On April 29, 2010, the Tucson- and San Francisco-based Center or Biological Diversity filed a citizen’s suit under the Clean Air Act against the U.S. Environmental Protection Agency alleging that the EPA failed:

to meet numerous deadlines for limiting dangerous pollution from tiny airborne particles. The EPA has violated the Clean Air Act and undermined public health by failing to determine whether areas in five western states are complying with existing air-pollution standards and by failing to ensure that states are implementing legally required plans to meet the standards.

The suit makes three claims.  First, that the EPA has a mandatory duty to make a determination whether 13 nonattainment areas in Alaska, Arizona, Idaho, Montana, and Nevada have attained the National Air Quality Standard for particulate matter less than 10 microns in diameter (“PM-10″).  Second, the lawsuit alleges that EPA has a mandatory duty to impose sanctions and create a Federal Implementation Plan (FIP) for PM-10 for two areas in Arizona where EPA has already made a finding of a failure to submit a sufficient State Implementation Plan.  Finally, the lawsuit claims that EPA has a mandatory duty to issue a determination that Montana has failed to submit a sufficient State Implementation Plan by the date it was required to do so.

The EPA has in the past been chided by courts for failing to live up to the deadlines in the Clean Air Act.  See, for example, Natural Resources Defense Council, Inc. v. EPA, 22 F.3d 1125 (D.C. Cir. 1994).  The problem with the Center for Biological Diversity’s suit is that, as the D.C. Circuit pointed out in the NRDC case, “[w]hile the Clean Air Act is very specific about the consequences of a state’s failure to meet the submittal deadline, the Act is silent on what should occur if the agency misses its” deadline.  22 F.3d at 1135.  In other words, there is some question as to whether the Center’s requested remedy of forcing EPA to take specific actions is legally defensible.

The EPA has, in the past, settled several other cases involving its nonperformance of mandatory duties.  For example, in Desert Rock Energy Co., LLC v. EPA, 2009 WL 3247312 (S.D. Tex. Sept. 29, 2009) the court mentions that Association of Irritated Residents v. Johnson, Civil Action No. 08-227 (N.D. Calif) “the parties sued the EPA and the EPA Administrator for failing to perform nondiscretionary duties by not acting on certain state implementation plans within the time lines set forth in section 11(k)(2) of the Act.”  Thus, this is not a new issue before the Northern District of California.

The Congress, when it wrote the Clean Air Act, did not contemplate that the EPA would be the sticking point, allowing the states to extend and ignore deadlines.  It will be interesting to see if this matter goes forward, or whether the EPA will settle this one as well.

Although the headlines would have you believe that the star of the show are the genetically-modified alfalfa seeds, the real issue that the U.S. Supreme Court will address in Monsanto Co. v. Geertson Seed Farms,  Case No. 09-475 is whether NEPA violations can cause irreparable harm. What started out in the U.S. District Court as run-of-the-mill NEPA case, has evolved into a matter that seemingly involves the hot-button topic of genetically modified crops.

Despite the hype, the justices stayed fairly close to the script at Tuesday’s oral argument, generally declining to go into the merits of genetically-modified crops, though Justice Scalia wandered off the reservation, questioning the idea that genetically modified crops could contaminate other crops, adding that “this isn’t the contamination of the New York City water supply.  This isn’t the end of the world.”

At least two of the justices seemed to wonder why the case was before the Supreme Court at all.  Barely a minute into the argument, Justice Alito demanded to know whether the case would become moot once the USDA finalizes its environmental impact statement.

If we agree with your argument that the Ninth Circuit applied the wrong preliminary injunction standard and remand for them to apply the right preliminary injunction standard, the case may be moot by the time they do that.

The USDA released a draft in December, 2009, and expects to have a final EIS in a year.  Gregory Garre, arguing for Monsanto, tried to dodge that bullet by claiming that Monsanto has, indeed, appealed the vacatur as well as the injunction and that “this case presents important legal issues concerning the entry of injunctive relief.’

Justice Ginsburg asked whether Monsanto and users of GM alfalfa seeds had grounds to challenge the injunction, regardless of whether it was justified.  The injunction, which allowed farmers to plant seeds that had already been sold, did not impose any restrictions on planting beyond the ones Garre to respond to organic farmers argument that one way or the other farmers would not have been allowed to plant the genetically modified alfalfa until the environmental review was done.

Chief Justice Roberts was blunt about what he thought the disposition of the case should be, suggesting that when the District Court Judge Charles Breyer (Justice Stephen Breyer’s brother) vacated the decision to deregulate the alfalfa seeds, he should have remanded the case to the U.S. Department of Agriculture for further review instead of issuing the injunction.

Why did it do that?  I mean, the way the APA [Administrative Procedures Act] works, this is sent back to the agency.  If the agency wants to partially deregulate, it can do it and then you can challenge it under the normal APA procedures.

In the briefs, the question of irreparable harm in NEPA was raised.  Monsanto argues that the Ninth Circuit erred in establishing a presumption of irreparable harm whenever NEPA’s procedural mandates are violated.  Despite the fact that the Ninth Circuit specifically denied it was establishing a presumption of irreparable harm, Monsanto Monsanto contended that the Ninth Circuit’s approach was effectively the same.  Geertson Farms, on the other hand, claimed that it had met the “likelihood of irreparable harm portion of the test for injunctive relief irrespective of whether there was a presumption.

Although Justice Stephen Breyer recused himself because his brother was the District Court Judge in the case, Justice Clarence Thomas, who represented Monsanto Co. as a private attorney prior to joining the  bench, refused to recuse himself.  A decision is expected some time in late June.

On April 21, 2010, the EPA announced that it would seek public comment on data available for evaluating emissions and potential exposure to lead in gas used in piston-engine aircraft.  As the EPA stated:

Emissions of lead from piston-engine aircraft using leaded avgas comprise approximately half of the national inventory of lead emitted to air.  EPA estimates that approximately 14.6 billion gallons of leaded avgas were consumed between 1970 and 2007, emitting approximately 34,000 tons of lead.

The EPA will publish an Advanced Notice of Proposed Rulemaking in the Federal Register which describes the data that are currently available and being collected that would help evaluate health impacts from piston-engine aircraft emissions.  That will start the 60-day public comment period.

The ANPR is one of the steps EPA has taken in response to a petition that Friends of the Earth filed on October 3, 2006 requesting that the Administrator find that aircraft lead emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, and that EPA regulate those emissions.  The EPA had previously issued a Notice requesting public comment on the Petition in November, 2007, ended up not taking any action.

The Aircraft Owners and Pilots Association (AOPA) has long argued that lead is a necessary component of 100 octane leaded aviation gasoline.  For example, two years ago, in response to the Friends of Earth petition, AOPA commented that:

Currently, there is no simple alternative for 100LL avgas.  Any change in the current fuel standard will have a direct impact on the safety of flight and therefore must be fully tested and FAA approved before any operational changes occur.

Thus, it is highly likely that EPA’s new push to get the lead out will be met with some resistance again from AOPA.

The U.S. Supreme Court issued an Order today, Monday, April 26, 2010, stating simply “The motion of Michigan to reopen and for a supplemental decree is denied. The alternative motion for leave to file a bill of complaint is denied.”  Thus, the State of Michigan’s third attempt to get the high court to have Illinois close access to the Great Lakes to protect from an infestation of Asian Carp was denied.

Michigan and several other Great Lakes states and several environmental groups all were trying to force Illinois, the Metropolitan Water Reclamation District of Greater Chicago, the barge shipping industry and the federal government close the locks on the Chicago River so that the invasive species could get into Lake Michigan.   Once in Lake Michigan, Asian Carp, Michigan argued, could devastate the commercial and recreational fishing industry.

Illinois argued that it is successfully employing electric barriers to hold back the invasion and that closing the locks would be both ineffective at stopping the carp and extremely harmful to the Chicago economy.

As is typical in this type of case, the law used did not directly concern the issue at hand.  Michigan sought for the Supreme Court to reopen a 1929 decision that limited how much water Illinois can divert from Lake Michigan, which stemmed from Chicago’s construction of the canal to reverse the flow of the Chicago River and keep pollution out of Lake Michigan.  The Supreme Court limited the amount of water Illinois could divert from the Great Lakes in a series of decrees, most recently in 1980.

The federal government opposed Michigan’s suit, saying that the drastic measure of closing the locks was premature.  Moreover, the federal government believed that Michigan and the other states should have filed a lawsuit in the U.S. District Court instead of attempting to go directly to the Supreme Court.  Michigan had been attempting to invoke the U.S. Supreme Court’s original jurisdiction for legal disputes among states.

The case pitted environmental groups, Michigan and several other Great Lakes states against Illinois, the Metropolitan Water Reclamation District of Greater Chicago, the barge shipping industry and the federal government.

Michigan argued that the threat of the invasive species getting into Lake Michigan, where it could devastate the commercial and recreational fishing industry, required the court to order the locks closed immediately.

Opponents argued that the federal government and the state of Illinois are successfully employing electric barriers to hold back the invasion and that closing the locks would be both ineffective at stopping the carp and extremely harmful to the Chicago economy.

Michigan wanted the Supreme Court to reopen a 1929 decision that limited how much water Illinois can divert from Lake Michigan, which stemmed from Chicago’s construction of the canal to reverse the flow of the Chicago River and keep pollution out of Lake Michigan.

Court Overturns 15-Year Old Pollution Exemption for Industries

Today, the U.S. Supreme Court announced that it had denied certiorari to the American Chemistry Council in ACC’s effort to obtain Supreme Court review of the U.S. Court of Appeals for the D.C. Circuit’s decision in Sierra Club v. American Chemistry Council et al. See, “Court Overturns 15-Year Old Pollution Exemption for Industries,” posted December 24, 2008.

In 1994, during the Clinton Administration, the EPA promulgated a rule that permits industrial operations that are starting up, shutting down or malfunctioning (“SSM events”) to emit more toxins into the air than is normally allowed.  In a 2 to 1 decision, the U.S. Court of Appeals for the District of Columbia Circuit struck down that exemption holding that it conflicts with the clear language of section 112(h) of the Clean Air Act.

The Supreme Court’s denial of certiorari effectively puts an end to the litigation.  If industry wants to have the rule reinstated, a legislative change in the Clean Air Act will be required.

EPA Administrator Lisa P. Jackson issued a letter on February 22, 2010, responding to a letter sent to her the evening of February 19 by eight U.S. Senators asking about the agency’s plans for 2010.

The Senators’ letter, written by Sen. Jay Rockefeller of West Virginia and signed by Sens. Mark Begich of Alaska, Robert Byrd of West Virginia, Sherrod Brown of Ohio, Bob Casey of Pennsylvania, Claire McCaskill of Missouri, Carl Levin of Michigan and Max Baucus of Montana,  said that while EPA has the power to regulate greenhouse gas emissions from mobile sources, it lacked such power to regulate stationary sources. The Senators said that since regulation of emissions of greenhouse gases impacts thousands of jobs and businesses in the US, it is Congress’ duty, not the EPA’s.

In her response, Administrator Jackson outlines her decisions she for 2010-2011, notably:

• No facility will be required to address greenhouse gas emissions in Clean Air Act permitting of new construction or modifications before 2011.

• For the first half of 2011, only facilities that already must apply for Clean Air Act permits as a result of their non-greenhouse gas emissions will need to address their greenhouse gas emissions in their permit applications.

• EPA is also considering a modification to the rule announced in September requiring large facilities emitting more than 25,000 tons of greenhouse gases a year to obtain permits demonstrating they are using the best practices and technologies to minimize GHG emissions. EPA is considering raising that threshold substantially to reflect input provided during the public comment process.

• EPA does not intend to subject smaller facilities to Clean Air Act permitting for greenhouse gas emissions any sooner than 2016.

Whether these concessions will be enough to stave off the growing opposition to the EPA’s regulation of greenhouse gases, time will tell.

Sixth Circuit Overturns EPA Rule Exempting Pesticides from NPDES Permitting

On February 22, 2010, the United States Supreme Court issued its order denying the Petitions for Certiorari of CropLife and the American Farm Bureau who were seeking Supreme Court review of the National Cotton Council of America v. EPA case.  In that case, the Sixth Circuit ruled that application of pesticides near or on water was a violation of the Clean Water Act.  For more information regarding the case, see “Sixth Circuit Overturns EPA Rule Exempting Pesticides from NPDES Permitting.”

The Council on Environmental Quality, on February 18, 2010, proposed three substantive steps to “modernize and reinvigorate” the National Environmental Policy Act (NEPA). According to Nancy Sutley, the Chair of the White House-based CEQ, these measures “will assist Federal agencies to meet the goals of NEPA, enhance the quality of public involvement in governmental decisions relating to the environment, increase transparency and ease implementation.”

These three steps include when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions; clarifying appropriateness of “Findings of No Significant Impact” and specifying when there is a need to monitor environmental mitigation commitments; and clarifying use of categorical exclusions. The CEQ is requesting public comment on all three of the draft guidances.

The Effects of Climate Change and Greenhouse Gas Emissions Must be Considered in the NEPA Process

Perhaps the most critical element to this modernization of the NEPA process is the CEQ’s draft guidance on when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions. According to the CEQ:

The draft guidance explains how Federal agencies should analyze the environmental impacts of greenhouse gas emissions and climate change when they describe the environmental impacts of a proposed action under NEPA.  It provides practical tools for agency reporting, including a presumptive threshold of 25,000 metric tons of carbon dioxide equivalent emissions from the proposed action to trigger a quantitative analysis, and instructs agencies how to assess the effects of climate change on the proposed action and their design.  The draft guidance does not apply to land and resource management actions and does not propose to regulate greenhouse gases.

While some courts have already held that climate change and greenhouse gas emissions must be considered in the NEPA process. See, “Greenhouse Gases Should Be Considered in All EISs and EAs;” see also, Center for Biological Diversity v. NHTSA, 508 F.3d 522 (9th Cir. 2008), Friends of the Earth, Inc. v. Mosbacher, 488 F.Supp.2d 889 (N.D. Cal. 2007); Border Power Plant Working Group v. Department of Energy, 260 F.Supp.2d 997 (S.D. Cal. 2003); and Mid-States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8^th Cir. 2003). To these courts, these findings indicate that emission of greenhouse gases substantially contribute to climate change, and climate change is expected to result in widespread adverse environmental effects. Therefore, it should be mentioned in the EIS.

What the draft guidance does explain, however, that is not present in the case law are the “practical tools for agency reporting.” That is, it sets a de minimis level of 25,000 metric tons of CO2e before the proposed action would trigger quantitative analysis, which may eliminate many federal projects from the guidance.

The public comment period for this draft Guidance is 90 days. Comments may be submitted electronically from the CEQ’s website: http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/submit?topic=Consideration%20of%20Greenhouse%20Gases. In addition, at the end of the draft Guidance, the CEQ asks several questions that it would like to have addressed by the public:

1. How should NEPA documents regarding long-range energy and resource management programs assess GHG emissions and climate change impacts?

2. What should be included in specific NEPA guidance for projects applicable to the federal land management agencies?

3. What should be included in specific NEPA guidance for land management planning applicable to the federal land management agencies?

4. Should CEQ recommend any particular protocols for assessing land management practices and their effect on carbon release and sequestration?

5. How should uncertainties associated with climate change projections and species and ecosystem responses be addressed in protocols for assessing land management practices?

6. How should NEPA analyses be tailored to address the beneficial effects on GHG emissions of Federal land and resource management actions?

7. Should CEQ provide guidance to agencies on determining whether GHG emissions are “significant” for NEPA purposes. At what level should GHG emissions be considered to have significant cumulative effects. In this context, commenters may wish to consider the Supreme Court decision in Massachusetts v. EPA, 549 U.S. 497, 524 (2007).

Draft Guidance on the Appropriateness of “Findings of No Significant Impact” Tightens Monitoring and Reporting Restrictions

When Finding of No Significant Impact (FONSI) is issued for a Federal action, the need for a detailed Environmental Impact Statement is obviated. Many Federal agencies attempt to mitigate the environmental impact of their actions as part of the NEPA process so that they can reach a FONSI and not be required to draft an EIS. However, in many cases, the follow-up on mitigation activities promised is lacking. Thus, the draft guidance seeks to clarify that although the environmental impacts of a proposed action may be mitigated to the point when the agency make a FONSI determination, the agency must make the mitigation requirements public and perform the necessary monitoring and reporting.

Revised Draft Guidance Clarifying Use of Categorical Exclusions

Many Federal actions do not have significant effects on the environment.  When these actions fall into broad categories of activities, agencies may apply a “categorical exclusion” from further NEPA review.  The CEQ originally released a draft guidance to clarify and promote the use of categorical exclusions on September 17, 2006. 71 Fed.Reg. 54816 (Sept. 17, 2006). This action would revise that draft guidance and clarify the rules for categorical exclusions and ensures that there is a concise public record when agencies apply them.  While CEQ previously has sought public comments on this matter, this guidance provides additional clarifications, so it will seek additional public comment for 45 days.

Time is up.  The deadline for filing a judicial challenge to the EPA’s Endangerment Finding that found that six greenhouse gases endanger the public health and environment has passed.  As reported by Robin Bravender of Greenwire in The New York Times:

Industry groups, conservative think tanks, lawmakers and three states filed 16 court challenges to U.S. EPA’s “endangerment” finding for greenhouse gases before yesterday’s deadline, setting the stage for a legal battle over federal climate policies.

Filing petitions yesterday were the Ohio Coal Association, the Utility Air Regulatory Group, the Portland Cement Association, the state of Texas and the Competitive Enterprise Institute. Another was filed by a coalition that includes the National Association of Manufacturers (NAM), the American Petroleum Institute, the Corn Refiners Association, the National Association of Home Builders, the National Oilseed Processors Association, the National Petrochemical and Refiners Association, and the Western States Petroleum Association.

The lawsuits ask the U.S. Circuit Court of Appeals to review EPA’s determination that greenhouse gases endanger human health and welfare. That finding — released in December in response to a 2007 U.S. Supreme Court ruling — allows the agency to regulate the heat-trapping emissions under the Clean Air Act. Observers expect the court to consolidate the petitions.

. . . .

Ten other petitions have been filed by Alabama, Virginia, the American Iron and Steel Institute, Gerdau Ameristeel Corp., the American Farm Bureau Federation, the National Mining Association, Peabody Energy Co., the U.S. Chamber of Commerce, 13 House lawmakers and the Southeastern Legal Foundation, and the Coalition for Responsible Regulation (E&ENews PM, Feb. 16).

A coalition of 16 states and New York City has also asked to intervene on behalf of EPA in the endangerment case (Greenwire, Jan. 25).

Procedural Background on Petitions for Review

Before going any further, perhaps a brief explanation of how the Petition for Review process works is in order.  The initial filing in a Petition for Review of an agency decision is merely a short one- or two-page document identifying the agency decision that the Petitioner wishes to have the Court of Appeals review and the statute under which such review is granted.  The Petition for Review does not shed any light on the Petitioners’ arguments or issues, that will come later, in their statement of issues and their briefs.  Likewise, because all sixteen Petitions for Review seek review of the same agency decision, they most likely will be consolidated.  See Handbook of Practice and Internal Procedures, p.23, U.S. Court of Appeals for the District of Columbia Circuit. Usually, this means that all of the Petitioners will file one brief, the EPA will file its answer, and then the Petitioners will file a joint reply brief.  Oral argument would then take place some time after the Reply brief is filed.

On February 9, 2010, the Southeastern Legal Foundation, a conservative “public interest” law firm filed a Petition for Review of the Environmental Protection Agency’s December 15, 2009, “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.”  This Petition for Review is a colossal waste of time, money and effort for the court and for the parties and amounts to political grandstanding on the part of Southeastern Legal Foundation and the Petitioners.  Two issues that stand out provide the SLF with no hope of success with their petition.

Standing Issues:  Where’s the Harm?

One issue that is near and dear to the hearts of the judges that sit on the U.S. Court of Appeals for the District of Columbia Circuit is standing.  That is, whether the Petitioners are sufficiently affected by the Endangerment Finding so as to insure that a justiciable controversy is presented to the court.  The D.C. Circuit has held that in order to establish the “irreducible constitutional minimum of standing,” a party must demonstrate:

that it has suffered a “concrete and particularized” injury that is: [1] actual or imminent [2] caused by or fairly traceable to the act being challenged in the litigation, and [3] redressable by the court.” City of Dania Beach v. FAA, 485 F.3d 1181, 1185 (D.C. Cir. 2007) (citing Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc)); see also Defenders of Wildlife, 504 U.S. at 560-61.

County of Delaware, Pa. v. Department of Transportation, 554 F.3d 143 (D.C. Cir. 2009).  Here, the first question is “where is the ‘concrete particularized injury’ caused by the Endangerment Finding?”  This is going to a fairly difficult issue for the SLF to get past, since the Endangerment Finding, in and of itself, does not create any injury. The Endangerment Finding does not restrict or allow emissions by any individuals or companies.  Nor does it not take away or give rights to any individuals or companies.  It is simply provides the basis for the EPA to propose and promulgate regulations that will affect companies.  Thus, without a “concrete and particularized injury” to the Petitioners that created by the Endangerment Finding, there can be no standing.

Deference to Federal Agencies’ Findings

Even if the SLF were able to prove that it had standing, it will face a very uphill in arguing that the EPA got the science wrong.  A caveat here, Petitioners are not required in their Petition or Review to state the issues they are challenging. Thus, I am speculating that the SLF will attack the EPA’s scientific basis for its Endangerment Finding, since that was the basis of their Petition for Reconsideration that they filed on December 23, 2009, with the EPA.

In the federal Courts of Appeal, in order to avoid a “battle of experts” in review of agency decisions, the court will generally defer to an agency’s expertise.  The U.S Supreme Court has stated on several occasions that it may not supply a reasoned basis for the agency’s action if the agency provided one.  See, Motor Vehicle Manufacturers Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).  In order to succeed, then, the SLF will have show that the EPA had no reasonable basis for its decision.

The SLF’s Petition for Reconsideration reveals that the main thrust of their argument is that “Climategate” e-mails undermine the EPA’s conclusion.  In response to the Climategate e-mails, the EPA has said that they have reviewed the e-mails and consider them not to change the findings.  The SLF may disagree with that finding, but the EPA has fulfilled its administrative predicate: it has considered the evidence and deemed it not relevant.  As a result, the EPA receives deference, and the SLF is left with nothing.

Conclusion

The Southeastern Legal Foundation maybe the first to file a Petition for Review, securing its place on the cover sheet of the matter.  It certainly will not be the last.  Noticeably absent from the Southeastern Legal Foundation’s Petition for Review are any of the automobile manufacturers or oil companies.  This is due to their agreement with the Obama Administration on the parameters of the Endangerment Finding and the “tailoring rule,” which will be the next legal battleground.  The U.S. Chamber of Commerce has since filed a Petition for Reconsideration with the EPA, which is the first step toward file a Petition for Review, but, unlike the Southeastern Legal Foundation, it is taking the approach that the EPA goofed up the process, not the science.  A much smarter approach, although one that still suffers from terminal legal issues should the Chamber decide to file a Petition for Review.

Debunking the Debunkers

As a companion to its filing of the Petition for Review, Shannon Goessling, the Executive Director and Chief Legal Counsel of Southeastern Legal Foundation wrote a puff piece that was published online in Investor’s Business Daily rehashing the same tired old complaints and claims about the Climategate e-mails, and the EPA’s Endangerment Finding without providing any facts or law.

The website Media Matters for America, on the other hand, offers a list scientists, fact checkers, organizations and agencies that have all held that the Climategate e-mails do not undermine the climate change consensus:

FactCheck.org: Emails “have been misrepresented by global-warming skeptics,” “don’t change scientific consensus on global warming.” FactCheck.org has stated that while the emails “show a few scientists in a bad light, being rude or dismissive,” “there’s still plenty of evidence that the earth is getting warmer and that humans are largely responsible.” In addition, FactCheck noted that “many of the e-mails that are being held up as ‘smoking guns’ have been misrepresented by global-warming skeptics eager to find evidence of a conspiracy.”

AP: Emails “don’t support claims that the science of global warming was faked.”The Associated Press reported that after “stud[ying] all the e-mails for context, with five reporters reading and rereading them” and submitting “summaries of the e-mails that raised issues from the potential manipulation of data to intensely personal attacks … to seven experts in research ethics, climate science and science policy,” they concluded that “the exchanges don’t undercut the vast body of evidence showing the world is warming because of man-made greenhouse gas emissions.”

Scientists reaffirm that global warming is real. Following the emails’ release, more than 1,700 scientists from the United Kingdom signed a statement responding “to the ongoing questioning of core climate science and methods.” The statement said: “We, members of the UK science community, have the utmost confidence in the observational evidence for global warming and the scientific basis for concluding that it is due primarily to human activities.” Furthermore, in a December 4, 2009, letter to Congress, 29 prominent scientists, including 11 members of the National Academy of Scientists, stated, “The body of evidence that human activity is the dominant cause of global warming is overwhelming. The content of the stolen emails has no impact whatsoever on our overall understanding that human activity is driving dangerous levels of global warming.” Additionally, a December 3, 2009, editorial in the science journal Nature stated: “Nothing in the e-mails undermines the scientific case that global warming is real — or that human activities are almost certainly the cause,” and that claims to the contrary by “the climate-change-denialist fringe” are “laughable.” The American Meteorological Society, the American Association for the Advancement of Science, and the Union of Concerned Scientists have all reaffirmed their position that human-caused global warming is real.

I have always been in favor of a debate on Climate Change, for which I have been taken to task by some of my colleagues.  See, for example, EPA Should Grant U.S. Chamber of Commerce’s Petition for a Hearing Regarding Greenhouse Gas Endangerment Finding.  What I object to, strenuously, is using fear, ignorance and arrogance to support a legal (or scientific) position.  It seems that the skeptics are more interested in inciting people’s passions by stating, without attribution, that they will pay more for energy, among other things. I am hoping for the day that the skeptics are ready to come to the table and talk rationally.