EPA’s Shaky Foundation for Climate Regulations

During the Obama Administration, its climate agenda was driven by EPA using a bad Supreme Court decision to justify regulations that had no sound basis in science or economics.

In making its decision, the Court reached a number of conclusions of questionable validity.  It concluded, “Because greenhouse gases fit well within the Act’s capacious definition of “air pollutant,” EPA has statutory authority to regulate emission of such gases from new motor vehicles”… and,” A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related.”  The Court also accepted the IPCC’s conclusion about humans having a “discernable influence on climate”.

For years, courts have given deference to agencies based on the Supreme Court’s Chevron decision that found that when there is ambiguity in a law, deference should be given to an agency’s interpretation.

The Bush Administration could have strongly rebutted the arguments that led to the Court’s conclusions but instead opted for challenging the petitioners standing to bring suit and some technicalities.

Beginning with the conclusion that EPA could determine that CO2 was a pollutant, the Court then easily moved to the decision that the Agency could regulate it if it found that CO2 endangered human health and welfare.  What the Court ignored was that Congress in passing the 1990 Clean Air Act amendments explicitly decided against granting EPA authority to regulate CO2.  Clearly in this instance, deference should have been given to Congressional intent.  The Court also ignored the established fact that CO2 was a nutrient; not a pollutant.  In citing the rise in global temperatures and increase in CO2 concentrations, the Court made the serious blunder of equating correlation, which really doesn’t exist, with causality.

By allowing EPA to stretch the definition of pollutant, the Court had to accept that increased concentrations of CO2 in the atmosphere would cause harm and that regulating emissions would avoid that harm.  Even if you concede the Court’s assumption, there is no way that EPA regulations would produce any beneficial effect.  To make significant reductions in atmospheric concentrations, it would be necessary for all nations to reduce emissions.  At the time of the Court decision, the only global agreement was the Kyoto Agreement, which exempted developing countries, the major source of emissions.  So, it should have been abundantly clear that granting EPA the authority to regulate would impose large costs and no warming reduction or climate benefits.

Beyond the errors cited, the Supreme Court also ignored a1993 Supreme Court decision –Daubert v. Merrell Dow Pharmaceuticals which set forth a standard for scientific evidence.  The Court stated, “ … in order to qualify as “scientific knowledge”, an inference or assertion must be derivied by the scientific method.”  It went on to state, “…in determining whether a theory …is scientific knowledge … will be whether it can be (and has been) tested.  Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified.”  The conclusions of the IPCC and the work it uses in drawing a conclusion that human activities are the primary cause of global temperature increases and associated climate events are based on climate model outputs and not the results of experiments that can be falsified.  The models have not been validated, nor have most of the assumptions incorporated in them.  It is that simple.




Author: billo38@icloud.com

Founder and president of Solutions Consulting which focuses on public policy issues, strategic planning, and strategic communications.

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