Ignored Science, Neglected Economics: D.C. Circuit Upholds EPA Greenhouse Gas Rules

“The United States Court of Appeals for the D.C. Circuit issued a decision affirming EPA’s first round of greenhouse gas (GHG) regulations in all respects.”

Last year, I outlined  the case being made against the EPA’s issuance of greenhouse gas (GHG) emissions regulations. The case was being brought before the Washington D.C. Circuit Court of Appeals by a group of petitioners which have become collectively known as the Coalition for Responsible Regulation, and made up of large number of businesses, business associations and several states. The petitioners argued on several different grounds that the EPA was wrong in the way that it determined that GHGs were an endangerment to the public health and welfare as well as in the manner in which it was going about issuing regulations.

Earlier this week, the Court handed down its decision—a unanimous finding in support of the EPA on virtually all counts. This was very disappointing. For starters, there are at least two major points of science where the Court went terribly astray. The first deals with whether or not the EPA had to consider such things such as adaptation when making its endangerment finding. And the second deals with whether or not the EPA was “reasonable” in its consideration of the science of climate change.

In the first case, the Court decided that such considerations were not part and parcel of what the EPA had to take into account when determining whether or not greenhouse gas emissions may “reasonably be anticipated to endanger public health or welfare.” From the Court’s decision:

The additional exercises State and Industry Petitioners would have EPA undertake—e.g., performing a cost-benefit analysis for greenhouse gases, gauging the effectiveness of whatever emission standards EPA would enact to limit greenhouse gases, and predicting society’s adaptive response to the dangers or harms caused by climate change—do not inform the “scientific judgment” that § 202(a)(1) requires of EPA.

And the Court further deferred to the EPA on the issue:

As EPA stated in the Endangerment Finding, such inquiries “muddle the rather straightforward scientific judgment about whether there may be endangerment by throwing the potential impact of responding to the danger into the initial question.”

But both the Court and the EPA fail to consider that gauging “public health and welfare” is not strictly a matter of “straightforward scientific judgment.” In fact, human adaptation is an integral part of “public health and welfare.” Public health and welfare grows out of the human response to environmental factors, and cannot be judged in isolation as the EPA and the Court seem to think. You cannot remove the human adaptive response in assessing the impact of an environmental change. If you were to do so, humans would have gone extinct hundreds of thousands of years ago. In fact, our survival and conquest of all climates of the earth grows directly out of our adaptive nature. It is part of us. The Court errs in its opinion otherwise.

A full consideration of human adaptive response is a necessary part of any assessment of the potential human impact of climate change. And, as I have pointed out previously, it is likely that public health and welfare may improve under at least some aspects of a global warming.

Secondly, the Court errs when it considers the EPA consideration of the science of climate change “reasonable.” The IPCC, USGCRP, and NRC assessment reports are neither independent of each other, nor particularly transparent and fair. They are geared towards implicating human GHG emissions in virtually all manner of climate and climate change—despite a large body of scientific evidence that points to other influences, many of them of human origin but unrelated to GHG emissions (such as landscape changes, large-scale irrigation, aerosol emissions) that produce a climate change signal that is quite similar to that anticipated by climate models run under increases in GHG emissions.

And such evidence continues to grow. The Court contends that “EPA is not required to re-prove the existence of the atom every time it approaches a scientific question” but the science of climate change is not at the same stage in its evolution as is the science of the existence of the atom. Instead climate science is subject to a rapidly evolving scientific knowledgebase, and, by no means is it certain that for some key aspects related to human endangerment, what we know today will be the same as what we know tomorrow.

Thus, the EPA should be required to justify its endangerment finding each and every time it issues regulations, and such justification must be supported by an assessment of the very latest and up-to-date scientific findings—and an assessment that is not influenced by the preconceived agendas of agencies outside the EPA (e.g., USGCRP, IPCC, NRC).

I am sure many other folks have many other issues with the ruling.

Certainly, this will not be the last challenge that will be brought against EPA GHG regulations.

An excellent synopsis of the Court’s decision has been produced by Troutman Sanders LLP, one of the legal firms that was representing the petitioners. That synopsis is included below, in its entirety.

From Troutman Sanders, LLP:

D.C. Circuit Upholds EPA Greenhouse Gas Rules

June 26, 2012

The United States Court of Appeals for the D.C. Circuit this morning issued a decision affirming EPA’s first round of greenhouse gas (GHG) regulations in all respects. These regulations included EPA’s 2009 “endangerment finding,” its motor vehicle GHG emission rule, its “Timing Rule” in which it commenced GHG regulation of stationary sources under the Prevention of Significant Deterioration (PSD) and Title V permitting programs, and its “Tailoring Rule” in which it limited PSD and Title V regulation to large industrial sources. The rules were challenged by a large number of businesses, business associations and several states, and supported by environmental organizations and other states.

The panel, consisting of Judges Tatel, Rogers and Sentelle, issued its decision per curiam without any dissents. The main rulings of the court are as follows:

1. Endangerment. The court rejected petitioners’ argument that Massachusetts v. EPA left open the possibility that EPA could look at more than just science in making the endangerment finding and that EPA could therefore defer making the endangerment finding if it concluded that doing so would lead to a chain of regulations causing absurd results in the PSD program. It ruled that EPA could only consider science, and not the regulatory implications of making the endangerment finding.

On the science, the Court found that the record contained “substantial evidence” that GHG emissions endanger public health and welfare. In response to petitioners’ arguments on uncertainty, the Court reiterated past precedent that an endangerment judgment is a very permissive standard and that EPA is justified in finding endangerment even if there is significant uncertainty. Granting deference to EPA on scientific questions, the Court found that EPA’s exercise of judgment was not irrational. The Court did not accept petitioners’ arguments that EPA had overly deferred to the Intergovernmental Panel on Climate Change (IPCC) and instead said that EPA had exercised its own judgment. It also quickly dismissed “Climategate,” i.e., the release of emails regarding the conduct of certain scientists who played prominent roles in the IPCC, saying EPA had adequately responded to those concerns in its response to 10 reconsideration petitions and was not required to conduct new notice and comment in doing so. Further, it said that EPA’s failure to consult its Science Advisory Board was harmless error.

The Court also found that EPA, for purposes of the endangerment finding, had not improperly combined six separate GHGs into one pollutant. Although two of the pollutants (SF6 and PFCs) are not even emitted by motor vehicles, it held that no party in the case had standing to raise that issue since no such party to the appeal could show that it is harmed by the regulation of those substances. The Court ignored the argument raised by the mining and agricultural industries that two of the pollutants (methane and nitrous oxides) are only emitted by motor vehicles in minimal amounts and hence EPA had not made a proper “cause or contribute” finding for those pollutants.

2. Motor vehicle rule. The Court dismissed petitioners’ argument that EPA should have considered the impacts of issuing the motor vehicle rule on stationary sources given EPA’s interpretation that issuing the motor vehicle rule would automatically trigger stationary source regulation. Section 202(a) of the CAA provides that once EPA makes an endangerment finding, it “shall” issue motor vehicle rules. In the Court’s view, that provision ends the analysis. The Court also rejected petitioners’ argument that EPA should have considered whether the motor vehicle rules would meaningfully address the endangerment that purportedly justified issuing those regulations. Despite EPA’s own conclusion that those rules would only reduce temperatures by tenths to thousandths of a degree by 2100, the Court found that the rule would reduce GHGs in a sector of the economy that is a significant emitter of those substances.

3. Argument that issuance of motor vehicle rule does not automatically trigger PSD regulation of stationary sources. EPA has always applied its PSD program to any pollutants regulated under any CAA program. Industry presented three arguments as to why this long-standing approach is wrong when applied to GHGs. In the only part of the decision that industry “won,” the Court ruled that, procedurally, these arguments are not time-barred even though they were not raised years ago when EPA first applied PSD to any regulated pollutant. But the Court ruled on the merits that all of petitioners’ arguments were wrong as a matter of law.

• The Court rejected petitioners’ argument that PSD applies only to local or regional pollutants and not to global pollutants, relying on Massachusetts v. EPA. The Court found that PSD applies to “any” air pollutant, including GHGs.

• The Court rejected petitioners’ argument that that PSD applies only to National Ambient Air Quality Standard (NAAQS) pollutants, again relying on the broad term “any.”

• The Court rejected petitioners’ argument that EPA failed to follow proper procedures for designating a pollutant for regulation under PSD, saying those procedures only apply to NAAQS pollutants.

4. Tailoring. On what appeared to be petitioners’ strongest argument – that EPA did not have the authority to “tailor” specific statutory thresholds – the Court never reached the merits. It ruled that since the rule excluded sources from the PSD program and only reduced state agencies’ permitting workload, the rule doesn’t harm anyone, and so no petitioner in the case had standing to challenge the rule.

5. Implementation. The Court declined to rule on issues regarding EPA’s implementation of PSD permitting of GHG-emitting sources. Those issues are being considered in a separate appeal.

The case name is Coalition for Responsible Regulation, Inc. v. EPA, No. 09-1322. Petitioners can ask the full court to rehear the case or they can petition the Supreme Court for certiorari.