Posted by: Steven M. Taber | August 25, 2009

EPA Should Grant U.S. Chamber of Commerce’s Petition for a Hearing Regarding Greenhouse Gas Endangerment Finding

UPDATE: See, “Update on Chamber of Commerce’s Petition for Hearing on CO2 Endangerment Proposal,” posted August 31, 2009.

Michael Burnham, writing in the New York Times, wrote on August 25, 2009, that

The nation’s largest business group is asking U.S. EPA to hold a public debate on climate change science — or face litigation — as the agency prepares to regulate greenhouse gas emissions under the Clean Air Act. . . . The U.S. Chamber of Commerce filed a 21-page petition with EPA today, asking the agency to approve an on-the-record proceeding with an independent trier of fact who would allow EPA and environmental and business groups to engage in a “credible weighing” of the scientific evidence that global warming endangers human health.

The response from the EPA was swift and sure, with Burnham noting that:

EPA Deputy Press Secretary Brendan Gilfillan rejected the chamber’s claims. EPA Administrator Lisa Jackson based her proposed endangerment finding on “the soundest peer-reviewed science available, which overwhelmingly indicates that climate change presents a threat to human health and welfare,” he said.

Likewise, climate change proponents have rallied to support for the EPA’s position, relying on the Intergovernmental Panel on Climate Change (IPCC) seminal findings regarding climate change and the mountains of scientific studies and reports indicating the anthropogenic provenance of climate change.  Yet, when all is said and done, why not have a “modern-day Scopes monkey trial,” as Bill Kovacs, USCOC Vice President, envisions it?

This is not the ranting and raving of some lunatic climate change skeptic.  Since “Climate Change” is part of my practice, I have reviewed the IPCC reports, and the other scientific reports and studies supporting the thesis that humans are causing potentially cataclysmic climate change.  I have, in the interest of fairness, also read books like Eco-Scam: The False Prophets of Ecological Apocalypse, by Ronald Bailey, perused the Science and Public Policy Institute’s web site regarding the “Fallacies about Global Warming,” and reviewed the Alan Carlin (the latest darling of the skeptic crowd) memo that was allegedly “suppressed” by the EPA brass because of its anti-climate change views.  In all, I do not find them as compelling as the studies and reports indicating that climate change is real and, most likely, worse than we have in the past few years suspected.  Moreover, the status, clout and pedigree of the scientists who authored these reports far exceed those put forward by the skeptics.

Here, then, are four reasons why, as a citizen who believes that climate change will have a devastating impact on the earth unless we take measures to counteract it, I believe that a hearing, a “Scopes-like trial,” if you will, would be a good idea to garner support for taking action against the very real threat of climate change.

1. Since this matter will end up in litigation, allowing a public hearing will allow EPA to frame the issues that get litigated.

The U.S. Chamber of Commerce has not made it a secret that they intend to file a lawsuit against the EPA when (and if) the EPA promulgates the final endangerment assessment stating that greenhouse gases endanger the public health and therefore should be regulated under the Clean Air Act.  Typically, a party will file a “Petition for Review” in the U.S. Circuit Court of Appeals for the Circuit that is affected by the rule or in the Circuit for the District of Columbia.  In this case, the Chamber would most likely file its Petition in the D.C. Circuit.  In general, the standard upon which the EPA’s action will be reviewed is whether the EPA’s action was “arbitrary and capricious.”  If the court finds that the agency acted “arbitrarily and capriciously,” it will vacate the rule or regulation and remand the issue back to the agency in a manner that is consonant with the court’s ruling.  By granting the Chamber’s Petition for Hearing, the EPA would be able to better frame the issues that a climate change skeptic could bring in any subsequent Petition for Review, thereby reducing the likelihood that the EPA’s endangerment finding would be vacated by the court.

For example, the Chamber’s Petition for Hearing gives a sneak peek of at least one of its claims if it were to file a Petition for Review.  On page 7 of the Petition, it states:

EPA cannot properly conclude on the record now before it, using the Administrator’s “total weight of the evidence” approach, that the higher temperatures forecast by those who predict temperature increases will increase U.S. mortality rates.  Certainly, it would be arbitrary to make such a determination, based on “uncertainties” in the record, without trying to resolve the purported uncertainty on the issue of net mortality impacts through an evidentiary proceeding on the record.  “Uncertainties” are a pervasive problem running through EPA’s entire proposal.

Thus, by clearing up these “uncertainties” in a hearing and expanding the Administrative Record, it would be more difficult for a skeptic to make a cognizable claim that the EPA’s action is “arbitrary and capricious.”  Although the D.C. Circuit tends to support federal agencies’ actions and not find that they acted “arbitrary and capricious,” in light of the overtly political nature of this controversy and the fact that approximately 70% of the judges in the D.C. Circuit were appointed by a Republican President, it would behoove the EPA to diminish any argument that a skeptic could raise in court and when it is defending its endangerment finding in court.

2. After years about complaining about the suppression of evidence by the Bush Administration, the Obama Administration needs to show that transparency applies here.

When the news came out earlier this summer that Dr. Alan Carlin, an EPA Analyst had authored a 98-page report that argued that the EPA’s data was out-of-date and that even as atmospheric carbon dioxide levels have increased, global temperatures have declined.  This report, according to Sen James Inhofe (R-Okla.), a noted skeptic, was “suppressed” by Dr. Carlin’s higher-ups at the EPA because, Sen. Inhofe said, it did not comport with the new EPA orthodoxy.  With little coming from the Obama administration in response to those claims, the incident raises the specter of “transparency,” which the Obama administration has promised in all things regulatory and administrative.  In addition, a little over a year ago, it was the pro-climate change forces that were crying “suppression” when scientist James Hansen claimed the administration was trying to keep him from speaking out and calling for reductions in greenhouse gases.  The time has come for the Obama Administration to separate itself from the morally bereft Bush Administration and show that transparency is more than a campaign slogan.  Holding a hearing would show that science backs up the Administration’s policies as well as separating itself from secretive, deceitful days of the Bush Administration.

Moreover, I, for one, am very interested in hearing what the skeptics have to say.  None of their literature that I have seen, thus far, is compelling, but that does not mean that it should not be considered.  And, more importantly, it does not mean that it can be dismissed out of hand without some sort of explanation as to why it is not important or should not be considered.  If the science is so overwhelming in favor of the climate change thesis, then why be afraid of defending it? Silence the critics by showing them the proof that their arguments hold no water.  In addition, often times in serious debate new ideas emerge that were not previously considered.  It is not inconceivable that a better understanding of the science of climate change could be reached.  A better informed agency is an agency that can make better decisions.

3. The magnitude of the issue is such that it deserves a hearing.

There is little doubt on either side of the issue that regulating greenhouse gases would trigger Clean Air Act regulation of emission sources of greenhouse gases, such as automobiles, power plants, and oil refineries.  Moreover, there is also little doubt that such regulation would put a huge strain on our economy and give the EPA an extraordinary amount of leverage in regulating many aspects of the U.S. economy.  Correcting the problems that we have created through the emission of inordinate amounts of carbon dioxide into the atmosphere will be costly.  Equally obvious, though, is the fact that any legislation or regulation ought to attempt to minimize the strain on the economy, while targeting key environmental goals. This is an issue that deserves serious consideration and we should recognize the magnitude of the issue without rushing through the process.

While I recognize the value of getting this type of regulation off of the drawing board and into the Code of Federal Regulations sooner rather than later – as it is, it will be close to two years since the U.S. Supreme Court decided Massachusetts v. EPA which directed them to make a finding that greenhouse gases are or are not an endangerment, this is one issue where all of the T’s needed be crossed and the I’s dotted.  While the Obama Administration’s stated desire to have climate change legislation/regulation in place before the Copenhagen summit in December, 2009, is a laudable goal, promulgating something quickly just to have it in place by December, 2009, will most likely lead to something that will be tied up in litigation for at least a couple of years with the end result being a vacated and remanded regulation.

4. Provides the opportunity to show that the skeptics’ concerns are baseless, and that their arguments are political rather than scientific.

It is clear to most people who believe that climate change is a reality that the Chamber’s Petition is disingenuous at best and that it is not all that interested in a serious debate about the existence or non-existence of climate change.  In reality, the Chamber’s Petition is a shill for the economic interests of its members – namely the automobile manufacturers, the oil refineries, the power companies and other large and powerful companies that emit copious amounts of greenhouse gases.  Even the Chamber itself is a bit two-faced about the issue, since on its own website it states:

The Chamber believes that climate change should be addressed as part of an overall energy strategy that balances a number of issues, including sustaining a healthy economy and harnessing:  Efficiency: We must encourage stronger action by energy consumers and producers to use fuel and power more efficiently by improving building designs and appliance standards and by improving our electricity and transportation infrastructure.  Technology: Government and businesses should promote investment in and use of new technologies that expand alternative energy and use traditional sources more cleanly.  Global Action: The United States should exert strong, inclusive global leadership to conclude a successor agreement to the Kyoto Protocol that emphasizes technology, efficiency, and flexibility and includes ALL greenhouse gas emitters.

http://www.uschamber.com/energy.htm.  Another hot button issue for the Chamber is “America’s Out-of-Control Civil Lawsuit System.”  Yet, they are willing to contribute to that system by filing lawsuits that the EPA would deem “frivolous” on a topic where there is little cogent opposition.  Thus, it is apparent that the Chamber’s motives are political and economic, rather than scientific.  This is a reason why EPA should hold a hearing – call the Chamber’s bluff.  They do not expect the EPA to hold hearing, so they are preparing their litigation strategy by calling for a hearing that they cannot win.

In the end, there is one thing to keep in mind regarding any trial-like situation.  The purpose of a trial is not to find the truth, it is do justice.  To me, that means assuring that all sides have had the opportunity to have their views made known and the record is complete so that the court can make a just and complete adjudication.  Should the EPA grant the Chamber’s petition, and a hearing is held, then the skeptics have less to complain about in terms of the justice of the way the matter was handled.  I have no doubt that the outcome will not make believers of skeptics, but that is almost beside the point.  Whether the pro-climate change forces can prove the truth of the matter (or vice versa) is not likely, but informed decision-making, particularly in a matter of this importance, should be the highest priority.  Give the skeptics their day in the hearing room, then let us move on to the real work of taking care of climate change.

Update (August 26, 2009)

Very good, very thoughtful posts that argue that the hearing ought not to be granted:

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Responses

  1. I love it! The Chamber of Commerce should be granted this rquest. I’d like to see who represents the EPA and who represents the skeptics in the debate. Oh by the way, every debate I ever heard of, the AGW Beleivers always lose. It’s one of the reasons Al Gore does not speak at Climate Change debates anymore. The science has never supported the claims.

  2. Actually, Klem, all of the science I have seen and read DOES support the theory that emission of greenhouse gases cause climate change. And that humans are to blame for a inordinate share of those emissions. That being said, I believe that the nay-sayers ought to be given a shot at trying to prove their point scientifically without the hyperbole that often takes place in Congressional hearings or on brain-dead radio talk shows.

  3. Interesting post. I disagree with your point # 1 in particular, because the standard of review will not be “arbitrary and capricious” if the agency engages in formal rulemaking, among other reasons. See my post at http://legalplanet.wordpress.com/2009/08/25/more-on-the-chamber-of-commerces-extraordinary-demand-for-a-scopes-trial-on-climate-change/ for more detail about this.

    • I would have to disagree with with you about the applicability of 5 USC 706(2)(E) to any “on the record” hearing that the EPA may devise. Clean Air Act section 307(d)(1) specifically states that “the provisions of section 553 through 557 and section 706 of Title 5 shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies (my emphasis). Thus, the “substantial evidence” standard of Sec. 706(2)(E) cannot apply to rulemaking under the Clean Air Act.

  4. I hadn’t thought of that, and you may be correct. Additionally, I believe that Administrator Jackson has taken the position that Section 307 would forbid EPA from even conducting an on-the-record hearing here.

    • Administrator Jackson, I believe, was referring to the same section of 307 that I referred to above. My understanding is that Adminsitrator Jackson’s position is this: because 5 USC 706 does not apply to Sec. 307 of Clean Air Act and there is no provision for an “on the record” hearing in Clean Air Act, how can the EPA call for an “on the record” hearing?

      The proposal, as I understand it, from the U.S. Chamber of Commerce, is that the EPA follow the guidelines set out by the Administrative Conference of the United States, which recommended that “additional procedural protection be afforded” (i.e., “on the record hearing”) when (1) scientific or technical issues are “complex;” (2) the problem posed is so “open-ended” that the agency would benefit from diverse views; and (3) the costs errors may pose are “signficant.” 1 CFR 305.76-3(1). There remains several critical questions to this approach, not the least of which is the issue you raise – whether upon appeal the “substantial evidence” std or the “arbitrary and capricious” std would be use, but also whether the ACUS’s recommendations currently carry any weight when juxtaposed against the provisions of the Clean Air Act.

  5. […] Gas Emissions, Inhofe at 1:29 pm by smtaber Last week, I wrote an article for this blog entitled “Why the EPA Should Grant Chamber of Commerce’s Request for a Hearing.” As a result of that article, Sean Hecht, Executive Director of the UCLA Environmental Law Center at […]

  6. […] litigation, and the more the EPA can lead the discussion the better.  Pending litigation, the EPA will be well served by an extensive administrative record, including all of the relevant data from well respected sources.  If, however, the EPA holds the […]

  7. The great part of this debate is that the nay-sayers have nothing to prove. It’s the AGW Believers who are making the claims that humans are responsible for changing the climate and it rests upon their shoulders to make the scientific case. Melting glaciers are evidence that the earth’s climate changes only, not evidence that CO2 is the cause. I’d say the AGW Believers and EPA will have their work cut out for them. I welcome this debate. Wahoo!

    • Again, Klem, I would say that you are wrong. The overwhelming scientific evidence, thought, scholarship and work shows that climate change is a reality. While there is a shade less consensus as to whether that change is anthropogenic, there is no doubt that decreasing the human emission of known greenhouse gases would alleviate the effects of the climate change wherever it might have come from.

      Thus, at least in my mind, in order for the skeptics to successfully stave off regulation of greenhouse gases, they would have to show that climate change in general does not exist – not just that climate change is not human-made. Since they would be going against prevailing scientific beliefs, the burden of proof would be on them to show that climate change does not, in fact, exist.

  8. The skeptics do not doubt climate change, they beleive that the climate has been doing this for millions of years and will continue for millions more. They are fully aware that climate change is a reality. I learned that in science 101 back in the 1970’s. They do not need to show that the climate does not change, that would be impossible.

    What they want is conclusive evidence that CO2 is the cause. Not proof mind you, just conclusive evidence (not alot to ask really). To agree to the regulation of CO2 we need to show that CO2 is the culprit. Without this evidence, the sketpics will fight this thing to their last breath. And last I heard, they’re winning.

    • Again, Klem, I would say that you are wrong. The majority of skeptics ARE saying that climate change is not happening – there is all sorts of “evidence” posted over skeptic websites about how the mean temperature of the Earth has not changed and how the ice pack in the Arctic Ocean has not diminished significantly. Obviously, they did not have the same science classes that you did back in the 1970s.

      I will grant you that there are an increasing number of skeptics who have come to realize that there is evidence that climate change is a reality, but challenge whether humans have had an effect on that change. However, even these skeptics fall short since there is substantial, conclusive scientific evidence to show that anthropogenic sources of greenhouse gas emission contribute significantly to climate change.

      In any case, if you grant that climate change is a reality, do we not have a moral duty as stewards of the environment to do what we can to prevent it from worsening and to reduce or eliminate the nefarious effects that it will have on descendants?

      • “In any case, if you grant that climate change is a reality, do we not have a moral duty as stewards of the environment to do what we can to prevent it from worsening and to reduce or eliminate the nefarious effects that it will have on descendants?”

        I do grant that climate change is a reality, natural climate change that is, the kind that has always occurred and will continue to occur despite the existence of humanity. And no I do not believe we have a moral duty to do what we can to prevent it from continuing. I think we should be observing and enjoying it, it’s going to happen no matter what we think we can do about it.

        Cheers

  9. […] hearkens back to my support, even though I consider myself a “climate believer,” of the proposal that EPA hold a hearing on climate change. See also, the Update I did on the blog post.  The upshot is this:  thoughtful deliberation and […]


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