Posted by: Steven M. Taber | February 14, 2010

Legal Challenges to EPA's Endangerment Finding Will Go Nowhere and Waste Time and Money

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.

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