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Category — EPA Endangerment Finding

Pacific Legal Foundation vs. EPA on Endangerment (Bad science and bad policy can be avoided)

Another defender of limited government (and sound science) has petitioned U.S. Environmental Protection Agency to reopen the regulatory process that led to EPA’s controversial endangerment finding, arguing that new information casts doubt on the scientific integrity of the determination. The Pacific Legal Foundation (PLF), a Sacramento, Calif.-based group that defends individuals against large, intrusive government, filed an administrative petition with EPA last week that challenges the agency’s finding on procedural grounds. The petition to the EPA is available at PLF’s web site.

According to the filing, EPA must reopen the proceedings surrounding its determination that greenhouse gases threaten public health and welfare, in light of recent controversy over e-mails released from prominent climate scientists whose work formed the very foundation of the Intergovernmental Panel on Climate Change (IPCC)’s 4th assessment on climate change (2007). The filing also demands that EPA’s Scientific Advisory Board evaluate whether the finding itself should be reconsidered. The IPCC reports were preeminent among the data used to underpin EPA’s endangerment finding.

Invalidated Science

At issue is the EPA’s finding–announced December 2009–that “greenhouse gas” emissions from automobiles [and hence from nearly every single other human activity] pose a danger to public health and welfare.

“PLF has filed this administrative petition because the integrity of the process that yielded the endangerment finding has been put in question by the revelations popularly known as ‘Climategate,’” said PLF attorney Ted Hadzi-Antich. “Thousands of emails and other documents have come to light that show the very scientists involved in arriving at the endangerment finding questioning the data that underlie the finding.”

“PLF takes no position on the scientific data itself, but as a legal watchdog for limited government and enforcing the legal and constitutional limits on regulatory agencies, we are very concerned that the regulatory process in this case may have been compromised,” added Hadzi-Antich. “Because significant revelations suggest that the scientific data that was used for the endangerment finding may be unreliable, a formal reconsideration of the process and the finding must be undertaken.”

I would note that the data from the Climate Research Unit (CRU) at East Anglia College (EAC) that was released primarily regards historical (and pre-historical) temperatures, and forms the regression base for future projections of temperature. And if the data describing the past is faulty, so are regression-based projections.

The emails also reveal attempts by climate alarmists to hide data that conflicts with their world views. The PLF petition argues that reopening the process is required by statute because the integrity of the process has been called into question by the revelations. Indeed, when reasons come to light that cast doubt on the reliability of a regulatory finding, the Clean Air Act requires reassessment by the agency’s Science Advisory Board, as part of a reassessment by the general public. [Read more →]

February 16, 2010   5 Comments

EPA’s Tailoring Rule: Temporary, Dubious, Incomplete Antidote to Massachusetts v. EPA’s Legacy of Absurd Results (Part 2)

This post is Part 2 of my examination of EPA’s Tailoring Rule – the Agency’s attempt to amend the Clean Air Act’s (CAA) Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program so that they can be applied to carbon dioxide (CO2) and other greenhouse gases (GHGs) without spawning an economically-chilling administrative morass. Yesterday’s post argued that the Supreme Court’s decision in Massachusetts v. EPA set the stage for an administrative disaster that EPA rightly describes as “unprecedented” and “absurd.” Today’s post examines the adequacy of the Tailoring Rule as a regulatory relief measure, finds it woefully inadequate, and advises EPA not to oppose legislative action to protect the economy from Mass. v. EPA‘s regulatory fallout.

V. Tailoring Rule: Small Business Protection Is Temporary, Dubious, and Incomplete

Industry is unlikely to challenge the Tailoring Rule, since it aims to shield substantial numbers of small entities from PSD and Title V regulation of CO2 for a period of six years. However, the business community would be unwise to rely on the Tailoring Rule for protection from the regulatory fallout of Mass v. EPA.

First, as noted earlier, the Tailoring Rule is actually an Amending Rule and, hence, is legally dubious. The Tailoring Rule proposes sweeping “categorical exemptions” from the PSD and Title V programs, and, as EPA acknowledges, courts generally have looked with disfavor upon such broad carve-outs in previous administrative necessity cases (TR, 55313). [Read more →]

January 8, 2010   14 Comments

EPA’s Tailoring Rule: Temporary, Dubious, Incomplete Antidote To Massachusetts v. EPA’s Legacy of Absurd Results (Part 1)

(Note: This column is adapted from a forthcoming article, co-authored with former Virgiania Governor George F. Allen, in the University of Richmond Law Review.)  

December 28, 2009 was the final day to submit comments on the Environmental Protection Agency’s (EPA’s) proposed Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule.  This is the rulemaking in which EPA proposes to “tailor” the Clean Air Act’s (CAA or Act’s) Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program so that they can be applied to carbon dioxide (CO2) and other greenhouse gases (GHGs) without spawning an economically-chilling administrative morass.

The Tailoring Rule is an eye opener, because it reveals, or rather confirms in spades, that the Supreme Court’s decision in Massachusetts v. EPA has created an almost bottomless well of “absurd results” — disastrous consequences that EPA can avoid only by poaching legislative power and amending the Act.

The present post is Part 1 of a two-part column the argument of which may be summarized as follows:

  1. In Massachusetts v. EPA, the Supreme Court legislated from the bench, authorizing and indeed pushing EPA to control GHG emissions for climate change purposes. This is a policy decision of immense economic and political magnitude that Congress never intended or approved when it enacted and amended the CAA.
  2. Regulating GHGs under the CAA leads inexorably to “absurd results,” including an economy-stifling administrative quagmire.
  3. To prevent GHG regulation from overwhelming agency administrative resources and blocking economic development, EPA proposes to suspend, for six years, the “major” source applicability thresholds for the CAA pre-construction and operating permits programs. That is, EPA proposes to amend the Act. This violation of the separation of powers compounds the constitutional crisis inherent in the Court’s substitution of its will for that of the people’s elected representatives.
  4. The small-business protections proposed in the Tailoring Rule are temporary, legally dubious, and incomplete. Even if courts uphold the Tailoring Rule, despite its flouting of clear statutory language, it will not avert the most absurd result of the Court’s misreading of the CAA:  regulation of CO2 and other GHGs under the National Ambient Air Quality Standards (NAAQS) program.
  5. EPA runs enormous political risks leading the charge for GHG regulations not approved by Congress. It is in the Agency’s best interest not to oppose legislative action to overturn the endangerment finding and Mass. v. EPA or block EPA regulation of CO2 from stationary sources.

Today’s post covers points 1-3; tomorrow’s covers points 4-5. [Read more →]

January 7, 2010   8 Comments

Why is the Party in Power So Fearful of Copenhagen? (Is a 'death spiral' for climate alarmism ahead?)

[Editor note: Ken Green was a Working Group 1 expert reviewer for the United Nations' Intergovernmental Panel on Climate Change (IPCC) in 2001]

For weeks now, we’ve been hearing an odd refrain from the Democrats who are pushing hardest for the Waxman-Markey climate bill. They are determined, it seems, not only to have such a bill drawn up before Copenhagen, but to have it signed into law. At the same time, the EPA is widely expected to issue its endangerment finding for greenhouse gases, triggering what will undoubtedly be a hotly disputed regulatory process.

President Obama, it is reported, wants to sign climate legislation before the critically important Copenhagen climate conference in December. And Senate Majority leader Harry Reid wants the President to sign a climate bill this fall as well.

They both have plenty of company in the “act first, think later” brigade.

A New York Times article shows the sense of urgency: [Read more →]

September 1, 2009   14 Comments

Politics vs. Science at EPA: The Carlin Matter Revisited

[Editor note: For more background and the likely consequences of EPA's endangerment finding, see Marlo Lewis, "CO2 Regulation under the Clean Air Act: Economic Train Wreck, Constitutional Crisis, Legislative Thuggery"]

In their recent draft of an endangerment-finding technical support document (TSD), scientists at the U.S. Environmental Protection Agency (EPA) conclude that carbon dioxide emissions are a public health hazard and should be regulated under the Clean Air Act. Federal law requires that regulations be based on scientific information that is “accurate, clear, complete, and unbiased”; the most recent available; and collected by the “best available methods.” The EPA’s TSD on carbon emissions violates all of these requirements.

Staff researcher Dr. Alan Carlin, given just a few days to review the draft TSD, took EPA to the woodshed because the report offered little more than a bibliography of out-of-date reports and research rather than a rigorous scientific inquiry into the subject. The Carlin report’s preface clearly shows that the EPA abdicated its position of scientific authority on the subject: “Our conclusions do represent the best science in the sense of most closely corresponding to available observations that we currently know of [and] are sufficiently at variance with those of the IPCC, CCSP, and the Draft TSD that we believe they support our increasing concern that EPA has not critically reviewed the finding by these other groups.”

Both of EPA’s recent attempts to regulate additional pollutants under the Clean Air Act have had poor results. [Read more →]

August 6, 2009   8 Comments