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David Doniger’s Blog

Ken Cuccinelli's March Madness

David Doniger

Posted March 26, 2013 in Curbing Pollution, Solving Global Warming, U.S. Law and Policy

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Virginia’s attorney general, Ken Cuccinelli, last week asked the U.S. Supreme Court to throw out the Environmental Protection Agency’s scientific finding that carbon dioxide and other heat-trapping air pollutants are driving dangerous climate change. 

This is the “endangerment determination” that EPA made in 2009, in direct response to the Supreme Court’s 2007 ruling in Massachusetts v. EPA.  In that case, the high court held that CO2 and other greenhouse gases are “air pollutants” under the Clean Air Act, and that EPA must set standards to curb their release if it determines they “may reasonably be anticipated to endanger public health or welfare.” 

By overturning the endangerment determination, the Virginia attorney general hopes to undo the Obama administration’s carbon pollution standards for new cars and to block future carbon standards for power plants.

The U.S. Court of Appeals in Washington dismissed Cuccinelli’s claims of conspiracy and scientific fraud last June in a unanimous opinion by a three-judge panel that spanned the court’s ideological spectrum.  The full court rejected those claims again, by a 6-2 vote, in December.  (I wrote about these decisions here and here.)

Cuccinelli’s petition to the Supreme Court recycles the same threadbare material.  Citing such unimpeachable sources as Fox News and the hacked “Climategate” emails, the petition peddles the climate-deniers’ insular world view of corruption and fraud: 

[T]hat climategate emails suggested that the [Intergovernmental Panel on Climate Change] data and conclusion upon which the EPA relied were manipulated; that critical IPCC records were lost or destroyed; that the peer review process was corrupted and dissent suppressed; that IPCC personnel had conflicts of interest; and that the EPA’s reliance on IPCC data ensured that the process underlying the Endangerment Finding lacked transparency.

Cuccinelli also claims that the EPA “impermissibly delegated its statutory duty” to make the endangerment determination “to outside entities” such as the IPCC.  Finally, Cuccinelli claims EPA gave short shrift to his Climategate-based “petition for reconsideration.”      

The appeals court was unimpressed.  The court’s careful rebuttal is worth a read:

          State and Industry Petitioners assert that EPA improperly “delegated” its judgment to the IPCC, USGCRP, and NRC by relying on these assessments of climate-change science. … This argument is little more than a semantic trick. EPA did not delegate, explicitly or otherwise, any decision-making to any of those entities. EPA simply did here what it and other decisionmakers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted. It makes no difference that much of the scientific evidence in large part consisted of “syntheses” of individual studies and research.  Even individual studies and research papers often synthesize past work in an area and then build upon it. This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.

           Moreover, it appears from the record that EPA used the assessment reports not as substitutes for its own judgment but as evidence upon which it relied to make that judgment. EPA evaluated the processes used to develop the various assessment reports, reviewed their contents, and considered the depth of the scientific consensus the reports represented. Based on these evaluations, EPA determined the assessments represented the best source material to use in deciding whether greenhouse gas emissions may be reasonably anticipated to endanger public health or welfare. … It then reviewed those reports along with comments relevant to the scientific considerations involved to determine whether the evidence warranted an endangerment finding for greenhouse gases as it was required to do under the Supreme Court’s mandate in Massachusetts v. EPA.

 Looking at the scientific evidence EPA amassed, the court said:

          To recap, 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.  EPA further had evidence of current and future effects of this warming on public health and welfare. Relying again upon substantial scientific evidence, EPA determined that anthropogenically induced climate change threatens both public health and public welfare. It found that extreme weather events, changes in air quality, increases in food- and water-borne pathogens, and increases in temperatures are likely to have adverse health effects. … The record also supports EPA’s conclusion that climate change endangers human welfare by creating risk to food production and agriculture, forestry, energy, infrastructure, ecosystems, and wildlife. Substantial evidence further supported EPA’s conclusion that the warming resulting from the greenhouse gas emissions could be expected to create risks to water resources and in general to coastal areas as a result of expected increase in sea level. … Finally, EPA determined from substantial evidence that motor-vehicle emissions of greenhouse gases contribute to climate change and thus to the endangerment of public health and welfare.

The appeals court also dismissed Cuccinelli’s complaints about EPA’s response to his “petition for reconsideration,” noting that from the 18,000 peer-reviewed studies considered by the IPCC: 

State Petitioners have not, as they assert, uncovered a “pattern” of flawed science.  Only two of the errors they point out seem to be errors at all, and EPA relied on neither in making the Endangerment Finding.

As for the claim that EPA denied the attorney general his right to another round of public comments and agency responses, the court said that EPA’s 360-page response to comments:

appears to be exactly what EPA called it—a response to the petitions for reconsideration, not a revision of the Endangerment Finding itself. EPA certainly may deny petitions for reconsideration of a rule and provide an explanation for that denial, including by providing support for that decision, without triggering a new round of notice and comment for the rule.

Pretty straightforward stuff.  It isn’t very likely the Supreme Court will see this differently.

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