Wednesday, February 17, 2010

Texas v US EPA over CO2 Endangerment

The heavyweight round has just begun in the climate-change battle. Texas, one of the biggest states in the USA , filed a Petition for Reconsideration in the U.S. Court of Appeals for the D.C. Circuit. This is no ordinary plaintiff; this is the State of Texas - big, with endless resources, all the time in the world, and motivated with enormous resolve to stop this CO2 Endangerment Finding. Texas is resource-rich in oil, natural gas, timber, coal, cattle, cotton, high-tech, manufacturing, refineries, chemical plants, petrochemical plants, NASA, and the men and women who design it, build it, operate, repair and maintain it, and finance it. This is no ordinary plaintiff, with limited funding and huge bills to law firms to pay. No, this is the heavyweight round. And the gloves are off.

Texas' economy stands to lose much if the EPA's Endangerment Finding is sustained. With most of the U.S. refining and petrochemical industry in Texas, and the power plants required to keep them running, Texas burns a lot of fossil fuel, producing CO2 (and water vapor) in the process. Curbing the CO2 emissions will cost huge sums, and will do absolutely nothing to change the world's climate, either warmer or cooler. It will also put Texas at a serious disadvantage to other countries, who have enough sense not to hobble their own economies with misguided laws to curb fossil fuel use.

Texas, via its Attorney General (he's already on the payroll, so no additional legal fees here), filed a 38-page Petition for Reconsideration in the proper court, see above, with a fascinating and detailed list of EPA's wrongdoing in its Endangerment Finding. I will quote from the Petition liberally, and for those who want to wade through the legalese, the document may be found here. (PDF, 1.3 MB)

Legal Basis

The legal basis for the Petition for Reconsideration is the Clean Air Act, Section 307 and following (found at 42 U.S.C. Chapter 85, Section 7607).

Texas makes two main allegations: 1) the Endangerment Finding was arrived at by a fundamentally flawed methodology, and 2) that methodology was legally unsupported.

The Petition for Reconsideration also states,

"although the [EPA] Administrator is legally required to undertake a scientific
assessment before reaching a decision that is supposed to be based on scientific
conclusions, the Administrator outsourced the actual scientific study, as well as her
required review of the scientific literature necessary to make that assessment. In doing
so, EPA relied primarily on the conclusions of outside organizations, particularly the
United Nations International Panel on Climate Change (“IPCC”)."

The Petition for Reconsideration then lays out a long list of the IPCC's failings including not using peer-reviewed studies, how the IPCC's top climate scientists used the peer-review process to exclude contrary findings, colluded to hide research flaws, and collaborated to obstruct Freedom of Information requests.

It is crucial that some, or all, of the information about IPCC scientists wrongdoing came to light after the close of the public comment period for the Endangerment Finding in June, 2009, but before the end of the period for judicial review. Under the EPA's procedural rules stated in the Clean Air Act, plaintiffs may bring an action in court if new information is obtained after the public comment period closes but before the judicial review period ends. In this instance, new information came to light and the Petition for Reconsideration was timely filed.

The Petition for Reconsideration states that the EPA Administrator relied "on the major
assessments of the USGCRP, IPCC, and NRC as the primary scientific and technical
bases of her endangerment decision.” Furthermore, "[t]he appropriateness of the Administrator’s misplaced reliance on those assessments is of central relevance to the Endangerment Finding. " [emphasis in original] What the EPA Administrator should have done, is legally required to do, is form an independent assessment of the available research. In this case, she did not; she relied on the fatally-flawed IPCC reports, and the other two bodies' conclusions.

Texas' Environmental Commitment

The Petition for Reconsideration then goes on to list Texas' accomplishments in providing a clean environment, with a partial listing of companies fined and details of clean up measures taken. Texas is saying here, "Look, we are not the bad guys. We are cleaning up the environment in our state."

Next, Texas may have made a crucial mistake. The Petition for Reconsideration lists Texas' steps taken to reduce greenhouse gas emissions. The list includes reductions of CO2 emissions from power plants, and installing the nation's greatest amount of wind-generators. To admit that greenhouse gases exist may have been a mistake. On the other hand, Texas is very likely already on record in numerous documents as having reduced greenhouse gas emissions. It will be interesting to see how this admission in the Petition for Reconsideration plays with the appellate court.

The Endangerment Finding was Flawed

Next, the Petition for Reconsideration discusses the Endangerment Finding. Texas leads off with a quote from the Supreme Court case of Massachusetts v EPA, and Texas gets it right. Not all legal commentators got this right, however. The Supreme Court did not declare CO2 to be a greenhouse gas, and did not declare CO2 to be a danger to human health. As Texas correctly states,

"the United States Supreme Court decision in Massachusetts v. EPA required the Administrator to:

determine whether or not emissions of greenhouse gases from new motor vehicles cause
or contribute to air pollution which may reasonably be anticipated to endanger public
health or welfare, or whether the science is too uncertain to make a reasoned decision.” "

Texas goes on to state the legal grounds the Administrator is required to follow, and concludes with, "in reaching her Endangerment Finding, the Administrator is obligated to make her own, independent, ‘reasoned decision’ that is based exclusively on the best available science." This is the crux of Texas' argument: she did not make her own, independent decision, it was a copy of the IPCC and other reports; and it was certainly not based on the best available science. Non-peer-reviewed, agenda-driven magazine articles are not the best available science.

The Petition for Reconsideration then provides a fact-filled litany of the Climategate emails, showing scientists behaving badly. Quoting: "[t]he emails do not reflect the work of objective
scientists dispassionately conducting their work and zealously pursuing the truth. Rather
they reveal a cadre of activist scientists colluding and scheming to advance what they
want the science to be—even where the empirical data suggest a different outcome." Also, "to the extent their [these scientists'] objectivity, impartiality, truthfulness, and scientific
integrity are compromised or in doubt, so too is the objectivity, impartiality, truthfulness,
and scientific integrity of the IPCC report, the CRU temperature data, the NOAA
temperature data, and other scientific research that is shown to have relied on their
compromised research."

The EPA asserted that they used three independent sources for their scientific data, but the Petition of Reconsideration states that the IPCC report was most heavily relied on, and the other two were primarily rehashings of the IPCC's findings (my paraphrase).

Scientists Behaving Badly

In Section VII (A), the Petition for Reconsideration shows how the IPCC authors manipulated the climate temperature data, citing the by-now infamous email of using a "trick" to "hide the decline." Also, especially egregious data manipulation is discussed with Russian and New Zealand temperature data. Such manipulation showed undue warming. Also, the IPCC admitted they have lost critical climate data.

Then the real fun begins, with several major discredited claims, using non-peer-reviewed sources. These include Himalayan glaciers receding faster than anyone thought (the aren't). Also, Chinese temperature data was seriously flawed, and had no source documents. They made up the data. Next, the claim that 55 percent of the Netherlands is below sea level, and subject to inundation from sea level rise. This is erroneous, as only 26 percent is below sea level. The fourth and final example included in the Petition for Reconsideration is the wild claim that "up to 40 percent of the Amazonian rain forest could react drastically to even a slight reduction in precipitation." This was from the non-scientific, but wildly agenda-driven World Wildlife Federation, the WWF.

Impact on Texas

The Petition for Reconsideration then goes on to detail the hardships the Endangerment Finding will impose on the citizens of Texas, from small ranchers and farmers unable to pay for Title V Permits (they are not required to obtain these under current law), oil and gas interests, minerals and mining, and oil refining.

Conclusion and Request

"Granting this petition would be consistent with actions taken by governments
worldwide to assess problems afflicting the IPCC and it would further allow the agency
to conduct its own scientific assessment, independently consider the available scientific
information, and then, in the Administrator’s own judgment, make a determination that is
supported by the law and facts."

Texas is requesting the EPA do what it is legally required to do: conduct its own scientific assessment (not rely on the perverted IPCC results), and use the best available scientific information (not like the IPCC did with outrageous reports), then make its own determination that is consistent with and supported by the law and the facts.

This will be a very interesting court proceeding.

Court Procedures

In a Petition for Reconsideration such as this, the EPA must provide the court with a great number of documents. The law requires that "The record for judicial review shall consist exclusively of the material referred to in paragraph (3) (Notice of Proposed Rulemaking), clause (i) of paragraph (4)(B) (written comments and submitted documents, plus transcripts of public hearings), and subparagraphs (A) and (B) of paragraph (6) (this includes a response to each of the significant comments, criticisms, and new data submitted in written or oral presentations during the comment period)."

It will take some time for the court to read and analyze all the documents, consider the evidence before it, and deliver its opinion.


An agenda-driven EPA, and the presidential administration that directs it, should take a lesson from this. This is what happens, and some very concerned states (Texas is not alone in filing such a petition, by some reports, 16 other Petitions were filed) do not take these things lightly. Court resources will be tied up for weeks, if not months, and all because the EPA did not pay attention to the climate skeptics who, all along, insisted that the IPCC was full of wrong-doing and bad science.

Roger E. Sowell, Esq.
Marina del Rey, California

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