The foundation for existing EPA regulations controlling greenhouse gases, primarily carbon dioxide—CO2—is the agency’s Endangerment Finding that was issued following the 2007 Supreme Court decision that greenhouse gases could be considered pollutants under the Clean Air Act (CAA) and that EPA could regulate them if it found that they endangered human health and the environment. In 2009, EPA did exactly that. A challenge that followed was rejected by the DC Court of Appeals that found the “Endangerment Finding … (is) neither arbitrary nor capricious … and EPA’s interpretation of the governing CAA provisions is unambiguously correct.”
Although the appeals court decision appears to be an insurmountable hurdle to challenging since the Supreme Court has shown no interest in revisiting its 2007 decision, it is still being challenged even though Administrator Pruitt seems unwilling to initiate the rulemaking process to withdraw the Finding. And, based on commentary by environmental lawyers on the prospects for challenging the Finding and the procedures of the Administrative Practices Act, success is not certain. However, the significance of the Endangerment Finding make the effort worthwhile. Otherwise, a new Administration can undo the current regulatory rollback efforts that are now underway.
None the less, the Texas Public Policy Foundation (TPPF) has filed a petition with EPA challenging the Endangerment Finding claiming that “in its rush to regulate greenhouse gases in 2009, the Obama Administration missed an important step. It failed to submit the greenhouse gas endangerment finding to the Science Advisory Board for peer review, as required by statute, and that violation is fatal to the endangerment finding”.
In addition to challenging on the basis of a procedural flaw in issuing the Finding, it would be prudent to also attack its very foundation. In issuing the Finding, EPA concluded, based on of peer-reviewed research, from the Intergovernmental Panel on Climate Change, the U.S. Global Climate Research Program, and from the National Research Council, that there was compelling evidence that carbon dioxide emissions endanger public health and welfare by warming the planet, leading to extreme weather events and increased mortality rates.
Last month, Steven Koonin, a well respected physicist and former Under Secretary of Energy in the Obama Administration wrote in the Wall Street Journal proposing that climate science be subjected to a “Red Team” exercise. As Dr. Koonin wrote, “The national-security community pioneered the “Red Team” methodology to test assumptions and analyses, identify risks, and reduce—or at least understand—uncertainties. The process is now considered a best practice in high-consequence situations… .
Taking on the entire field of climate science would be a daunting undertaking and it is doubtful that Congress would set up a commission to do so. Instead, petitioners should focus on just the foundation of the Finding which would be much more manageable and potentially more successful. First, the assertion that carbon dioxide is a pollutant is vulnerable to a large body of science and the greening of the planet that has been taking place for decades. Second, the contention that increasing levels of CO2 lead to temperature increases that cause extreme weather events like hurricanes and premature deaths is vulnerable to scientific facts and accumulating empirical evidence. Hurricanes have not been increasing and claims of increased premature deaths are products of computer models that cannot withstand careful scientific scrutiny.
In 1993, the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals established standards for the admissibility of scientific evidence in judicial proceedings. The Court’s decision provides guidance that can be used to rebut EPA’s findings about CO2. In particular, the Court stated, “in order to qualify as scientific knowledge, an inference or assertion must be derived by the scientific method.” It went on to state, “Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified.” The hypotheses that are the foundation for the Finding can be falsified as a Red Team exercise would show.