June 8, 2011

Taking the EPA to Court

Filed under: Climate Politics

On May 20, three briefs were filed with the Washington DC Circuit Court of Appeals laying out petitions to challenge the Environmental Protection Agency’s (EPA) regulatory initiatives concerning greenhouse gas emissions (and how the initiatives came to be). Of the three petitions, two were from a conglomerate of states led by Texas and Virginia, and the other was by a 80-odd member grouping on non-state parties with a variety of interests in the EPA’s regulations. A fourth brief from a collection of climate scientists followed week later.

By and large, most of the arguments laid out by these Petitioners echo previous arguments made directly to the EPA during the various public comment opportunities as the EPA was considering whether or not greenhouse gases endangered public health and welfare—a finding which would then require allow the EPA to develop regulations to restrict the emissions of greenhouse gases. Despite copious cogent arguments as to why the EPA should not find that greenhouse gases engager the public health and welfare, the EPA not only made such a finding, but subsequently denied all petitions to reconsider its findings that were submitted as revelations of scientific misconduct came to light with the release of the Climategate emails.

But, when dealing with the EPA, their decision in not necessary the final one. In fact, there is another avenue of redress—the courts.

The EPA must work under the directives given to it by Congress which are a matter of law. As such, the EPA’s interpretations of those laws can be challenged in courts. In fact, the Clean Air Act (the authority under which EPA is acting to restrict greenhouse gas emissions) explicitly states that the Washington DC Court of Appeals has exclusive jurisdiction over final action taken by the EPA’s Administrator.

Taking a federal agency involved in technical matters (as is EPA) to court isn’t so easy. The principal of “Chevron Deference” established by the Supreme Court in 1984 states that the courts should be loathe to direct the applications of statutes by such agencies because, it is assumed, the agencies possess expertise that the courts do not. This is one reason why Massachusetts v. EPA, the 2007 Supreme Court case in which directed EPA to limit carbon dioxide emissions via the Clean Air Act (if they found and “endangerment”) was viewed as a breathtaking and bold reversal of established jurisprudence in the name of environmental micromanagement of a technical agency.

At any rate, after repeatedly falling on deaf ears at the EPA, and with Administrator Jackson issuing her final action on the matter, many of the challengers to greenhouse gas regulations have taken the EPA to court, with claims that the EPA did not properly and/or adequately justify either its Endangerment Finding, that it improperly denied petitions to reconsider that finding, and that its violated a host of procedures under which the Clean Air Act required the EPA to act when making such a finding (and when crafting regulations).

Browsing the Petitions, the case made against the EPA on each of the above considerations seems strong and the apparent EPA shenanigans are astounding. We encourage our readers to look through the various Petitions for more detail concerning the arguments forwarded. Below we provide links, and a few summaries from the various Petitions.

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OPENING BRIEF FOR STATE PETITIONERS TEXAS AND VIRGINIA ON DENIAL OF RECONSIDERATION OF THE ENDANGERMENT FINDING AND OF STATE PETITIONERS AND SUPPORTING STATE INTERVENORS ON ENDANGERMENT FINDING DELEGATION ISSUES
(full brief available here)

Outline of Argument

A. The [EPA] Administrator was obligated to grant reconsideration because Petitioners demonstrated that their timely objections were based on evidence of central relevance to the outcome of the endangerment finding

B. The Administrator erroneously applied the central relevance standard

C. The Administrator erred by making determinations without notice or comment

D. EPA impermissibly delegated its statutory authority to outside entities

E. EPA‘s reasons for relying on the IPCC were undermined by the Climategate data provided in the reconsideration petitions which data compel the conclusion that the Endangerment Finding fails to meet essential Information Quality standards such that reconsideration is required.

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BRIEF OF TEXAS FOR STATE PETITIONERS AND SUPPORTING INTERVENORS
(full brief available here)

EPA’s Endangerment Finding suffers from numerous flaws, but State Petitioners will address only two of the most significant problems. First, the arbitrary-and-capricious standard requires an agency to “articulate a satisfactory explanation for its action,” see State Farm, 463 U.S. at 43, and the Endangerment Finding fails this test because EPA never bothered to define or apply standards or criteria for assessing when GHG emissions or climate change harm public health or welfare. In addition, the arbitrary-and-capricious test precludes agency actions that “entirely fail[] to consider an important aspect of the problem,” id., and EPA’s Endangerment Finding refuses to consider voluntary (nonregulatory) adaptation to and mitigation of climate change, even as EPA acknowledges that these factors will reduce the negative impact of climate change. Each of these grounds warrants vacatur and remand.

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JOINT OPENING BRIEF OF NON-STATE PETITIONERS AND SUPPORTING INTERVENORS
(full brief available here)

The suite of rules challenged in these coordinated cases involves what is assuredly the most burdensome, costly, precedent-setting, and far-reaching set of regulations ever adopted by the U.S. Environmental Protection Agency. EPA’s Endangerment Rule, challenged here, is the cornerstone of EPA’s decision to regulate a new category of emissions under the Clean Air Act [CAA]. As demonstrated below, the Rule is the product of serious legal, evidentiary, and procedural errors. These errors can fairly be said to reflect EPA’s rush to judgment and its decision to disregard statutory text, settled rules of construction, and the specific terms of the Supreme Court’s decision and remand in Massachusetts v. EPA, 549 U.S. 497 (2007). The errors are further reflected in the Agency’s remarkable and implausible contention that the Act must be read to compel a chain reaction of multiple rules leading to what it frankly concedes are “absurd” results, contrary to Congress’s intent.

Many errors infecting EPA’s final rule stem from a fundamental misreading and misapplication of CAA Section 202(a)(1). Section 202(a)(1) requires EPA, in addressing endangerment, to make a determination that informs and directly ties to the need for, and contours of, automobile emissions standards that address the risk identified. But after forty years of following that integrated approach, EPA now interprets the statute to require an abstract agency risk assessment divorced from the essential regulatory policy judgments its risk assessment entails. Premised on its new interpretation of Section 202(a)(1), EPA not only disavows any obligation, but concludes it lacks any discretion, to consider the regulatory consequences of its Endangerment Rule. This flouts the plain meaning of Section 202(a)(1) and basic tenets of reasoned decisionmaking.

Although EPA ostensibly exercised statutory authority to address perceived dangers to health and welfare caused by new automobile emissions, in fact it made no showing that the Endangerment Rule or any of its other greenhouse gas (“GHG”) rules will effectively remove dangers to health or welfare that might otherwise occur. EPA disclaimed any obligation or authority to define its ultimate regulatory objectives, its chosen means of achieving them, or its conception of successful regulation. Although EPA’s regulatory actions are premised on assertions about “changes” to “climate” — including the claim that it is 90-99% certain that human-caused climate change threatens public health and welfare, 74 Fed. Reg. at 66,518 & n.22, nowhere does EPA say what constitutes a “safe climate,” acceptable global temperature ranges, “safe” levels of GHGs in the atmosphere, or even how its regulatory actions will have discernable effects that ameliorate actual dangers to the public. Without a showing of how its automobile regulations will ameliorate the abstract endangerment it posits, even after being in effect for many years, neither EPA, nor the public, nor this Court, can accurately judge whether EPA has achieved a congressionally defined goal.

Although Section 202(a)(1) unambiguously requires the Administrator to exercise independent judgment connecting her risk assessment to a reasoned regulatory response, she left the gathering and sifting of the evidence supporting the Endangerment Rule to an international non-governmental organization chartered to study human-caused climate change. But the conclusions the Administrator borrowed from this organization fall far short of the evidence and analysis necessary to justify EPA’s asserted high confidence in its conclusions. Those conclusions rest primarily on modeling projections based on speculative assumptions and modeling results contradicted by real-world observations. Given the multiple, admitted uncertainties of the modeling EPA relied on, the Agency’s professed high confidence in its endangerment assessment is unsupported and legally unjustified.

For all these reasons and others, the Endangerment Rule should be vacated and remanded to EPA.

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BRIEF OF AMICI CURIAE SCIENTISTS IN SUPPORT OF PETITIONERS SUPPORTING REVERSAL

[Note: The amici curiae brief from the climate scientists was not filed in accordance with the previous court orders and therefore a motion was made for acceptance. The court has not yet decided on whether to grant or deny this motion.]

(full brief available here.)

SUMMARY OF ARGUMENT:

The data presented in this brief fatally undermine the EPA’s finding that human-caused CO2 emissions have already led to, or can be expected to lead to, significant adverse changes in the Earth’s climate system. The EPA failed to examine this “relevant data.” FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1810 (2009) (quoting Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). These data, moreover, confirm that EPA’s endangerment finding is not “rational” and therefore arbitrary and capricious. Fox, 129 S.Ct. at 1812.

Multiple sets of data show that the Earth’s climate is not changing in an unusual or anomalous fashion. The EPA relied on instrumental data that were adjusted to exaggerate the increase in global temperatures. But other much more reliable data show that the Earth’s temperature is not changing in an anomalous manner. Since 1979, when satellite data first became available, regional temperature trends have refuted the notion of global warming: the statistical trend shows no change in the tropics and a decrease in temperature in Antarctica.

These satellite data are confirmed by balloon and buoy data. The only regional temperature increase can be found north of 20º North latitude. But these recent temperatures are nothing compared to those in the 1930s, which produced most of the currently existing record temperatures and heat waves in the United States and high temperatures in the Arctic. Other empirical observations substantiate these temperature data: droughts are not becoming longer and more intense, floods are not increasing, hurricanes and tropical storms are not becoming stronger, and the rate of increase in sea levels has actually been declining. Some would expect the opposite if the Earth’s temperatures were increasing. At any rate, the data show that the Earth’s temperatures are not increasing in an unusual fashion.

Even if the Earth’s climate were changing erratically—and it is not—multiple sets of data show that CO2 atmospheric concentration, at most, has only a minor effect on temperature. According to climate models relied on by the EPA, rising CO2 levels should have caused a “greenhouse gas fingerprint”—that is, in the tropics, the atmosphere four to ten miles above the Earth’s surface should have been steadily warming at a faster rate than lower levels of the atmosphere. But balloon data (from the creators of the climate data and models relied on by the EPA) from 7.5 miles above the Earth’s surface shows no change in temperature trend. Satellite data also confirms that the temperature trend in lower levels of the atmosphere is also flat. And two different sets of tropical ocean buoy data further confirm these findings. Thus, there is no empirically validated reason why further increasing CO2 levels will cause future harm.

Now that temperatures have actually been decreasing in recent years, some have begun to rely solely on climate models—instead of historical data—to argue that CO2 emissions will change the Earth’s climate in the future. This assertion is belied by the data just mentioned, because (1) the Earth’s climate is not changing in an anomalous fashion and (2) CO2 does not significantly affect the Earth’s climate system. Moreover, these global climate models do not perform well in simulating the climate and forecasting the impact of increased levels of CO2. Kevin Trenberth, a lead author of a United Nations report in favor of CO2 regulation, admitted this many times, frankly stating: “The fact that we cannot account for what is happening in the climate system makes any consideration of geoengineering quite hopeless as we will never be able to tell if it is successful or not! It is a travesty!” Tellingly, these CO2 climate models did not forecast the recent decline in global temperatures.

In actuality, data establish that various other factors cause typical, short-term (multi-decadal or shorter) changes in the Earth’s climate system. The sun, volcanic activity, and oscillations in ocean temperature behavior, for example, can all affect the Earth’s temperature over relatively short and long time scales. The Earth’s climate may be changing, as it always naturally has, but the data do not establish that any changes are caused by CO2 emissions.

In toto, all of these filings form a consistent package that would be hard to deny. But whatever decisions are rendered, it is likely that somewhere, somehow, global warming is going to bump its way back up to the Supremes. Expect the judicial system to be involved in global warming for the foreseeable (and probably the unforeseeable) future.

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