires. In other words, the Administration rescinds existing rules in anticipation that a court would do the same. A rule’s own illegality — whether on constitutional or statutory grounds — becomes the very reason for repealing the rule ex ante, before a court can weigh in on the matter.
The Administration’s swing-for-the-fences approach to endangerment speaks to ambitions beyond the here and now. If successful, the maneuver will not merely repeal the determination but illegalize it, barring any future administration from replacing it. To that end, the endangerment rescission is apiece with the government’s other deregulatory Ulysses contracts, from the destruction of agency institutional knowledge to the reversal under the Congressional Review Act of California’s vehicle emissions waiver. This broader strategy of policy entrenchment seeks to bind the Administration’s successors to its vision of environmental governance.
Under previous administrations, agencies tended to predicate policy reversals on a small range of possible rationales. Reinterpretation of the governing statute was a common one. Before the demise of Chevron deference, agencies had free rein to reinterpret ambiguous statutes within reasonable limits, allowing for changes in policy to flow from newly enlarged or contracted assertions of agency power. For instance, the first Trump Administration rescinded California’s motor-vehicle waiver under CAA § 209 by reinterpreting the provision, stating that a waiver could only be granted if California could prove a state-specific pollution problem — a requirement that had never previously been read into the law. Agencies also frequently point to changing facts as a rationale for a change in position. In the environmental space, for example, standards keyed to the “best available control technology” necessarily evolve as pollution-abatement techniques become more sophisticated.
But anticipatory deregulation is different, in no small part because it operationalizes a recent spate of anti-administrative Supreme Court decisions. The presidential memorandum “Directing the Repeal of Unlawful Regulations” walks agency heads through this new line of attack and identifies ten precedents that agencies should cite in their “review-and-repeal effort[s].”2 Relying on these cases, the memo orders department heads to repeal disfavored rules outside the normal rulemaking process. It directs agencies to invoke the “good cause” provision of the Administrative Procedure Act, allowing rulemaking to circumvent notice-and-comment requirements when that process would be “impracticable, unnecessary, or contrary to the public interest.” The Administration offered two rationales for the existence of good cause: first, that “[r]etaining and enforcing facially unlawful regulations is clearly contrary to the public interest”; and second, that “notice-and-comment proceedings are ‘unnecessary’ where repeal is required as a matter of law to ensure consistency with a [Supreme Court] ruling.” Under this theory, no procedural barriers can hobble the Executive in its ruthless repeal of unlawful regulations. At stake, so we are told, is “fidelity to the Constitution” itself.
The endangerment determination was not rescinded under the “good cause” provision — presumably to avoid stress-testing this procedural shortcut. But nevertheless, the final rule bears the distinct stamp of anticipatory deregulation. In its explanation for the rescission, EPA asserts that the endangerment finding for GHGs implicates “an unlawful regulatory framework” that is not authorized by the CAA. To allow the determination to persist, the Administration claims, would arrogate to the agency the power to write legislation and threaten the “fundamental legal principles underpinning our constitutional system.”
The basis of the endangerment finding’s purported illegality seems shaky at best and specious at worst. After all, the Court in Massachusetts v. EPA explicitly held that the CAA authorized the regulation of GHGs. For its part, the Administration asserts that two intervening decisions have “clarified” that the rule was unlawful all along: First, the ruling in Loper Bright Enterprises v. Raimondo required courts provide the “best reading” of administrative statutes; and second, the decision in West Virginia v. EPA crystallized the major questions doctrine. But, as environmental plaintiffs have noted, these issues are red herrings: In its expansive consideration of the CAA, Massachusetts v. EPA both resolved the issue of statutory interpretation and discounted the relevance of the major questions doctrine.
That its appeals to Loper Bright and West Virginia v. EPA are particularly weak does not detract from the breathtaking sweep of the assertions made in the rescission decision. For one, the Administration contends that anticipatory deregulation is not merely a discretionary process but a mandatory duty. The existence of unlawful regulations, we are told, “compel[s] corrective action.” Yet the meaning of illegality in this equation remains critically underdeveloped. The Administration argues that the “best reading” and “major questions” analyses are dispositive of unlawfulness, but what makes a reading “best” or a question “major” remains unclear under the caselaw and profoundly subjective in practice.3 As the endangerment rescission illustrates, even definitive rulings on these questions do not rule out future skepticism about a policy’s legality. A limiting principle appears lacking.
Cruder legality-based attacks on extant policies can be traced to the early days of the first Trump Administration, well before the decisions in West Virginia v. EPA and Loper Bright. In September 2017, the Department of Homeland Security attempted to rescind the Deferred Action for Childhood Arrivals program (DACA), relying summarily on a Fifth Circuit decision that issued a preliminary injunction for a related plan. But the Supreme Court in Department of Homeland Security v. Regents of the University of California rejected the rote invocation of “illegality” to justify ending DACA deportation forbearance. As Chief Justice Roberts explained, even if DACA were illegal, unwinding it remains a policy decision subject to the strictures of the APA — including the consideration of alternatives that would be less disruptive to reliance interests.
The explanation for the endangerment rescission pays lip service to the majority’s holding in Regents, but as a matter of substance, it relies instead on Justice Thomas’s partial dissent.4 In his Regents opinion, Justice Thomas embraced the cancellation of DACA forbearance, arguing that “[t]he decision to rescind an unlawful agency action is per se lawful” as illegality was a “sufficient justification for [a program’s] rescission.” Because the policy was illegal, Justice Thomas reasoned, the Administration need not account for policy considerations such as reliance. But even Justice Thomas does not declare anticipatory deregulation an affirmative duty of the Executive. Why then does the endangerment decision play midwife to this mandatory form of anticipatory deregulation?
The answer is simple: The endangerment rescission has a Regents problem. “[S]erious reliance interests” are everywhere, and, per the Regents majority, they “must be taken into account.” Take just the position of American businesses. In its public comments, Ford warned that “[s]table emissions standards are an essential element of a portfolio of policy that America sorely needs to compete.” Tesla stressed that the rescission “would reverse the market stability” that has allowed it and its competitors to invest “billions of dollars” in electric vehicles. And the US Sustainable Investment Forum noted that the lack of national GHG standards will “harm[] the long-term investment strategies of US companies.” These are ponderous risks to investment-backed expectations that cannot be easily handwaved away, to say nothing of how the rescission would disproportionately affect the poor, increase mortality from extreme weather events, and risk the safety of America’s youth.
To avoid this factual problem, EPA indulges in a little legal fiction. Treating anticipatory deregulation as an affirmative duty, the agency argues that it is “compel[led]” to rescind the determination notwithstanding ancillary policy concerns. This case, we are told, is different than Regents: While DHS in Regents had “flexibility” in winding down DACA, the lack of statutory authority under the CAA “leaves [EPA] without discretion” to even consider reliance interests. As “[t]here is no ‘water under the bridge’ exception for unlawful agency action,” unconditional rescission is the only option.
This conceit begins to bring into focus the broader project of anticipatory deregulation. Invoking a duty for the Executive to snuff out “illegal” regulations may seem strange on its face, but it is calculated to avoid court review on the basis of agencies’ fact-bound judgments. When an agency must act, the Administration argues, the reasonableness of that judgment is not in question. Courts need not consider the facts, like reliance, that could cut against that determination, and even if the concomitant harms are expansive, the agency action cannot be arbitrary and capricious if it is compulsory.
There are two flaws in this approach. The first, hinted above, is a definitional one. Despite the Administration’s assertions to the contrary, a policy’s unlawfulness is rarely apparent on its face. The Regents majority recognized that “illegality presumably requires remedial action of some sort,” but it also noted the distinction between the flatly illegal and the “legally questionable.” Mere “uncertainty” as to a policy’s legality does not compel an agency to rescind it. As a structural matter, the distinction between the legally uncertain and the certainly illegal is one to be policed by the courts, not by executive fiat, lest “illegal” become a totem doctrinally indistinguishable from “abracadabra.”
The second, and more immediate, flaw is one of precedential fidelity. EPA argues that, unlike DHS, it is without discretion to “[a]dopt[] regulatory provisions to phase out or winddown [sic] the Endangerment Finding” as doing so “would be inconsistent with the conclusion that we lack statutory authority for the program.” But the Court in Regents rejected the same argument:
The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination. But nothing about that determination foreclosed or even addressed the options of . . . accommodating particular reliance interests. [The Acting DHS Secretary] should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA.
Even if the administration were duty-bound to root out illegal regulations, illegality provides no procedural escape hatch. Statutory authority or not, reliance matters. The effect of the policy on real people matters. Setting aside the question of an extant policy’s illegality (a fraught business, indeed), the government cannot simply upend the regulatory landscape without accounting for the practical effects of that decision. Yet that is precisely what anticipatory deregulation intends to do. By abstracting legal questions from their policy substrate, the Administration seeks to transform the physical into the metaphysical.
The endangerment determination is a particularly poor candidate for this school of legal alchemy. As a practical matter, it is difficult to transform a regulation so sweeping — and that has engendered so much broad investment — into a nullity. Not that the Administration had much choice. The robust scientific support for endangerment has effectively closed off policy-based avenues for rescinding the finding, a fact tacitly acknowledged by EPA’s dropping of its alternative-science rationale from the final rule. In hindsight, argument to legal metaphysics seems inevitable. Perhaps the Administration sees promise defending the rescission before a Court that has embraced anti-administrativism and shown an appetite for declaring law “egregiously wrong from the start.” But if Regents tells us anything, it is that there is reason to hope that experience, not logic, still suffuses the Court’s decisionmaking, particularly where economic interests are involved.
For those concerned with climate change, this seems a rickety place to hang our hats. The Administration has made no secret of its antipathy toward “fear-mongering climate alarmists,” and the conservative wing of the Court has demonstrated a deep-seated skepticism toward the claims of environmentalists. But those realities do not buff out the flaws in the Administration’s overbroad — and overreaching — argument.