OIG Critical Of Procedures Used In EPA's GHG Endangerment Finding

Sep 28: U.S. EPA's Office of Inspector General (OIG) has issued a 99-page report entitled, Procedural Review of EPA's Greenhouse Gases Endangerment Finding Data Quality Processes (No. 11-P-0702, September 26, 2011). Senator James Inhofe (R-OK), Ranking Member, Senate Committee on Environment and Public Works (EPW), requested that OIG determine whether EPA followed key Federal and Agency regulations and policies in developing and reviewing the technical data used to make and support its greenhouse gases (GHG) endangerment finding.

 

    On December 15, 2009, EPA published its Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act. As the primary scientific basis for EPA's finding, the Agency relied upon assessments conducted by other organizations. EPA summarized the results of these and other scientific assessments in a technical support document (TSD).

 

    In its investigation, OIG found that EPA met statutory requirements for rulemaking and generally followed requirements and guidance related to ensuring the quality of the supporting technical information. Whether EPA's review of its endangerment finding TSD met Office of Management and Budget (OMB) requirements for peer review depends on whether the TSD is considered a "highly influential scientific assessment." OIG indicates, "In our opinion, the TSD was a highly influential scientific assessment because EPA weighed the strength of the available science by its choices of information, data, studies, and conclusions included in and excluded from the TSD." OIG reports that EPA officials did not consider the TSD a highly influential scientific assessment. EPA noted that the TSD consisted only of science that was previously peer reviewed, and that these reviews were deemed adequate under the Agency's policy. EPA had the TSD reviewed by a panel of 12 Federal climate change scientists. OIG indicates, "This review did not meet all OMB requirements for peer review of a highly influential scientific assessment primarily because the review results and EPA's response were not publicly reported, and because 1 of the 12 reviewers was an EPA employee."

    OIG reports that EPA's guidance for assessing data generated by other organizations does not include procedures for conducting such assessments or require EPA to document its assessment. EPA provided statements in its final findings notice and supporting TSD that generally addressed the Agency's assessment factors for evaluating scientific and technical information, and explained its rationale for accepting other organizations' data. However, no supporting documentation was available to show what analyses the Agency conducted prior to disseminating the information. OIG indicates, "Our evaluation examined the data quality procedures EPA used in developing the endangerment finding. We did not assess whether the scientific information and data supported the endangerment finding."

    OIG concludes, "We recommend that EPA (1) revise its Peer Review Handbook to accurately reflect OMB requirements for peer review of highly influential scientific assessments, (2) instruct program offices to state in proposed and final rules whether the action is supported by influential scientific information or a highly influential scientific assessment, and (3) revise its assessment factors guidance to establish minimum review and documentation requirements for assessing and accepting data from other organizations." OIG indicates that EPA stated that its response to the final report will address the recommendations.

    In addition to the report, EPA's Inspector General Arthur A. Elkins, Jr. issued a press statement dated September 28, on the report. In the statement, Elkins said, ""The OIG evaluated EPA's compliance with established policy and procedures in the development of the endangerment finding, including processes for ensuring information quality. We concluded that the technical support document that accompanied EPA's endangerment finding is a highly influential scientific assessment and thus required a more rigorous EPA peer review than occurred. EPA did not certify whether it complied with OMB's or its own peer review policies in either the proposed or final endangerment findings as required. While it may be debatable what impact, if any, this had on EPA's finding, it is clear that EPA did not follow all required steps for a highly influential scientific assessment. We also noted that documentation of events and analyses could be improved.

    "We made no determination regarding the impact that EPA's information quality control systems may have had on the scientific information used to support the finding. We did not test the validity of the scientific or technical information used to support the endangerment finding, nor did we evaluate the merit of EPA's conclusions or analyses. We make recommendations that we think will strengthen EPA's control over data quality processes. EPA disagreed with our conclusions and did not agree to take any corrective actions in response to this report. All the report's recommendations are unresolved."

    Senator Inhofe, who requested the report responded immediately with a release indicating, "I appreciate the Inspector General conducting a thorough investigation into the Obama-EPA's handling of the endangerment finding for greenhouse gases. This report confirms that the endangerment finding, the very foundation of President Obama's job-destroying regulatory agenda, was rushed, biased, and flawed. It calls the scientific integrity of EPA's decision-making process into question and undermines the credibility of the endangerment finding.

    "The Inspector General's investigation uncovered that EPA failed to engage in the required record-keeping process leading up to the endangerment finding decision, and it also did not follow its own peer review procedures to ensure that the science behind the decision was sound. EPA Administrator Lisa Jackson readily admitted in 2009 that EPA had outsourced its scientific review to the United Nations' Intergovernmental Panel on Climate Change. This is an institution whose credibility has already been called into question. Even so, EPA still refused to conduct its own independent review of the science.  As the EPA Inspector General found, whatever one thinks of the UN science, the EPA is still required -- by its own procedures -- to conduct an independent review.

    "The endangerment finding is no small matter: global warming regulations imposed by the Obama-EPA under the Clean Air Act will cost American consumers $300 to $400 billion a year, significantly raise energy prices, and destroy hundreds of thousands of jobs. This is not to mention the 'absurd result' that EPA will need to hire 230,000 additional employees and spend an additional $21 billion to implement its greenhouse gas regime. And all of this economic pain is for nothing: as EPA Administrator Jackson also admitted before the EPW committee, these regulations will have no affect on the climate.  

    "One asks, what happened to Administrator Jackson's vow in 2009 that the Agency would commit to high standards of transparency because ' The success of our environmental efforts depends on earning and maintaining the trust of the public we serve ' or Obama Advisor John Holdren's promise that the Administration would make decisions based on the best possible science because, as the President said, ' The public must be able to trust the science and scientific process informing public policy decisions '?  Given what has come to light in this report, it appears that the Obama EPA cannot be trusted on the most consequential decision the agency has ever made.  

    "I am calling for the Senate Committee on Environment and Public Works, the committee of jurisdiction over the EPA, to hold immediate hearings to address EPA's failure to provide the required documentation and have the science impartially reviewed.  EPA needs to explain to the American people why it blatantly circumvented its own procedures to make what appears to be a predetermined endangerment finding."

    Access the complete report (click here). Access IG's statement (click here). Access a release from Sen. Inhofe (click here). [#Climate, #Air]

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Battle Lines Drawn Over OIG Report On Endangerment Finding

Sep 28: U.S. EPA released a statement on the Agency's Office of Inspector General (OIG) report on the process and procedure it used in developing its Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act [See WIMS 9/28/11]. EPA emphasized that, "Some news accounts have mischaracterized the report's findings." The Agency included a number of highlighted excerpts from the report in addition to its statement. 

 

    Senator James Inhofe (R-OK) Inhofe, and avid critic of climate change science and EPA actions to control GHG emissions, who requested the report from OIG reacted immediately and said the report indicated EPA endangerment finding "was rushed, biased, and flawed. It calls the scientific integrity of EPA's decision-making process into question and undermines the credibility of the endangerment finding." He said, "I am calling for the Senate Committee on Environment and Public Works, the committee of jurisdiction over the EPA, to hold immediate hearings to address EPA's failure to provide the required documentation and have the science impartially reviewed. . ."

 

    EPA said in its official response, "We appreciate the important role played by the Inspector General's Office and will give the recommendations in this report the utmost consideration. Most importantly, the report does not question or even address the science used or the conclusions reached -- by EPA under this and the previous administration -- that greenhouse gas pollution poses a threat to the health and welfare of the American people. Instead, the report is focused on questions of process and procedure. While EPA will consider the specific recommendations, we disagree strongly with the Inspector General's findings and followed all the appropriate guidance in preparing this finding.

    "EPA undertook a thorough and deliberate process in the development of this finding, including a careful review of the wide range of peer-reviewed science. Since EPA finalized the endangerment finding in December of 2009, the vast body of peer reviewed science that EPA relied on to make its determination has undergone further examination by a wide range of independent scientific bodies. All of those reviews have upheld the validity of the science."

    EPA highlighted the following excerpts from the OIG report:

• EPA met statutory requirements for rulemakings.
• We did not test the validity of the scientific or technical information used by EPA to support its endangerment finding.
• We did not make conclusions regarding the impact that EPA's information quality control systems may have had on the scientific information used to support the endangerment finding.
• EPA fulfilled the statutory requirements for notice and comment rulemakings mandated in the Administrative Procedure Act and in Section 307 of the CAA, and employed several of its processes designed to ensure data quality.
• OMB in response to our draft report stated that OMB believes that EPA reasonably interpreted the OMB bulletin in concluding that the TSD did not meet the bulletin's definition of a highly influential scientific assessment.

    Senator Barbara Boxer (D-CA), Chair of the Environment and Public Works Committee, issued a brief statement saying, "The EPA Inspector General in no way questions the science underlying the endangerment finding. It is time to move on to protect the American people from the impacts of climate change, which we are already beginning to see."

 

    House Energy and Commerce Committee Chairman Fred Upton (R-MI) expressed concerns over the report and said the OIG found "that EPA failed to follow the government's own scientific review requirements" on the endangerment finding for greenhouse gases which he said is "at the core of Obama's climate change regulatory agenda." He said, "The Inspector General's findings call into question the credibility of the endangerment finding and the justification for multiple regulatory efforts that stemmed from that finding. EPA failed to conduct its proper due diligence and now the American people will be forced to pay the price. 

    "Sound process is critical to sound outcomes, and the credibility of federal policy and regulations is compromised when agencies cut corners. EPA's controversial greenhouse gas regulations are projected to cost tens of billions of dollars and could eliminate up to 1.4 million jobs by 2014. Clearly the stakes are high, and the notion that the Obama administration took regulatory shortcuts in pursuit of their preferred policy outcome is deeply troubling."   

    Steve Seidel, Vice President for Policy Analysis at the Pew Center on Global Climate Change analyzed the OIG report and said in a blog post, "So exactly what process fouls did EPA commit and how did they affect the outcome of the report? The IG criticizes EPA for not deeming the technical support document a "highly influential scientific assessment" and for not undertaking the procedural requirements set out in OMB guidance for such a document. Instead of undertaking its own assessment of the climate change literature, EPA determined that it would rely on the existing (and extensively peer reviewed) assessments performed by the U.S. Global Change Research Program, the U.S. National Research Council, and the Intergovernmental Panel on Climate Change. Because its document was essentially a summary of existing assessments, EPA argued that it was not conducting a scientific assessment and therefore was not subject to the process requirements for a "highly influential scientific assessment" in OMB guidance. And OMB agrees.

    "Putting aside the fact that OMB agrees with EPA's call, it is still reasonable to ask what peer review process was used for the document. In preparing the technical support document, EPA organized a panel of 12 federal agency climate experts (including one from EPA) to review the document. The document also underwent extensive interagency and OMB review before being published in the Federal Register for public review in July 2008 as part of the agency's Advance Notice of Proposed Rulemaking. It was revised in response to public comments and reissued for a second round of public comments as part of the proposed endangerment finding in April 2009. The agency held public hearings on its proposed action and prepared 11 volumes of responses to public comments before issuing the final document and endangerment finding in December 2009.

    "The endangerment finding has been challenged in the courts, and they ultimately will decide its fate. Given the extensive body of peer reviewed scientific assessments that formed the basis for the finding and EPA's thorough review process for the finding itself, it is highly unlikely that any such challenges will prevail."

    Access the statement from EPA (click here). Access the statement from Sen. Boxer (click here). Access the statement from Rep. Upton (click here). Access the complete posting from the Pew Center (click here). Access the complete OIG report (click here).  [#Climate, #Air]

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Republicans Boycott Senate Endangerment Subpoena Meeting

Jul 24: The Senate Environment and Pubic Works Committee, Chaired by Senator Barbara Boxer (D-CA) held a business meeting to consider a resolution to issue a subpoena to the Administrator of the U.S. EPA. The meeting was boycotted by the Republican members. The Committee is attempting to obtain the document which they say contains the "endangerment document" prepared in follow-up to the U.S. Supreme Court ruling in Massachusetts. v. EPA. The White House agreed to allow the Committee to view the document, but not release it to the public or copy it. It was delivered to the Committee late in the afternoon of July 23. According to Committee Members the document find endangerment and would allow going forward with regulation of greenhouse gases under the Clean Air Act.

According to the Committee, the document says, "The Administrator is proposing that elevated concentrations of the greenhouse gases are reasonably anticipated to endanger public welfare, given the stated vulnerabilities, risks, and impacts from climate change on air quality (and related effects on the environment from changes in air quality), agriculture, forestry, water resources, ecosystems, coastal areas, the energy sector, infrastructure and settlements, and the direct effects of such elevated concentrations on the environment."

Senator Boxer reported that, ". . .the endangerment finding was not brought over by the White House Counsel's office until about 4:30 yesterday, despite our longstanding request. The White House conditioned our review of the document, not allowing us to copy it or to do more than take 'reasonable notes.'

"My staff has read the document in detail and briefed me. I read it, and have more work to do. This proposed endangerment finding, by the Administrator of EPA, concludes that the welfare of the American people is endangered if steps are not taken to avoid the ravages of unchecked global warming. In this document, in EPA's own words, we see that the law is clear, that the scientific evidence is sufficient, and that we must act. I have been informed that the Administrator and his senior staff participated directly in the preparation of this endangerment finding, and at the highest levels, and approved its transmission to the White House. There is no excuse, there is no argument that could possibly support withholding this endangerment finding from the American people, and I will continue to do everything I can to provide the public with as much information as possible. . ."

Senator James Inhofe (R-OK), Ranking Member on the Committee issued a statement saying, "I am very disappointed with the actions of this Committee today. It is my view that the calling of this Business Meeting to consider a Committee Resolution to issue a subpoena to EPA Administrator Johnson is unwarranted and not focused on true oversight. Rather, this is a political exercise that is intended to score more political points to help keep this issue of alleged Administration interference alive in the press as long as possible. The document in question today has been offered to the Committee for review, and was in fact reviewed by staff yesterday evening. This same offer was accepted by Congressman Markey and the Select Committee on Energy Independence and Global Warming, but had been rejected by my Democratic colleagues. . .
"It is my view that regardless of Administration, the President acting through the entire executive branch is fully entitled to express his policy judgments to the EPA Administrator, and to expect this subordinate to carry out the judgment of what the law requires and permits. It can be argued that the “unitary Executive concept” promotes more effective rulemaking by bringing a broader perspective to bear on important regulatory decisions. It also enhances democratic accountability for regulatory decision-making by pinning responsibility on the President to answer to the public for the regulatory actions taken by his Administration.
Therefore, I consider this debate over censorship within the Administration to be a non-issue. . . "

Immediately following the conclusion of the business meeting, Senator Boxer held a press conference to brief reporters on the details of EPA's Proposed Endangerment Finding for greenhouse gases. A vote from the Committee was not possible due to lack of Republican members.

Access the statement from Senator Boxer which includes a summary of the endangerment finding excerpts (click here). Access the statement from Senator Inhofe (click here). Access the meeting website which includes a webcast of the meeting with extensive additional details and statements from Members in attendance (click here). Access the video of the press conference (click here). Access a press statement from Senator Boxer (click here). Access numerous WIMS-eNewsUSA postings on the endangerment issues (click here). [*Climate]

Court Petition & Subpoena Seek Warming Endangerment Findings

Apr 2: Massachusetts Attorney General Martha Coakley’s Office along with Attorneys General from 17 states, the Corporation Counsel for the City of New York, the City Solicitor of Baltimore, and 13 environmental advocacy groups have asked the U.S. Court of Appeals for the District of Columbia Circuit to order U.S. EPA to respond to last year’s landmark ruling in Massachusetts v. EPA. That ruling, which the U.S. Supreme Court issued exactly one year ago today [See WIMS 4/2/07], required the EPA to make a decision on whether to regulate greenhouse gas emissions from motor vehicles under the federal Clean Air Act. A year later, the EPA has not issued a decision. The court filing, known as a Petition for Mandamus, requests an order requiring the EPA to act within 60 days.

Attorney General Coakley said, “Once again the EPA has forced our hand, which has resulted in our taking this extraordinary measure to fight the dangers of climate change. As the EPA itself has acknowledged, last year’s Supreme Court ruling requires it to determine whether greenhouse gases are endangering public health or welfare, and if so to begin regulating them. The EPA’s failure to act in the face of these incontestable dangers is a shameful dereliction of duty.”

In Massachusetts v. EPA, the Supreme Court ruled that -- contrary to the agency’s claim -- the EPA has authority to regulate greenhouse gases under the Clean Air Act. The Court also declared that the agency could not refuse to exercise that authority based on the Agency’s policy preferences. Instead, the EPA would have to decide, based on scientific information, whether it believed that greenhouse gas emissions were posing dangers to public health or welfare. According to the petition, after last year’s ruling, the EPA publicly made clear its belief that greenhouse gases were in fact endangering public health or welfare. Once the EPA comes to that judgment, it must regulate greenhouse gases under the Clean Air Act. On multiple occasions, the agency promised that it would respond to the Supreme Court’s opinion by issuing an endangerment determination and draft motor vehicle emission standards by the end of last year.

When it recently decided whether California could set its own standards for greenhouse gas emissions from motor vehicles [See WIMS 2/29/08], EPA issued detailed findings about the widespread harms that greenhouse gases are causing. For example, the Administrator specifically found that “[s]evere heat waves are projected to intensify in magnitude and duration over portions of the U.S. where these events already occur, with likely increases in mortality and morbidity, especially among the elderly, young, and frail.” The EPA denied California’s request only on the grounds that the many severe harms that California faced would also afflict other states across the country.

The Mandamus petition further asserts that EPA has already prepared an endangerment determination. A Congressional investigation conducted by Congressman Henry Waxman confirmed that the EPA in fact sent its draft endangerment determination and proposed regulations to the Office of Management & Budget in December 2007. According to the petition, an investigation conducted by the House Committee on Oversight and Government Reform established that consistent with its announced schedule, the EPA implemented its internal process of drafting an affirmative endangerment determination during the Fall of 2007.

The EPA has now declined to issue that proposed endangerment determination, and it last week said that it would delay responding to the Supreme Court’s opinion until after it conducts a lengthy public comment period [Advance Notice of Proposed Rulemaking (ANPR)] later this year to examine policy issues raised by regulating greenhouse gases under the Clean Air Act [See WIMS 3/28/08].

Joining Massachusetts in the Petition for Mandamus are: the states of Arizona, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington and the District of Columbia, the City of New York, and the Mayor and City Council for Baltimore, Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense Fund, Friends of the Earth, Greenpeace, International Center for Technological Assessment, Natural Resources Defense Council, Sierra Club and the U.S. Public Interest Research Group. All of these parties were either petitioners in Massachusetts v. EPA, or joined amicus briefs in support of the petitioners.

In a separate action from the states and groups filing a court request for Petition for Mandamus, the House Select Committee on Energy Independence and Global Warming, Chaired by Edward J. Markey (D-MA), voted to issue a subpoena for EPA documents showing the Agency's progress in making the "endangerment" finding and proposing national emissions standards under the Massachusetts v. EPA Supreme Court ruling.

A release from the Committee indicates that, "One year ago today, the Supreme Court handed down its decision on the landmark global warming case Massachusetts v. EPA, saying the Bush administration’s Environmental Protection Agency must address whether heat-trapping emissions from motor vehicles endanger public health or welfare. After a year of stalling and avoidance by EPA Administrator Stephen Johnson, Chairman Edward J. Markey (D-MA) and the Select Committee on Energy Independence and Global Warming will vote to issue a subpoena for EPA documents showing the Agency's progress in making the "endangerment" finding and proposing national emissions standards."

Markey said, “Paper is the traditional one year anniversary gift. On this anniversary of Massachusetts v. EPA, we’re sending a piece of paper -- a subpoena -- to Stephen Johnson and the EPA. The modern one year anniversary gift is a clock, and we’re trying to make sure this administration doesn’t run out the clock on their term without taking action to protect the climate.”

The 12-0 vote (9 Democrats, 3 Republicans), preceded a Select Committee hearing on aviation’s role in the causes and solutions to global warming. A simple majority of the committee’s 15 members is required to approve the subpoena, and the committee expects to serve the subpoena on the EPA shortly. Markey indicated that if the EPA does not turn over the requested documents following the subpoena within 10 days, the committee will then work with the House leadership to enforce the subpoena. Johnson will not be in Washington, DC today to witness the committee vote, as he is currently traveling in Australia.

In conversations and in letters dating back to January, Chairman Markey and Johnson have discussed his agency turning over documents pertaining to EPA’s required ruling on whether or not heat-trapping carbon dioxide pollution is a danger to human health or welfare; and draft regulations for controlling global warming emissions from vehicles. Johnson had personally committed to turning over the documents, but has since refused to do so, most recently when he testified before the Select Committee in a March 13, 2008 hearing [See WIMS 3/14/08].

In his release Markey explained, in April of 2007, the Supreme Court directed EPA to determine whether greenhouse gas emissions cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. If EPA makes this so-called "endangerment finding," the Supreme Court said, then it must regulate these emissions from motor vehicles. In its response to the Supreme Court decision, EPA spent about six months conducting intensive analysis and, according to EPA staff disclosures to Congress, Johnson signed off on his agency's positive endangerment finding as well as on a regulatory proposal to reduce these emissions from motor vehicles (to levels that correspond to a fleet average of 35 miles per gallon by 2018). These documents were forwarded to other White House and federal agencies for review in December.

Access a release from the Massachusetts Attorney General (click here). Access the Petition for Mandamus (click here). Access information from Representative Waxman that includes links to EPA's ANPR letter to Congressional leaders and related documents (click here). Access a release from Sierra Club with links to background documents on the case (click here). Access a release from Environmental Defense (click here). Access several WIMS articles on the Supreme Court ruling and requests for EPA's endangerment findings (click here). Access a release from Representative Markey including his opening statement on the subpoena (click here). Access more information on the exchanges between Markey and Johnson on the Select Committee website (click here). [*Climate]

Appeals Court Rules Unanimously In Favor Of EPA GHG Regulations

Jun 26: Coalition for Responsible Regulation v. U.S. EPA; American Chemistry Council v. U.S. EPA; and various intervenors including the State of Michigan, et al. In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1322, consolidated with a number of cases. On Petitions for Review of Final Actions of the Environmental Protection Agency. And, consolidated with dozens of cases and involving hundreds of attorneys. This is a highly controversial, complicated and critically important decision regarding U.S. EPA's ability to regulate greenhouse gases under the Clean Air Act. A unanimous Appeals Court has provided an complete ruling in support of U.S. EPA and Administration.

 

    The Appeals Court outlines the history as follows: Following the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007) -- which clarified that greenhouse gases are an "air pollutant" subject to regulation under the Clean Air Act (CAA) -- U.S. EPA promulgated a series of greenhouse gas-related rules. First, EPA issued an Endangerment Finding, in which it

determined that greenhouse gases may "reasonably be anticipated to endanger public health or welfare." See 42 U.S.C. § 7521(a)(1). Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.

 

    Petitioners, various states and industry groups, challenge all these rules, arguing that they are based on improper constructions of the CAA and are otherwise arbitrary and capricious. The Appeals Court rules, "But for the reasons set forth below, we conclude: (1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; (2) EPA's interpretation of the governing CAA provisions is unambiguously correct; and (3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions."

 

    The Appeals Court explains the organization of the seven part, 82-page decision saying, "This opinion proceeds in several steps. Part II explains why the Endangerment Finding was neither arbitrary nor capricious, while Part III does the same for the Tailpipe Rule. Turning to stationary source regulation, Part IV examines whether any petitioners may timely challenge EPA's longstanding interpretation of the PSD statute. Because we conclude that they may, Part V addresses the merits of their statutory arguments, and explains why EPA's interpretation of the CAA was compelled by the statute. Next, Part VI explains why petitioners lack standing to challenge the Timing and Tailoring Rules themselves. Finally, Part VII disposes of several arguments that have nothing to do with the rules under review, and thus are not properly before us."

 

    On the issue of the scientific basis for the endangerment finding, the Appeals Court said in part, "State and Industry Petitioners next challenge the adequacy of the scientific record underlying the Endangerment Finding, objecting to both the type of evidence upon which EPA relied and EPA's decision to make an Endangerment Finding in light of what Industry Petitioners view as significant scientific uncertainty. Neither objection has merit. . . Based on this scientific record, EPA made the linchpin finding: in its judgment, the 'root cause' of the recently observed climate change is 'very likely' the observed increase in anthropogenic greenhouse gas emissions. . . EPA had before it substantial record evidence that anthropogenic emissions of greenhouse gases 'very likely' caused warming of the climate over the last several decades. . ."

 

    On the subject of the Endangerment Finding being arbitrary and capricious and "just a "subjective conviction" of EPA, the Appeals Court said in part, "EPA relied on a substantial record of empirical data and scientific evidence, making many specific and often quantitative findings regarding the impacts of greenhouse gases on climate change and the effects of climate change on public health and welfare. Its failure to distill this ocean of evidence into a specific number at which greenhouse gases cause "dangerous" climate change is a function of the precautionary thrust of the CAA and the multivariate and sometimes uncertain nature of climate science, not a sign of arbitrary or capricious decision-making."

 

    On the subject of standing, the Appeals Court summarizes the arguments and its ruling as follows: "Petitioners fall far short of these 'irreducible constitutional . . . elements' of standing, id. at 560. Simply put, Petitioners have failed to establish that the Timing and Tailoring Rules caused them 'injury in fact,' much less injury that could be redressed by the Rules' vacatur. Industry Petitioners contend that they are injured because they are subject to regulation of greenhouse gases, Coalition for Responsible Reg. Timing & Tailoring Br. 14. State Petitioners claim injury because they own some regulated sources and because they now carry a heavier administrative burden. State Pet'rs' Timing & Tailoring Br. 22–23. But as discussed above, see supra Part V, the CAA mandates PSD and Title V coverage for major emitters of greenhouse gases. Thus, Industry Petitioners were regulated and State Petitioners required to issue permits not because of anything EPA did in the Timing and Tailoring Rules, but by

automatic operation of the statute. Given this, neither the Timing nor Tailoring Rules caused the injury Petitioners allege: having to comply with PSD and Title V for greenhouse gases."

 

    Senator Barbara Boxer (D-CA), Chairman of the Environment and Public Works Committee, issued a brief statement saying, "The Appeals Court's decision to unambiguously affirm EPA's clean air efforts to reduce dangerous carbon pollution is a big victory for the health of the American people."

 

    Representative Ed Markey (D-MA.), Ranking Member on the House Natural Resources Committee and a senior member of the Energy and Commerce Committee, released a statement saying, "Today's ruling is a grand slam for the EPA and the health of the American people, and another strikeout for the fossil fuel special interests trying to block clean energy progress. The DC Appeals Court now joins the Supreme Court in saying that climate science is sound and the EPA has the authority to regulate dangerous heat-trapping emissions under the Clean Air Act. Three years ago today, the House passed the Waxman-Markey climate and clean energy bill, and the problems addressed by that legislation remain with us today. With the science affirmed and the authority granted, EPA should continue their important work to address the greatest challenge of our generation in dealing with global warming. At the same time, Congressional Republicans should stop denying the science and start working with Democrats to craft more comprehensive and bipartisan responses to the threat posed by global warming."

 

    Sierra Club issued a release on the decision calling it "a sweeping victory for public health and clean air." Michael Brune, executive director of the Sierra Club said, "Today's decision is a huge victory for American families and everyone concerned about protecting the air we breathe and the health of our children. The role of the Clean Air Act in protecting our families from dangerous carbon pollution and climate disruption should never have been in doubt, and this decision is a big step forward in putting the well-being of Americans before the boundless profits of big polluters. Carbon pollution is dangerous to our planet and our health. The Environmental Protection Agency has the right and the duty to keep our communities healthy and now the path is clear for them to curb this dangerous pollution, which threatens our families and planet. We applaud the court's decision and stand with the EPA as they continue to fight for the health of American families."

 

    Fred Krupp, President of Environmental Defense Fund (EDF) said, "Today's ruling by the court confirms that EPA's common sense solutions to address climate pollution are firmly anchored in science and law. This landmark decision will help secure a healthier and more prosperous future for all Americans. Today is a good day for climate progress in America and for the thin layer of atmosphere that sustains life on Earth." EDF's outside legal counsel Sean Donahue, who presented oral arguments to the court in defense of these protections said, "EPA's reasonable steps to reduce climate pollution will benefit our environment, our economy, our health and our national security. Today's court ruling will help our country move forward toward a clean energy future."

 

    [Note: No immediate reaction to the ruling was available from industry or state government participants at press time.]

 

    Access the complete opinion (click here). Access the statement from Sen. Boxer (click here). Access the statement from Rep. Markey (click here). Access a release from Sierra Club (click here). Access the statement from EDF (click here). [#Climate, #Air, #MIAir, #MIClimate]

 

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EPW Dems United In Opposition To Murkowski Amendment

Jan 11: All of the Members of the Democratic Caucus on the Senate Environment and Public Works (EPW) Committee have joined together to oppose a proposal by Senator Lisa Murkowski (R-AK) to overturn U.S. EPA's global warming endangerment finding. A January 11, 2009 "Dear Colleague" letter urging Members to oppose the proposal was signed by all twelve of the Majority Members of the Committee: Senator Barbara Boxer (D-CA), Chairman of the Committee on Environment and Public Works, Senator Thomas Carper (D-DE), Senator Frank Lautenberg (D-NJ), Senator Benjamin Cardin (D-MD), Senator Bernard Sanders (I-VT), Senator Amy Klobuchar (D-MN), Senator Sheldon Whitehouse (D-RI), Senator Tom Udall (D-NM), Senator Max Baucus (D-MT), Senator Jeff Merkley (D-OR), Senator Kirsten Gillibrand (D-NY), and Senator Arlen Specter (D-PA).

The letter indicates, "The U.S. Environmental Protection Agency (EPA) recently issued a finding that greenhouse gas pollution endangers public health and public welfare. In April 2007, the U.S. Supreme Court ruled that greenhouse gas emissions were covered under the Clean Air Act and the EPA had a duty to determine whether the endangerment finding was warranted by the science. A "Resolution of Disapproval" using expedited procedures under the Congressional Review Act or other similar amendment is expected to be introduced in the Senate to overturn EPA's global warming endangerment finding.

"Debating policy choices regarding the appropriate response to unchecked climate change is fair, and the Senate will continue to evaluate the best tools for addressing greenhouse gas emissions, but repealing an endangerment finding based upon years of work by America's scientists and public health experts is not appropriate. The independent work of scientists and public health experts from both the Bush and Obama administrations should stand on its own. We strongly urge you to vote "no" when a Resolution of Disapproval or a similar amendment comes before the Senate."

On December 14, 2009 Senator Murkowski announced her intention to file a "disapproval resolution" to stop U.S. EPA from regulating greenhouse gas (GHG) emissions under the Clean Air Act [See WIMS 12/15/09]. Murkowski’s resolution comes in the wake of the agency’s recent endangerment finding, which she said will result in "damaging new regulations that endanger America’s economy." The Senator's announced disapproval came one day before EPA's endangerment finding was officially published in the Federal Register [74 FR 66495-66546, 12/15/09]. The endangerment finding was announced by EPA on December 7 [See WIMS 12/8/09].

A Washington Post (WP), January 11 article reported that Senator Murkowski "is likely to postpone offering an amendment next week that would bar the Environmental Protection Agency from regulating carbon dioxide as a pollutant under the Clean Air Act. . ." The issue was scheduled to be considered in the Senate on January 20. The WP article discusses the activities of two industrial lobbyist who worked with Murkowski's staff in drafting an amendment. The legislative maneuvering is complicated by the disapproval resolution procedures of the Congressional Review Act (CRA) which allow the resolution to be placed on the Senate calendar, where it is given expedited consideration on the Senate floor, and not subject to filibuster.

Carl Pope, Sierra Club Executive Director issued a statement commenting on the WP article and said, "We now have proof that lobbyists for Big Oil, dirty coal and other special interests are directly involved in recent attempts to bail out big polluters and gut the Clean Air Act. What's more, these big polluter lobbyists are the same former Bush administration officials who completely disregarded the Clean Air Act and even disobeyed the Supreme Court for years. While Big Oil, dirty coal, and other polluters were busy trying to craft backroom deals with their allies in Congress, last month more than 400,000 Americans voiced their support for President Obama's plans to use the Clean Air Act to fight global warming. Instead of bailing out big polluters, it's time for Congress to get serious about passing comprehensive clean energy and climate legislation. Clean energy and climate legislation can deliver less pollution, more jobs, and greater security."

On January 6, the nonprofit organization, 1Sky issued a statement announcing a national call-in day to Senators' home offices on January 12, to oppose the amendment being proposed by Senator Murkowski [See WIMS 1/6/10].

Access an announcement and the letter from EPW Democrats (click here). Access the WP article with further details and links to the Murkowski amendment (click here). Access the statement from Sierra Club (click here). Access a 1Sky blog posting on the momentum for climate change legislation with links to related information (click here).

Sen. Murkowski's Disapproval Resolution On Endangerment Finding

Dec 14: U.S. Senator Lisa Murkowski (R-AK), announced her intention to file a disapproval resolution to stop U.S. EPA from regulating greenhouse gas (GHG) emissions under the Clean Air Act. Murkowski’s resolution comes in the wake of the agency’s recent endangerment finding, which she said will result in "damaging new regulations that endanger America’s economy." The Senator's announced disapproval came one day before EPA's endangerment finding was officially published in the Federal Register [74 FR 66495-66546, 12/15/09]. The endangerment finding was announced by EPA on December 7 [See WIMS 12/8/09].

Murkowski said, “I remain committed to reducing emissions through a policy that will protect our environment and strengthen our economy, but EPA’s backdoor climate regulations achieve neither of those goals. EPA regulation must be taken off the table so that we can focus on more responsible approaches to dealing with global climate change.” Murkowski indicated that while the Administration claims the endangerment finding is merely an affirmation of the science behind global climate change, she said "that aspect is just the tip of the iceberg."

She said further, “The EPA administrator’s move has thrown open the door to expensive and intrusive government regulation -- as far from a market-based solution as we can possibly imagine. The endangerment finding is aptly named. It endangers jobs, it endangers economic growth, and it endangers American competitiveness, while setting the stage for backdoor bureaucratic intrusion into the lives of Americans on an unprecedented scale. The EPA has taken these actions despite the fact that Congress is continuing to work on climate legislation. I find that highly counter-productive, especially as our nation struggles to regain its economic footing. The endangerment finding must be stopped so that Congress can pass responsible legislation that is sound on its own merits, and not merely a defense against the threat of damaging regulations.”

Murkowski warned those who believe EPA action will prod Congress to act faster that such a strategy is likely to fail and carry with it unintended consequences. She said, “Make no mistake -- Congress is being threatened in a misguided attempt to move a climate bill forward. But this strategy is highly flawed because it assumes Congress will pass economically damaging legislation in order to stave off economically damaging regulations. That’s a false choice and it should be rejected outright. “This administration should be able to work with this Congress to pass needed, common-sense, and transparent reforms to our energy and environmental policies. Until the administration stops playing Russian roulette with the economy and decides to reach across the aisle, however, it will be difficult to do anything but oppose the irresponsible decisions that are being made.”

In a release, Murkowski indicated she will file her disapproval resolution pursuant to the provisions of the Congressional Review Act (CRA). Senators Don Nickles (R-OK) and Harry Reid (D-NV), were the principal sponsors of the CRA, incorporated into the Contract with America Advancement Act of 1996, and signed into law by President Bill Clinton. Upon introduction, a disapproval resolution is referred to the committee of jurisdiction, which in this case will be the Senate Committee on Environment and Public Works (EPW). If the committee does not favorably report the resolution within 20 calendar days, it may be discharged upon petition by 30 Senators. Once a disapproval resolution is placed on the Senate calendar, it is then subject to expedited consideration on the Senate floor, and not subject to filibuster.

Access a release from Senator Murkowski (click here). Access a video of the Senator's floor speech (click here). Access the full text of the floor speech (click here).

Lawsuit & Mixed Reactions On EPA's Endangerment Finding

Dec 7: The Competitive Enterprise Institute (CEI) announced it will file suit in Federal court to overturn U.S. EPA's endangerment finding announced December 7 [See WIMS 12/7/09], on the grounds that EPA has "ignored major scientific issues, including those raised recently in the Climategate fraud scandal." [See WIMS 12/4/09]. Sam Kazman, CEI General Counsel said, “EPA is clinging for dear life to the notion that the global climate models are holding up. In reality, those models are about to sink under the growing weight of evidence that they are fabrications.”

Marlo Lewis, CEI Senior Fellow said, “Today’s decision by EPA will trigger costly and time-consuming permitting requirements for tens of thousands of previously unregulated small businesses under the Clean Air Act. A more potent Anti-Stimulus Package would be hard to imagine. The sensible solution would be for Congress to pass legislation, such as that proposed by Rep. Marsha Blackburn of Tennessee that would pre-empt the EPA from regulating carbon dioxide and other greenhouse gas emissions.”

In announcing its findings, EPA said that "after a thorough examination of the scientific evidence and careful consideration of public comments it has determined that greenhouse gases (GHGs) threaten the public health and welfare of the American people. EPA also finds that GHG emissions from on-road vehicles contribute to that threat." EPA noted that its "findings do not in and of themselves impose any emission reduction requirements but rather allow EPA to finalize the GHG standards proposed earlier this year for new light-duty vehicles as part of the joint rulemaking with the Department of Transportation. EPA indicated that on-road vehicles contribute more than 23 percent of total U.S. GHG emissions."

EPA’s final findings respond to the 2007 U.S. Supreme Court decision that GHGs fit within the Clean Air Act definition of air pollutants. The "endangerment finding" responds to the April 2, 2007, 5-4 decision of the U.S. Supreme Court which decided the historic case about global warming (Massachusetts, et al. v. EPA, et al., No. 05-1120), and ruled that EPA has existing authority under the Federal Clean Air Act to regulate greenhouse gas (GHG) emissions from motor vehicles. Under the Bush Administration, EPA had refused to regulate such gases, arguing it lacked statutory authority [See WIMS 4/2/07].

In other reactions to the EPA's findings, House Speaker Nancy Pelosi (D-CA) issued a statement saying, "The EPA has thoroughly reviewed the scientific literature on climate change, which spans decades of research across a breadth of disciplines and across the globe. The science is clear: global warming is real, its impacts are being felt around the world, and carbon emissions present a danger to public health and the economy worldwide. As the United Nations Climate Change Conference begins in Copenhagen today [See WIMS 12/7/09], those who fear EPA regulation of global warming pollution will find the answer in the American Clean Energy and Security Act passed by the House this year. This legislation will give businesses both certainty and flexibility, help to minimize costs to companies and consumers as we transition to clean energy, reduce our dangerous dependence on foreign oil, and stimulate investments that will create millions of clean energy jobs."

Senator Barbara Boxer (D-CA), Chairman of the Senate Environment and Public Works Committee, issued a statement saying, "The endangerment finding released today confirms what we have been told by America's top scientists and leading scientists of the world --that unchecked global warming is perilous to human health and our environment. After the Supreme Court ruled in 2007 that global warming pollution is covered under the Clean Air Act, the Bush EPA laid the groundwork for this endangerment finding, which has been completed by the Obama EPA. It is now clear that if we take our responsibility seriously to protect and defend our people from this threat, the Senate has a duty to act on climate change legislation that includes major components of the work done by the Energy and Environment Committees. In light of the EPA endangerment finding, the President's appearance in Copenhagen will carry even more weight, because it shows that America is taking this issue very seriously and is moving forward."

Senator James Inhofe (R-OK), Ranking Member of the Senate Committee on Environment and Public Works issued a statement and video saying, "The Administration's endangerment finding will lead to a wave of new regulations and bureaucracy that will wreak havoc on the American economy, destroy millions of jobs, and force consumers to pay more for electricity and gasoline. This bureaucratic nightmare is based on flawed science. Lisa Jackson, Obama's EPA Administrator, admitted to me publicly that EPA based its action today in good measure on the findings of the UN's Intergovernmental Panel on Climate Change, or IPCC. She told me that EPA accepted those findings without any serious, independent analysis to see whether they were true. Of course, we now have thousands of emails showing several of the UN's top scientists apparently evading laws requiring transparency, defaming scientists with opposing viewpoints, and manipulating data to fit preconceived opinions. They cooked the science. . . "

He continued saying, "I agree with Sen. Joe Lieberman, who said of climategate, "We ought to be demanding that that be cleaned up. We ought to be angry about it. The endangerment finding also will have virtually no impact on global warming. That's because India and China, two of the world's leading emitters of CO2, are left out. . . So today the American people are getting a raw deal: all cost with no benefit. Yet, the Obama Administration is moving forward anyway. . ."

Earthjustice President Trip Van Noppen issued a statement saying, "What scientists have long known is now official U.S. policy: global warming pollution is real and has dangerous impacts on public health and the environment. The Obama administration's announcement today acknowledges that our nation must move quickly and efficiently to achieve the cuts in carbon dioxide and other global warming pollution needed to stave off catastrophic climate change. The time for talking is over; now is the time for taking action. EPA has based this decision under the Clean Air Act on overwhelming scientific evidence that global warming poses a significant threat. We will look to the administration to continue along this path and take the next important step of adopting strong rules that limit global warming pollution from motor vehicles and industrial polluters. . ."

House Minority Leader John Boehner (R-West Chester) issued a statement saying, "Today’s EPA announcement paves the way for Washington Democrats’ ‘cap-and-trade’ national energy tax, a bureaucratic nightmare that would make households, small businesses and family farms pay higher prices for electricity, gasoline, food and virtually every product made in America. One independent analysis determined that this national energy tax would cost our economy millions of jobs each year for the foreseeable future. What’s more, the timing of this announcement is yet another indication President Obama is preparing to unilaterally commit the United States to mandatory emissions cuts at the UN Climate Change Conference in Copenhagen. If the President truly believes these job-killing mandates are in the nation’s best interests, he should slow down and first seek the advice and consent of the people’s elected representatives."

Access a release from CEI (click here). Access a release from EPA on the finding (click here). Access EPA's Endangerment website for complete information and background (click here). Access a lengthy release from Speaker Pelosi with links to related information (click here). Access the statement from Senator Boxer (click here). Access the statement from Senator Inhofe (click here). Access a release from Earthjustice (click here). Access the statement from Representative Boehner (click here).

API Says EPA Endangerment Finding "Clearly Politically Motivated"

Dec 7: As WIMS reported yesterday, U.S. EPA's endangerment finding announced on December 7 [See WIMS 12/7/09, 12/08/09] has resulted in the Competitive Enterprise Institute (CEI) announcing it will file suit in Federal court to overturn finding and various mixed reactions from interest groups and politicians. Also, in a harshly critical statement, Jack Gerard, President of the American Petroleum Institute said there was no pressing reason for the finding and EPA’s action was "clearly politically motivated."

Gerard said, “This action poses a threat to every American family and business if it leads to regulation of greenhouse gases under the Clean Air Act. Such regulation would be intrusive, inefficient, and excessively costly. It could chill job growth and delay business expansion. The Clean Air Act was meant to control traditional air pollution, not greenhouse gases that come from every vehicle, home, factory and farm in America. A fit-for-purpose climate law is a much preferred solution.

“There was no compelling deadline that forced EPA’s hand on this decision. It is a decision that is clearly politically motivated to coincide with the start of the Copenhagen climate summit. EPA’s finding is inadequate, unsupported by the record and fails to demonstrate a significant risk of harm to public health or welfare. API members are reducing greenhouse gas emissions and investing in technology to reduce them further. Between 2000 and 2008, U.S.-based oil and natural gas companies invested $58 billion in low-carbon energy technologies to reduce greenhouse gas emissions, more than either the federal government or all other U.S.-based private industry combined.”

In a related action, National Association of Manufacturers (NAM) Vice President of Energy & Resources Policy Keith McCoy also issued a statement saying, "The NAM is concerned that the EPA did not seriously take into consideration any of the thousands of comments manufacturers made on this proposal. The endangerment finding will have a cascading effect on the ability of all manufacturers to grow and prosper. By declaring GHG emissions a threat to public health and welfare through its endangerment finding, the EPA is paving the way to begin regulating carbon emissions across the board, including large stationary sources such as manufacturing plants, hospitals and libraries under the Clean Air Act.

"Let me be clear: the NAM supports cost-effective efforts to address climate change but believes the appropriate authority to address this should be Congress. The EPA is moving forward with an agenda that will put additional burdens on manufacturers, cost jobs and drive up the price of energy. This finding comes when unemployment is hovering at 10 percent, and many manufacturers are struggling to stay in business. It is doubtful that this endangerment finding will achieve its stated goal, but it is certain to come at a huge cost to the economy. Our nation needs a comprehensive federal policy that will achieve environmental results without inflicting unnecessary economic harm. This is a complex issue that deserves a rigorous, public and transparent debate in Congress."

NAM acknowledged that EPA Administrator Lisa Jackson indicated that she would prefer Congress address this issue. But said, "therefore, we are disappointed the EPA chose this power grab move. We will continue to work with Congress to address this important issue and urge the EPA to think about the economic harm it is inflicting before moving forward with additional rules."

In announcing the endangerment finding, EPA noted that its "findings do not in and of themselves impose any emission reduction requirements but rather allow EPA to finalize the GHG standards proposed earlier this year for new light-duty vehicles as part of the joint rulemaking with the Department of Transportation." EPA indicated in a release that "President Obama and Administrator Jackson have publicly stated that they support a legislative solution to the problem of climate change and Congress’ efforts to pass comprehensive climate legislation. However, climate change is threatening public health and welfare, and it is critical that EPA fulfill its obligation to respond to the 2007 U.S. Supreme Court ruling that determined that greenhouse gases fit within the Clean Air Act definition of air pollutants."

EPA issued the proposed findings in April 2009 [See WIMS 4/27/09] and held a 60-day public comment period. The agency received more than 380,000 comments, which it said "were carefully reviewed and considered during the development of the final findings."

Access the statement from API (click here). Access the statement from NAM (click here). Access a release from EPA on the finding (click here). Access EPA's Endangerment website for complete information and background (click here).

Senate Hearing On Supreme Court GHG Ruling

Apr 24: The Full Senate Environment and Pubic Works Committee, Chaired by Senator Barbara Boxer (D-CA), held a hearing on, The Implications of the Supreme Court’s Decision Regarding EPA’s Authorities with Respect to Greenhouse Gases under the Clean Air Act. On April 2, 2007, in a 5-4 decision, the U.S. Supreme Court decided the historic case about global warming (Massachusetts, et al. v. EPA, et al., No. 05-1120), and ruled that EPA has existing authority under the Federal Clean Air Act to regulate greenhouse gas (GHG) emissions from motor vehicles. EPA had previously refused to regulate such gases, arguing it lacked statutory authority [See WIMS 4/2/07].

Those testifying at the hearing included: Stephen Johnson, Administrator U.S. EPA; former EPA Administrator William Reilly, Senior Advisor, TGP Capital Founding Partner, Aqua International Partners; former EPA Administrator Carol Browner,Principal The Albright Group, LLC; former EPA General Counsel and EPW Committee Chief Counsel Ann R. Klee a Partner with Crowell and Moring; David Doniger, Policy Director, Climate Center Natural Resources Defense Council; and Peter Glaser, a Partner with Troutman Sanders, LLP who represented the Washington Legal Foundation in the Supreme Court case.

In a brief statement Senator Boxer said, "Mr. Johnson used the word ‘complex’ many times. The Supreme Court case is not complex. It is clear. EPA should grant the waiver to California and the 11 other states who have asked for it, and they should make an endangerment finding that global warming emissions are a danger and will be controlled by law.” Boxer was referring to a waiver that would allow California and eleven other states to limit global warming pollution from vehicles.

In a 19-page testimony, Administrator Johnson commented on what he called "the President’s comprehensive climate change agenda as we consider the ramifications of the Supreme Court’s decision." In commenting on the Supreme Court decision, Johnson said, "Importantly, the Court did not hold that EPA was required to regulate greenhouse gas emissions under Section 202, or any other section, of the Clean Air Act. Rather, the Court merely concluded that greenhouse gas emissions were 'air pollutants' under the Clean Air Act, and, therefore, they could be regulated under Section 202 by the EPA subject to certain determinations. . . The Court held that, on remand, EPA must decide whether or not greenhouse gas emissions from motor vehicles cause or contribute to air pollution that is reasonably anticipated to endanger public health or welfare, or to explain why scientific uncertainty is so profound that it prevents making a reasoned judgment on such an endangerment determination. Importantly, the Court’s decision explicitly left open the issue of whether EPA can consider policy considerations when writing regulations in the event EPA were to make an endangerment finding. Indeed, the Court seemed to recognize that EPA has significant latitude with regard to any such regulations."

Johnson stated further, "The Agency fully recognizes the decision as one of the most important environmental law decisions in years--accordingly, we are trying to assure that the Agency is in the best possible position to address its ramifications. However, given the complexity of the decision and the very short time that has elapsed since the Court issued the opinion, at this early date it is impossible today to understand and explain fully how the decision may have any specific impact. . . the Court left open the question of what procedure EPA is to follow on remand regarding a potential endangerment finding [i.e. whether GHGs emitted by new motor vehicles may reasonably be anticipated to endanger public health or welfare]. Any such process should be public and transparent and based on the best available science. Additionally, there are various procedural options to consider, including whether we should reopen the public comment period on the petition; whether we should hold a public hearing or hearings; and whether we should, or, are required to, use rulemaking procedures to decide the petition."

EPA's former General Council testified, ". . .the decision has changed the regulatory landscape. The determination that greenhouse gases are air pollutants will likely lead EPA to regulate greenhouse gas emissions, and carbon dioxide (CO2) in particular, from new motor vehicles. It also likely will lead to regulation of stationary sources of greenhouse gases since the Clean Air Act’s stationary source provisions are also triggered by an 'endangerment' finding. In this respect, the decision is a significant one -- an endangerment finding under one program will make it very difficult for EPA not to regulate under other programs.

"The decision will not, however, have any meaningful impact in terms of addressing global climate change. Forcing the square peg of greenhouse gas emissions through the round holes of EPA’s existing regulatory tools – tailpipe standards, national ambient air quality standards, new source performance standards, etc. -- may have the effect of reducing U.S. emissions over time, but it will do nothing to reduce atmospheric concentrations of greenhouse gases, which is the true measure of effectiveness of regulation for climate change purposes. Unless our trading partners, China and India in particular, are also part of the effort to reduce global emissions of greenhouse gases, piece-meal regulation in the United States will not only achieve little; it may, in fact, have the unintended effect of leading to increased emissions by encouraging the relocation of U.S. businesses to countries not subject to greenhouse gas regulation."

Access the hearing website for links to all testimony and an archive webcast (click here). Access a statement from Senator Boxer (click here). [*Air, *Climate]

States Seek To Join Endangerment Finding Lawsuit

Jan 22: Massachusetts Attorney General Martha Coakley’s Office announced that it was leading a coalition of 16 states and New York City, in filing a motion to intervene in a lawsuit brought by industry groups last fall to challenge U.S. EPA's Endangerment Finding. The Endangerment Finding, announced December 7 [See WIMS 12/7/09 & Multiple Articles], is the Agency's formal determination that greenhouse gas (GHG) emissions cause climate change and as a result may reasonably be anticipated to endanger public health and welfare. EPA published the Endangerment Finding in response to the Supreme Court’s landmark decision in Massachusetts v. EPA. The finding is the first step towards regulating greenhouse gas emissions under the Clean Air Act. The filing signals the states’ intention to join with the EPA in defending EPA’s decision. The motion was filed in the Federal Appeals Court in Washington, DC.

Joining Massachusetts in the motion to intervene were the states of Arizona, California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington, and the City of New York. Attorney General Coakley, who recently lost her run for Ted Kennedy's Senate seat to [See WIMS 1/20/10] Republican Scott Brown said, “The Endangerment Finding marked the end of an era in which the federal government refused to acknowledge that anything could or should be done about global climate change. We are confident that the court will uphold the EPA’s action and that the EPA will press forward with its plan to begin regulation of greenhouse gases. While we continue to hope that Congress will enact effective and comprehensive legislation to control and reduce greenhouse gas emissions, we firmly believe that the EPA has an important role to play whether or not Congress acts and we cannot afford to wait.”

On December 23, 2009, industry groups from various sectors (e.g., Massey Energy Co., National Cattlemen’s Beef Association and Alpha Natural Resources Inc., etc.) filed a single petition for review in the United States Court of Appeals for the D.C. Circuit. Petitioners have not yet identified the specific issues they intend to raise, but Attorney General Coakley’s Office intends to argue that the legal and scientific basis for the EPA’s Endangerment Finding is sound and should be upheld. Assistant Attorney General Carol Iancu, and Assistant Attorney General Tracy Triplett, both of Attorney General Coakley’s Environmental Protection Division are handling the case.

In announcing its participation in the industry groups' lawsuit in December, Tamara Thies, chief environmental counsel for the National Cattlemen’s Beef Association (NCBA) said, “EPA’s finding is not based on a rigorous scientific analysis; yet it would trigger a cascade of future greenhouse gas regulations with sweeping impacts across the entire U.S. economy. Why the Administration decided to move forward on this type of rule when there’s so much uncertainty surrounding humans’ contribution to climate change is perplexing.”

NCBA cited the so-called "Climategate" issue saying, "'Climategate' revealed that the data on which the EPA relied to make this finding is questionable and may have been manipulated to tell a story that global warming alarmists wanted to tell. The fact that the EPA is ignoring this scandal is not going to make it go away.” NCBA also said that as was evident in Copenhagen, "other countries around the world like China and India are unwilling to tie the hands of their economic engines and impose these kinds of costs on their citizens.”

Access a release from the MA AG (click here). Access a release from NCBA with links to additional information (click here).

Boxer Charges White House Of Reckless Cover-Up Of Warming Issues

Jul 8: Senator Barbara Boxer (D-CA), Chair of the Senate Environment and Pubic Works Committee, held a press briefing on the issue of White House Interference in Addressing the Dangers of Global Warming. Senator Boxer delivered a statement saying, "You have heard me say many times that this Administration has downplayed the dangers posed by global warming. They have used every excuse to avoid taking action, even hiding behind China and India. Now, thanks to a very brave former EPA official, Jason Burnett, who has responded to an inquiry from this committee, who is here today, we know that the Administration's efforts have been about covering up the real dangers of global warming and hiding the facts from the public. This cover-up is being directed from the White House and the Office of the Vice President."

The Senator's charges add to those that have already been uncovered and revealed previously by Representative Henry Waxman (D-CA), Chairman of the House Committee on Oversight and Government Reform. Representative Waxman is still deciding how we should proceed on his investigation of White House interference, since the President asserted executive privilege over thousands of pages of documents that would show whether the President and his staff complied with the Clean Air Act (CAA) in overruling EPA Administrator Stephen Johnson on important environmental decisions [See WIMS 6/20/08].

Boxer said she had met with Burnett, who resigned from the Agency after concluding that no constructive action on global warming would take place during this Administration. She said, "What a sad day it is for the American people that they lost a brilliant professional who wanted to protect us from the ravages of global warming. In October of 2007, when we held a hearing on the health impacts of global warming, we were stunned to learn that the testimony of CDC Director Julie Gerberding was watered down and heavily redacted. We now know that this censorship was part of a master plan. The goal of the plan was to ensure that the EPA's response to the Supreme Court decision in Massachusetts v. EPA would be as weak as possible."

On December 10, 2007, Waxman release a proposed report on some of his investigations that highlighted the climate change testimony of Dr. Julie Gerberding, the Director of the Centers for Disease Control and Prevention, and Dr. Thomas Karl, the Director of National Climatic Data Center, who appeared before Boxer's Committee and the House Oversight Committee and said their testimony was heavily edited by both White House officials and political appointees at the Commerce Department [See WIMS 12/11/07]. It said, there was a systematic White House effort to minimize the significance of climate change by editing climate change reports. It indicates the White House insisted on edits to EPA’s draft Report on the Environment (ROE) were so extreme that the EPA Administrator opted to eliminate the climate change section of the report.

At that time, White House Press Secretary, Dana Perino, rebuked Waxman and his Committee for releasing the report at the time of the Bali, UNFCCC climate change meeting saying it was "rehashed rhetoric that has come out of the Democrats beforehand, and we just reject it as being untrue." In response to a question stating, Did the White House ever asked employees at agencies like NOAA to suppress climate change information and science?; Perino said, "Not that I'm aware and I do not believe that is true. "

Boxer said at her briefing, "What started in October with Dr. Gerberding's censored testimony [See WIMS 10/24/08] continued into December, when the EPA had finally decided to begin to tell the truth about the dangers posed by unchecked global warming. The Office of Management and Budget at the White House refused to open the e-mail containing the provisional endangerment finding from the EPA. When EPA refused to retract the e-mail, the finding was left in limbo. These two things - the CDC censorship and the stonewall on the endangerment finding -- are obviously related."

Boxer said that the CDC wanted to go into detail in its testimony about: Direct effects of heat [including mortality]; Health and safety effects related to extreme weather events; Air pollution-related health effects; Allergic diseases; Water- and food-borne infectious diseases; Vector-borne diseases; Food and water scarcity for some populations; Mental health problems; and, Long-term impacts of chronic diseases and other health effects. But, she said, "their testimony was altered. CDC's work clearly would lead us to the endangerment finding. Fortunately, thanks to the free press and the work of congressional committees, the CDC's concerns were made known, adding to the pressure on the EPA to make the endangerment finding."

As a result of her latest findings, Boxer announced a series of six actions: (1) I am asking EPA Administrator Stephen Johnson to release every document related to the Agency's finding that global warming poses a danger to the public, including bringing the endangerment e-mail back to earth. (2) EPA should also immediately release a strong advance notice of proposed rulemaking on global warming emissions. (3) If the information is not released, then I will use every means available to this Committee to obtain it. (4) I am sending Jason Burnett's letter on the Administration's efforts to block action on global warming to the Governor and Attorney General of California so they may be fully informed of the Bush Administration's misconduct relating to global warming, which may directly affect California's efforts to protect the public from this serious threat. (5) I will hold a hearing on July 22 to present the most recent evidence of the serious danger posed by global warming. Mr. Burnett will be a witness. (6) This Committee will also continue its work on how current authorities under the Clean Air Act could be used to address global warming now. We will hold a hearing on that subject in the fall, Mr. Burnett has agreed to give his advice and testimony, and we will issue a Committee report so that the next President can have all of our findings at his disposal at the start of the next Administration.

Boxer concluded saying if Administrator Johnson cannot deliver on items 1 & 2 above, ". . .he should resign. The American people need the head of the EPA to be an independent advocate for their health and their environment." She also said, "This is not about me, or about Mr. Johnson, or President Bush, or Vice President Cheney or Mr. Burnett. It is about protecting the public and the planet. . . History will judge this Bush Administration harshly for recklessly covering up a real threat to the people they are supposed to protect."

Access the Boxer press statement and links to the letter from Burnett, CDC testimony and related background documents (click here). [*Climate]