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

By Tom Tanton -- February 16, 2010

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.

In response to PLF’s petition, EPA’s Science Advisory Board – a statutorily mandated board of top scientists – “must be afforded the opportunity to review carefully the so-called Climategate revelations and to advise EPA as to whether there are grounds for reconsidering and overturning the endangerment finding,” said Hadzi-Antich. “In a policy sense, this matter is important to all Americans, because EPA’s greenhouse-gas ruling could trigger a massive expansion of federal command-and-control regulations over virtually every nook and cranny of our economy.

Hadzi-Antich continued:

The endangerment finding provides EPA with the foundation to regulate not only greenhouse gas emissions from motor vehicles, but in the future could be the springboard to regulate every activity that emits CO2 – from a steel manufacturing facility to a neighborhood pizza shop, and everything in between. This is an unprecedented assertion of federal power over the most minute details of our national economy – and if it is to stand, it must at least be based on a firm foundation of reliable data available for all to review in the context of a regulatory process that everyone can trust.

Top Obama administration officials and some prominent climate scientists, however, have said the contents of the e-mails do not unravel the scientific consensus that human activities are fueling unprecedented climate change. “There is nothing in the hacked e-mails that undermines the science upon which this decision is based,” EPA Administrator Jackson said at a news conference in December after issuing the finding.

CARB Example Regarding Fraud

EPA was not immediately available to comment on the PLF petition, so the question remains: how can regression models of a useless data set not be compromised? Somebody might also suggest she look to the apology of Mary Nichols, chair of the California Air Resources Board (CARB), regarding the fraud found in developing the diesel particulate standards in California. CARB acknowledged the fraud and postponed the new (and burdensome) regulations. Unfortunately, it doesn’t appear that the EPA even cares that the castle they’ve built is on a foundation of sand; hence the need for lawyers, and petitions and lawsuits.

Other Petitions: SLF and CEI

The foundation’s petition is not the first challenge to the EPA finding, which sets the stage for sweeping climate regulations that EPA is expected to begin rolling out as early as next month. The Southeastern Legal Foundation filed a petition for EPA to reconsider the endangerment finding in December and the Competitive Enterprise Institute filed a petition for EPA to reopen the public comment period on the finding last October in light of the CRU e-mails.


Since the Climategate scandal broke, there have been other revelations: Amazongate, Glaciergate and most recently the faulty Dutch sea level issue. Most recently, Phil Jones, the scientist at the center of the CRU scandal, has hinted strongly  about exaggeration and uncertainty regarding about both recent and historical warming.

  All in all that’s at least four strikes against the EPA relying blindly on the IPCC report.  Any private company with a due-diligence record like that would be seeing IRS and SEC agents knocking at their door with formal complaints. One can reasonably expect that either EPA will get back to the drawing board or the courts will force them to do so. It’s a whole new ball game.

 Appendix: Greenwire Summary of Lawsuits Against EPA Endangerment Finding (2/15/10)

Critics of U.S. EPA’s climate regulations are lining up to launch legal battles against the agency’s “endangerment” finding amid a looming deadline for court challenges.

The U.S. Chamber of Commerce on Friday petitioned a federal appeals court to reconsider EPA’s determination that greenhouse gases threaten public health and welfare, a finding that paves the way for broad regulations of the heat-trapping emissions.

The challenge from the industry trade group is the latest of a series of legal attacks against the finding, and observers say more could appear before tomorrow’s deadline for critics to file petitions in the U.S. Circuit Court of Appeals for the District of Columbia.

“The U.S. Chamber strongly supports efforts to reduce greenhouse gas emissions in the atmosphere, but we believe there’s a right way and a wrong way to achieve that goal,” the group said in a statement. EPA’s endangerment finding is the wrong way, the chamber said. “Because of the huge potential impact on jobs and local economies, this is an issue that requires careful analysis of all available data and options. Unfortunately, the agency failed to do that and instead overreached.”

The chamber said its petition was based on lapses in EPA’s process in making the decision to regulate greenhouse gases under the Clean Air Act, and not on scientific issues related to climate change or the finding.

Last week, Atlanta-based Southeastern Legal Foundation Inc. filed a separate petition with the appeals court. The limited-government advocacy group, which filed the petition on behalf of 13 House Republicans and other business associations, plans to challenge the integrity of the scientific data used to underpin EPA’s finding (E&E Daily, Feb. 11).

And last December, groups including the Coalition for Responsible Regulation Inc., coal and mining companies Massey Energy Co. and Alpha Natural Resources Inc., as well as the National Beef Cattlemen’s Association, alsopetitioned the court to review the finding. Those groups are also planning to challenge the science behind the determination. A coalition of 16 states and New York City has asked to intervene in that case (Greenwire, Jan. 25).

Roger Martella, former EPA general counsel during the George W. Bush administration, said he expects the groups to pursue a variety of strategies to attack the finding. “Many of the petitioner groups take the position that global climate change is a serious issue that warrants action and will want to avoid turning the endangerment litigation into a debate on climate change science itself,” Martella said.

“Instead, these groups are more likely to focus on the legal and record basis for EPA’s endangerment determination — in other words, whether EPA is asking the right questions, looking at the right information, and meeting its burden in finding endangerment under the standards set forth in the Clean Air Act.”

EPA expressed confidence today that the endangerment finding will withstand legal challenge. “The U.S. Supreme Court ordered EPA three years ago to determine whether unchecked greenhouse-gas emissions pose a danger to the American public,” EPA said in a statement. “The Agency made an affirmative finding following an exhaustive review of the peer-reviewed science and thousands of public comments submitted in an open and transparent process.”

Debate over standing

Experts say the appeals court is likely to lump the industry petitions together within the next couple of weeks. Some observers expect the court to promptly dismiss the case, while others are confident that the panel will ultimately hear oral arguments.

Petitioners will likely be required to file briefs within several months, said Jeff Holmstead, an industry attorney and former EPA air chief during the George W. Bush administration. Following that, the administration normally has 60 days to respond, and challengers have another 30 days to submit reply briefs.

“We are certainly going to make every effort to put this before a panel of the U.S. Court of Appeals,” said Shannon Goessling, executive director and chief legal counsel at the Southeastern Legal Foundation.

“I think it’s a very good chance” that the court will hear the case, Goessling added. “This is a precursor to an abundant amount of regulation. Between the reporting rule and the tailoring rule and the effect on stationary sources and vehicles that will be coming out in 2012, this will have broad, sweeping effects that will cost upward of a trillion dollars.”

But David Bookbinder, chief climate counsel at the Sierra Club, said he expects the court to dismiss the case after the Justice Department argues that the petitioners lack standing. “DOJ will make that motion and the court will grant it,” Bookbinder said.

Because the endangerment finding does not impose any immediate regulations, Bookbinder said, no injury was done to the petitioners by issuing the determination. “If there’s an agency action that doesn’t involve actually doing anything to you, there’s no standing, there’s no injury,” he said.

Endangerment battle could play out over vehicle rules

Holmstead agreed that the court could determine that the challengers do not have standing to challenge the endangerment finding on its own. But with EPA expected to soon begin regulating tailpipe emissions of greenhouse gases, Holmstead and others said the battle over the endangerment finding could take place in the context of that rule.

“I think there is a good likelihood that ultimately the endangerment determination petitions become consolidated with any challenges to the motor vehicle rule itself, which likely would moot any standing questions,” Martella said.

Observers expect automobile dealers to lead the challenge against the vehicle rule, because automakers were involved in negotiating the administration’s proposal and have been largely supportive of the standard.

Bookbinder said opponents of the vehicle rule will launch two attacks: They will argue that the science behind the endangerment finding is flawed and that EPA failed to analyze the effects of regulations on small businesses as required under the Regulatory Flexibility Act.

Both of those arguments will fail, Bookbinder said. On the claim that the science does not justify the endangerment finding, he said, “I could argue that with hand puppets and win. It’s a factual determination that EPA gets to make.”

Courts almost always defer to EPA and other science agencies because they are not set up to arbitrate scientific disputes, Holmstead said. “I think the challengers will have an uphill battle on that,” he said.

However, Holmstead added, auto dealers will likely have some additional arguments, and he expects the court will grant other petitioners standing in the challenge over the vehicle rule.

As for the argument that EPA failed to analyze the effects to small business, Bookbinder said that federal courts have never invalidated an agency action on the basis of the act, which requires EPA to convene a panel to assess the potential impact of the rules on small businesses.

GOP lawmakers and an independent advocacy office within the Small Business Administration have accused EPA of failing to fully analyze the pending climate rules’ effects on small businesses (E&E Daily, Jan. 15).

Click here to read the chamber’s petition.


  1. steve C.  

    I won’t be surprised if these appeals are rejected because their is a lack of standing. The government will argue that there is “no harm” done. Another example of reality versus theory.

    I expect that the EPA will continue down the road to carbon regulation and will not be deterred unless and until there is a change of mind among the House and Senate. All trends continue until there is dramatic change.


  2. John Droz  


    Several of the petitions cited are at a password protected registration site. Are there other urls where they are available?

    Thanks for an excellent piece.


  3. Tom Tanton  

    steve c. I suspect that “no standing” MIGHT be the result, but the same clowns that argue “no harm” are the same clowns that claim bunches and bunches of green jobs already created, by the promise of the to-be-formed new energy economy. That promise is also a threat that has led to avoided investments in real energy solutions and diverted capital. Anybody who claims there’s been “no harm” is either a liar, ignorant or a bootlegger (I do recognize the possibility they’re all three.)


  4. Chris  

    Don’t forget about the state of Texas. They filed too!


  5. Dore Straley  

    Do you have offices in Florida and who would be a good contact person.


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