[Federal Register Volume 75, Number 156 (Friday, August 13, 2010)]
[Rules and Regulations]
[Pages 49556-49594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19153]
[[Page 49555]]
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Part II
Environmental Protection Agency
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40 CFR Chapter 1
EPA's Denial of the Petitions To Reconsider the Endangerment and Cause
or Contribute Findings for Greenhouse Gases Under Section 202(a) of the
Clean Air Act; Final Rule
Federal Register / Vol. 75 , No. 156 / Friday, August 13, 2010 /
Rules and Regulations
[[Page 49556]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Chapter 1
[EPA-HQ-OAR-2009-0171; FRL-9184-8]
EPA's Denial of the Petitions To Reconsider the Endangerment and
Cause or Contribute Findings for Greenhouse Gases Under Section 202(a)
of the Clean Air Act
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice, denial of petitions to reconsider.
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SUMMARY: The Environmental Protection Agency (EPA) is denying the
petitions to reconsider the Endangerment and Cause or Contribute
Findings for Greenhouse Gases under Section 202(a) of the Clean Air
Act. The Findings were signed by the Administrator on December 7, 2009.
EPA has carefully reviewed all of the petitions and revisited both the
scientific record and the Administrator's decision process underlying
the Findings in light of these petitions. EPA's analysis of the
petitions reveals that the petitioners have provided inadequate and
generally unscientific arguments and evidence that the underlying
science supporting the Findings is flawed, misinterpreted or
inappropriately applied by EPA. The petitioners' arguments fail to meet
the criteria for reconsideration under the Clean Air Act. The science
supporting the Administrator's finding that elevated concentrations of
greenhouse gases in the atmosphere may reasonably be anticipated to
endanger the public health and welfare of current and future U.S.
generations is robust, voluminous, and compelling, and has been
strongly affirmed by the recent science assessment of the U.S. National
Academy of Sciences.
DATES: This denial is effective July 29, 2010.
ADDRESSES: EPA's docket for this action is Docket ID No. EPA-HQ-OAR-
2009-0171: All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
EPA's Docket Center, Public Reading Room, EPA West Building, Room 3334,
1301 Constitution Avenue, NW., Washington, DC 20004. This Docket
Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone number for the Public Reading
Room is (202) 566-1744, and the telephone number for the Air Docket is
(202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Jeremy Martinich, Climate Change
Division, Office of Atmospheric Programs (MC-6207J), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number: (202) 343-9927; fax number: (202) 343-2202; e-mail
address: [email protected]. For additional information regarding
this Notice, please go to the Web site http://www.epa.gov/climatechange/endangerment.html.
SUPPLEMENTARY INFORMATION:
Acronyms and Abbreviations. The following acronyms and
abbreviations are used in this Decision.
ACUS Administrative Conference of the United States
ANPR Advance Notice of Proposed Rulemaking
APA Administrative Procedure Act
CAA Clean Air Act
CAFE Corporate Average Fuel Economy
CAIT Climate Analysis Indicators Tool
CBI confidential business information
CCSP Climate Change Science Program
CFR Code of Federal Regulations
CH4 methane
CO2 carbon dioxide
CRU Climatic Research Unit
DOT U.S. Department of Transportation
EISA Energy Independence and Security Act
EO Executive Order
EPA U.S. Environmental Protection Agency
EPCA Energy Policy and Conservation Act
FOIA Freedom of Information Act
FR Federal Register
GHG greenhouse gas
HadCRUT Climatic Research Unit (CRU) temperature record
ICTA International Center For Technology Assessment
IPCC Intergovernmental Panel on Climate Change
MWP Medieval Warm Period
N2O nitrous oxide
NAAQS National Ambient Air Quality Standards
NAS National Academy of Sciences
NASA National Aeronautics and Space Administration
NHTSA National Highway Traffic Safety Administration
NOAA National Oceanic and Atmospheric Administration
NOx nitrogen oxide
NRC National Research Council
NSPS new source performance standards
PM particulate matter
PSD Prevention of Significant Deterioration
TSD technical support document
U.S. United States
UNFCCC United Nations Framework Convention on Climate Change
USGCRP U.S. Global Change Research Program
WMO World Meteorological Organization
Table of Contents
I. Introduction
A. Summary
B. Background
1. The ICTA Petition and Massachusetts v. EPA
2. Post-Massachusetts v. EPA
3. Proposed and Final Endangerment and Cause or Contribute
Findings
4. Petitions for Reconsideration and Stay Requests
II. Standard for Reconsideration
III. Science Related Issues
A. General Summary of Petitioners' Arguments
B. Summary of the Science Underlying the Administrator's
Endangerment Finding in Light of the Petitioners' Claims
1. What effects do greenhouse gases have on the environment and
on climate in particular?
2. How are human activities changing the amount of greenhouse
gases in our atmosphere?
3. What is the evidence indicating that average temperatures are
increasing and climate change is occurring consistent with the
direction one would expect with increasing greenhouse gases in our
atmosphere?
4. What is the evidence linking observed temperature changes and
climate change to the anthropogenic increase in greenhouse gases?
5. How are public health and welfare threatened by these changes
to climate and the environment, now and in the future?
C. Review of the Administrator's Findings
D. General Response to the Petitioners' Scientific Arguments in
Light of the Full Body of Scientific Evidence
E. Specific Responses to the Claims and Arguments Raised by
Petitioners
1. Climate Science and Data Issues Raised by the Petitioners
2. Issues Raised by EPA's Use of the IPCC AR4 Assessment
3. Process and Other Issues Raised by the Petitioners
F. Petitioners' Arguments Do Not Meet the Standard for
Reconsideration
IV. Other Issues
A. The Tailoring Rule/Impacts of PSD and Title V Permitting Are
Not of Central Relevance to the Findings
B. NHTSA Rule
C. Other Issues
1. Effects of the Findings and Subsequent Rulemakings on States
and Businesses
2. A Formal Rulemaking Process Is Not Required
3. Discretion in Making an Endangerment Finding
V. Conclusion
[[Page 49557]]
I. Introduction
A. Summary
This is EPA's response denying the petitions to reconsider the
Endangerment and Cause or Contribute Findings for Greenhouse Gases
under Section 202(a) of the Clean Air Act (``Findings'' or the
``Endangerment Finding'') (74 FR 66496, December 15, 2009). EPA has
considered all 10 petitions, including the arguments presented therein
and the supplemental information provided by the petitioners as
supporting evidence of their claims. EPA has evaluated the merit of the
petitioners' arguments in the context of the entire body of scientific
and other evidence before the Agency. This response (hereafter
``Denial'' or ``Decision'') provides EPA's scientific and legal
justification for denying these petitions. This Denial is accompanied
by a 3-volume, roughly 360-page Response to Petitions (RTP) document
(http://www.epa.gov/climatechange/endangerment.html), containing
further responses and technical detail concerning every significant
claim and assertion made by the petitioners. Section III of this
Decision summarizes many of the responses provided in the RTP document.
After a comprehensive, careful review and analysis of the
petitions, EPA has determined that the petitioners' arguments and
evidence are inadequate, generally unscientific, and do not show that
the underlying science supporting the Endangerment Finding is flawed,
misinterpreted by EPA, or inappropriately applied by EPA. The science
supporting the Administrator's finding that elevated concentrations of
greenhouse gases in the atmosphere may reasonably be anticipated to
endanger the public health and welfare of current and future U.S.
generations is robust, voluminous, and compelling. The most recent
science assessment by the U.S. National Academy of Sciences strongly
affirms this view. In addition, the approach and procedures used by EPA
to evaluate the underlying science demonstrate that the Findings remain
robust and appropriate.
Petitioners generally argue that recent revelations show that the
science supporting EPA's Endangerment Finding was flawed or
questionable, and that EPA should therefore reconsider the Endangerment
Finding. The petitioners' arguments and claims are based largely on
disclosed private communications among various scientists, a limited
number of errors and claimed errors in the 2007 Intergovernmental Panel
on Climate Change (IPCC) Fourth Assessment Report (AR4),\1\ and
submissions of a limited number of additional studies not previously
considered as part of the scientific record of the Endangerment
Finding.
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\1\ IPCC (2007). Fourth Assessment Report: Climate Change 2007.
Cambridge University Press, Cambridge, United Kingdom and New York,
NY, USA.
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As discussed in detail throughout this Decision and in fuller
detail in the RTP document, petitioners' claims and the information
they submit do not change or undermine our understanding of how
anthropogenic emissions of greenhouse gases cause climate change and
how human-induced climate change generates risks and impacts to public
health and welfare. This understanding has been decades in the making
and has become more clear over time with the accumulation of evidence.
The information provided by petitioners does not change any of the
scientific conclusions that underlie the Administrator's Findings, nor
do the petitions lower the degrees of confidence associated with each
of these major scientific conclusions.
More specifically, the petitions do not change EPA's proper
characterization of the current body of knowledge and our ability to
state with confidence our conclusions in the following key areas of
greenhouse gas and climate change science: (1) That anthropogenic
emissions of greenhouse gases are causing atmospheric levels of
greenhouse gases in our atmosphere to rise to essentially unprecedented
levels in human history; (2) that the accumulation of greenhouse gases
in our atmosphere is exerting a warming effect on the global climate;
(3) that there are multiple lines of evidence, including increasing
average global surface temperatures, rising ocean temperatures and sea
levels, and shrinking Arctic ice, all showing that climate change is
occurring, and that the observed rate of climate change stands out as
significant compared to recent historical rates of climate change; (4)
that there is compelling evidence that anthropogenic emissions of
greenhouse gases are the primary driver of recent observed increases in
average global temperature; (5) that atmospheric levels of greenhouse
gases are expected to continue to rise for the foreseeable future; and
(6) that risks and impacts to public health and welfare are expected to
grow as climate change continues, and that climate change over this
century is expected to be greater compared to observed climate change
over the past century.
The core defect in petitioners' arguments is that these arguments
are not based on consideration of the body of scientific evidence.
Petitioners fail to address the breadth and depth of the scientific
evidence and instead rely on an assumption of inaccuracy in the science
that they extend even to the body of science that is not directly
addressed by information they provide or by arguments they make. This
assumption of error is based on various statements and views expressed
in some of the e-mail communications between scientists at the Climatic
Research Unit (CRU) of the University of East Anglia in the United
Kingdom and several other scientists (``the CRU e-mails'') \2\. As
EPA's review and analysis shows, the petitioners routinely take these
private e-mail communications out of context and assert they are
``smoking gun'' evidence of wrongdoing and scientific manipulation of
data. EPA's careful examination of the e-mails and their context shows
that the petitioners' claims are exaggerated, are often contradicted by
other evidence, and are not a material or reliable basis to question
the validity and credibility of the body of science underlying the
Administrator's Endangerment Finding or the Administrator's decision
process articulated in the Findings themselves Petitioners' assumptions
and subjective assertions regarding what the e-mails purport to show
about the state of climate change science are clearly inadequate pieces
of evidence to challenge the voluminous and well documented body of
science that is the technical foundation of the Administrator's
Endangerment Finding.
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\2\ All of the disclosed CRU e-mails at issue in this Decision
can be found in full in EPA's docket for the Endangerment Finding.
See Docket ID No. EPA-HQ-OAR-2009-0171, ``CRU E-mails 1996-2009.''
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Inquiries from the UK House of Commons, Science and Technology
Committee, the University of East Anglia, Oxburgh Panel, the
Pennsylvania State University, and the University of East Anglia,
Russell Panel,\3\ all entirely independent from EPA, have examined the
issues and many of the same allegations brought forward by the
petitioners as a result of the disclosure of the private CRU e-mails.
These inquiries are now complete. Their conclusions are in line with
EPA's review and analysis of these same CRU e-mails. The inquiries have
[[Page 49558]]
found no evidence of scientific misconduct or intentional data
manipulation on the part of the climate researchers associated with the
CRU e-mails. The recommendation for more transparent procedures
concerning availability of underlying data appears appropriate, but it
has not cast doubt on the underlying body of science developed by these
researchers. These inquiries lend further credence to EPA's conclusion
that petitioners' claims that the CRU e-mails show the underlying
science cannot or should not be trusted are exaggerated and
unsupported.
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\3\ These inquires plus another addressing IPCC AR4 issues are
referred to throughout this Decision and the RTP document. Every
inquiry is provided in full in EPA's docket for the Endangerment
Finding. See Docket ID No. EPA-HQ-OAR-2009-0171, ``Recent Inquiries
and Investigations of the CRU E-mails and the IPCC Fourth Assessment
Report.''
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Petitioners' also point to a limited number of factual mistakes in
IPCC AR4, some confirmed, some alleged, to argue that the climate
science supporting the Administrator's Endangerment Finding is flawed.
EPA's review confirmed two factual mistakes. These two confirmed
instances of factual mistakes are tangential and minor and do not
change the key IPCC AR4 conclusions that are central to the
Administrator's Endangerment Finding. While it is unfortunate that
IPCC's review process did not catch these errors, in the context of a
report of this size and scope (almost 3,000 pages), it is an
inappropriate and unfounded exaggeration to claim that these two
confirmed mistakes delegitimize all of the scientific statements and
findings contained in IPCC AR4. To the contrary, given the scrutiny to
which IPCC AR4 has been subjected, the limited nature of these mistakes
demonstrates that the IPCC review procedures have been highly effective
and very robust.
In a limited number of cases, the petitioners identify new
scientific studies and data, published since the Endangerment Finding
was finalized, which they claim require EPA to reconsider the
Endangerment Finding. Some petitioners also argue that EPA ignored or
misinterpreted scientific data that were significant and available when
the Finding was made. EPA's review of these claims shows that in many
cases the issues raised by the petitioners are not new, but were in
fact considered prior to issuing the Endangerment Finding. In other
cases, the petitioners have misinterpreted or misrepresented the
meaning and significance of recent scientific literature, findings, and
data. Finally, there are instances in which the petitioners have failed
to acknowledge other new studies in making their arguments. The RTP
document contains study-by-study analysis of these failed arguments on
the part of petitioners.
Finally, in May 2010, the National Research Council (NRC) of the
U.S. National Academy of Sciences published its comprehensive
assessment, ``Advancing the Science of Climate Change \4\'' (NRC,
2010). It concluded that ``climate change is occurring, is caused
largely by human activities, and poses significant risks for--and in
many cases is already affecting--a broad range of human and natural
systems.'' Furthermore, the NRC stated that this conclusion is based on
findings that are ``consistent with the conclusions of recent
assessments by the U.S. Global Change Research Program, the
Intergovernmental Panel on Climate Change's Fourth Assessment Report,
and other assessments of the state of scientific knowledge on climate
change.'' These are the same assessments that served as the primary
scientific references underlying the Administrator's Endangerment
Finding. Importantly, this recent NRC assessment represents another
independent and critical inquiry of the state of climate change
science, separate and apart from the previous IPCC and U.S. Global
Change Research Program (USGCRP) assessments. The NRC assessment is a
clear affirmation that the scientific underpinnings of the
Administrator's Endangerment Finding are robust, credible, and
appropriately characterized by EPA.
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\4\ National Research Council (NRC) (2010). Advancing the
Science of Climate Change. National Academy Press. Washington, DC.
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The endangerment to public health and welfare from atmospheric
concentrations of greenhouse gases and associated climate change is too
important an issue to be decided on any grounds other than a close and
comprehensive scrutiny of the entire body of the scientific evidence.
This principle calls for an outright rejection of the petitioners'
arguments. The petitioners' arguments amount to a request that EPA
ignore the deep body of science that has been built up over several
decades and the direction it points in, and to do so based not on a
careful and comprehensive analysis of the science, but instead on what
amount to assertions and leaps in logic, unsupported by a rigorous
examination of the science itself. The petitioners do not provide any
substantial support for the argument that the Endangerment Finding
should be revised. Therefore, none of the petitioners' objections are
of central relevance to the considerations that led to the final
Endangerment Finding. In addition, in many cases these arguments by the
petitioners either were or could have been raised during the comment
period on the Endangerment Finding. In summary, EPA's thorough review
of petitioners' arguments shows that the petitioners have not met the
criteria for reconsideration under section 307(d) the Clean Air Act
(CAA).\5\
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\5\ Some petitioners also raise objections to EPA's Endangerment
Finding based on legal arguments related to other EPA or National
Highway Traffic Safety Administration actions. For the reasons
discussed in Section IV of this Decision, those objections also fail
to meet the standard for reconsideration and are denied.
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B. Background
The Findings were signed by the Administrator on December 7, 2009,
were published in the Federal Register on December 15, 2009, and became
effective January 14, 2010. The Administrator's Endangerment Finding
concluded that atmospheric concentrations of the group of six
greenhouse gases are reasonably anticipated to endanger both the public
health and public welfare of current and future U.S. generations. The
Administrator also decided that the combined emissions of greenhouse
gases from new motor vehicles and new motor vehicle engines contribute
to the greenhouse gas air pollution that endangers both public health
and public welfare (i.e., the second finding or ``cause or contribute''
finding). These Findings were made under CAA section 202(a). The
Findings were also supported by a Technical Support Document (TSD)
(Docket EPA-HQ-OAR-2009-0171-11645), containing the underlying
greenhouse gas emissions data and a synthesis of climate change
science, as well as an 11-volume RTC document (Docket EPA-HQ-OAR-2009-
0171) that provides EPA's responses to all significant public comments
that had been received during the 60-day public comment period
following the Administrator's proposed Findings, signed April 17, 2009.
Since finalization of the Findings in December 2009, EPA has
received 10 petitions and supplements thereto requesting that EPA
reconsider the Findings. The general bases of the petitions are the
following: (1) Recent disclosure of private e-mail communications among
some scientists who were involved in constructing one of the global
temperature records and were involved in certain sections of IPCC AR4;
(2) alleged and confirmed mistakes or alleged unsupported statements in
the IPCC AR4; and (3) some new scientific studies not previously
considered as part of the scientific record of the Endangerment
Finding. Petitioners claim these pieces of evidence show that the
science underlying the Administrator's Endangerment Finding is
potentially
[[Page 49559]]
flawed, and that therefore EPA should reopen the process and reconsider
the Endangerment Finding. For reasons stated above and throughout this
Decision and accompanying RTP document, EPA is denying the request to
reconsider the Findings.
As discussed further in sections III and IV of this Decision, some
of the objections raised in the petitions fail to demonstrate that it
was impracticable to raise the objections during the comment period
following the proposed Findings, or that the grounds for the objections
arose after the period for judicial review. For all issues and
arguments presented by the petitioners, the objections are not of
central relevance to the outcome of the Findings, as explained in
detail below. Thus, none of the objections meet the criteria for
reconsideration under the CAA. EPA is also denying two requests to stay
the Findings pending reconsideration.
1. The ICTA Petition and Massachusetts v. EPA
a. ICTA Petition
In October 1999, the International Center for Technology Assessment
(ICTA) and 18 other organizations filed a petition with EPA, requesting
that EPA issue emission standards for emissions of carbon dioxide,
methane, nitrous oxide, and hydrofluorocarbons from motor vehicles
under CAA section 202(a) (ICTA Petition). The ICTA Petition alleged
that emissions of these four greenhouse gases--CO2,
CH4, N2O, and HFCs--constituted emissions of
``air pollutants'' under section 302(g) of the Act, 42 U.S.C. 7602(g).
The ICTA Petition further argued that emissions of these gases from
motor vehicles fully met the criteria for regulation under CAA section
202(a)(1), 42 U.S.C. 7521(a)(1), and claimed that it would be feasible
for EPA to regulate greenhouse gas emissions from mobile sources.
After soliciting and considering approximately 50,000 public
comments on the ICTA Petition, see 66 FR 7486, January 23, 2001), the
Agency ultimately denied it on several independent grounds. EPA first
explained that Congress did not intend in the CAA to provide the Agency
with authority to regulate CO2 and other greenhouse gases to
address global climate change (68 FR 52925-29). For a variety of
reasons, EPA determined that it was unreasonable to read the Act as
providing the Agency with authority to regulate emissions of
CO2 and other greenhouse gases to address global climate
change. Id. at 52928. Based on this conclusion, the Agency also
determined that greenhouse gases could not be considered air pollutants
for purposes of the CAA's regulatory provisions for any contribution
they may make to climate change. Id.
The Agency also explained why, even if it had the authority to
issue such regulations, it still believed that the ICTA Petition should
be denied. To begin with, EPA found that requiring passenger cars and
light trucks to emit less CO2, the predominant greenhouse
gas, would be tantamount to imposing more stringent fuel economy
standards on those vehicles. Id. at 52929. The Agency pointed out,
however, that the Energy Policy and Conservation Act (EPCA) authorizes
only the Department of Transportation (DOT) to increase the stringency
of motor vehicle fuel economy standards, and specifies a detailed
regulatory regime that an EPA requirement to significantly reduce motor
vehicle CO2 emissions would unavoidably abrogate. Id.; see
also 49 U.S.C. 32902 (relevant provision of EPCA).
EPA also disagreed with the petitioners' view that, assuming the
Act gives EPA authority to regulate CO2 and other greenhouse
gases to address global climate change, the Agency had already made
statements that triggered a mandatory duty to issue motor vehicle
standards for CO2 and other greenhouse gases (68 FR 52929,
September 8, 2003). After summarizing the findings of a 2001 report on
global climate change by the National Academy of Sciences (NAS), the
Agency concluded that ``[u]ntil more is understood about the causes,
extent and significance of climate change and the potential options for
addressing it, EPA believes it is inappropriate to regulate [greenhouse
gas] emissions from motor vehicles.'' Id. at 52,931.
b. Massachusetts v. EPA
EPA's initial denial of the ICTA petition (68 FR 52922, September
8, 2003) was the basis for the U.S. Supreme Court's decision in
Massachusetts v. EPA, 549 U.S. 497 (2007). In Massachusetts v. EPA, the
Supreme Court held that EPA had improperly denied the petition. The
Court held that greenhouse gases meet the definition of air pollutant
in the CAA, and that the grounds EPA gave for denying the petition were
``divorced from the statutory text'' and hence improper. Specifically,
the Court held that carbon dioxide, methane, nitrous oxide, and
hydrofluorocarbons fit the CAA's ``sweeping definition of `air
pollutant' '' since they are ``without a doubt `physical [and] chemical
* * * substances which [are] emitted into * * * the ambient air.' The
statute is unambiguous.'' Id. at 529. The Court also rejected the
argument that EPA could not regulate motor vehicle emissions of the
chief greenhouse gas, carbon dioxide, because doing so would
essentially require control of vehicle fuel economy, and Congress
delegated that authority to the Department of Transportation in the
Energy Policy and Conservation Act. The Court held that the fact ``that
DOT sets mileage standards in no way licenses EPA to shirk its
environmental responsibilities. EPA has been charged with protecting
the public's `health' and `welfare,' 42 U.S.C. 7521(a)(1), a statutory
obligation wholly independent of DOT's mandate to promote energy
efficiency.'' Id. at 532 (citation omitted). The two obligations may
overlap ``but there is no reason to think the two agencies cannot both
administer their obligations and yet avoid inconsistency.'' Id.
Turning to EPA's alternative grounds for denial, the Court held
that EPA's decision on whether or not to grant the petition must relate
to ``whether an air pollutant `causes, or contributes to, air pollution
which may reasonably be anticipated to endanger public health or
welfare.' '' Id. at 532-33. Thus, ``[u]nder the clear terms of the
Clean Air Act, EPA can avoid taking further action only if it
determines that greenhouse gases do not contribute to climate change or
if it provides some reasonable explanation as to why it cannot or will
not exercise its discretion to determine whether they do.'' Id. at 533.
The Court held that three of the four reasons EPA advanced as
alternative grounds for denying the petition were unrelated to whether
greenhouse gas emissions from new motor vehicles cause or contribute to
air pollution that may reasonably be anticipated to endanger public
health or welfare. Thus, EPA had failed to offer a reasoned explanation
for its action. The Court further held that EPA's generalized concerns
about scientific uncertainty were likewise insufficient unless ``the
scientific uncertainty is so profound that it precludes EPA from making
a reasoned judgment as to whether greenhouse gases contribute to global
warming,'' in which case EPA must so find. Id. at 534.
The Supreme Court was careful to note that it was not dictating
EPA's action on remand, and was not deciding whether or not EPA must
find that greenhouse gases endanger public health or welfare. Nor did
the Court rule on ``whether policy concerns can inform EPA's actions in
the event that it makes such a finding.'' Id. at 534-35. The Court also
observed that under CAA section 202(a), ``EPA no doubt has significant
latitude as to the manner, timing,
[[Page 49560]]
content, and coordination of its regulations with those of other
agencies.'' Id. at 533. Nonetheless, any EPA decisions concerning the
endangerment and cause or contribute criteria must be grounded in the
requirements of CAA section 202(a).
On September 17, 2007, EPA's denial of the ICTA petition was
vacated and remanded to EPA for further proceedings consistent with the
Supreme Court's opinion.
2. Post-Massachusetts v. EPA
In response to a May 2007 Executive Order (EO 13432) and
instructions from then-President Bush, EPA began working closely with
the Departments of Transportation, Energy and Agriculture to develop,
under the CAA, proposals for greenhouse gas standards for motor
vehicles and renewable and alternative fuel requirements for gasoline.
However, after enactment of the Energy Independence and Security
Act of 2007 (EISA) in late December 2007, work in response to the
Supreme Court's decision shifted. Rather than moving forward with the
proposed endangerment determination and attendant greenhouse gas
vehicle standards under the CAA, EPA developed an Advance Notice of
Proposed Rulemaking (ANPR) on ``Regulating Greenhouse Gas Emissions
under the Clean Air Act,'' which was published on July 30, 2008 (73 FR
44354). The ANPR presented information relevant to, and solicited
public comment on, a wide variety of issues regarding the potential
regulation of greenhouse gases under the CAA, including EPA's response
to the Supreme Court's decision in Massachusetts v. EPA. Section V of
the ANPR contained an earlier version of much of the material in the
Findings, including the legal framework, a summary of the science of
climate change, and an illustration of how the Administrator could
analyze the cause or contribute element using information regarding the
greenhouse gas emissions of the portion of the U.S. transportation
sector covered by CAA section 202(a). A July 2008 version of the TSD
for the endangerment finding was also in the docket for the ANPR (EPA-
HQ-OAR-2008-0318).
The comment period for the ANPR was 120 days, and it provided an
opportunity for EPA to hear from the public with regard to the issues
involved in endangerment and cause or contribute findings, as well as
the supporting science. EPA received, reviewed, and considered numerous
comments at that time and this public input was reflected in the
Findings that the Administrator proposed in April 2009. In addition,
many comments were received on the TSD released with the ANPR. These
comments are reflected in revisions to the TSD that was released in
April 2009 to accompany the Administrator's proposal.
3. Proposed and Final Endangerment and Cause or Contribute Findings
In April 2009, the Administrator proposed to find under CAA section
202(a) that the mix of six key greenhouse gases in the atmosphere may
reasonably be anticipated to endanger public health and welfare.
Specifically, the Administrator proposed to define the ``air
pollution'' referred to in CAA section 202(a) to be the mix of six key
directly emitted and long-lived greenhouse gases: Carbon dioxide,
methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and
sulfur hexafluoride (74 FR 18886, April 24, 2009). The Administrator
further proposed to find that combined greenhouse gas emissions from
new motor vehicles and new motor vehicle engines contribute to this air
pollution that endangers public health and welfare.
The Administrator's proposal was subject to a 60-day public comment
period, which ended June 23, 2009, and also included two public
hearings. Over 380,000 public comments were received on the
Administrator's proposed endangerment and cause or contribute findings,
including comments on the elements of the Administrator's April 2009
proposal, the legal issues pertaining to the Administrator's decisions,
and the underlying TSD containing the scientific and technical
information.
After carefully reviewing the public comments and all the
information before her, on December 7, 2009, the Administrator signed
the final Findings (74 FR 66496, December 15, 2009). Specifically, she
found under CAA section 202(a) that atmospheric concentrations of the
six greenhouse gases taken in combination may reasonably be anticipated
to endanger both the public health and the public welfare of current
and future generations. The Administrator also found that the combined
emissions of these greenhouse gases from new motor vehicles and new
motor vehicle engines contribute to the greenhouse gas air pollution
that endangers public health and welfare under CAA section 202(a).
The July 2008 ANPR and the April 2009 proposed Findings were
accompanied by draft versions of the TSD and the Findings were
supported by the final TSD. The TSD provided an overview of all the
major scientific assessments available at the time of each action, and
greenhouse gas emission inventory data relevant to the contribution
finding. Each of these three versions of the TSD were subject to review
by Federal climate experts to ensure that they represented an accurate
summary of the major scientific assessments. Moreover, the July 2008
and the April 2009 versions of the TSD were subject to public review as
part of the public comment periods for the ANPR and proposed Findings.
4. Petitions for Reconsideration and Stay Requests
Between December 2009 and March 2010, EPA received 10 petitions
(and supplements thereto) to reconsider the Findings.\6\ Nine of these
petitions base their requests on allegations that developments since
the close of the comment period on the proposed Findings call into
question the science underlying the Findings. One petition focuses on
statements since the close of the comment period regarding the impact
of regulating stationary sources under the CAA, and the relationship
between EPA's proposed Light-Duty Vehicle Rule (see below) and the
National Highway Transportation Safety Administration's (NHTSA)
proposed Corporate Average Fuel Economy (CAFE) rule as a basis for
their request that EPA reconsider the Findings. Each significant
objection in the petitions is discussed in detail below and the
accompanying RTP document. Note that when more than one petitioner
raised an objection, our response to that objection is provided only
once.
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\6\ The West Virginia Coal Association also filed a letter in
support of the existing petitions for reconsideration.
---------------------------------------------------------------------------
In addition, EPA received two requests to administratively stay the
final Findings. One administrative stay request under CAA section
307(d)(7)(b) was tied to a petition to reconsider the findings based on
concerns about the science and requested that EPA stay the final
Findings for three months. The other administrative stay request was
filed under CAA section 307(d)(7)(B), the Administrative Procedures Act
(APA) section 705, and Federal Rule of Appellate Procedure 18(a)(1) as
part of the petition for reconsideration relating to stationary source
concerns, and requested a stay pending EPA's completion of its
reconsideration of the final Findings.
II. Standard for Reconsideration
Section 307(d)(7)(B) of the CAA strictly limits petitions for
[[Page 49561]]
reconsideration both in time and scope. It states that: ``Only an
objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public
hearing) may be raised during judicial review. If the person raising an
objection can demonstrate to the Administrator that it was
impracticable to raise such objection within such time or if the
grounds for such objection arose after the period for public comment
(but within the time specified for judicial review) and if such
objection is of central relevance to the outcome of the rule, the
Administrator shall convene a proceeding for reconsideration of the
rule and provide the same procedural rights as would have been afforded
had the information been available at the time the rule was proposed.
If the Administrator refuses to convene such a proceeding, such person
may seek review of such refusal in the United States court of appeals
for the appropriate circuit (as provided in subsection (b)). Such
reconsideration shall not postpone the effectiveness of the rule. The
effectiveness of the rule may be stayed during such reconsideration,
however, by the Administrator or the court for a period not to exceed
three months.''
Thus the requirement to convene a proceeding to reconsider a rule
is based on the petitioner demonstrating to EPA: (1) That it was
impracticable to raise the objection during the comment period, or that
the grounds for such objection arose after the comment period but
within the time specified for judicial review (i.e., within 60 days
after publication of the final rulemaking notice in the Federal
Register, see CAA section 307(b)(1); and (2) that the objection is of
central relevance to the outcome of the rule.
As to the first procedural criterion for reconsideration, a
petitioner must show why the issue could not have been presented during
the comment period, either because it was impracticable to raise the
issue during that time or because the grounds for the issue arose after
the period for public comment (but within 60 days of publication of the
final action). Thus, CAA section 307(d)(7)(B) does not provide a forum
to request EPA to reconsider issues that actually were raised, or could
have been raised, prior to promulgation of the final rule.
In EPA's view, an objection is of central relevance to the outcome
of the rule only if it provides substantial support for the argument
that the regulation should be revised. See Denial of Petition to
Reconsider, 68 FR 63021 (November 7, 2003), Technical Support Document
for Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NSR): Reconsideration at 5 (Oct. 30, 2003) (EPA-456/R-
03-005) (available at http://www.epa.gov/nsr/documents/petitionresponses10-30-03.pdf); Denial of Petition to Reconsider NAAQS
for PM, 53 FR 52698, 52700 (December 29, 1988), citing Denial of
Petition to Revise NSPS for Stationary Gas Turbines, 45 FR 81653-54
(December 11, 1980), and decisions cited therein.
This interpretation is clearly appropriate in light of the criteria
adopted by Congress in this and other provisions in section 307(d).
Section 307(d)(4)(B)(i) provides that ``[a]ll documents which become
available after the proposed rule has been published and which the
Administrator determines are of central relevance to the rulemaking
shall be placed in the docket as soon as possible after their
availability.'' This provision draws a distinction between comments and
other information submitted during the comment period, and other
documents which become available after publication of the proposed
rule. The former are docketed irrespective of their relevance or merit,
while the latter must be docketed only if a higher hurdle of central
relevance to the rulemaking is met. Congress also used the phrase
``central relevance'' in sections 307(d)(7)(B) and (d)(8), and in both
cases Congress set a more stringent hurdle than in section 307(d)(4).
Under section 307(d)(7)(B), the Administrator is required to reconsider
a rule only if the objection is ``of central relevance to the outcome
of the rule.'' Likewise, section 307(d)(8) authorizes a court to
invalidate a rule for procedural errors only if the errors were ``so
serious and related to matters of such central relevance to the rule
that there is a substantial likelihood that the rule would have been
substantially changed if such errors had not been made.'' In both of
these provisions, it is not enough that the objection or error be of
central relevance to the issues involved in the rulemaking, as in
section 307(d)(4). Instead, the objection has to be of central
relevance ``to the outcome of the rule'' itself, and the procedural
error has to be of such central relevance that it presents a
``substantial likelihood that the rule would have been substantially
changed.'' Central relevance to the issues involved in the rulemaking
is not enough to meet the criteria Congress set under sections
307(d)(7) or (d)(8). Both of those provisions require that the
objection or error be central to the substantive decision that is the
outcome of the rulemaking. This difference is significant, and
indicates that Congress set a much higher hurdle for disturbing a final
rule that has already been issued, as compared to the less stringent
criteria for docketing of documents before a decision has been made and
a rule has been issued.
In this context, EPA's interpretation of section 307(d)(7)(B) gives
full and appropriate meaning to the criteria adopted by Congress. An
objection is considered of central relevance to the outcome of the rule
only if it provides substantial support for the argument that the
regulation should be revised. This properly links the criteria to the
outcome of the rulemaking, not just the issues in the rulemaking. It
requires that the objection be of such substance and merit that it can
be considered central to the outcome of the rulemaking. This
interpretation is consistent with section 307(d)(8), which also ties
central relevance to the outcome of the rulemaking, in terms of a
``substantial likelihood'' that the rule would be ``substantially
changed.'' This interpretation gives proper weight to the approach
throughout section 307(b) and (d) of the importance Congress attributed
to preserving the finality of agency rulemaking decisions. This
interpretation is also consistent with the case law, as discussed
below.
As discussed in this Decision, EPA is denying the petitions because
they fail to meet these criteria. In many cases, the objections raised
in the petitions to reconsider were or could have been raised during
the comment period of the proposed Findings. In all cases, the
objections are not of central relevance to the outcome of the rule
because they do not provide substantial support for the argument that
the Endangerment Finding should be revised.
Pacific Legal Foundation (PLF) argues that its objections are of
central relevance because the CRU documents and e-mails ``cast
substantial uncertainty over'' the final Endangerment Finding, and that
EPA is required to grant the petition or reconsider ``if information
not available in the rulemaking record for public comment casts
substantial uncertainty over the final regulation.'' PLF Pet at 8-9.
They argue that this is the case even if one does not assume or even
argue that the statements in the CRU documents and e-mails are true.
PLF Pet. at 6. They base this claim on Kennecott Corp. v. EPA, 684 F.2d
1007, 1017-20 (DC Cir. 1982).
PLF's view of Kennecott fails to account for the specific
procedural issues that were central to that case. In Kennecott,
petitioners objected that EPA had not provided adequate notice and
[[Page 49562]]
an opportunity for comment in the underlying rulemaking, in violation
of various CAA section 307(d) provisions. Petitioners had two different
notice and comment objections. First, they objected to EPA's failure to
include certain documents in the docket at the time of the proposal,
including various EPA financial analyses performed prior to the
proposal. The court found that these documents were part of the basis
for the proposed regulations and needed to be docketed so comment could
be taken on them during the comment period. The court found that the
failure to submit these documents to the docket at the time of the
proposal was a procedural violation of CAA section 307(d)'s notice and
comment requirements, because the documents EPA failed to docket made
impossible any meaningful comment on the merits of EPA's proposal. The
missing documents led to uncertainty over EPA's basis for the proposal,
which the documents could clarify. This procedural violation met the
test under CAA section 307(d)(9) for reversible error, because it
indicated a ``substantial likelihood'' that the regulations would
``have been significantly changed.'' Kennecott, 684 F.2d at 1018-
1019.\7\
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\7\ It is this discussion of uncertainty that is cited by PLF.
However this concerns the criteria for reversible error under CAA
section 307(d)(9)(D)(iii) for a procedural violation. The court did
not address this as the test for CAA section 307(d)(7)(B), and
certainly did not do so for cases where there is no procedural
violation.
---------------------------------------------------------------------------
Petitioners in Kennecott also objected to EPA's submission to the
docket, one week prior to promulgation of the final rule, of certain
economic forecast data upon which EPA relied for the final rule, where
the forecast data differed significantly from the forecast data
provided during the pubic comment period. The court found that this
late submission of important information relied on by EPA, without an
opportunity to comment, also violated the notice and comment
requirements of CAA section 307(d). Id. at 1019.
Given these two violations of the notice and comment requirements
of CAA section 307(d), the court determined that consideration of a
petition to reconsider after promulgation of the final rule was not an
adequate substitute for the statutory required notice and opportunity
to comment prior to promulgation of the rule. EPA failed to provide
adequate notice and an opportunity to comment during the rulemaking
process, and could not cure that by later considering the merits of the
petitioner's comments post-promulgation, through a petition to
reconsider, where the issues involved were critical to the central
issues involved in the rule. Id. at 1019.
EPA's failure to provide adequate notice and an opportunity to
comment in violation of CAA section 307(d) was the critical
underpinning for the court's determination that in that case
consideration of the merits of the objections through a post-
promulgation petition to reconsider was not an adequate substitute for
providing the required procedural rights prior to promulgation. That,
however, is not the case here. Petitioners are not claiming that the
CRU e-mails or other documents show that EPA failed to provide adequate
notice and an opportunity to comment because EPA failed to docket any
documents or EPA docketed late any documents used to support EPA's
final Endangerment Finding. Instead, petitioners are claiming that EPA
should reopen the rulemaking and reconsider the Endangerment Finding
based on new documents and arguments that petitioners bring to EPA,
which they claim undermine the basis for EPA's Endangerment Finding.\8\
There is no basis for treating the court's decision in Kennecott as
precedent here, where there is no comparable procedural notice and
comment violation by EPA. There is no reason to limit EPA's ability to
consider the merits of the petitioners' objections through a post-
promulgation petition to reconsider, whereas in this case there is no
violation of a statutory right to notice and comment and EPA's
consideration of the merits of the petitioners' objections is not being
used as an improper substitute or cure for an EPA failure to provide
adequate notice and an opportunity to comment prior to promulgation of
the final rule. Unlike the situation in Kennecott, EPA's consideration
of the petitions to reconsider is focused on whether the claimed new
evidence and arguments warrant a reopening of a prior, properly noticed
rulemaking. Absent a demonstration that the objections raised by
petitioners provide substantial support for the argument that the
regulation should be revised, such reopening is not warranted. Nothing
in Kennecott holds otherwise.
---------------------------------------------------------------------------
\8\ Southeastern Legal Foundation, Inc. (SLF) inappropriately
points to the docketing requirements under CAA section 307(d)(3)
related to a proposed rule, SLF at 3-5. However, the documents SLF
refers to are not EPA documents, were not part of the basis for
EPA's proposal, and arose after the comment period, not prior to
proposal. The provisions for a petition to reconsider under CAA
section 307(d)(7), not the provisions of CAA section 307(d)(3),
apply to the concerns raised by SLF with respect to the arguments
and documents submitted to the agency after the end of the comment
period, in the petitions to reconsider.
---------------------------------------------------------------------------
Appalachian Power Company et al. v. EPA, 249 F.3d 1032 (D.C. Cir.
2001) clearly supports this view. In that case, petitioners presented
comments to EPA requesting that EPA consider various materials
concerning the issue of substantial contribution under section 126.
Because EPA had already promulgated a rule that addressed the issue of
significant contribution, EPA properly treated the request as a
petition to reconsider the prior rule. EPA evaluated the evidence and
its relevance to the section 126 rule and for a variety of reasons
rejected it on the merits as a basis for reopening the rule. The court
upheld EPA's decision, stating that ``[g]iven the deferential standard
employed in this context, the EPA's refusal to reopen and reconsider
its significant contribution findings must be upheld.'' Id. at 1060.
Part III of this Decision explains why EPA is denying the petitions
with respect to the objections set forth in these petitions for
reconsideration. With respect to some of these issues, the petitioners
clearly have not met the procedural predicate for reconsideration. That
is, the petitioners have not demonstrated that it was impracticable to
raise these objections during the comment period, or that the grounds
for these objections arose after the close of the comment period but
within 60 days after publication of the final rule. As such, they do
not meet the statutory criteria for administrative reconsideration
under CAA section 307(d)(7)(B).\9\ For all of the objections, whether
or not the petitions might be considered to meet the procedural
criterion for reconsideration, the petitioners' objections and
arguments in terms of substance are not ``of central relevance'' to the
outcome of the rulemaking. Thus, none of the objections meet the
criteria for reconsideration under the CAA.
---------------------------------------------------------------------------
\9\ The Chamber of Commerce's petition was based on grounds that
it claims arose after the time period for seeking judicial review of
the underlying rulemaking. The Chamber argues that EPA should grant
reconsideration in its discretion, even if it is not required to do
so under section 307(d). The failure of the Chamber to file timely
objections or to demonstrate that the objections it raises provide
substantial support for the argument that the regulation should be
revised are a fully adequate basis for EPA to deny the Chamber's
petition. In any case, even if the petition were timely, EPA has
considered the objections raised by the Chamber and is denying their
petition as discussed in more detail herein.
---------------------------------------------------------------------------
As noted in Section I.B.4 of this Decision, EPA also received two
requests to administratively stay the final Findings. Two petitioners
requested an administrative stay under
[[Page 49563]]
CAA section 307(d)(7)(B), tied to the petitions to reconsider the
findings, requesting that EPA stay the Findings for three months.
Southeastern Legal Foundation at 8, Chamber of Commerce at 1. EPA has
authority to issue a stay for up to 3 months if it grants a petition to
reconsider under CAA section 307(d)(7)(B). As described below, EPA is
denying the petitions to reconsider, hence there is no basis for
issuance of an administrative stay under this provision.
One of the administrative stay requests was filed under section 705
of the Administrative Procedure Act (APA) as part of the petition for
reconsideration relating to stationary source concerns, and requested a
stay pending EPA's completion of its reconsideration of the final
Findings. Chamber at 23-34. 5 U.S.C. 705 authorizes an agency to
postpone the effective date of an agency action pending judicial review
when the agency finds that justice so requires. In this case, the
Endangerment Finding was effective as of January 14, 2010. The request
for an administrative stay was submitted by petition dated March 15,
2010, after the Endangerment Finding was effective. Even if EPA
believed that an administrative stay was warranted, which it does not,
it is not clear whether EPA would have the authority under APA section
705 to stay an agency action that has already gone into effect.
Postponing an effective date implies acting before the effective date
occurs.
In any case, an administrative stay of the Endangerment Finding is
not warranted. In response to the arguments raised by the Chamber, (1)
the Chamber has not made a strong showing on the merits, for all of the
reasons upon which EPA is denying the petitions to reconsider; (2) the
Chamber's arguments concerning irreparable harm fail to adequately
account for the proposed or recently issued Final Prevention of
Significant Deterioration (PSD) and Title V Greenhouse Gas Tailoring
Rule (75 FR 31518, 31579-84; June 3, 2010) (Final Tailoring Rule), and
present general, unspecific, and unsupported arguments; (3) the
Chamber's arguments that EPA's standards for emissions of GHGs from
light-duty vehicles would have no important benefit because of the
related NHTSA CAFE rule are rejected for the reasons discussed in
Section IV.B of this Notice, and (4) the Chamber's arguments concerning
the public interest, which repeat its prior arguments, are rejected for
the same reasons.
III. Science Related Issues
A. General Summary of Petitioners' Arguments
The petitioners generally claim that the science underlying the
Administrator's Endangerment Finding is flawed and/or that EPA did not
follow an appropriate or robust process in evaluating the underlying
science for purposes of making an endangerment finding for greenhouse
gases. Many of the 10 petitions present similar arguments. Some of the
petitioners' arguments were raised during the 60-day public comment
period following the proposed Findings (74 FR 18886, April 24, 2009).
Many of the petitioners critique specific elements of the
underlying science that support the Findings, primarily the HadCRUT
temperature record showing increases in global surface temperatures.
There are many elements of the underlying science that support the
Administrator's Endangerment Finding that are not addressed by the
petitioners. Petitioners assert that the global temperature record is
so central to all greenhouse gas and climate change science that the
problems with a global surface temperature record essentially mean all
scientific knowledge linking greenhouse gases and climate change, and
by extension all public health and welfare risks associated with human-
induced climate change, must also be called into question. Petitioners
also question the credibility of the IPCC and, by extension, EPA's use
of IPCC AR4 as a significant reference document supporting the
Findings.
The primary information provided by the petitioners to back their
arguments are:
(1) A set of disclosed private e-mail communications among some
scientists associated with the HadCRUT temperature record and
associated with certain sections of IPCC AR4.
(2) A small number of factual mistakes and claimed factual mistakes
and alleged unsupported statements in the voluminous, 2,927-page IPCC
AR4.
(3) A limited number of new studies for EPA to consider.
EPA's responses to the petitioners' evidence, arguments, and claims
are summarized in this section of this Decision and provided in fuller
technical detail in the accompanying three-volume RTP document. More
specifically, the petitioners' arguments can generally be grouped into
three broad categories:
Climate science and data issues, including (1) the
validity of the reconstructed surface temperature record from the
distant past and whether or not recent observations of global warming
are unusual; (2) the validity of the more recent surface temperature
record and whether recent temperature changes can be attributed to
human emissions of greenhouse gases; (3) the validity of the HadCRUT
surface temperature record of the Climatic Research Unit (CRU); (4) the
validity of the recent surface temperature records constructed by the
National Oceanographic and Atmospheric Administration (NOAA) and
National Aeronautics and Space Administration (NASA); and (5) the
implications of new studies not previously considered.
Issues raised by EPA's use of IPCC reports, including: (1)
Claims that recently found errors and claimed errors in IPCC AR4
undermine IPCC's credibility and therefore EPA's use of IPCC AR4 as a
primary reference document; and (2) claims that IPCC has a policy
agenda and is not an objective scientific body.
Process and other issues, including claims that: (1) The
USGCRP and the NRC are not separate and independent assessments from
IPCC; (2) EPA's process to develop the scientific support for the
Findings was inappropriate; (3) there are improper peer-review
processes in the underlying scientific literature used by the major
assessments; and (4) certain scientists did not adhere to UK and U.S.
Freedom of Information Act Requests.
B. Summary of the Science Underlying the Administrator's Endangerment
Finding in Light of the Petitioners' Claims
Before addressing the petitioners' general and specific assertions,
this section briefly describes the major scientific conclusions and
data that support the Administrator's Endangerment Finding that
elevated atmospheric concentrations of the group of six key greenhouse
gases are reasonably anticipated to endanger the public health and
public welfare of current and future generations. As noted above, the
petitioners do not take issue with the large body of scientific
evidence. Rather, they focus most of their attention on questioning the
validity of the global surface temperature record--specifically the
HadCRUT temperature record, one of the three major global surface
temperature records used by climate researchers--which show that
temperatures are increasing. This section puts the global temperature
record in the broader context of greenhouse gas and climate change
[[Page 49564]]
science, and demonstrates the limited scope of the petitioners'
arguments.
There is a causal chain linking atmospheric concentrations of
greenhouse gases to impacts and risks to public health and welfare. The
elements of this causal chain are:
What effects do greenhouse gases have on the environment
and on climate in particular?
Are human activities changing the amount of greenhouse
gases in our atmosphere?
What is the evidence indicating that average temperatures
are increasing and that climate change is occurring, consistent with
the direction one would expect from increasing greenhouse gases in our
atmosphere?
What is the evidence linking observed temperature changes
and climate change to the anthropogenic increase in greenhouse gases?
How are public health and welfare threatened by these
changes to climate and the environment, now and in the future?
Each element of the causal chain is discussed below. Evidence
related to each element is based on the underlying scientific
assessments (e.g., IPCC and USGCRP) that EPA relied on to develop the
TSD to support the Administrator's Endangerment Finding, and, where
noted, is also based on the most recent scientific assessment,
published in May 2010, of the NRC.\10\
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\10\ National Research Council (2010) Advancing the Science of
Climate Change: America's Climate Choices, National Academies Press,
Washington, DC.
---------------------------------------------------------------------------
1. What effects do greenhouse gases have on the environment and on
climate in particular?
The physical effect of greenhouse gases on climate and the
environment remains a basic scientific fact--greenhouse gases slow the
loss of Earth's heat, which would otherwise escape to space. Much like
a blanket keeps a person warm by preventing heat loss, greenhouse gases
blanket the planet and warm the Earth by trapping in heat that would
otherwise escape to space. This is the Earth's natural greenhouse
effect. An increase in the amount of greenhouse gases in our atmosphere
intensifies the natural greenhouse effect and thus exerts a warming
effect on the global climate. These are well-established physical
properties of greenhouse gases. The six greenhouse gases grouped
together in the Administrator's Endangerment Finding are long-lived in
the atmosphere and, once emitted, can remain in the atmosphere for
decades to centuries. Carbon dioxide has other non-climate effects as
well. Increases in atmospheric carbon dioxide concentrations can affect
oceanic acidity and the growth rates of crops, weeds, and trees.
Petitioners have not presented information challenging the basic
physical properties of how the six greenhouse gases affect the climate
and the environment.
2. How are human activities changing the amount of greenhouse gases in
our atmosphere?
It is a well-documented and straightforward observation that levels
of carbon dioxide and other greenhouse gases are increasing in our
atmosphere. The six key greenhouse gases included in the
Administrator's Findings are at essentially unprecedented levels
compared to the recent and distant past. Their concentrations are
climbing, and this is projected to continue well into this century. The
two most important directly emitted greenhouse gases, carbon dioxide
and methane, are well above the natural range of atmospheric
concentrations compared to at least the last 650,000 years (see TSD
EPA-HQ-OAR-2009-0171-11645). The most recent report of the NRC states
that carbon dioxide levels are now at 388 parts per million and
increasing by almost two parts per million per year.
The fact that greenhouse concentrations are now at such high levels
is absolutely central to the Administrator's Endangerment Finding.
Without such a large and ever-increasing buildup of atmospheric levels
of greenhouse gases there would be less concern about the potential
future warming caused by human activities. Greenhouse gases are at such
high levels in our atmosphere and continue to climb because human
activities are adding greenhouse gases to the atmosphere in larger
quantities and more quickly than the environment can handle. Our annual
emissions from fossil fuel combustion, deforestation, and other sources
are overwhelming the natural removal systems in the ocean, atmosphere,
and terrestrial biosphere (e.g., trees and other vegetation).
Furthermore, human activities are unambiguously the driver of the
increase in atmospheric levels of greenhouse gases. The EPA TSD states:
``The global atmospheric CO2 concentration has increased
about 38% from pre-industrial levels to 2009, and almost all of the
increase is due to anthropogenic emissions.'' This is supported by the
most recent NRC report, which states that, ``We know that this increase
is largely the result of human activities because the chemical
signature of excess CO2 in the atmosphere can be linked to
the composition of the CO2 emissions from fossil fuel
burning. Moreover, analyses of bubbles trapped in ice cores from
Greenland and Antarctica reveal that atmospheric CO2 levels
have been rising steadily since the start of the Industrial
Revolution.'' Petitioners do not provide any evidence that cause EPA to
question this scientific conclusion.
3. What is the evidence indicating that average temperatures are
increasing and climate change is occurring consistent with the
direction one would expect with increasing greenhouse gases in our
atmosphere?
The scientific literature is clear that the heating effect caused
by the buildup of greenhouse gases is warming the climate system. As
summarized in the TSD:
The global average net effect of the increase in
atmospheric GHG concentrations, plus other human activities (e.g.,
land-use change and aerosol emissions), on the global energy balance
since 1750 has been one of warming. This total net heating effect,
referred to as forcing, is estimated to be +1.6 (+0.6 to +2.4) watts
per square meter (W/m\2\), with much of the range surrounding this
estimate due to uncertainties about the cooling and warming effects of
aerosols.
Warming of the climate system is unequivocal, as is now
evident from observations of increases in global average air and ocean
temperatures, widespread melting of snow and ice, and rising global
average sea level. Global mean surface temperatures have risen by 1.3
0.32 [deg]F (0.74 [deg]C 0.18 [deg]C) over
the last 100 years. Eight of the 10 warmest years on record have
occurred since 2001. Global mean surface temperature was higher during
the last few decades of the 20th century than during any comparable
period during the preceding four centuries.
U.S. temperatures also warmed during the 20th and into the
21st century; temperatures are now approximately 1.3 [deg]F (0.7
[deg]C) warmer than at the start of the 20th century, with an increased
rate of warming over the past 30 years. Both the IPCC and the USGCRP
\11\ reports attributed recent North American warming to elevated GHG
concentrations. In the U.S. Climate Change Science Program (CCSP)
(2008) \12\ report, the authors find that for
[[Page 49565]]
North America, ``more than half of this warming [for the period 1951-
2006] is likely the result of human-caused GHG forcing of climate
change.''
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\11\ USGCRP now encompasses the former Climate Change Science
Program (CCSP) under the previous Administration.
\12\ CCSP (2008). Reanalysis of Historical Climate Data for Key
Atmospheric Features: Implications for Attribution of Causes of
Observed Change. A Report by the U.S. Climate Change Science Program
and the Subcommittee on Global Change Research [Randall Dole, Martin
Hoerling, and Siegfried Schubert (eds.)]. Asheville, NC: National
Oceanic and Atmospheric Administration, National Climatic Data
Center. 156 pp.
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Widespread changes in extreme temperatures have been
observed in the last 50 years across all world regions, including the
United States. Cold days, cold nights, and frost have become less
frequent, while hot days, hot nights, and heat waves have become more
frequent.
There is strong evidence that global sea level gradually
rose in the 20th century and is currently rising at an increased rate.
Satellite data since 1979 show that annual average Arctic
sea ice extent has shrunk by 4.1% per decade.
Observational evidence from all continents and most oceans
shows that many natural systems are being affected by regional climate
change, particularly temperature increases.
Observations show that climate change is currently
affecting U.S. physical and biological systems in significant ways.
Ocean CO2 uptake has lowered the average ocean
pH (increased acidity) level by approximately 0.1 since 1750.
These conclusions are consistent with, or strengthened by, the most
recent NRC report which states the following: ``Earth is warming.
Detailed observations of surface temperature assembled and analyzed by
several different research groups show that the planet's average
surface temperature was 1.4 [deg]F (0.8 [deg]C) warmer during the first
decade of the 21st century than during the first decade of the 20th
century, with the most pronounced warming over the last three decades.
These data are corroborated by a variety of independent observations
that indicate warming in other parts of the Earth system, including the
cryosphere (snow and ice covered regions), the lower atmosphere, and
the oceans.''
These multiple lines of evidence highlight a number of things.
First, there is well-documented evidence that the buildup of greenhouse
gases in our atmosphere is exerting, as expected, a significant heating
effect called radiative forcing. This is not to be confused with
temperature change or the temperature data that is the subject of many
of the petitions. This heating effect or radiative forcing refers to a
change in the energy balance of the planet, and is thus the driver of
temperature change.
The magnitude of this heating effect caused by the buildup in
atmospheric greenhouse gases has been quantified in the scientific
literature. The petitioners do not challenge these estimates and do not
challenge the fact that the observed buildup of greenhouse gases is
having a clear and quantifiable heating effect on the planet. This is a
fundamental pillar of climate change science, and is a fundamental
piece of supporting evidence for the Administrator's Endangerment
Finding.
Second, the underlying science indicates that there is significant
and unambiguous warming for the Earth and for North America. This is
the first place along the causal chain where the petitioners question
the science. Many petitioners question the validity of the global
temperature evidence by pointing to the CRU e-mails and their impact on
the scientific assessment reports used by EPA. This particular critique
is addressed below and in fuller detail in Volume 1 of the RTP
document.
Third, the evidence of climate change caused by human activities
goes beyond average increases in global and continental temperatures.
There are well-documented increases in sea level, declines in sea ice,
and changes to physical and biological systems, all primarily driven
by, and therefore showing further evidence of, increases in average
temperatures. These changes are documented by datasets other than
temperature datasets, and bear no relation to the particular CRU
temperature dataset that is the primary focus of many of the
petitioners.
Similarly, the observation that elevated levels of carbon dioxide
are increasing the acidity of the world's oceans is direct evidence of
a large-scale and significant environmental effect that does not depend
on any evidence from a temperature dataset. This particular effect was
considered supporting evidence by the Administrator in the Endangerment
Finding. This documented effect is not challenged by any of the
petitioners.
4. What is the evidence linking observed temperature changes and
climate change to the anthropogenic increase in greenhouse gases?
The underlying science has clearly attributed the observed warming
to the buildup of greenhouse gases in our atmosphere. Summarized here
is the underlying science that shows that increases in average global
and continental temperatures, as well as other climatic changes, can
confidently be attributed to the increases in greenhouse gas emissions
from human activities. The extent to which observed warming can be
attributed to the human-induced buildup of greenhouse gases in the
atmosphere is the second area of the causal chain where some
petitioners question the science.
IPCC statements on the linkage between greenhouse gases and
temperatures have strengthened since the organization's early
assessments (Solomon et al., 2007).\13\ The IPCC's First Assessment
Report in 1990 contained little observational evidence of a detectable
anthropogenic influence on climate (IPCC, 1990).\14\ In its Second
Assessment Report in 1995, the IPCC stated that the balance of evidence
suggests a discernible human influence on the climate of the 20th
century (IPCC, 1996).\15\ The Third Assessment Report in 2001 concluded
that most of the observed warming over the last 50 years is likely to
have been due to the increase in greenhouse gas concentrations (IPCC,
2001b).\16\ The conclusion in IPCC's 2007 Fourth Assessment Report
(2007b) \17\ is the strongest yet: ``Most of the observed increase in
global average temperatures since the mid-20th century is very likely
\18\ due to the observed increase in anthropogenic GHG
concentrations.''
---------------------------------------------------------------------------
\13\ Solomon, S., D. Qin, M. Manning, R.B. Alley, T. Berntsen,
N.L. Bindoff, Z. Chen, A. Chidthaisong, J.M. Gregory, G.C. Hegerl,
M. Heimann, B. Hewitson, B.J. Hoskins, F. Joos, J. Jouzel, V.
Kattsov, U. Lohmann, T. Matsuno, M. Molina, N. Nicholls, J.
Overpeck, G. Raga, V. Ramaswamy, J. Ren, M. Rusticucci, R.
Somerville, T.F. Stocker, P. Whetton, R.A. Wood and D. Wratt (2007).
Technical Summary. In: Climate Change 2007: The Physical Science
Basis. Contribution of Working Group I to the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change [Solomon,
S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M. Tignor,
and H.L. Miller (eds.)]. Cambridge University Press, Cambridge,
United Kingdom and New York, NY, USA, 996 pp.
\14\ IPCC (1990). First Assessment Report: Climate Change 1990.
Cambridge University Press, Cambridge, United Kingdom and New York,
NY, USA.
\15\ IPCC (1996). Climate Change 1995: The Science of Climate
Change. Intergovernmental Panel on Climate Change [J.T. Houghton,
L.G. Meira Filho, B.A. Callander, N. Harris, A. Kattenberg, and K.
Maskell (eds)]. Cambridge University Press. Cambridge, United
Kingdom.
\16\ IPCC (2001b). Summary for Policymakers. In. Climate Change
2001: The Scientific Basis. Contribution of Working Group I to the
Third Assessment Report of the Intergovernmental Panel on Climate
Change [J.T. Houghton et al. (eds.)]. Cambridge University Press,
Cambridge, United Kingdom and New York, NY, USA.
\17\ IPCC (2007b). Climate Change 2007: Synthesis Report.
Contribution of Working Groups I, II and III to the Fourth
Assessment Report of the Intergovernmental Panel on Climate Change
[Core Writing Team, Pachauri, R.K and Reisinger, A. (eds.)]. IPCC,
Geneva, Switzerland, 104 pp.
\18\ According to IPCC terminology, ``very likely'' conveys a 90
to 99% probability of occurrence. See Box 1.2 of the TSD for a full
description of IPCC's uncertainty terms.
---------------------------------------------------------------------------
The strength of this statement reflects our current, much better
understanding
[[Page 49566]]
of all the factors, not just greenhouse gases, that influence
temperature fluctuations and other climatic changes. On this point,
EPA's TSD (citing Hegerl et al., 2007) \19\ listed the major scientific
advances between the Third and Fourth Assessment Reports of the IPCC
that led to this increased confidence in the ability to attribute
observed temperature and other climate changes to anthropogenic
greenhouse gases:
---------------------------------------------------------------------------
\19\ Hegerl, G.C., et al. (2007). Understanding and Attributing
Climate Change. In: Climate Change 2007: The Physical Science Basis.
Contribution of Working Group I to the Fourth Assessment Report of
the Intergovernmental Panel on Climate Change [Solomon, S., D. Qin,
M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M. Tignor, and H.L.
Miller (eds.)]. Cambridge University Press, Cambridge, United
Kingdom and New York, NY, USA.
---------------------------------------------------------------------------
An expanded and improved range of observations allowing
attribution of warming to be more fully addressed jointly with other
changes in the climate system.
Improvements in the simulation of many aspects of present
mean climate and its variability on seasonal to inter-decadal time
scales.
More detailed representations of processes related to
aerosol and other forcings (i.e., heating and cooling effects) in
models.
Simulations of 20th-century climate change that use many
more models and much more complete anthropogenic and natural forcings.
Multi-model ensembles that increase confidence in
attribution results by providing an improved representation of model
uncertainty.
Climate model simulations suggest that natural heating factors
alone cannot explain the observed warming for the entire globe, the
global land, or the global ocean. The observed warming can only be
reproduced with models that contain both natural and anthropogenic
heating and cooling influences.
EPA's TSD, based on the underlying assessment literature, states
that if the additional heating effect of elevated levels of greenhouse
gases were the only external influence on the global climate, this
likely would have resulted in warming greater than observed. This
statement is made because our understanding of the climate system is
sophisticated enough to consider and model multiple and simultaneous
influences on the global climate. For example, there are known and
quantifiable cooling effects from human emissions of aerosols and
natural forcings (e.g., volcanic eruptions and solar variability) that
have offset some of the greenhouse gas-induced warming during the past
half century.
The sophistication of climate models that examine the influence of
human emissions of greenhouse gases has increased. Confidence in these
models comes from their foundation in accepted physical principles and
from their ability to reproduce observed features of current climate
and past climate changes (IPCC, 2007a).\20\ One petitioner questions
the reliability of the models by pointing to certain CRU e-mails.
Questions regarding the reliability of climate models are addressed in
Volume 4 of the RTC document and in Volume 1 of the RTP document.
---------------------------------------------------------------------------
\20\ IPCC (2007a) Climate Change 2007: The Physical Science
Basis. Contribution of Working Group I to the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change. [Solomon,
S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M. Tignor,
and H.L. Miller (eds.)]. Cambridge University Press, Cambridge,
United Kingdom and New York, NY, USA.
---------------------------------------------------------------------------
Furthermore, warming of the climate system has been detected in
changes of surface and atmospheric temperatures, in the upper several
hundred meters of the ocean (as evident by the observed increase in
ocean heat content), and in contributions to sea level rise. The
scientific assessments have established human contributions to all of
these changes.
Not only has an anthropogenic warming signal been detected for the
surface temperatures, but evidence has also accumulated of an
anthropogenic influence throughout different layers of the atmosphere.
Some petitioners have raised one potential inconsistency between
observed warming and modeled warming higher in the atmosphere over the
tropics. Karl et al. (2009) \21\ state that when uncertainties in
models and observations are properly accounted for, newer observational
datasets are in agreement with climate model results. A detailed
discussion of this issue is contained in Volume 1, section 1.2 of the
RTP document.
---------------------------------------------------------------------------
\21\ Karl, T., J. Melillo, and T. Peterson (Eds.) (2009) Global
Climate Change Impacts in the United States. Cambridge University
Press, Cambridge, United Kingdom.
---------------------------------------------------------------------------
Lastly, evidence from climates in the geologic past, going back
millions of years, also supports the conclusion that elevated levels of
greenhouse gases in the atmosphere are expected to lead to warmer
climates. Measurements show that climates from the geologic past have
been both warmer and colder than present, and that warmer periods have
generally coincided with high atmospheric carbon dioxide levels.
Analyses of these paleoclimate data have increased confidence in the
role of external influences on climate. Climate models for predicting
future climate have been used to reproduce key features of past
climates using conditions and radiative forcing for those periods.
Here too, these conclusions are reinforced by the most recent NRC
report, which states:
``Global warming can be attributed to human activities. Many
lines of evidence support the conclusion that most of the observed
warming since the start of the 20th century, and especially the last
several decades, can be attributed to human activities, including
the following:
Earth's surface temperature has clearly risen over the
past 100 years, at the same time that human activities have resulted
in sharp increases in CO2 and other GHGs.
Both the physics of the greenhouse effect and more
detailed calculations dictate that increases in atmospheric GHGs
should lead to warming of Earth's surface and lower atmosphere.
The vertical pattern of observed warming--with warming
in the bottommost layer of the atmosphere and cooling immediately
above--is consistent with warming caused by GHG increases, and
inconsistent with other possible causes.
Detailed simulations with state-of-the-art computer-
based models of the climate system are able to reproduce the
observed warming tend and patterns only when human-induced GHG
emissions are included.
Based on these and other lines of evidence, the Panel on
Advancing the Science of Climate Change--along with an overwhelming
majority of scientists (Rosenberg et al., 2010)--conclude that much
of the observed warming since the start of the 20th century, and
most of the warming over the last several decades, can be attributed
to human activities'' [NRC at 29].
The clear conclusion from all of this evidence is that the human-
induced buildup of greenhouse gases in the atmosphere is primarily
responsible for most of the observed warming and other climate changes
occurring now. The information petitioners present to challenge this
part of the scientific record is clearly inadequate.
Petitioners provide no credible evidence to question the
clear observation that greenhouse gases are increasing in our
atmosphere to significant levels.
The petitioners provide no information to question the
quantified radiative forcing (heating effect) caused by this greenhouse
gas buildup.
Petitioners' objections about paleoclimate temperature
reconstructions focus on one type of reconstruction (tree ring
analysis). The objections, addressed in Volume 1 of the RTP document,
do not withstand scrutiny, nor do they undermine our confidence in the
conclusions of the studies. These conclusions, and the accompanying
limitations and uncertainties, have been properly characterized in the
assessment reports
[[Page 49567]]
and the Endangerment Finding. Petitioners do not contest or address the
variety of other aspects of paleoclimate research supporting the
attribution of recent warming to anthropogenic greenhouse gases.
With respect to the variety of evidence on observed
temperature change, the petitioners focus their criticism on the
validity of one of three global surface temperature records, the
HadCRUT temperature record. Petitioners' objections are addressed in
detail below and in Volume 1 of the RTP document, as are the
petitioners' related criticisms of the NOAA and NASA temperature
datasets. Their objections do not withstand scrutiny, nor do they
reduce our confidence in these temperature records, which have been
properly characterized in the assessment reports and the Endangerment
Finding. In addition, the petitioners ignore and do not address the
clear information and observations showing that other elements of the
climate system are undergoing changes consistent with these average
temperature increases (e.g., ocean heating, sea level rise, Arctic ice
loss). Petitioners do not show that these observations are in error or
are the result of some other, unidentified mechanism.
Petitioners focus their criticism on a possible
discrepancy between model predictions and the vertical temperature
structure of the atmosphere in the tropics; this criticism is not
substantively supported, as discussed below and in Volume 1 of the RTP
document.
The petitioners do not attempt to provide an alternative
explanation of the compellingly strong match between the observed
magnitude and pattern of warming and the modeled simulations, which
include all known factors, including the greenhouse gas buildup, the
offsetting cooling influence of aerosols, and variability in solar
output.
Petitioners' arguments that a possible slowdown in the
rate of warming over the last 10 years should weaken confidence in the
fact that human emissions of greenhouse gases are the primary driver of
recent warming are not valid. EPA addresses this issue more fully below
and in Volume 1 of the RTP document.
5. How are public health and welfare threatened by these changes to
climate and the environment, now and in the future?
The TSD summarizes a number of conclusions from the underlying
science on this issue. In addition to documenting many of the key
observed changes to atmospheric composition and climate, such as those
outlined above, the TSD summarizes key findings about projected
increases in greenhouse gas emissions and the future climate change
associated with these future scenarios:
Most future scenarios that assume no explicit greenhouse
gas mitigation actions (beyond those already enacted) project
increasing global greenhouse gas emissions over the century, with
climbing greenhouse gas concentrations.
Future warming over the course of the 21st century, even
under scenarios of low-emission growth, is very likely to be greater
than observed warming over the past century.
All of the United States is very likely to warm during
this century, and most areas of the United States are expected to warm
by more than the global average.
It is very likely that heat waves will become more
intense, more frequent, and longer-lasting in a future warm climate,
whereas cold episodes are projected to decrease significantly.
Increases in the amount of precipitation are very likely
in higher latitudes, while decreases are likely in most subtropical
latitudes and in the southwestern United States, continuing observed
patterns.
Intensity of precipitation events is projected to increase
in the United States and other regions of the world.
It is likely that hurricanes will become more intense,
with stronger peak winds and more heavy precipitation associated with
ongoing increases of tropical sea surface temperatures. Frequency
changes in hurricanes are currently too uncertain for confident
projections.
By the end of the century, global average sea level is
projected by the IPCC to rise between 7.1 and 23 inches (18 and 59
centimeter [cm]), relative to around 1990, in the absence of increased
dynamic ice sheet loss.
Sea ice extent is projected to shrink in the Arctic under
all IPCC emission scenarios.
The validity of these future climate change projections is not
addressed by the petitioners, although some of the petitioners do call
into question the climate models that are used to conduct these climate
change projections. The petitioners claim that some of the models must
be calibrated with the current temperature record, which in turn they
assert appears to be flawed. EPA addresses this faulty critique of the
models in Volume 1, section 1.2.3 of the RTP document, and had
previously addressed similar critiques of climate models in Volume 4 of
the RTC document.
It is important to note that none of the petitioners question the
conclusion that atmospheric levels of greenhouse gases are expected to
continue climbing for the foreseeable future, given the long-lived
physical properties of the greenhouse gases themselves and the
plausible pathways of human-emitting activities over the next few
decades. Climate models aside, it is difficult to imagine a world where
the heating effect of climbing greenhouse gas concentrations does not
increase for the foreseeable future.
With regard to the impacts and risks to public health and welfare,
the TSD and the Administrator's Findings stated the following:
Severe heat waves are projected to intensify in magnitude
and duration over the portions of the United States where these events
already occur, with potential increases in mortality and morbidity,
especially among the elderly, young, and frail.
Some reduction in the risk of death related to extreme
cold is expected. It is not clear whether reduced mortality from cold
will be greater or less than increased heat-related mortality in the
United States due to climate change. In addition, the latest USGCRP
report refers to a study that analyzed daily mortality and weather data
in 50 U.S. cities from 1989 to 2000 and found that, on average, cold
snaps in the United States increased death rates by 1.6 percent, while
heat waves triggered a 5.7 percent increase in death rates. The study
concludes that increases in heat-related mortality due to global
warming in the United States are unlikely to be compensated for by
decreases in cold-related mortality.
Increases in regional ozone pollution relative to ozone
levels without climate change are expected due to higher temperatures
and weaker circulation in the United States and other world cities
relative to air quality levels without climate change.
CCSP concludes that, with increased CO2 and
temperature, the life cycle of grain and oilseed crops will likely
progress more rapidly. But, as temperature rises, these crops will
increasingly begin to experience failure, especially if climate
variability increases and precipitation lessens or becomes more
variable.
Higher temperatures will very likely reduce livestock
production during the summer season in some areas, but these losses
will very likely be partially offset by warmer temperatures during the
winter season.
Cold-water fisheries will likely be negatively affected;
warm-water fisheries will generally benefit; and the
[[Page 49568]]
results for cool-water fisheries will be mixed, with gains in the
northern and losses in the southern portions of ranges.
Climate change has very likely increased the size and
number of forest fires, insect outbreaks, and tree mortality in the
interior West, the Southwest, and Alaska, and will continue to do so.
Coastal communities and habitats will be increasingly
stressed by climate change impacts interacting with development and
pollution.
Climate change will likely further constrain already
overallocated water resources in some regions of the United States,
increasing competition among agricultural, municipal, industrial, and
ecological uses.
Higher water temperatures, increased precipitation
intensity, and longer periods of low flows will exacerbate many forms
of water pollution, potentially making attainment of water quality
goals more difficult.
Ocean acidification is projected to continue, resulting in
the reduced biological production of marine calcifiers, including
corals.
Climate change is likely to affect U.S. energy use and
energy production and physical and institutional infrastructures.
Furthermore, the most recent NRC report from 2010 states that:
``Global warming is closely associated with a broad spectrum of other
climate changes, such as increases in the frequency of intense
rainfall, decreases in snow cover and sea ice, more and increasingly
intense heat waves, rising sea levels, and widespread ocean
acidification. Individually and collectively, and in combination with
the effects of other human activities, these changes pose risks for a
wide range of human and environmental systems, including freshwater
resources, the coastal environment, ecosystems, agriculture, fisheries,
human health, and national security, among others.''
The petitioners have not raised any objections to EPA's analysis
and judgments concerning these risks and impacts to public health and
welfare, which were the foundation of the Administrator's Endangerment
Finding.
C. Review of the Administrator's Findings
Throughout this Decision, EPA explains why the petitioners'
arguments and information fail to show that the scientific
underpinnings of the Endangerment Finding are flawed. EPA remains
convinced that the underlying science is robust, and that the
Administrator appropriately interpreted the science to make the
Endangerment Finding. This section summarizes the Administrator's
December 2009 rationale and judgment based on the underlying science.
The Administrator exercised her judgment under CAA section 202(a)
by evaluating what the body of scientific evidence indicates with
respect to how greenhouse gases affect the climate, and the degree of
scientific consensus about the appropriate conclusions to draw from
this evidence. Based on this consideration, the Administrator proposed
and took comment on her preliminary judgment of endangerment to public
health and welfare. The Administrator found the case to be compelling
that greenhouse gas air pollution endangers both public health and
welfare within the United States. The underlying science that EPA
relied on included careful qualifications and characterizations about
the degree of certainty regarding the scientific conclusions that were
germane to the Administrator's Findings. The Administrator's reasoning
and decision-making process to reach the Findings make clear that there
was full acknowledgement that certain elements of the science are known
with virtual certainty and others are currently more uncertain.
A robust and comprehensive opportunity for comment allowed any and
all objections regarding her judgment to be raised. After carefully
reviewing the comments, the Administrator confirmed her judgment on
endangerment and provided responses to the scientific, legal, and
policy issues raised by commenters. The final rule explains in detail
the basis for the Administrator's Endangerment Finding. Key elements of
the Administrator's justification and decision process are summarized
in the following 10 paragraphs from the December 15, 2009 Findings (74
FR 66523-24).
``As described in Section II of these Findings, the endangerment
test under CAA section 202(a) does not require the Administrator to
identify a bright line, quantitative threshold above which a
positive endangerment finding can be made. The statutory language
explicitly calls upon the Administrator to use her judgment. This
section describes the general approach used by the Administrator in
reaching the judgment that a positive endangerment finding should be
made, as well as the specific rationale for finding that the
greenhouse gas air pollution may reasonably be anticipated to
endanger both public health and welfare.
First, the Administrator finds the scientific evidence linking
human emissions and resulting elevated atmospheric concentrations of
the six well-mixed greenhouse gases to observed global and regional
temperature increases and other climate changes to be sufficiently
robust and compelling. This evidence is briefly explained in more
detail in Section V of these Findings. The Administrator recognizes
that the climate change associated with elevated atmospheric
concentrations of carbon dioxide and the other well-mixed greenhouse
gases have the potential to affect essentially every aspect of human
health, society, and the natural environment.
The Administrator is therefore not limiting her consideration of
potential risks and impacts associated with human emissions of
greenhouse gases to any one particular element of human health,
sector of the economy, region of the country, or to any one
particular aspect of the natural environment. Rather, the
Administrator is basing her finding on the total weight of
scientific evidence, and what the science has to say regarding the
nature and potential magnitude of the risks and impacts across all
climate-sensitive elements of public health and welfare, now and
projected out into the foreseeable future. The Administrator has
considered the state of the science on how human emissions and the
resulting elevated atmospheric concentrations of well-mixed
greenhouse gases may affect each of the major risk categories, i.e.,
those that are described in the TSD, which include human health, air
quality, food production and agriculture, forestry, water resources,
sea level rise and coastal areas, the energy sector, infrastructure
and settlements, and ecosystems and wildlife. The Administrator
understands that the nature and potential severity of impacts can
vary across these different elements of public health and welfare,
and that they can vary by region, as well as over time.
The Administrator is therefore aware that, because human-induced
climate change has the potential to be far-reaching and multi-
dimensional, not all risks and potential impacts can be
characterized with a uniform level of quantification or
understanding, nor can they be characterized with uniform metrics.
Given this variety in not only the nature and potential magnitude of
risks and impacts, but also in our ability to characterize, quantify
and project into the future such impacts, the Administrator must use
her judgment to weigh the threat in each of the risk categories,
weigh the potential benefits where relevant, and ultimately judge
whether these risks and benefits, when viewed in total, are judged
to be endangerment to public health and/or welfare.
This has a number of implications for the Administrator's
approach in assessing the nature and magnitude of risk and impacts
across each of the risk categories. First, the Administrator has not
established a specific threshold metric for each category of risk
and impacts. Also, the Administrator is not necessarily placing the
greatest weight on those risks and impacts, which have been the
subject of the most study or quantification.
Part of the variation in risks and impacts is the fact that
climbing atmospheric
[[Page 49569]]
concentrations of greenhouse gases and associated temperature
increases can bring about some potential benefits to public health
and welfare in addition to adverse risks. The current understanding
of any potential benefits associated with human-induced climate
change is described in the TSD and is taken into consideration here.
The potential for both adverse and beneficial effects are
considered, as well as the relative magnitude of such effects, to
the extent that the relative magnitudes can be quantified or
characterized. Furthermore, given the multiple ways in which the
buildup of atmospheric greenhouse gases can cause effects (e.g., via
elevated carbon dioxide concentrations, via temperature increases,
via precipitation increases, via sea level rise, and via changes in
extreme events), these multiple pathways are considered. For
example, elevated carbon dioxide concentrations may be beneficial to
crop yields, but changes in temperature and precipitation may be
adverse and must also be considered. Likewise, modest temperature
increases may have some public health benefits as well as harms, and
other pathways such as changes in air quality and extreme events
must also be considered.
The Administrator has balanced and weighed the varying risks and
effects for each sector. She has judged whether there is a pattern
across the sector that supports or does not support an endangerment
finding, and if so, whether the support is of more or less weight.
In cases where there is both a potential for benefits and risks of
harm, the Administrator has balanced these factors by determining
whether there appears to be any directional trend in the overall
evidence that would support placing more weight on one than the
other, taking into consideration all that is known about the
likelihood of the various risks and effects and their seriousness.
In all of these cases, the judgment is largely qualitative in
nature, and is not reducible to precise metrics or quantification.
Regarding the timeframe for the endangerment test, it is the
Administrator's view that both current and future conditions must be
considered. The Administrator is thus taking the view that the
endangerment period of analysis extend from the current time to the
next several decades, and in some cases to the end of this century.
This consideration is also consistent with the timeframes used in
the underlying scientific assessments. The future timeframe under
consideration is consistent with the atmospheric lifetime and
climate effects of the six well-mixed greenhouse gases, and also
with our ability to make reasonable and plausible projections of
future conditions.
The Administrator acknowledges that some aspects of climate
change science and the projected impacts are more certain than
others. Our state of knowledge is strongest for recently observed,
large-scale changes. Uncertainty tends to increase in characterizing
changes at smaller (regional) scales relative to large (global)
scales. Uncertainty also increases as the temporal scales move away
from present, either backward, but more importantly, forward in
time. Nonetheless, the current state of knowledge of observed and
past climate changes and their causes enables projections of
plausible future changes under different scenarios of anthropogenic
forcing for a range of spatial and temporal scales.
In some cases, where the level of sensitivity to climate of a
particular sector has been extensively studied, future impacts can
be quantified whereas in other instances only a qualitative
description of a directional change, if that, may be possible. The
inherent uncertainty in the direction, magnitude, and/or rate of
certain future climate change impacts opens up the possibility that
some changes could be more or less severe than expected, and the
possibility of unanticipated outcomes. In some cases, low
probability, high impact outcomes (i.e., known unknowns) are
possibilities but cannot be explicitly assessed.''
The Findings show that the Administrator took a measured, balanced
and systematic approach in judging the body of scientific evidence for
the Endangerment Finding. The Administrator did not take a narrow view
of the science, nor consider only those pieces of evidence that would
support a positive endangerment finding.
In taking this approach, the Administrator determined that the body
of scientific evidence compellingly supports a positive endangerment
finding. The major assessments by the USGCRP, IPCC, and the NRC
(published before 2010) served as the primary scientific basis
supporting the Administrator's endangerment finding. The Administrator
reached her determination by considering both observed and projected
effects of greenhouse gases in the atmosphere, their effect on climate,
and the public health and welfare risks and impacts associated with
such climate change. The Administrator's assessment focused on public
health and public welfare impacts within the United States. She also
examined the evidence with respect to impacts in other world regions,
and she concluded that these impacts strengthen the case for
endangerment to public health and welfare because impacts in other
world regions can in turn adversely affect the United States.
The Administrator considered how elevated concentrations of the
well-mixed greenhouse gases and associated climate change affect public
health by evaluating the risks associated with changes in air quality,
increases in temperatures, changes in extreme weather events, increases
in food- and water-borne pathogens, and changes in aeroallergens. The
Administrator placed weight on the fact that certain groups, including
children, the elderly, and the poor, are most vulnerable to these
climate-related health effects.
The Administrator considered how elevated concentrations of the
well-mixed greenhouse gases and associated climate change affect public
welfare by evaluating numerous and far-ranging risks to food production
and agriculture, forestry, water resources, sea level rise and coastal
areas, energy, infrastructure, and settlements, and ecosystems and
wildlife. For each of these sectors, the evidence provides support for
a finding of endangerment to public welfare. The evidence concerning
adverse impacts in the areas of water resources and sea level rise and
coastal areas provides the clearest and strongest support for an
endangerment finding, both for current and future generations. Strong
support is also found in the evidence concerning infrastructure and
settlements, as well as ecosystems and wildlife. Across the sectors,
the potential serious adverse impacts of extreme events, such as
wildfires, flooding, drought, and extreme weather conditions, provide
strong support for such a finding.
The petitioners have not provided information that would lead EPA
to believe that the Administrator's approach, briefly summarized here
and explained in full in the December 2009 Findings, was flawed, should
have been carried out differently, or should have led to a different
conclusion.
D. General Response to the Petitioners' Scientific Arguments in Light
of the Full Body of Scientific Evidence
EPA's overarching conclusion is that there is no material or
reliable basis to question the validity and credibility of the body of
science underlying the Administrator's Endangerment Finding or the
Administrator's decision process articulated in the Findings
themselves. The large body of scientific evidence and the
Administrator's conclusions drawn from this evidence, including the
appropriate characterizations as to the degrees of certainty and
uncertainty in the underlying science, has not been changed by the
arguments presented by the petitioners. While the petitioners largely
rely on making broad assertions about the science based on private
communications, EPA's focus is on the actual science itself, and the
petitioners have not presented a valid basis supporting the view that
the credibility or reliability of either the science or the scientific
conclusions that petitioners contest have been undermined or changed in
any material way.
The petitioners present very little scientific evidence or
scientific arguments to support their views. As demonstrated above,
they do not rely on an in-depth and comprehensive analysis of the
science and make arguments on
[[Page 49570]]
that basis. Instead they largely rely on a small number of statements
from the CRU e-mails in which certain scientists expressed various
thoughts and feelings, such as frustration and disrespect for other
scientists, along with strong views on scientific issues and what
constitutes good science. From this evidence, the petitioners conclude
that the scientists acted together to distort the review and
presentation of the body of science, and presented false, inaccurate,
or misleading conclusions about what the body of scientific studies
tells us about various aspects of climate change.
Petitioners do not argue their case by marshalling and synthesizing
the breadth of the body of scientific evidence and demonstrating why it
leads to a different conclusion than that presented in the underlying
science supporting the Findings. Instead, they largely argue that the
state of mind of these scientists and their private remarks must lead
to the conclusions drawn by the petitioners. They also conclude, based
on a selective reading of the CRU e-mails, that the state of the
science must be much more uncertain than how it is characterized in the
underlying assessment reports used by EPA and the Endangerment Finding.
Other than the conduct of sending e-mails that evidence strong emotions
or unprofessional language, the petitioners present almost no evidence
of any actual conduct by the scientists that support their conclusion
that the science was assessed inaccurately. Most of the conduct that is
identified, such as statements about the professional challenges of
working as an IPCC lead author or the discussion with a journal editor
to delay the paper publication (but not the online publication) of a
study, is of no relevance to the evaluation of the science involved in
the assessment reports and the EPA rulemaking.
Petitioners' claims of distortion of data, withholding of
temperature data, or abuses in data analysis also do not withstand
scrutiny. These issues are addressed in fuller detail in volumes 1 and
3 of the RTP document. In addition, some of these issues were raised
and addressed by EPA during the public comment period, and thus fail to
meet the test in CAA 307(d). Petitioners have shown no evidence that
the HadCRUT temperature record based on the underlying raw temperature
data was flawed in any way, or that CRU's lack of possession of a small
portion of the raw temperature data impedes the ability of other
researchers to check the publically available data, or that it changes
the scientific validity of the analyses performed by CRU. The HadCRUT
temperature record remains consistent with all of the other evidence of
warming, including other surface temperature analyses as well as other
evidence of warming, such as satellite data, ocean temperature data,
and physical and biological evidence of the effects of warming.
The petitioners ask EPA to reject the comprehensive and well-
documented views reflecting a synthesis of the body of scientific
evidence produced by the U.S. and the world's climate science
community, and instead accept assertions and three profound leaps in
logic, based on a very limited discussion of the underlying science.
The first leap is that petitioners' objections to the HadCRUT surface
temperature record and objections to reconstructions of past global
temperatures are correct, and that as a result all other elements of
greenhouse gas and climate change science indicating temperatures are
increasing and that anthropogenic greenhouse gases are the primary
driver should be called into question. The second leap is that some
errors found in the IPCC AR4--errors that are both minor and tangential
to EPA's Endangerment Finding--mean that any and all information from
that report should be called into question. The third is that any other
assessment report that relies on or references the IPCC AR4 in any way
is also suspect and cannot serve as a foundation for the Endangerment
Finding. EPA's review, discussed in the following sections and in
fuller detail in the three volumes of the RTP document, plus the latest
conclusions of the May 2010 NRC scientific assessment, lead us to the
firm conclusion that the petitioners' specific arguments and broad
claims must be rejected for their lack of supporting evidence and
absence of comprehensive and clear scientific reasoning.
As stated in one of the findings of the Independent Climate Change
E-mails Review, ``In particular, we did not find any evidence of
behaviour that might undermine the conclusions of the IPCC
assessments.'' EPA's review and analysis leads to this same conclusion.
E. Specific Responses to the Claims and Arguments Raised by Petitioners
EPA's responses to the petitioners' specific claims and arguments
are summarized here, and provided in more detail in the RTP document.
The more general conclusions provided in this Decision, articulated
above, are based on EPA's detailed analysis of and responses to the
petitioners' issues contained in the RTP document. As stated
previously, the science-based objections raised by petitioners fall
into three categories: Climate science and data issues; issues raised
by EPA's use of IPCC AR4; and process issues. This section and the
three volumes of the RTP document are organized around these three
categories.
1. Climate Science and Data Issues Raised by the Petitioners
The climate science and data issues raised by the petitioners
include (a) the validity of the temperature record from the distant
past and whether or not recent observations of global warming are
unusual; (b) the validity of the more recent surface temperature
record; (c) the validity of the HadCRUT surface temperature record and
other CRU datasets; (d) the validity of the recent surface temperature
record as constructed by the National Oceanographic and Atmospheric
Administration (NOAA) and National Aeronautics and Space Administration
(NASA); and (e) the implications of new studies not previously
considered. Each of these issues is addressed in general here and in
fuller detail in the Volume 1 of the RTP document.
a. Validity of Paleoclimate Temperature Reconstructions and Attribution
of Observed Temperature Trends to Greenhouse Gases
Petitioners raise various claims about the comparisons of current
temperatures with historic temperatures of the distant past (called
paleoclimate temperature reconstructions). Petitioners use these claims
to contest the view that current warming is unusual and argue that EPA
should not rely on this evidence to support the statement in the
Endangerment Finding that recent warming can be primarily attributed to
increased atmospheric concentrations of greenhouse gases caused by
human emissions. EPA addresses these claims in Volume 1, section 1.1 of
the RTP document, and summarizes the responses here.
As background, surface temperature records based on observation
have global coverage over approximately the last 150 years. To
determine temperatures in time periods before the instrumental record,
climate scientists use indirect methods called ``proxies.'' These
indirect methods include examining tree rings, pollen, plankton records
in sediment cores, and other proxies such as atomic isotope ratios in
corals and other marine organisms. The statistical relationships found
between the proxy and regional temperatures over the past 150 years
(i.e., the period when the datasets overlap) are then used to
extrapolate over the hundreds or thousands of years before instrumental
[[Page 49571]]
records. Researchers combine a number of different proxies from around
the world to develop their temperature reconstructions of the past. The
further back in the past, the fewer proxies that exist and the greater
the uncertainty becomes about estimating past temperatures. These
reconstructions contribute to our understanding of historical
temperatures and variability and enable comparison of present changes
to changes in the past. They also allow testing of climate models and
our understanding of how the climate system responded to historical
conditions. The term ``divergence'' refers to a certain subset of the
tree ring records whose growth in recent decades no longer correlates
with (i.e., it ``diverges'' from) temperature change in recent decades.
Petitioners claim the CRU e-mails provide new reason to highlight
this divergence issue as it may undermine the use of historical
temperature reconstructions. EPA disagrees, and finds that the CRU e-
mails demonstrate that the scientists were well aware of the divergence
issue and addressed it appropriately in their research and
publications. A cursory examination of this literature and the
assessment reports makes clear that the science community has long been
aware of the tree ring divergence issue, as well as other issues
concerning the certainty of proxy reconstructions. The uncertainties in
the proxy reconstructions were fully presented in the assessment
literature, and were considered by EPA in making the Endangerment
Finding. In fact, during public comment on the proposed Finding, EPA
evaluated and responded to these issues (See EPA RTC, Volume 2,
comments 2-64 and 2-67). A recent NRC assessment (2006) \22\ focused
specifically on surface temperature reconstructions and it found that
divergence is not an issue with all tree ring proxies, much less the
many non-tree ring proxies used in the temperature reconstructions. The
petitioners cite some studies \23\ in support of their views that the
divergence issue was hidden and not appropriately acknowledged. These
studies do not support the petitioners' arguments, instead stating that
the divergence problem is neither new nor hidden, that it is actually
``widely perceived'' and that the ``potential consequences [are]
discussed (e.g., IPCC, 2007).''
---------------------------------------------------------------------------
\22\ National Research Council (NRC) (2006). Surface Temperature
Reconstructions For the Last 2,000 Years. National Academy Press.
Washington, DC.
\23\ D'Arrigo, R. et al. (2008). On the ``divergence problem''
in northern forests: a review of the tree-ring evidence and possible
causes, 60 Glob. Planet. Chng. 289. Esper, J. and D. Frank (2009).
Divergence pitfalls in tree-ring research. Clim. Chng. 94: 261, 262.
---------------------------------------------------------------------------
Nonetheless, petitioners allege that a number of the CRU e-mails
suggest that these temperature reconstructions were manipulated and
that data has been hidden. Several petitioners refer to an e-mail
including the phrase ``Mike's Nature trick'', claiming that this quote
is evidence of deception. However, this e-mail about how to connect
tree ring data and thermometer data was written in 1999, prior to the
publication of the IPCC Third Assessment Report from 2001. The e-mail
refers to a graph prepared for the front cover of World Meteorological
Organization (WMO) report, unrelated to IPCC, published in 2000. This
graph and underlying analysis that is being objected to by petitioners
has no relevance to the discussion in either IPCC AR4 or EPA's TSD, and
therefore did not enter into the Administrator's consideration for the
Endangerment Finding. The IPCC AR4 and other assessment literature very
transparently document, illustrate, and discuss the divergence issue,
as did EPA in the TSD and RTC document. See Figure 4.3, TSD. Other
quotes provided by the petitioners do not support a claim of
``deliberate manipulation'' or ``artificial adjustments'' when
considered in context. This issue of historic temperature
reconstructions is discussed in detail in Volume 1 of the RTP document.
The UK Independent Climate Change E-Mails Review reached a similar
conclusion to EPA's, stating that they ``do not find that the way that
data derived from tree rings is described and presented in IPCC AR4 and
shown in its Figure 6.10 is misleading'' and regarding the phenomenon
of divergence that they ``are satisfied that it is not hidden and that
the subject is openly and extensively discussed in the literature,
including CRU papers.''
Petitioners also claim that the Medieval Warming Period may have
been warmer than present temperatures, undermining the conclusion that
greenhouse gases are a primary cause of current warming. Issues
involving the Medieval Warming Period were addressed during the public
comment period (see Response 2-62 of the RTC document). Petitioners
raise this issue again because of their assertion that the CRU e-mails
indicate that the current temperature record may be faulty, which to
them gives the Medieval Warming Period new significance. In making
their case, petitioners cite a temperature reconstruction without tree
rings, notably a study that could have been submitted during the public
comment period.\24\ However, that paper uses an improper methodology, a
straight average of 18 proxies, apparently without weighting them to
account for geographic distribution or the strength of the data to
detect temperature changes. In contrast, another study using a more
sophisticated methodology \25\ found that recent Northern Hemispheric
warmth was anomalous regardless of whether tree ring data were
included.
---------------------------------------------------------------------------
\24\ Loehle, C. and J. H. McCulloch, 2008. Correction to: A 200-
year global temperature reconstruction based on non-tree proxies.
Energy & Environment. 19(1): 93-100.
\25\ Mann, M.E. et al. (2008). Proxy-based reconstructions of
hemispheric and global surface temperature variations over the past
two millennia. PNAS. 105:36.
---------------------------------------------------------------------------
Petitioners argue that if the current warming is not
``unprecedented,'' our ability to attribute the current warming to
greenhouse gases is undermined, and that EPA has not provided
``compelling'' evidence that the current temperatures are unusual
compared to the last 1,000 years. Petitioners misstate EPA's
conclusions and overstate the role of this line of evidence. EPA has
not claimed that current warming is ``unprecedented''; the
Administrator's Endangerment Finding stated that ``The second line of
evidence arises from indirect, historical estimates of past climate
changes that suggest that the changes in global surface temperature
over the last several decades are unusual.'' (74 FR 66518) EPA found
the scientific evidence ``supports'' this conclusion (see for example
section 4 of the TSD), not that it compels it, as petitioners
incorrectly assert. EPA clearly characterized the uncertainty in this
line of the evidence, properly stating that there is significant
uncertainty in the temperature record prior to 1600 A.D. (see section
4(b) of the TSD).
This comparison to past temperature estimates is also only one part
of the paleoclimate evidence. Other parts, not contested by
petitioners, include (1) the correlation and interactions over time
between periods of higher greenhouse gas concentrations and higher
temperatures, and (2) the use of temperature reconstructions to
evaluate and improve climate models. Overall, this comparison of
current to past temperatures is but one part of one line of evidence in
attributing current warming to greenhouse gases; it is not the primary
line of evidence. The petitioners have not shown that EPA failed to
properly characterize this evidence, and the petitioners' assertions
regarding EPA's treatment and reliance
[[Page 49572]]
on this evidence are inaccurate and misleading.
Petitioners claim that characteristics of trends in the vertical
temperature profile of the atmosphere should present a ``fingerprint''
of human-induced warming, and that this expected fingerprint has not
been observed in the tropics, and that therefore the attribution of
recent warming to human causes is placed into doubt. However, EPA
recognized and already addressed this issue in the TSD (see section
5(a) of the TSD) which notes newer data sets are in general agreement
with climate models in the tropics and therefore there is no longer an
inconsistency. In addition, petitioners do not contest any of the other
important pieces of evidence that link current warming to greenhouse
gases, such as rates of sea level rise and Arctic ice loss.
Petitioners claim that the projections from climate models do not
support attribution to greenhouse gases because the models have not
explained why there may have been a slowdown in the rate of warming
over the last 10 or so years. First, according to the latest NOAA
(2010) data,\26\ the decade spanning 2000-2009 was substantially warmer
than the prior decade (1990-1999) (see also the figure in Response 1-22
in Volume 1 of the RTP document). The exact rate of warming in the past
decade depends on one's choice of temperature record and the start and
stop date chosen for computing a trend in that record. Second, whether
models can reproduce a short-term slowdown in the warming in no way
invalidates their use for attributing or projecting long-term changes
in global climate from anthropogenic forcing of the climate system. The
latter long-term projections are their primary purpose, not year-to-
year projections of changes over a period of around a decade or less.
In addition, recent studies indicate that short-term trends can run
counter to overall long term trends, and the climate models can
reproduce this.
---------------------------------------------------------------------------
\26\ http://www.ncdc.noaa.gov/sotc/?report=global&year=2009&month=13&submitted=Get+Report#gtemp.
---------------------------------------------------------------------------
The IPCC, NRC, and EPA's TSD appropriately reflect the state of the
science and discussed the areas of uncertainty in temperature
reconstructions. They fully considered the entire body of evidence,
including the kinds of evidence and arguments presented by petitioners.
In contrast, petitioners generally have not considered the breadth of
evidence on these issues, and they fail to acknowledge the
comprehensive treatment of these issues in the assessment reports. They
have instead relied upon a limited selection of information that does
not warrant the broad conclusions they draw.
Petitioners' evidence does not materially change or warrant any
less reliance on the other important lines of evidence linking
greenhouse gases and climate change: Our basic physical understanding
of the effects of changing greenhouse gas concentrations and other
factors; the broad, qualitative consistency between observed changes in
climate and the computer model simulations of how climate would be
expected to change in response to anthropogenic emissions of greenhouse
gases (and aerosols); as well as other important evidence of an
anthropogenic fingerprint in the observed warming.
b. Validity of the HadCRUT Surface Temperature Record
Petitioners present five major arguments regarding the validity and
use of the HadCRUT temperature record. In particular, they claim that:
(1) Alleged destruction of raw data for the HadCRUT temperature record
renders the scientific data on surface temperature worthless and makes
replication of temperature trends impossible; (2) comments within code
and log files are evidence of manipulation that ``undercuts the
credibility of CRU databases;'' (3) a report allegedly claims to show
that the Russian stations used in the HadCRUT temperature record were
selectively chosen to show increased warming; (4) the IPCC improperly
relied on Jones et al. (1990) \27\ for its conclusions about the
magnitude of the urban heat island effect; and (5) the allegedly faulty
HadCRUT temperature record is the primary basis for the conclusion of
``unprecedented'' warming and the foundation of anthropogenic global
warming analyses. In effect petitioners use these claims to contest the
existence or amount of recent warming.
---------------------------------------------------------------------------
\27\ Jones, P.D., P.Y. Groisman, M. Coughlan, N. Plummer, W.-C.
Wang, and T.R. Karl (1990). Assessment of urbanization effects in
time series of surface air temperature over land. Nature 347:169-
172.
---------------------------------------------------------------------------
As background, monitoring the changes in the Earth's surface
temperature is only one of several key components of studying climate
change. Other indicators of climate change include receding glaciers,
shrinking Arctic sea ice, and sea level rise, as well as a number of
other temperature-sensitive physical and biological changes, such as
bird migration patterns and changes in the length of the growing
season.
Surface temperature records are built on data collected from
thousands of weather stations around the world, as well as sea surface
temperature records taken by ships crossing the ocean on different
routes, with some data going back more than 100 years. Because the data
originates from many international sources, some quality control is
required such as checking for and deleting data that are shown to be
duplicate, or adjusting to account for inconsistent reporting
methodologies. Additionally, these weather stations and their data were
not originally intended to be used for long-term climate monitoring,
and sometimes adjustments are necessary to avoid confusing a local
artificial temperature change (e.g., due to a shift in the elevation of
a monitoring station) with large-scale or global temperature patterns.
The three major temperature record developers, CRU, NOAA, and NASA,
all use different approaches for these adjustments. The approach by CRU
is the only one of the three that relies on a substantial set of manual
adjustments globally. NOAA uses an automated algorithm to adjust for
discontinuities such as might be expected from station moves, with
additional corrections in the U.S. because a large number of stations
changed measurement instrumentation as well as the time of day of
temperature readings. NASA uses NOAA's adjustments for the U.S. as an
input, but uses an algorithm that identifies urban centers based on
satellite observations and adjusts those urban centers to have trends
that are consistent with nearby rural stations. In addition, the data
are not evenly situated around the planet, and need to be extrapolated
and averaged so that areas with many stations are not overrepresented
and areas with few stations are not underrepresented. The kinds of
adjustments made to the underlying raw data are designed so that the
surface temperature analyses reflect as much as possible the actual
direction and magnitude of any change in surface temperature and do not
reflect other changes, such as changes in measurement devices.
The temperature reconstructions generally do not evaluate the
average actual surface temperature, but rather determine the changes in
temperature, both regionally and globally. The emphasis on changes in
temperature is important, because they are better correlated with large
regional changes. For example, two nearby stations--one on top of a
mountain and one in the valley--will likely have different absolute
temperatures, but are likely to
[[Page 49573]]
have similar changes in temperature over time.
CRU also maintains a dataset known as TS3.0, with TS2.1 as an older
version. This dataset is different from HadCRUT, and includes various
climate metrics and data information not in HadCRUT. TS2.1 is referred
to in IPCC AR4 only twice in relation to historical precipitation data.
Almost all of the references to global temperatures over time that
refer to CRU data refer to the HadCRUT temperature record, and not the
TS3.0 or 2.1 datasets.
(i) Raw Data.
Several petitioners claim that CRU has not kept all of the raw data
from the surface weather stations, only the adjusted data, e.g.
corrected for station moves and measurement changes, and therefore the
evidence for warming in the past century is questionable and cannot be
independently replicated.
CRU acknowledges that it did not keep a small percent of the raw
weather station data collected since the 1980s and that it cannot
release other raw data because of agreements with national
meteorological organizations. CRU has provided a detailed explanation
for its handling of the data, and EPA already addressed this issue at
length in Response 2-39 of the RTC. Not retaining a small amount of the
raw data does not interfere in a material way with replication or
development of independent estimates of global or regional surface
temperature history. The vast majority of the raw weather station data
is indeed publicly available from the Global Historical Climate Network
(GHCN) and other public data sources, contrary to the petitioners'
assertions. An independent estimate of global temperatures can be
generated, as NASA/GISS, NOAA/NCDC, and other groups have done. The
separate NASA and NOAA analyses of global surface temperature records
find similar temperature increases and strongly support the conclusion
that the HadCRUT surface temperature record accurately reflects the
changes in temperature. The UK Independent Climate Change E-Mails
Review was able to download raw data and produce global temperature
trend results similar to the other analyses in less than two days. In
addition, the major conclusions about warming based on the HadCRUT
temperature record have remained robust, even as CRU integrated more
data and refined its methodologies over two decades.
The petitioners do not provide any global analysis of the available
data from temperature stations that yields a different result. Further,
they have provided no evidence that an additional or different analysis
using the publicly available temperature data would yield a different
result from the warming reflected in the HadCRUT, NOAA and NASA
analyses of global surface temperature. It is an unwarranted leap in
logic to assume these analyses have no merit because a small percentage
of the underlying raw data is no longer in CRU's possession.
(ii) Biased Methods.
Petitioners claim the various methods that CRU used to integrate
and adjust the surface temperature data introduce biases in the
temperature record that were designed to support the view that global
surface temperatures are increasing faster than they actually are. The
petitioners refer to this as ``manipulation'' and cite several CRU e-
mails and other documents as support. A couple of fragments of code and
a debugging log (HARRY--READ--ME.txt) are quoted extensively as support
for these claims.
EPA has thoroughly reviewed all of the disclosed CRU e-mails in
light of the petitioners' claims, and EPA responds to all of the
petitioners arguments in detail in Volume 1 of the RTP document. Here,
EPA focuses on two of the most well-known CRU documents: BRIFFA--
SEPT98--.PRO and HARRY--READ--ME.txt.
The code fragment BRIFFA--SEPT98--E.PRO that includes a comment in
the header for the code that states that the code ``APPLIES A VERY
ARTIFICIAL CORRECTION FOR DECLINE'' is over a decade old and appears to
be provisional test code. The comments in capital letters are to remind
the programmer to replace the temporary fudge factors with more valid
adjustments before the code is used for public products. It further
appears that the ``fudge'' factor highlighted by petitioners is not
related to the HadCRUT temperature record, but instead refers to the
divergence issue discussed above and the unrelated WMO report. The
petitioners do not show that the BRIFFA--SEPT98--E.PRO code has any
relationship to the HadCRUT temperature record or that it was actually
used for any public final product.
The HARRY--READ--ME.txt debugging notes are a record of attempts to
update the CRU TS product by merging six years of additional data to an
old data set and migrating the code to a new computer system at the
same time. The petitioners fail to acknowledge that the CRU TS products
are different from the HadCRUT temperature record that is referred to
in the assessment reports and the EPA TSD, and they improperly assert
that issues with the TS products directly call into question the
HadCRUT temperature record. The file referred to by petitioners does
indicate that there were a number of difficult quality control issues
that had to be addressed concerning new data, the code written for the
updating process, and the old code for producing TS2.1. The full
debugging log demonstrates that a number of the identified problems
were successfully fixed. Many of the quotes highlighted by petitioners
were expressions of frustration that were not related to the quality of
the product. A number of the problems were related to inconsistencies
involving reported WMO codes used to identify weather stations. These
inconsistencies have previously been highlighted in the literature, and
the approach to address them as related in the log file was similar to
the approaches detailed in previous papers. In sum, the HARRY--READ--
ME.txt file is focused on issues that do not relate to the HadCRUT
temperature record and contains no evidence of any attempts to bias any
output data.
(iii) Biased Dataset.
Petitioners claim that CRU scientists selectively chose Russian
data stations to create a biased dataset that would show more warming
than would the full dataset. To support this argument, they provide a
link to a translation (hosted at a blog) of a report written in Russian
by the Institute for Economic Analysis in Moscow (Pivovarova,
2009).\28\
---------------------------------------------------------------------------
\28\ Pivovarova, N. (2009). Institute for Economic Analysis
(IEA): How warming is made. The case of Russia. (December 15, 2009).
Available at: http://www.iea.ru/article/kioto_order/15.12.2009.pdf;
translation at: http://climateaudit.files.wordpress.com/2009/12/iea1.pdf. Last accessed on April 26, 2010.
---------------------------------------------------------------------------
Examination of this document indicates that the Moscow Institute
for Economic Analysis temperature record using the full set of Russian
stations agrees well after 1955 with the temperature record that the
Institute derived from the set of stations used in the HadCRUT
temperature record, and that the difference between temperature records
derived from the two datasets is mainly in the 1850 to 1950 portion.
However, the method used by the Institute for Economic Analysis to
compare the two temperature datasets was an improper comparison of
apples and oranges (i.e., the HadCRUT temperature record uses a
different geographic weighting approach than did the Institute for
Economic Analysis, which is more important when the data is sparse as
it is before 1955).
Petitioners also do not support their claim that CRU selectively
picked stations. EPA has found no evidence in
[[Page 49574]]
the CRU e-mails or the information provided by petitioners to indicate
that stations were chosen by CRU scientists. CRU uses a number of data
sources and the petitioners did not assess whether these data sources
included the missing Russian stations, or whether the stations met
criteria discussed in published papers (see volume 1 of the RTP
document).
(iv) Urban Heat Island Corrections.
Petitioners criticize the urban heat island corrections as another
alleged example of temperature data manipulation.
This issue is not new. EPA addressed urban heat island issues in
responses 2-28 through 2-30 of the RTC document. Referencing Jones et
al. (1990) \29\ and other studies, IPCC AR4 concludes that ``urban heat
island effects are real but local, and have not biased the large-scale
trends.'' In addition, satellite records are not susceptible to urban
heat island effects and globally show similar trends to land-based
measurements over their overlapping time period. EPA summarized this
information in the TSD. EPA's specific responses to the petitioners'
arguments are provided in Volume 1 of the RTP document.
---------------------------------------------------------------------------
\29\ Jones, P.D., P.Y. Groisman, M. Coughlan, N. Plummer, W.-C.
Wang, and T.R. Karl (1990). Assessment of urbanization effects in
time series of surface air temperature over land. Nature 347:169-
172.
---------------------------------------------------------------------------
(v) Faulty Temperature Record Used by IPCC.
Petitioners claim the allegedly faulty HadCRUT temperature record
is the primary or core support for IPCC conclusions on current warming,
attribution, and projections of future warming, thus calling into
question the fundamental conclusions of IPCC AR4 and EPA's use of IPCC
AR4 as a primary reference to support the Endangerment Finding.
First, for reasons stated above and detailed further in Volume 1 of
the RTP document, EPA disagrees with the petitioners' claims that the
HadCRUT temperature record is faulty. Second, as noted previously,
multiple independent assessments of climate change science by not only
the IPCC but also USGCRP and NRC have concluded that warming of the
climate system in recent decades is ``unequivocal.'' This conclusion is
not drawn from any one source of data, but is based on a review of
multiple sources of data and information, which includes the HadCRUT
temperature record, additional temperature records from other sources,
and numerous other independent indicators of global warming (see
section 4 of EPA's TSD).
NOAA and NASA surface temperature records show nearly identical
warming trends to the HadCRUT temperature record, despite different
analysis methodologies. Moreover, entirely independent records of lower
tropospheric temperature measured by both weather balloons and
satellites demonstrate strong agreement with the surface temperature
records of all three organizations. The TSD also discussed the
following additional indicators of global warming:
Increasing global ocean heat content (Section 4(f) of the
TSD).
Rising global sea levels (Section 4(f) of the TSD).
Shrinking glaciers worldwide (Section 4(i) of the TSD).
Changes in biological systems, including poleward and elevational
range shifts of flora and fauna; the earlier onset of spring events,
migration, and lengthening of the growing season; and changes in
abundance of certain species (Section 4(i) of the TSD).
It is this entire body of evidence that supports the conclusion
that there is an unambiguous warming trend over the last 100 years,
with the greatest warming occurring over the past 30 years. Contrary to
petitioners' claims, the models used to generate projections of future
warming described in IPCC AR4 do not directly rely on the HadCRUT or
other surface temperature records. These models are driven by physical
equations describing the radiative properties and dynamics of the
atmosphere and oceans and parameterizations of small-scale processes,
not observed temperature data.
In summary, EPA disagrees with the premise of this claim--that the
HadCRUT temperature record is faulty--and therefore disagrees that use
of the HadCRUT temperature record within IPCC AR4 has somehow corrupted
the IPCC's conclusions. In addition, the petitioners' claim that the
HadCRUT temperature record is such a central thread to the entire IPCC
AR4 that this would then invalidate all IPCC AR4 conclusions is
unsupported and exaggerated.
c. Validity of NOAA and NASA Temperature Records
A number of petitioners question the validity of NOAA and NASA
surface temperature records, raising claims concerning station ``drop-
out,'' flawed or manipulative adjustments to data, and a lack of
independence between the three major surface temperature records. EPA's
response clearly shows that (1) petitioners rely on a questionable,
non-peer-reviewed source which contains a number of inaccurate
statements and relies on a scientifically flawed analysis; (2)
petitioners demonstrate a fundamental scientific misunderstanding of
what issues actually would lead to either a warming or cooling bias in
the temperature record; and (3) petitioners fail to acknowledge that
climatic records other than land surface temperature records also show
clear warming trends.
As background, one of the sources of data for the HadCRUT
temperature record is the GHCN, which was developed and is maintained
by NOAA. The GCHN dataset is also used by both NOAA and NASA in their
surface temperature records. NOAA, NASA, and CRU each calculate global
surface temperature trends from a combination of GHCN data and other
data sources. Each group performs different adjustments and corrections
to the data, and in some cases uses different subsets of the GHCN data
or includes other outside datasets.
Petitioners contest certain individual aspects or details of the
surface temperature evidence, and in general raise objections that fail
to recognize the various approaches used to develop the global surface
temperature record. Many of the issues raised by the petitioners are
not new, and have been addressed previously within the TSD and RTC
document. Some objections fail to recognize that the change in
temperature is being evaluated, not the absolute temperature level.
Other objections misconstrue the underlying studies cited by the
petitioners. In several cases, petitioners object that various
adjustments to the raw data have the effect of changing the data, but
they fail to consider that adjustments are appropriately performed, for
example, to account for circumstances that otherwise would interfere
with accurately isolating and determining a real trend in surface
temperature. Petitioners fail to address the reasons behind the
adjustments and fail to explain or show that the types of adjustments
made in developing such datasets from multiple sources of data are not
appropriate. Likewise, petitioners fail to account for the valid data-
driven reasons that have led to a reduction over time in the number of
weather stations used for the surface temperature analysis, fail to
explain or show that the reductions have biased the temperature record,
and overstate the magnitude of the temperature station reductions in
some cases.
Consistency between all three separate surface temperature records
(NASA, NOAA, CRU), as well as consistency between the three surface
temperature records and other evidence of warming, such as satellite
data, ocean
[[Page 49575]]
temperature data, and physical evidence of the effects of warming,
should be seen as confirmation of the evidence of warming. Petitioners
appear to assume that all of this evidence must be wrong because they,
incorrectly (see above), allege that some of it is.
(i) Station Drop-out.
Petitioners raise a number of issues regarding the alleged ``drop-
out'' of stations after 1990, and the extrapolation of data from
``warmer'' areas to ``colder'' areas due to this drop-out or for other
reasons. They claim this leads to bias in the global surface
temperature record. Volume 1, section 1.4.3.1 of the RTP document
addresses these claims in detail, and EPA's summary of the issue
follows.
Many of the petitioners' arguments rely on a non-peer-reviewed
document by D'Aleo and Watts (2010).\30\ However, the study and the
source upon which it relies do not support petitioners' claims and
conclusions. D'Aleo and Watts (2010) provide no evidence that there was
a systematic and purposeful ``weeding out'' process. Peterson and Vose
(1997),\31\ the paper describing the GHCN dataset, describes the
procedures for updating the GHCN database and explains that there are
fewer measuring stations post-1992 than during the 1980s because only
three of the data sources were being be updated on a regular basis.
---------------------------------------------------------------------------
\30\ D'Aleo and Watts (2010). Surface Temperature Records:
Policy Driven Deception? Available at: http://scienceandpublicpolicy.org/originals/policy_driven_deception.html.
Accessed: April 8, 2010.
\31\ Peterson, T. C. and R. S. Vose (1997). An overview of the
global historical climatology network temperature data base. Bull.
Am. Met. Soc., 78: 2837-2849.
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The D'Aleo and Watts study assumed that dropping stations at higher
latitudes and in colder climates would result in a biased, warmer
temperature trend. This unfounded assumption is a misunderstanding of
the basic methodology used in analyzing surface temperature data. The
surface temperature record sets evaluate the change in temperature over
time at the various stations, not the absolute temperature level. The
change in temperature over time is what indicates whether warming is
occurring, not just the absolute temperature itself; for example, the
Arctic region has been experiencing the highest rates of warming in the
world, yet average Arctic temperatures are obviously still considerably
colder than temperatures in most other world regions where average
temperatures may not have increased as much. Petitioners incorrectly
assume and do not explain why dropping these stations would bias the
trend in the change in temperature toward greater warmth. In fact,
petitioners fail to acknowledge that colder, high latitude areas are
the regions of the world where the most warming is occurring, and is
expected to continue occurring. If one were to accept this line of the
petitioners' original argument, there should have been concern about a
bias towards less warming, not more warming.
Moreover, the D'Aleo and Watts study used simple averages of
absolute temperatures at the stations--without, apparently, taking into
account their geographic distribution, much less calculating the change
in temperature at the stations. This improper methodology is a
significant error that undermines the petitioners' critique of the
temperature records.
Furthermore, satellite data is available for the time periods of
land-based station ``drop-out'', and the satellite temperature record
is broadly consistent with surface temperature trends throughout the
period when the ``drop out'' was occurring, confirming that the
reduction in the number of data stations has not created a warming
bias. Additionally, analyses using only stations with continuous
records are almost identical to analyses using only stations which were
``dropped'' over the decades before the ``drop-out'', further
undermining the petitioners' claim that a warming bias was introduced
by the station ``drop-out''.
(ii) Improper Heat Island Adjustments.
Petitioners assert that the urban heat island adjustments performed
by NASA are insufficient or improperly applied, both globally and in
the U.S. Southeastern Legal Foundation points to the study Long (2010)
\32\ as support for this assertion. These assertions are addressed in
detail in volume 1, section 1.4.3.2 of the RTP document, and EPA's
general response is summarized here.
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\32\ Long, E.R. (2010). Contiguous U.S. Temperature Trends Using
NCDC Raw and Adjusted Data for One-Per-State Rural and Urban Station
Sets. Available at http://scienceandpublicpolicy.org/images/stories/papers/originals/Rate_of_Temp_Change_Raw_and_Adjusted_NCDC_Data.pdf. Accessed April 8, 2010.
---------------------------------------------------------------------------
The Long (2010) study found that the net effect of NOAA adjustments
to the raw data led to more warming in rural stations (the NOAA
adjustments for the U.S. are also used in developing the NASA
temperature record). Neither the petitioners nor Long show, however,
that the adjustments to rural stations were inappropriate. (As stated
above, adjustments are sometimes necessary to ensure a real, and not
artificial, temperature change is being recorded when, for example,
there might be a change in the elevation of the station or the daily
timing of temperature readings.) Importantly, Long does not take into
account either the changes in the time of observation or the changes in
instrumentation at many rural stations, both of which led to
temperature discontinuities that must be accounted for (e.g., through
adjustments) in order to accurately portray the actual long-term
temperature trend.
With respect to the claimed failure to account for the urban heat
island effect (where metropolitan areas tend to be warmer than
surrounding areas due to built up land surfaces and building materials
that retain heat), this issue was raised previously during the public
comment period and EPA has addressed this in the RTC document. Response
2-28 of the RTC document makes clear that all of the different surface
temperature datasets shown or cited in the TSD account for the urban
heat island effect, either directly and/or indirectly. The TSD, citing
IPCC (Trenberth et al., 2007), summarized this issue as the following:
`` * * * urban heat island effects are real but local, and have not
biased the large-scale trends.'' Note also that the oceans are warming
and that the most rapid land-based warming is occurring in the Arctic,
two areas where urban heat island effects are obviously not an issue.
(iii) Data Adjustments.
Petitioners cite the records of some individual stations that they
claim show inappropriate manipulation, referring to stations in
Australia and New Zealand.
The evidence and arguments about data adjustments in New Zealand do
not support the claim that these adjustments were invalid, after taking
into account station history and neighboring station records. While
there is some evidence that the automated algorithm may have introduced
a spurious trend in one station in Australia in the NOAA temperature
record (but not in the CRU or NASA temperature records), there was at
least one valid reason for adjustment, and there is no evidence that
this error in one station biases the large-scale global temperature
trends. There is certainly no evidence of ``chicanery'' involved in
these adjustments, as one petitioner claimed.
Petitioners focus on individual stations or limited areas. It is
not surprising that data from one station or one region would show a
large difference between adjusted and unadjusted data. The important
point is that when the stations and regions are combined for a global
analysis, these
[[Page 49576]]
kinds of effects are balanced out and do not produce a bias in the
overall result. EPA addresses these issues for the specific station
data at issue in New Zealand and Australia in greater detail in Volume
1, section 1.4.3.4 of the RTP document.
(iv) Independence of the NOAA and NASA Temperature Records. Some
petitioners claim that the NOAA and NASA temperature records are not
independent from the HadCRUT temperature record, developed by CRU,
because they share some of the same raw data, and thus are assumed to
also share some of the same alleged problems. EPA addresses these
claims in volume 1, section 1.4.3.5 of the RTP document, and summarizes
the response here.
The three major temperature records do rely on a large amount of
raw data obtained from GHCN, though the HadCRUT temperature record in
particular integrates additional data obtained from other, independent
sources. As discussed above and throughout volume 1 of the RTP
document, petitioners have not demonstrated any major flaws in the raw
data. In addition, the processing of the GHCN data by the three groups
is carried out independently from one another; therefore the
similarities of the final temperature trends among the three groups
provide additional confidence in those independent processing
methodologies, and additional confidence in the consistent result that
average global temperatures are increasing.
d. Implications of New Studies and Data Submitted by the Petitioners
Several petitioners identify scientific studies most (but not all)
of which were published around the time of or shortly after the
Administrator's December 2009 Endangerment Finding, as well as data not
previously considered as part of the scientific record for the
Endangerment Finding. Petitioners argue these studies and data have the
potential to alter our understanding of key aspects of the science and
therefore warrant reconsideration of the Findings. Petitioners also
argue that EPA ignored or misinterpreted scientific data that were
significant and available when the Finding was made. These studies and
data issues involve:
Implications of a new study on stratospheric water vapor.
Implications of material concerning whether carbon dioxide
is well-mixed in the atmosphere and whether the airborne fraction of
carbon dioxide has changed.
Implications of new tropical cyclone studies.
Implications of new data on observational snow cover
trends.
A claim that EPA ignored a satellite dataset.
Though some of these studies are new, they do not raise new issues
that had not already been accounted for in the assessment literature
used by EPA. Furthermore, petitioners misinterpret the findings of
these new studies, make unsupportable claims, rely on incomplete and
biased analyses, do not acknowledge important results, and, at times,
ignore EPA's record. Contrary to the petitioners' claims, the new
science cited by the petitioners does not undermine the key findings
and conclusions that were reached in the assessment literature and the
scientific foundation for the Administrator's Findings. EPA's study-by-
study responses to the petitioners' assertions can be found in volume
1, section 1.5 of the RTP document.
2. Issues Raised by EPA's Use of the IPCC AR4 Assessment
The objections raised by petitioners involving EPA's use of IPCC
AR4 include (a) claims that recently found errors in IPCC AR4 undermine
the IPCC's credibility and therefore EPA's use of IPCC AR4 as a primary
reference document to support the Findings; and (b) claims that the
IPCC has a policy agenda and is not an objective scientific body. These
issues are addressed here and in greater detail in volume 2 of the RTP
document.
a. Claims That Errors Undermine the IPCC AR4 Findings and Technical
Support for Endangerment
The petitioners allege certain errors and unsupported statements in
IPCC AR4 show that the science EPA relied upon is uncertain and/or not
credible. Petitioners focus on the errors found regarding the timing of
future projected melting of Himalayan glaciers, the percentage of the
Netherlands below sea level, and a few more minor issues highlighted in
the petitions. Each of these identified and alleged errors in IPCC AR4
has been examined in detail by EPA in Volume 2 of the RTP document; the
general response is provided here.
EPA has reviewed these IPCC AR4 issues in the context of the key
IPCC AR4 conclusions that were germane to the Administrator's
Endangerment Finding. The small number of errors and alleged errors in
the IPCC AR4 report are not materially relevant for EPA's Endangerment
Finding. Neither of the two errors that are verifiable (Netherlands sea
level and Himalayan glaciers) are relevant to impacts in the United
States and neither are part of the basis for the Endangerment Finding.
Furthermore, there is no evidence that these two confirmed minor errors
are an indication of a more serious problem with the quality and
reliability of any other findings and conclusions from the IPCC AR4,
including those that are relevant for the Endangerment Finding.
The remaining alleged errors, taken from non-peer-reviewed
(``gray'') literature, do not appear to be errors according to EPA's
review. The IPCC provides guidance on how and when to use gray
literature, and petitioners do not demonstrate that the guidance was
not followed. Gray literature is not automatically incorrect or
suspect, and an examination of the particular gray literature sources
demonstrates that the petitioners' allegations regarding these alleged
errors are unfounded. Furthermore, the IPCC AR4 statements at issue
have no material relevance to EPA's Findings. Below are brief responses
as to why the petitioners' assertions based on these known and alleged
errors are unfounded and exaggerated. Additional detail on these issues
is contained in Section 2.1, Volume 2 of the RTP document.
(i) Percent of the Netherlands Below Sea Level
The IPCC AR4 erroneously stated that 55 percent of the Netherlands
is below sea level, whereas the actual number is only 26 percent. The
statistic quoted in the AR4 was inaccurate, and a correction was
published by the Netherlands Environmental Assessment Agency. What
should have been stated is that 55 percent of the Netherlands is at
risk of flooding; 26 percent of the country is below sea level, and 29
percent is susceptible to river flooding. The error originated with the
Netherlands Environmental Assessment Agency, not the IPCC. The IPCC
published an official erratum (IPCC, 2010b) \33\ correcting the
mistake, and noted ``The sea level statistic was used for background
information only, and the updated information remains consistent with
the overall conclusions.''
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\33\ IPCC (2010b). Fourth Assessment Report: Working Group II
Erratum. Intergovernmental Panel on Climate Change (IPCC). 26 Jan.
2010. http://www.ipcc.ch/publications_and_data/ar4/wg2/en/errataserrata-errata.html.
---------------------------------------------------------------------------
EPA does not refer to or rely on this statistic in the Findings and
the percentage of the Netherlands below sea level does not pertain to
the endangerment of public health and welfare in the United States.
This error is very minor and has no impact on the
[[Page 49577]]
climate science and health and welfare impacts supporting EPA's
Endangerment Finding. Furthermore, there is no evidence that this minor
error is somehow, as the petitioner would allege, an indication of
flawed science and poor quality control practices sweeping across all
conclusions of IPCC AR4.
(ii) Himalayan Glacier Projection
Several petitioners state that the IPCC AR4 erred in projecting
that glaciers in the Himalayas would disappear by 2035, and that EPA
relied on this projection.
The IPCC did inaccurately state the year 2035 in that particular
statement. The IPCC issued a correction concerning the melting of
Himalayan glaciers (IPCC, 2010c) \34\ which also found that its general
conclusion (provided below) on this issue remains robust and ``entirely
consistent with the underlying science.''
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\34\ IPCC, 2010c. IPCC Statement on the Melting of Himalayan
Glaciers, January 20, 2010. http://www.ipcc.ch/pdf/presentations/himalaya-statement-20january2010.pdf.
---------------------------------------------------------------------------
Widespread mass losses from glaciers and reductions in snow cover
over recent decades are projected to accelerate throughout the 21st
century, reducing water availability, hydropower potential, and
changing seasonality of flows in regions supplied by meltwater from
major mountain ranges (e.g., Hindu-Kush, Himalaya, Andes), where more
than one-sixth of the world population currently lives.
EPA did not refer to the original IPCC projection in either its TSD
or in the Administrator's Endangerment Finding. It does not impact
climate change science findings or have any meaningful implication for
the issue of endangerment in the United States. Furthermore, Volume 2,
section 2.1.3 of the RTP document shows that EPA reviewed the entire
discussion of glacial effects in IPCC AR4 and concludes that this
single faulty projection does not compromise the IPCC's overall
assessment of observed glacier loss, projected glacier loss, and the
impacts of glacier loss on water resources in the Himalayas.
(iii) Characterization of Climate Change and Disaster Losses
The Southeastern Legal Foundation asserts that the IPCC AR4
mischaracterized the findings of a study on climate change and historic
disaster losses. EPA addresses the specific study at issue in Volume 2,
section 2.1.4 of the RTP document and provides its more general
response to this study and this issue here.
First, EPA never cited or relied on the study at issue in its TSD.
EPA did not discuss the link between climate change and the historic
trends in the economic magnitude of disaster losses in the TSD. To
support the Endangerment Finding, EPA cited the potential future
impacts of climate change on the number and severity of extreme weather
events, for which the Southeastern Legal Foundation levels no
criticism. There are many different factors influencing the economic
losses from a disaster, making it difficult to determine the impact of
climate change from historic data on trends in economic disaster loss.
Therefore, contrary to petitioners' claims, EPA did not rely on
historic trends of economic disaster losses (the subject of the study
at issue) to evaluate the likelihood that climate change would lead to
an increase in the number or frequency of such weather events. EPA
instead focused on the physical and environmental (not the economic)
impacts associated with climate change. The Administrator's
Endangerment Finding was clear that it was more forward-looking on this
issue, stating:
The evidence concerning how human-induced climate change may
alter extreme weather events also clearly supports a finding of
endangerment, given the serious adverse impacts that can result from
such events and the increase in risk, even if small, of the
occurrence and intensity of events such as hurricanes and floods.
(74 FR 66526)
Furthermore, EPA's review of the particular study at issue in
Volume 2, section 2.1.4 of the RTP document shows that IPCC did not
mischaracterize this study (e.g., IPCC included the appropriate caveats
that were also stated in the underlying study), and that there were
valid reasons for IPCC to use the study (e.g., as the most recent study
of its kind at the time).
(iv) Validity of Alps, Andes, and African Mountain Snow Impacts
Several petitioners argue that IPCC claims of glacier melt in the
Andes, the Alps, and parts of Africa arise from a magazine article and
a Master's thesis, and thus should not be viewed as credible. This
particular issue is addressed in Volume 2, section 2.1.5 of the RTP
document, and EPA's response is summarized here.
First, the extent to which snow and glaciers in the Andes, Alps and
parts of Africa are melting or are projected to melt is an issue that
is tangential to the Administrator's decision that public health and
welfare are endangered within the United States. Second, the
petitioners mischaracterize these references within IPCC AR4, as these
are actually references to ``loss of ice climbs,'' not reductions in
mountain glaciers. Loss of ice climbs is an indicator of warming over
ice-covered areas. EPA acknowledges that these references come from
gray literature but these citations are appropriate and within the
IPCC's guidelines for use of gray literature. They provide additional
evidence consistent with the peer-review-supported conclusion that in
most places snowpack is declining and glaciers are melting worldwide.
Furthermore, EPA did not rely on these references or refer to ``loss of
ice climbs'' as an indicator of climate change.
(v) Validity of Amazon Rainforest Dieback Projection
Petitioners challenge the IPCC's statement that ``[U]p to 40
percent of the Amazonian forests could react drastically to even a
slight reduction in precipitation,'' alleging that it is
unsubstantiated gray literature. EPA reviews this issue in Volume 2,
section 2.1.6 of the RTP document and provides its general response
here.
The IPCC AR4 statement in question about the Amazon appears to have
been inadequately referenced but the content of the statement is
correct according to the underlying literature. For this statement, the
IPCC did cite gray literature \35\, which itself cited a peer-reviewed
study \36\ and relied on other peer-reviewed literature. It is worth
noting that a newspaper that originally reported this alleged problem
with the IPCC's representation of this Amazon issue recently reversed
itself and printed a correction on June 20, 2010.\37\ Morever, this
issue is not discussed in the TSD and is of no relevance to the
Findings.
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\35\ Rowell, A. and P.F. Moore (2000). Global Review of Forest
Fires. World Wildlife Federation and The World Conservation Union.
available at: http://data.iucn.org/dbtw-wpd/edocs/2000-047.pdf.
(last accessed April 12, 2010).
\36\ Nepstad, D. C., et al. (1999). Large-scale impoverishment
of Amazonian forests by logging and fire. Nature 398:505-508.
\37\ Sunday Times correction. http://www.thesundaytimes.co.uk/sto/news/uk_news/Environment/article322890.ece.
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(vi) Validity of African Rain-Fed Agriculture Projection
Some petitioners object that a statement in EPA's TSD based on a
statement in IPCC AR4 concerning reduction of yields from rain-fed
agriculture in some countries in Africa was from gray literature and is
therefore not credible. EPA reviews this issue in Volume 2, section
2.1.7 of the RTP document and provides its general response here.
There is no evidence that the IPCC statement in question regarding
African
[[Page 49578]]
rain-fed agricultural yields is not credible, based on the underlying
studies, nor is there any evidence that IPCC authors acted
inappropriately by citing the material on which this statement is
based. The IPCC statement cites a report \38\ published by the
International Institute for Sustainable Development funded by Canada,
U.S. AID, and other public and private institutions. The percent
reduction number was obtained from vulnerability studies prepared under
the UN Environmental Programme Global Environment Fund and National
Communications of three African countries to the UNFCCC. This study was
included due to the paucity of peer-reviewed material relating to some
parts of the world, particularly Africa. This is consistent with the
IPCC's guidance on the use of gray literature. Furthermore, the
statement relates to impacts outside the United States, and it did not
materially impact the Administrator's determination of endangerment of
public health and welfare in the United States.
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\38\ Agoumi, A. (2003). Vulnerability of North African Countries
to Climatic Changes. International Institute for Sustainable
Development and the Climate Change Knowledge Network. (2003).
Available at: http://www.cckn.net//pdf/north_africa.pdf. Accessed
April 12, 2010.
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b. Response to Claims That the IPCC Has a Policy Agenda and is Not
Objective and Impartial
Several petitioners raise various arguments to support their
allegation that IPCC AR4 is advancing a policy agenda and is not an
objective and impartial scientific body, thus questioning EPA's use of
IPCC AR4 as a significant reference document to support the
Administrator's Findings.
EPA reviews and responds to each of these claims in Volume 2,
section 2.2 of the RTP document, and provides the more general
responses here. EPA also previously responded to public comments about
IPCC's report development procedures in the RTC document (see Volume 1,
section 1 and Appendix A, ``IPCC Principles and Procedures'').
The petitioners submit four objections along with excerpts from the
CRU e-mails related to: (1) Authorship and reviewer roles among IPCC
personnel; (2) a CRU e-mail allegedly showing that IPCC authors were
aware that citing their own papers could be seen as using the IPCC
process to advance their own views rather than to present a neutral
overview of the science; (3) allegations that the IPCC is a biased
organization, including claims that IPCC lead authors encouraged other
authors to focus on policy-prescriptive science; and (4) allegations
that IPCC authors forced consensus and altered the contents of the
assessment reports to eliminate any suggestion of non-consensus.
After reviewing the petitioners' arguments, EPA finds that the
evidence and arguments provided by petitioners do not support their
serious allegation that the peer-review and assessment report processes
employed by the IPCC were ``fundamentally corrupt'' and policy
prescriptive. The petitioners' arguments, which heavily rely on the
selective use and narrow reading of CRU e-mails, as well as some
newspaper articles, do not demonstrate that the IPCC peer-review and
report development processes were inadequately designed or that they
were not properly implemented. These allegations by the petitioners are
devoid of any scientific evidence or scientific argument that would
cause EPA to find that the key conclusions of IPCC AR4 are inaccurate
or that they do not appropriately reflect the degree of scientific
consensus on the scientific issues germane to the Administrator's
Endangerment Finding. Therefore, petitioners' evidence and arguments do
not support changing EPA's position, as stated in the Endangerment
Finding, that the assessment literature, including IPCC AR4, represents
the ``best reference materials for determining the general state of
knowledge on the scientific and technical issues before the agency in
making an endangerment decision.''
Volume 2, section 2.2.3.1 of the RTP document, for example,
demonstrates that, contrary to petitioners' assertions, a few
scientists that were not named as contributing authors for Chapter 6 of
IPCC AR4, Working Group I \39\ did not contribute significantly to the
writing and editorial decisions of that chapter. Given their very
limited role in the chapter (e.g., providing input on a single figure),
it is entirely reasonable that they were not named contributing
authors, who are charged with writing parts of the report. Therefore,
EPA finds that there is no basis for the claim that IPCC reviewer and
author procedures were circumvented. EPA's review of this issue is
consistent with the finding of the Independent Climate Change E-mails
Review \40\ which stated, among other things, that ``There is no
proscription in the IPCC rules to prevent the author team seeking
expert advice when and where needed.''
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\39\ Jansen et al., 2007.
\40\ Russell, 2010.
---------------------------------------------------------------------------
Petitioners appear concerned about the contributing author
designation because these few scientists were expert reviewers of the
IPCC AR4, and the petitioners believe that the act of providing even a
limited amount of information, in addition to their reviewer roles,
would have given them undo power to shape the report. This argument is
baseless. EPA notes that although the expert review comments are
available to the public \41\, petitioners did not provide a single
example from the comments of these individuals to support their claim
of undo influence or abuse of their purported ``power'' over IPCC AR4
conclusions.
---------------------------------------------------------------------------
\41\ Reviewer comments and author responses for draft chapters
of IPCC AR4 Working Group I and II volumes (the primary volumes at
issue for the Endangerment Finding) are publically available at the
following Web sites, respectively: http://hcl.harvard.edu/collections/ipcc/ and http://ipcc-wg2.gov/publications/AR4/ar4review.html.
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Volume 2, section 2.2.3.2 of the RTP document examines the
allegation by petitioners that the frequency with which IPCC authors
cite their own studies should be viewed as unacceptable and seen as
evidence that IPCC AR4 lacks objectivity. First, it should come as no
surprise that for some of these fairly specialized fields of climate
change science authors who publish the most on these topics would in
turn be selected by IPCC to author chapters on those same topics. EPA
finds the frequency with which IPCC authors cite their own peer-
reviewed studies to be entirely acceptable and reasonable. Again,
petitioners completely fail to show why this underlying cited
literature itself is flawed or why the IPCC AR4 conclusions, based on
this underlying literature, are flawed. Importantly, one of the CRU e-
mails that petititioners use as purported evidence of IPCC authors
engaged in foul play to cite their own work actually shows an IPCC
coordinating lead author explicitly encouraging his IPCC co-authors to
minimize citations to their own work, and to do so only ``unless they
are absolutely needed.''
Volume 2, section 2.2.3.3 of the RTP document examines the
petitioners' assertion that IPCC is biased and that IPCC authors worked
to produce policy-prescriptive science and to reach preconceived
conclusions. Here too, the petitioners do not address any of the IPCC
AR4 science directly. Rather, petitioners refer to a selection of CRU
e-mails by IPCC authors who wrote to other IPCC co-authors to urge
them, for example, to focus on ``policy relevant'' science. First,
``policy relevant'' by no means implies ``policy prescriptive'' or
scientifically biased. It is, in fact, policy informative and neutral,
in direct contrast to the goal of policy
[[Page 49579]]
prescriptive statements. Second, petitioners do not identify how
specific information in IPCC AR4 should be considered biased as a
result of the private e-mail exchanges. Petitioners do not highlight
the specific statements in the IPCC AR4 that are supposedly ``policy
prescriptive,'' never explain what policy agenda was being advanced,
and never describe how the CRU e-mails support their claim that the
science was actually manipulated in service of this unspecified agenda.
The IPCC's own guidelines \42\ state that its mission is to produce
information that is ``policy relevant and policy neutral, never policy
prescriptive.'' There is no evidence provided by petitioners that IPCC
authors deviated from this practice.
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\42\ IPCC, 2010c.
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In another example in Volume 2, section 2.2.3.3 of the RTP
document, petitioners claim that a CRU e-mail exchange demonstrates
that IPCC authors were colluding to make a strong case about a certain
scientific conclusion rather than working to produce neutral science.
EPA's review shows that there is no support for this claim. EPA's
review shows that the CRU e-mails, in their full context, speak for
themselves and simply show a small group of scientists working on
various alternative ways to present a figure that was comprehensive and
offered key contextual information on temperature trends over the past
several centuries. Petitioners do not show that these alternatives--
which are discussed in the e-mails--are biased, or explain why the
option that was selected is not ``neutral.'' If fact, the e-mail record
shows that the alternative selected was the most comprehensive and
transparent of the options.
In Volume 2, section 2.2.3.4 of the RTP document, EPA reviews
petitioners' claim that certain IPCC authors kept out some studies with
the goal of hiding any non-consensus on key issues. The CRU e-mail
exchanges among some IPCC authors are the only pieces of evidence
offered by petitioners to support this allegation. EPA's review of this
issue demonstrates that the CRU e-mails simply do not show that the
contents of the IPCC chapter in question, let alone the contents of the
entire IPCC AR4, were altered to eliminate a suggestion of non-
consensus, or IPCC authors actively tried to suppress (or were
successful in suppressing) external challenges to consensus. It is not
uncommon for scientists to critique the work of others, and the e-mails
do not provide evidence that the IPCC authors acted unethically.
Section 2.2.3.4 of the RTP document also addresses the now oft-cited e-
mail where an IPCC author states, ``I tried hard to balance the needs
of the science and the IPCC, which were not always the same.''
Petitioners claim this e-mail demonstrates a biased IPCC process. A
simple reading of the entire e-mail exchange reveals a different story.
In fact, this IPCC author gets complimented from another for his
objectivity and even-handedness in handling the challenges of working
on IPCC AR4. This IPCC author also expressed frustration with the time
spent away from doing new science, which is not the primary job of an
IPCC chapter author or of the IPCC in general; the primary role of the
IPCC is to assess existing science already published in the literature,
i.e., in this author's words, ``the needs of the science and the IPCC''
are not always the same. In context, it is clear that the needs of the
IPCC in this case are the requirements of doing assessments of existing
literature rather than producing ``original and substantive'' work.
EPA's review demonstrates that when the e-mails are read in their full
context, it is clear that the authors of these e-mails sought to convey
the science accurately and address disagreements in a fair and even-
handed way. Again, petitioners have selectively picked excerpts from
these e-mails to make assertions attacking the underlying science of
the Endangerment Finding, but these assertions simply have no support.
3. Process and Other Issues Raised by the Petitioners
The process and other issues raised by the petitioners include
claims that (a) the USGCRP and the NRC are not separate and independent
assessments from IPCC; (b) EPA's process to develop the scientific
support for the Findings is flawed; (c) there are improper peer-review
processes in the underlying scientific literature used by the major
assessments; and (d) certain scientists did not adhere to Freedom of
Information Act requests. Each of these issues is addressed below and
in more detail in Volume 3 of the RTP document.
a. Claims That the Assessments by the USGCRP and NRC Are Not Separate
and Independent Assessments
Two petitioners argue that the assessment reports upon which EPA
relied are not from three separate, independent groups. They claim that
the USGCRP and NRC assessment reports are not separate and independent
because they are based on the findings of IPCC AR4. Petitioners claim
the USGCRP and NRC reports regularly cite and rely on data, resources,
and conclusions in the IPCC reports, contradicting arguments that all
three of the assessments are separate and independent. The petitioners
argue that because of this the USGCRP and NRC assessments must be
flawed in the same way that IPCC AR4 is purported to be flawed by the
petitioners. Volume 3, section 3.2 of the RTP document addresses this
claim and EPA summarizes its response here.
EPA finds no merit to this argument. The organizational and
personnel differences, and the detailed and robust report development
procedures employed by the IPCC, USGCRP, and NRC demonstrate that these
assessment reports are separate and independent. Petitioners' claims to
the contrary are insufficient and unsubstantiated.
The similarity of the conclusions among the assessment reports from
the three bodies, for example, provides evidence of the strength of the
science in that it consistently points different scientific reviewers
in the same direction. The fact that each of these bodies referenced
many of the same studies and IPCC AR4 or arrived at consistent
conclusions is not evidence that these reports are not independent
assessments of the available science related to climate change. The
test of separation and independence is not whether an assessment
reaches a different result or conclusion, it is whether independent
discretion and judgment were exercised. To assert, as the petitioners
do, that consistency of results represents a weakness rather than a
strength of the underlying science is an unwarranted argument that
assumes fundamental flaws in the IPCC and a resulting grand ripple
effect across all the major assessments used by EPA. EPA discusses
above and further demonstrates throughout the RTP document that there
is no material or reliable basis to question the validity and
credibility of the body of science underlying the Administrator's
Endangerment Finding, including the IPCC AR4 conclusions and its
underlying studies, and therefore EPA rejects the premise of this
argument.
Furthermore, the USGCRP, the IPCC, and NRC have their own, separate
report development procedures. These separate processes have already
been described in the TSD and in the RTC document, Volume 1. The
differences in the organizations, the groups of scientists who
developed the assessments, and scope of the assessments produced by
each body is discussed in detail in Volume 1 of the RTC document.
[[Page 49580]]
The IPCC, created in 1988 by the United Nations
Environment Programme and the World Meteorological Organization (WMO),
is open to all member countries of the United Nations and the WMO. At
regular intervals, the IPCC prepares comprehensive assessments of
scientific, technical, and socio-economic information relevant for the
understanding of human-induced climate change, potential impacts of
climate change, and options for mitigation and adaptation all at global
and regional scales. The most recent assessment--the AR4--included
thousands of scientists from all over the world, who participated on a
voluntary basis as authors, contributors, and reviewers (IPCC, 2007a).
While many federal and nonfederal scientists from the United States
were involved in the development of the AR4, the United States is just
one of 194 countries that contribute to the assessments.
The USGCRP is part of the United States Executive Branch.
Thirteen departments and agencies participate in the USGCRP, including
EPA. A critical role of the interagency program is to coordinate
research and integrate and synthesize information to achieve results
that no single agency, or small group of agencies, could attain.
Between 2004 and 2009, the USGCRP produced 21 synthesis and assessment
reports on a wide range of topics (e.g., temperature trends in the
lower atmosphere; weather and climate extremes in a changing climate;
and the effects of climate change on agriculture, land resources, water
resources, and biodiversity). The USGCRP assessment reports are
developed to enhance understanding of natural and human-induced changes
in the Earth's global environmental system; to monitor, understand, and
predict global change in the United States; and to provide a sound
scientific basis for national and international decision-making. Each
of these reports had a unique team of authors, drawn from relevant
disciplines. Many authors were federal scientists, and in some cases,
nonfederal scientists contributed their expertise to the process. While
some of the USGCRP authors participated in the development of the IPCC
AR4, most did not.
The NRC is an independent scientific organization that is
not affiliated with either the IPCC or USGCRP. As described in Appendix
C of Volume 1 of the RTC document, the NRC:
enlist(s) the nation's foremost scientists, engineers, health
professionals, and other experts to address the scientific and
technical aspects of society's most pressing problems. Each year,
more than 6,000 of these experts are selected to serve on hundreds
of study committees that are convened to answer specific sets of
questions. All serve without pay. Federal agencies are the primary
financial sponsors of the Academies' work. Additional studies are
funded by state agencies, foundations, other private sponsors, and
the National Academies endowment. The Academies provide independent
advice; the external sponsors have no control over the conduct of a
study once the statement of task and budget are finalized. Study
committees gather information from many sources in public meetings
but they carry out their deliberations in private in order to avoid
political, special interest, and sponsor influence.
Ten NRC reports are cited in the Endangerment Finding and TSD. Each
of these reports has a unique author committee, selected based on their
areas of expertise. While some of the NRC study committee members have
participated in either the IPCC or USGCRP report development processes,
many have not.
The USGCRP and NRC reports on which EPA relied were the result of
an objective review and assessment of the scientific literature
available at the time of their development (including any previously
published assessments), related to the effects of greenhouse gas
emissions on the climate system and the impacts of these changes on
ecosystems and society. The organizations conducting the reviews were
distinct and separate, and neither organization had control or
supervision over the other. The groups of scientists involved in the
reviews overlapped to some degree, but significant numbers of
scientists were involved with one but not other reports. In all cases,
personnel at NRC who supervised the review and preparation of the final
reports were different from those who performed these functions for
USGCRP.
Like the IPCC, the USGCRP and NRC provide public opportunities to
provide input and comment during report development (see RTC document,
Volume 1). In addition, the NRC reports undergo a rigorous, independent
external review by experts whose comments are provided anonymously to
the committee members.
Separate and apart from the issue of the independence of these
assessment reports, the petitioners provide no information to
demonstrate that the key scientific conclusions of the IPCC, USGCRP,
and NRC are wrong or that EPA erred in relying upon them. The specific
science issues raised by petitioners are discussed throughout this
Decision and in the RTP document. Thus, whether or not the various
assessment reports are separate and independent, EPA reasonably relied
upon them as reflecting the current state of the science and the degree
of broad consensus within the science community on these issues.
Bolstering the case that the IPCC, USGCRP and NRC assessments
available at the time of the final Endangerment Finding in December
2009 were robust and appropriate for EPA to use, the May 2010
assessment of the NRC, ``Advancing the Science of Climate Change,''
states that its major scientific conclusion is ``consistent with the
conclusions'' of those previous assessments. Note also that this May
2010 NRC assessment was able to incorporate scientific literature
published since EPA completed its scientific record to finalize the
2009 Endangerment Finding.
b. Approaches and Processes Used To Develop the Scientific Support for
the Findings
Several petitioners object to the process and approach EPA used in
developing the scientific support for the Endangerment Finding. One of
these specific arguments is new whereby the petitioners allege that EPA
ignored public concerns about the implications of the e-mails involving
scientists at the CRU, and instead ``plowed ahead with compromised
data, undermining its core conclusions in the process.'' EPA discusses
and responds to this issue in section (i) below and in section 3.1.2 of
the RTP document. The petitioners also raise issues that EPA already
responded to in Volume 1 of the RTC document. Some of the concerns
submitted are supported with ``new information'' and some are not. In
(ii) below, EPA summarizes the response to the claim that EPA did not
independently judge the underlying science, and in (iii) below EPA
concludes that the Agency did not violate the Information Quality Act
(IQA, or the Data Quality Act), as alleged by petitioners. Section
3.1.3 of the RTP document more fully responds to these three
allegations and other related concerns raised by the petitioners
regarding the process and approach EPA used in developing the
scientific support for the Endangerment Finding.
(i) Issues Regarding Consideration of the CRU E-mails
The sole new argument raised by petitioners regarding the approach
and process EPA used into develop the Findings is that EPA ignored
public concerns about the implications of the e-mails involving
scientists at CRU, and instead ``plowed ahead with compromised data,
undermining its core
[[Page 49581]]
conclusions in the process.'' EPA responds to this issue in Volume 3,
section 3.1.2 of the RTP document and summarizes its response here.
Prior to finalizing the Endangerment Finding, EPA carefully
reviewed many of the CRU e-mails, and determined that many of the
issues raised therein had also been raised through the public comments
on the proposed Findings. EPA reviewed the underlying scientific issues
that were presented to EPA at the time (see, for example, RTC Volume
2). Based on that initial review, EPA concluded that the fundamental
conclusions of the assessment literature remained sound as to the state
of the science on greenhouse gases and climate change. EPA did not
inappropriately ``plow ahead;'' EPA assessed the issues raised by
commenters and the CRU e-mails in light of our comprehensive review of
climate science and all of the objections to the science raised by
commenters, and concluded that our review of the science and the
conclusions based on it were sound.
Petitioners have now raised more specific concerns with respect to
the CRU e-mails. EPA has reviewed all of the CRU e-mails, and our
responses to the particular science issues raised by petitioners in
light of these e-mails are provided in other sections of this Decision
and in the RTP document. As discussed there, petitioners have routinely
misunderstood or mischaracterized the scientific issues, drawn faulty
scientific conclusions, resorted to hyperbole, impugned the ethics of
climate scientists in general, characterized actions as
``falsification'' and ``manipulation'' with no basis or support, and
placed an inordinate reliance on blogs, news stories, and literature
that is often neither peer reviewed nor accurately summarized in their
petitions. Petitioners often ``cherry-pick'' language that creates the
suggestion or appearance of impropriety, without looking deeper into
the issues or providing corroborating evidence that improper action
actually occurred.
(ii) Claims That EPA Did Not Independently Judge the Underlying Science
Several petitioners argue that the Administrator did not
independently judge the primary scientific literature and data.
Instead, they claim that she improperly relied on summary scientific
reports produced by third parties or ``foreign entities.'' This is not
a new issue brought to EPA, but was raised and addressed during the
public comment period. Section III.A of the Findings responds to
comments that EPA should have conducted its own independent assessment
of the primary scientific literature and not relied on scientific
reports produced by third parties such as the USGCRP, NRC or IPCC. See
also Volume 1 of RTC document, particularly Response 1-1.
It is useful to describe the process EPA followed in exercising its
scientific judgment in making the Endangerment Finding. EPA did not
passively and uncritically accept a scientific judgment and finding of
endangerment supplied to it by outsiders. Instead, EPA evaluated all of
the scientific information before it, determined the current state of
the science on greenhouse gases, the extent to which they cause climate
change, how climate change can impact public health and public welfare,
and the degree of scientific consensus on this science. EPA applied
this science to the legal criteria for determining endangerment, i.e.,
whether greenhouses gases cause, or contribute to, air pollution that
may reasonably be anticipated to endanger public health or welfare. EPA
did this after presenting its scientific views before the public for
comment and evaluating and considering all comments received, as well
as documenting responses to all significant public comments (see
volumes 1-11 of the RTC document). EPA properly and carefully exercised
its own judgment in all matters related to the Endangerment Finding.
The core of petitioners' objection is that they do not agree with
important parts of the scientific information upon which EPA relied.
They frame this as a failure of EPA to exercise its own judgment, or as
EPA ceding to an outside body its responsibility to exercise
independent judgment. It is clear from the record for the Findings that
EPA exercised its own judgment and did not cede its authority or
judgment to anyone. The fact that petitioners disagree with the
information EPA relied upon and EPA's conclusions is not evidence of a
lack of exercise of discretion or judgment.
EPA relied on the existing assessment reports of the USGCRP, IPCC,
and NRC as a primary source for determining the current state of the
science relating to greenhouse gases and climate change, and for
determining the degree of scientific consensus on these issues. EPA's
view then and now is that these assessment reports represent the best
primary references to provide the scientific underpinnings to inform
the Administrator's judgment regarding endangerment. These assessment
reports provide exactly the kind of information that is required, i.e.,
they demonstrate how greenhouse gases are affecting the climate now,
are projected to affect climate in the future, and how these current
and projected climate changes impact public health and welfare. These
assessment reports also bring together and synthesize the numerous
individual studies in the scientific literature to draw overarching
conclusions about the state of the science. Finally, each of these
assessment reports go through rigorous and transparent peer-review
processes, such that the conclusions carry significant weight in a way
that is typically not possible for one individual study in a scientific
journal. EPA's review of the objections raised by petitioners to the
process and the substance of the various assessment reports does not
support changing this view.
The petitioners appear to imply that EPA would have drawn different
conclusions had it conducted its own separate assessment. After
examining the breadth and quality of the USGCRP, IPCC, and NRC
assessments, EPA disagrees. These reports already reflect the body of
underlying scientific literature that EPA itself would have had to
synthesize had it decided to conduct yet another assessment,
independent from USGCRP, IPCC and NRC. These assessments have been
reviewed and formally accepted by, commissioned by, and in some cases
authored by U.S. government agencies and individual government
scientists. By relying on the assessment literature, EPA is benefitting
from the confidence and strength of an entire federal research
enterprise. There is no reason to think that these assessments do not
represent the best primary source material to determine the state of
science on the relevant issues.
Petitioners disagree with some of the conclusions of the assessment
literature and believe that not all scientific points of view were
fully considered therein. However, there was a robust public comment
process on EPA's proposed Endangerment Finding, which provided an
opportunity for the public to evaluate and comment on EPA's preliminary
scientific conclusions. Many commenters provided literature and/or
arguments to support their views and EPA reviewed such literature and
arguments in the Agency's responses. EPA's final judgment was based on
EPA's evaluation of both the assessment literature and the additional
information and views provided through public comment. EPA has no
reason to believe that putting this significant body of work aside and
attempting to develop a new and separate assessment would
[[Page 49582]]
provide any better scientific basis for making the endangerment
decision.
(iii) Claims That EPA Violated the Information Quality Act
EPA already provided a detailed response to arguments of alleged
IQA violations in RTC Volume 1. The petitioners now make essentially
the same general argument that EPA's use of third-party assessment
reports violates the IQA. EPA notes that the petitioners are re-raising
this issue in the petitions for reconsideration because they believe
that the CRU e-mails show that ``IPCC authors deleted information and
hid behind foreign laws to avoid disclosure of key data'' and that EPA
would not have been able to obtain the data anyway. EPA responds to
allegations involving the behavior of CRU scientists, including the
allegation that data was destroyed, in (c) below, Volume 1 of the RTP
document and Sections 3.3 and 3.4 of the RTP document. As stated in
these sections, the evidence submitted by the petitioners in the form
of the CRU e-mails does not support their allegation that data were
destroyed. Therefore, the ``new'' information presented by the
petitioners does not call into question the overall integrity of the
science, nor does it call into question the process EPA used in
developing the Findings. As noted in RTC Volume 1, the IQA requires
that an agency issue guidelines regarding data quality and ensure their
implementation. EPA complied with the IQA by issuing its Guidelines for
Ensuring and Maximizing the Quality, Objectivity, Utility and Integrity
of Information Disseminated by the Environmental Protection Agency
(U.S. EPA, 2002) \43\ and has acted consistently with these guidelines
in developing the Findings. As stated in RTC Volume 1, EPA's use of the
assessment literature ``is consistent with these guidelines because we
thoroughly reviewed and evaluated the author selection, report
preparation, expert review, public review, information quality, and
approval procedures of IPCC, USGCRP/CCSP, and NRC to ensure the
information adhered to a basic standard of quality, including
objectivity, utility, and integrity.''
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\43\ U.S. EPA (2002). Guidelines for Ensuring and Maximizing the
Quality, Objectivity, Utility, and Integrity of Information
Disseminated by the Environmental Protection Agency. Washington, DC:
U.S. Environmental Protection Agency. EPA/260/R-02/008.
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The CRU e-mails cited by the petitioners do not undermine this
view. EPA's responses on the science issues raised by petitioners
concerning these e-mails are discussed in detail in several other
sections of this Decision as well as in the RTP document. As our
detailed responses show, petitioners' science-based claims do not
support the conclusion that the IPCC or other assessment reports were
biased, inaccurate, or scientifically incorrect.
c. Freedom of Information Act Issues
Several petitioners claim that the CRU e-mails provide evidence
that leading climate scientists deliberately withheld key data and
computer codes and attempted to obstruct or avoid UK Freedom of
Information (FOI) and U.S. Freedom of Information Act (FOIA) requests
from ``climate skeptics.'' These claims are addressed in Volume 3,
section 3.4 of the RTP document and EPA's response is summarized here.
EPA's review of the CRU e-mails indicates that in many cases, the
data at issue were in fact released by the scientists, including data
concerning a human ``fingerprint'' in the tropics, data underlying the
HadCRUT temperature record, and data concerning historic temperature
reconstructions. In addition, significant data were publicly available.
Petitioners have not explained or shown why the amount of data and
other information that was available was not adequate for researchers
to replicate or otherwise evaluate key findings, or to conduct other
research. In addition, there was a robust and public process to submit,
review, and publicly respond to comments on the scientific issues
involved in all parts of the IPCC AR4. Petitioners do not rely on
science or science based arguments to support their claim that the
assessment report resulting from this robust process should not be
relied upon by EPA. Instead, they rely on unsupported conclusions drawn
from e-mails concerning a FOI request for personal communications
between various scientists, where it appears that the appropriate
University FOI officers had determined that these e-mails were exempt
from release. This evidence does not support petitioners' claims that
the IPCC AR4 should not be considered as part of the scientific basis
for the Endangerment Finding.
EPA agrees with the results of the various investigations, which
found that the scientists at issue conducted their research with
scientific integrity and rigor, the research utilized methods which are
fair and satisfactory, and that their actions were consistent with the
common practice in climate research at that time. EPA also agrees with
the recommendations of the Independent Climate Change E-mails Review
supporting greater transparency in the future in this area of climate
research. Petitioners' evidence, however, does not support their
conclusions that the research produced by these scientists was suspect,
flawed, or biased, or that IPCC AR4 or other assessment reports were
suspect, flawed, or biased. Their evidence does not support the
conclusion that the science at issue should not be relied upon by EPA.
EPA has reviewed the petitioners' claims and the e-mails and finds
that in many cases, the petitioners make overly broad generalizations
based on suggestions of inappropriate actions that are not supported by
the evidence provided by the petitioners. Regarding the quote from the
UK Information Commissioner's Office, the recent inquiry by the UK
House of Commons Science and Technology Committee (2010) \44\ concluded
that this statement was the personal opinion of the Deputy Information
Commissioner and was not based on the results of a formal government
investigation.
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\44\ UK Parliamentary (2010). House of Commons, Science and
Technology Memoranda. Available at: http://www.publications.parliament.uk/pa/cm200910/cmselect/cmsctech/memo/climatedata/contents.htm.
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EPA finds that most of the language in the CRU e-mails that
petitioners allege shows impropriety is taken out of context.
Petitioners do not provide corroborating evidence that improper action
actually occurred, let alone evidence that any alleged improper action
led to biased or inaccurate science that was ultimately used by EPA to
support the Findings. Based on our review of the e-mails, the authors
were dismayed at what they viewed as frivolous requests that were
wasting their time, not that the requestors were going to uncover
``fraud'' or ``wrongdoing'' with regard to their research, as has been
alleged by the petitioners.
EPA finds from its review that the e-mail authors expressed
significant frustration at repeated requests for specific explanations
and computer codes when the basic data had already been made available
and the methodology for replicating particular studies had already been
published in the literature. This type of approach was considered to be
common practice at the time, as the UK House of Commons Science and
Technology Committee (2010) \45\ also found in their analysis of the
CRU e-mails: ``In the context of the sharing of data and methodologies,
we consider that Professor Jones's actions
[[Page 49583]]
were in line with common practice in the climate science community. It
is not standard practice in climate science to publish the raw data and
the computer code in academic papers.'' EPA finds that the petitioners'
evidence does not provide a basis to question the scientific integrity
or conclusions of the climate change research conducted by CRU
researchers.
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\45\ UK Parliamentary (2010). House of Commons, Science and
Technology Memoranda. Available at: http://www.publications.parliament.uk/pa/cm200910/cmselect/cmsctech/memo/climatedata/contents.htm.
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d. Integrity of Peer-Reviewed Literature
Several petitioners claim that the CRU e-mails provide evidence
that leading climate scientists engaged in actions to suppress
dissenting views about anthropogenic global warming. Specifically,
petitioners claim that these scientists unfairly gave favorable reviews
of each other's manuscripts while providing negative reviews of
manuscripts authored by ``climate skeptics,'' made efforts to unfairly
expedite publication of their responses to papers by ``climate
skeptics,'' conspired to remove editors of prominent journals that had
published dissenting views of climate change, and boycotted the
journals in reprisal. The petitioners argue that the cumulative effect
of these alleged actions with regard to peer-reviewed literature has
been to create an artificial consensus about anthropogenic climate
change that has ``tainted [climate change literature] in favor of
desired papers.'' Some petitioners conclude that EPA has lost the basis
for its Findings because the Agency assumed a ``legitimate, objective
`consensus' regarding anthropogenic global warming'' existed among
scientists and disregarded any contrary views or contrary evidence. EPA
responds to these claims in Volume 3, section 3.3 and summarizes its
response here.
Petitioners' claims are not based on scientific analysis or
arguments, and their evidence does not support changing or revising
EPA's use of the major assessments of peer-reviewed literature or the
overall scientific conclusions about climate change reached from the
thousands of papers considered in the assessments. The objections
raised by the petitioners have not called into question or changed
EPA's conclusion that the science supporting the Endangerment Findings
is robust, compelling, and has been appropriately characterized by EPA.
EPA disagrees with the petitioners' argument that the Findings were
based on a false consensus regarding anthropogenic climate change, and
that EPA disregarded contrary views or evidence including those not
represented in the peer-reviewed literature. For reasons stated
throughout this Decision and section 3.3 of the RTP document, EPA's
view is that the state of the science has been carefully and
appropriately characterized by EPA and properly interpreted by the
Administrator in the Endangerment Finding.
Many diverging viewpoints and a variety of findings are represented
in the scientific literature on climate change. The assessment reports
routinely identified the degree of certainty around any conclusion and
recognized the existence of ongoing debate within the scientific
community on all of these issues, as is the norm in all science
endeavors. The Administrator's Endangerment Finding relied on a careful
consideration of the full weight of scientific evidence and a thorough
review of hundreds of thousands of public comments, which contained
many different opinions and interpretations of the science. Therefore,
to claim, as the petitioners do, that these e-mails demonstrate that
EPA did not take into account any dissenting views on the subject of
climate change science is a gross mischaracterization of the total
record that supports the Administrator's Findings.
The petitioners rely upon some CRU e-mails (typically taken out of
context), a small number of papers, and both actual and alleged events
regarding scientific journals to claim that leading climate scientists
conspired to keep dissenting views of climate change out of the broad
body of peer-reviewed literature and create an artificial consensus
about anthropogenic climate change. In all cases presented by the
petitioners it appears the scientists involved were making their
scientific objections known, and were basing their objections on the
science and not on assumptions or speculation. The evidence presented
by petitioners does not support their claims of bias, either for the
specific papers and individuals at issue, or for the much broader and
sweeping challenges made concerning the integrity of all peer-reviewed
climate literature.
For the few papers at issue, the petitioners do not argue based on
scientific merits, and instead assume that the few papers they cite
received unjustified unfavorable reviews and were unfairly rejected for
publication without providing supporting evidence. Petitioners do not
address the possibility that these papers were scientifically
inadequate and that the scientists were justified in recommending that
they not be published. EPA notes that there is no evidence presented
beyond these few papers of the claimed general effort to manipulate the
peer-reviewed journal publication process.
The evidence provided by the petitioners also does not show that
the scientists engaged in improper behavior or sabotage of the two
journals that are discussed in the e-mails, or their editors, nor is
there evidence to conclude that any action on the part of these
scientists involved in the e-mail correspondence resulted in the
replacement of the journal editors. Our review of the full discussion
of the e-mails indicates, again, that petitioners have exaggerated the
significance of actual or purported events in an attempt to cast doubt
on the underlying science and the processes relied upon to produce the
science.
F. Petitioners' Arguments Do Not Meet the Standard for Reconsideration
As discussed above, petitioners must demonstrate that their
objections are of central relevance to the outcome of the underlying
decision, and must demonstrate either that it was impracticable to
raise the objections during the public comment period or that the
grounds for raising such objections arose after the close of the
comment period (but within the time specified for judicial review). The
above analysis shows that science-based and other objections discussed
in this Section III and the accompanying support document are not of
central relevance to the Administrator's decision on endangerment and
thus reconsideration is properly denied.
An objection is of central relevance if it provides substantial
support for the argument that the underlying decision should be
revised. As shown above, none of the petitioners' arguments related to
climate science and data issues, issues raised by EPA's use of IPCC
AR4, and process issues provide substantial support for the argument
that the Administrator's Endangerment Finding should be revised. The
petitioners' arguments and evidence are inadequate, generally
unscientific, and do not show that the underlying science supporting
the Endangerment Finding is flawed, misinterpreted by EPA, or
inappropriately applied by EPA. Importantly, petitioners' claims and
the information they submit do not change or undermine our
understanding of how human emissions of greenhouse gases cause climate
change and how human-induced climate change generates risks and impacts
to public health and welfare. The information provided by petitioners
does not change any of the scientific conclusions that underlie the
Administrator's Findings, nor do the petitions lower the degrees of
[[Page 49584]]
confidence associated with each of these major scientific conclusions.
A petition for reconsideration cannot merely cite to new
information and claim that is sufficient to require initiating a
reconsideration process, attendant with the same procedures as the
original decision. Mere allegations that information is of central
relevance will not suffice. New information, even new information
related to an agency decision, does not by itself warrant undermining
the finality of agency decision making. To justify reconsideration a
petitioner must show why the new information demonstrates that the
agency's decision should be changed.
Petitioners fail to do this. The core defect in petitioners'
arguments is that these arguments are not based on consideration of the
body of scientific evidence. Petitioners fail to address the breadth
and depth of the scientific evidence and instead rely on an assumption
of inaccuracy in the science that they extend even to the body of
science that is not directly addressed by information they provide or
by arguments they make. Petitioners routinely take private e-mail
communications out of context and assert they are ``smoking gun''
evidence of wrongdoing and scientific manipulation of data. In
contrast, EPA's careful examination of the e-mails and their full
context shows that the petitioners' claims are exaggerated and are not
a material or reliable basis to question the validity and credibility
of the body of science underlying the Administrator's Endangerment
Finding or the Administrator's decision process articulated in the
Findings themselves. Petitioners' assumptions and subjective assertions
regarding what the e-mails purport to show about the state of climate
change science are woefully inadequate pieces of evidence to challenge
the voluminous and well documented body of science that is the
technical foundation of the Administrator's Endangerment Finding.
Petitioners' objections that a limited number of factual mistakes
now identified in the IPCC AR4, as well as other claimed mistakes, call
into question the climate science supporting the Administrator's
Endangerment Finding, are similarly flawed. The two factual mistakes in
IPCC AR4 confirmed by EPA's review are tangential and minor and do not
change the key IPCC AR4 conclusions that are central to the
Administrator's Endangerment Finding.
Finally, as shown above, regarding objections based on allegedly
new scientific studies and data, EPA's review of these claims shows
that in many cases the issues raised by the petitioners are not new,
but were in fact considered prior to issuing the Endangerment Finding.
In other cases, the petitioners have misinterpreted or misrepresented
the meaning and significance of recent scientific literature, findings,
and data. Finally, there are instances where the petitioners have
failed to acknowledge other new studies in making their arguments.
Thus, petitioners have failed to demonstrate that their objections
related to climate science and data issues, issues raised by EPA's use
of IPCC AR4, and process issues provide substantial support for the
argument that the Administrator's decision on endangerment should be
revised.
Moreover, regarding many of their objections, petitioners also fail
to demonstrate that it was impracticable to raise the objections during
the public comment period or that the grounds for raising such
objections arose after the close of the comment period (but within the
time specified for judicial review). In many but not all cases EPA has
identified instances where petitioners fail to base an objection on
such new information. Given the volume of individualized comments and
objections, EPA is identifying some of the types of situations where
the objection, or grounds for the objection, raised by a petitioner
does not satisfy this requirement for reconsideration. Several types of
objections are premised on studies and other information that were
available before the close of the comment period. In some cases
petitioners basically repeat or raise the same arguments that were
raised and responded to in the rulemaking. In other cases, petitioners
raise allegedly new grounds, such as CRU e-mails, that they claim
should cause EPA to reconsider a prior comment, or that justifies
petitioners' raising a new issue for the first time in the
reconsideration petition. But as explained above and throughout this
Denial and supporting documents, the allegedly new information is not
of central relevance, and therefore, EPA essentially is left with
arguments that either were made previously during the comment period,
or could have been raised during the comment period. Thus, many of the
petitioners' objections not only are not of central relevance, but they
also fail to meet the temporal requirement for a petition for
reconsideration.
IV. Other Issues
In this section, EPA responds to various objections to the
Endangerment Finding based on concerns raised with respect to the
impact of stationary source permitting requirements, the relationship
of the Findings to NHTSA's recent CAFE rule, the effects of the
Findings and subsequent rulemakings on states and businesses, the need
for a Formal Rulemaking Process, and EPA's justification for its
exercise of discretion in making the Endangerment Finding.
A. The Tailoring Rule/Impacts of PSD and Title V Permitting Are Not of
Central Relevance to the Findings
Several petitioners raise objections based on EPA's proposed rule
to tailor the Prevention of Significant Deterioration (PSD) and title V
permit programs for greenhouse gases. Proposed Prevention of
Significant Deterioration (PSD) and Title V Greenhouse Gas Tailoring
Rule, 74 FR 55292 (Oct. 27, 2009) (Proposed Tailoring Rule).\46\
Specifically, petitioners argue that EPA's statements in the Proposed
Tailoring Rule demonstrate that the Findings are contrary to law and/or
arbitrary and capricious. Because the Proposed Tailoring Rule was
issued after the close of the comment period, but before the period for
judicial review ran, petitioners argue that it presents reasons for EPA
to reconsider the Findings in general.
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\46\ The Final Prevention of Significant Deterioration (PSD) and
Title V Greenhouse Gas Tailoring Rule was signed on May 13, 2010,
and published June 3, 2010. 75 FR 31514 (June 3, 2010).
---------------------------------------------------------------------------
Petitioners argue that the Proposed Tailoring Rule is of central
relevance to the Findings because it involves the PSD and title V
permitting requirements that flow as an inevitable result of the
Findings, and the impacts of such permitting are relevant to the
Findings. e.g., SLF 5th Supp. at 15; Ohio Coal Assn. at 4. They point
to the fact that the Tailoring Rule was proposed, and comments thereon
were received, after the close of the comment period for the Findings,
and request that EPA grant reconsideration and re-open the Findings
docket ``to allow the public to comment on the implications of the
Tailoring Rule[sic] to the form and content of the Endangerment
Finding,'' SLF 5th Supp. at 15, and to ``further explore the extent to
which implementation of the Endangerment Finding is practically
impossible * * * since impossibility calls into question all
justification for the Endangerment Finding.'' Ohio Coal Assn. at 4.
At least one petitioner points to the alleged implementation
problems identified in the Proposed Tailoring Rule and comments
received thereon as a basis for reconsidering the appropriateness of
the Findings. Ohio Coal Assn. at 6-9. The petitioner argues
[[Page 49585]]
that despite statements in the final Findings that EPA did not
consider, and indeed could not have considered, policy concerns about
the repercussions of impact of the finding when making the endangerment
finding, EPA did ``give credence and expression'' and ``did in fact
consider the widespread and economically crippling'' PSD permitting
implementation issues. Ohio Coal Supp. at 15, 18. Therefore, the
petitioner continues, new information about EPA's ability to tailor the
PSD program justifies granting reconsideration. Specifically, the
petitioner cites to comments filed by state permitting authorities that
they allege call into question the approach EPA proposed in the
Tailoring Rule to address the negative impacts that EPA acknowledges
``would inexorably flow from the Endangerment Finding--that is,
triggering the PSD and Title V permitting requirements at the low
applicability levels provided under the Clean Air Act.'' Ohio Coal
Supp. at 16-18. They claim that statements made by state permitting
agencies about the ability of the proposal to address state law
concerns, and the remaining burden even at the higher thresholds all
undermine EPA's claim that it can fashion a reasonable and common-sense
solution to the perceived problem. Thus, petitioners conclude, the
``most viable and sensible option'' would be instead for EPA to
withdraw the Findings until the impacts of the PSD and title V
permitting programs can be fully assessed and resolved. Ohio Coal Assn.
at 8; Ohio Coal Supp. at 22.
Another petitioner provides slightly different reasons for claiming
the Proposed Tailoring Rule necessitates granting reconsideration and
re-opening the Findings for comment.\47\ This petitioner argues that
the Proposed Tailoring Rule reflects an acknowledgement by EPA that
regulating GHG under the CAA is absurd. Chamber at 3. The petitioner
also argues that new information demonstrates that some of the public
health and welfare effects from stationary source emission reductions
that EPA expected when issuing the Findings will be legally
unavailable. Id. at 9-10. The petitioner alleges that EPA recognized
the ``ill-fit'' between pollutants like greenhouse gases, which become
well-mixed in the atmosphere and cause global problems, and the
existing structure of the CAA. The petitioner further claims that it
was because of this ill-fit that EPA crafted the Tailoring Rule in
order to avoid the absurd result of trying to regulate GHGs under part
of the CAA. Petitioner's suggested solution is for EPA to reconsider
the Findings in light of EPA's recognition that regulation of GHGs
under the CAA is ``absurd.'' In so doing, the petitioner reiterates
comments it, and others, submitted during the public comment period
arguing that EPA retains discretion under Massachusetts to consider,
among other things, the impacts of an endangerment finding when
deciding whether to issue an endangerment findings. Chamber at 10-12.
---------------------------------------------------------------------------
\47\ This petitioner also stated in its petition that if EPA had
neither ``granted the petition nor contacted the [petitioner] to
establish a mutually agreeable schedule for reconsideration by April
14, 2010, such inaction will be deemed a denial of the petition.''
Chamber at 1. No EPA action, or inaction, other than this Decision
and supporting material constitutes a denial of the petitions. See,
e.g., Final LDVR, 75 FR at 25402; EPA's Combined Opposition to
Remand (filed April 29, 2010 in DC Cir. No. 09-1322).
---------------------------------------------------------------------------
More specifically, the petitioners argue that the Supreme Court
decision did not address the issue of whether GHGs could be regulated
under the CAA consistent with Congress' intent and without triggering
absurd results. Chamber at 11. Rather, they contend, the Supreme Court
decision was about the narrow issue of whether GHGs were air pollutants
under CAA section 202(a). Chamber at 11. Some petitioners argue that
EPA should have informed the Supreme Court of the impact of a positive
endangerment finding under CAA section 202(a) on stationary source
permitting, and the fact that it may require EPA to resort to the
absurdity doctrine; if EPA had, they continue, the Court may have
issued a different opinion. CEI Supp. at 4-5. Another petitioner argues
that the Supreme Court left open the option of EPA declining to make an
endangerment finding, and that in making its decision EPA must adhere
to the customary mode of statutory interpretation in Chevron v. NRDC,
467 U.S. 837 (1984), considering all relevant statutory language,
legislative history and absurd results that may apply when regulating
GHGs under the CAA. Chamber at 12.
Based on this alleged premise, the petition then turns to EPA's
statements in the Proposed Tailoring Rule concerning the potential
absurd results that could result from applying the statutory permitting
thresholds of 100 and 250 tons per year (tpy) to GHGs, and the
additional administrative impossibility that would result from applying
these statutory thresholds immediately when GHGs are regulated under
CAA section 202(a). Petitioner submits additional evidence it alleges
demonstrates the absurdity of regulating GHGs from stationary sources:
(1) The PSD program is designed to address pollutants with localized
impacts in specific geographic areas (e.g., the NAAQS), and not global
pollutants like GHGs; (2) the statutory thresholds would require
burdensome, expensive, individualized emissions controls at hundreds of
thousands of small emissions sources, contrary to Congressional intent;
and (3) the application of permitting to GHGs would jeopardize economic
growth, which would be particularly absurd in the current economic
situation. Chamber at 15-17.
Thus, according to this and other petitioners, EPA must reconsider
the Findings in light of the absurd results that would result from GHGs
being regulated pollutants under the PSD and title V permitting
programs. See, e.g., Chamber at 18; CEI Supp. at 5. Specifically,
petitioners argue that the absurdity doctrine demands that EPA consider
whether regulating GHGs under the CAA as a whole is absurd or not, but
that EPA completely ignored this possibility when developing the
Findings. Rather than relying on the absurd results doctrine to merely
``tailor'' the PSD and title V permitting programs, petitioners argue
that EPA should rely on it to avoid creating the permitting program
dilemma in the first place, or at the very least take comment on that
option. Chamber at 18-19; CEI Supp. at 5. At least one petitioner
contends that case law regarding the absurd results doctrine requires
adopting the narrowest, most restrictive interpretation of the statute,
and that there may be an interpretation that authorizes EPA to avoid
making the endangerment finding in the first place, not one that merely
addresses the PSD and title V statutory thresholds (e.g., by
interpreting ``emissions'' or ``major emitting facility'' narrowly).
Chamber at 18-19. Petitioners argue that given EPA's failure to
consider this alternative, coupled with the alleged acknowledgement
that the CAA motor vehicle rules are not necessary to achieve public
health and welfare advantages in light of the NHTSA CAFE rule (see
below), EPA must reconsider the Findings. See, e.g., Chamber at 23.
Finally, other petitioners argue that the Proposed Tailoring Rule
itself is illegal, pointing to numerous industry comments filed on the
proposal. They contend that since the Tailoring Rule is illegal, it is
``a patently unconstitutional attempt by the Executive Branch to
unilaterally amend a statute.'' SLF 5th Supp. at 16. In summary, they
conclude that since EPA cannot regulate GHGs under the CAA without
ignoring part of the statute, it cannot regulate GHGs in a manner
consistent with the CAA and
[[Page 49586]]
any attempt to do so is beyond EPA's legal authority, arbitrary and
capricious, and an abuse of discretion. Id. at 17-19. The petitioners
also contend that EPA's Endangerment Finding is arbitrary and
capricious and an abuse of discretion because, they allege, it is
climatically pointless as well. They state that rather than undertake a
course of illegal action, especially one that they allege does not have
any detectable effect, EPA should start over and reconsider the
Findings. Id.
EPA is denying the petitions for reconsideration that raise
objections based on the Proposed Tailoring Rule because these
objections are not of central relevance to the outcome of the final
Findings and/or could have been raised during the public comment
period.
These objections are not of central relevance to the Findings for
three primary reasons discussed in more detail below. First, as EPA
noted in the Findings, the impact of regulations that may flow from a
positive endangerment finding, even if absurd, is not a relevant
consideration to the science based question of whether air pollution
may reasonably be anticipated to endangerment public health or welfare.
See, 74 FR at 66501, 66515-16; RTC volume 11 at 4-5. Thus, EPA
disagrees with a fundamental basis for petitioners' objections based on
the Proposed Tailoring Rule--i.e., that EPA could or must decline to
issue an endangerment finding under CAA section 202(a), regardless of
the scientific evidence relevant to determining endangerment, based on
concerns with implementing stationary source permitting. Second, even
if the absurd results doctrine could influence EPA's interpretation of
CAA section 202(a) after the Supreme Court's decision in Massachusetts,
EPA's approach to resolving the absurdity is reasonable because it
focuses narrowly on that part of the CAA where the absurdity originates
while giving effect to other statutory provisions, in order to balance
the goal of improving public health and the environment with the goal
of avoiding absurd results. Third, EPA disagrees with the petitioners
who argue that because EPA is relying on the absurd results doctrine as
a result of the Findings, the Findings themselves must therefore be
illegal. Reliance on a doctrine of administrative law when interpreting
a statute is not an indication of the illegality of agency action;
indeed, it shows just the opposite. By applying, inter alia, the
doctrines of absurd results and administrative necessity, EPA has been
able to issue effective regulations addressing greenhouse gases while
avoiding the absurd results that could arise from immediately applying
the statutory thresholds for PSD and title V to greenhouse gases. Thus,
petitioners' objections do not provide substantial support for the
argument that the final Findings should be revised.
More specifically, EPA stated the following in the Findings in
response to comments urging EPA to delay making an endangerment finding
based on, among other things, concerns about the impact of the PSD
program:
``EPA agrees with the commenters who argue that the Supreme
Court decision held that EPA is limited to consideration of science
when undertaking an endangerment finding, and that EPA cannot delay
issuing a finding due to policy concerns if the science is
sufficiently certain (as it is here). The Supreme Court stated that
``EPA can avoid taking further action only if it determines that
greenhouse gases do not contribute to climate change or if it
provides some reasonable explanation as to why it cannot or will not
exercise its discretion to determine whether they do'' 549 U.S. at
533. Some commenters point to this last provision, arguing that the
policy reasons they provide are a ``reasonable explanation'' for not
moving forward at this time. However, this ignores other language in
the decision that clearly indicates that the Court interprets the
statute to allow for the consideration only of science. For example,
in rejecting the policy concerns expressed by EPA in its 2003 denial
of the rulemaking petition, the Court noted that ``it is evident
[the policy considerations] have nothing to do with whether
greenhouse gas emissions contribute to climate change. Still less do
they amount to a reasoned justification for declining to form a
scientific judgment. Id. at 533-34 (emphasis added).
Moreover, the Court also held that ``[t]he statutory question is
whether sufficient information exists to make an endangerment finding''
Id. at 534. Taken as a whole, the Supreme Court's decision clearly
indicates that policy reasons do not justify the Administrator avoiding
taking further action on the question here'' (74 FR 66501, December 15,
2009).
Furthermore, EPA noted the following when responding to comments
arguing that EPA should consider the impact of regulating GHGs when
determining whether they endanger public health and welfare:
``At their core, these comments are not about whether commenters
believe greenhouse gases may reasonably be anticipated to endanger
public health or welfare, but rather about commenters'
dissatisfaction with the decisions that Congress made regarding the
response to any endangerment finding that EPA makes under CAA
section 202(a). * * *
What these comments object to is that Congress has already made
some decisions about next steps after a finding of endangerment, and
the commenters are displeased with the results. But if this is the
case, commenters should take up their concerns with Congress, not
EPA. EPA's charge is to issue new motor vehicle standards under CAA
section 202(a) applicable to emissions of air pollutants that cause
or contribute to air pollution which may reasonably be anticipated
to endanger public health or welfare. It is not to find that there
is no endangerment in order to avoid issuing those standards, and
dealing with any additional regulatory impact.
Indeed, commenters' argument would insert policy considerations
into the endangerment decision, an approach already rejected by the
Supreme Court. First, as discussed in Section I.B of these Findings,
in Massachusetts v. EPA, the court clearly indicated that the
Administrator's decision must be a ``scientific judgment.'' 549 U.S.
at 534. She must base her decision about endangerment on the
science, and not on policy considerations about the repercussions or
impact of such a finding''
74 FR at 66515; December 15, 2009).
Thus, petitioners are wrong in their claim that either EPA
statements in the Proposed Tailoring Rule, or comments received
thereon, regarding potential implementation difficulties in the PSD or
title V permitting programs are legally relevant at all, let alone of
central relevance, to EPA's Endangerment Findings.\48\ The agency's
statements in the Findings that it ``does not believe that the impact
of regulation under the CAA as a whole * * * will lead to the panoply
of adverse consequences that commenters predict,'' and that ``EPA has
and will continue to take a measured approach to address greenhouse gas
emissions'' do not mean that EPA gave ``credence and expression to one
key negative impact'' as one petitioner alleges. Ohio Coal Supp. at 15.
These statements, which immediately follow EPA's explanation of how the
Administrator must look at the science and not policy consideration,
are merely EPA's response to the dire predictions submitted by
commenters. EPA did not and could not consider such impacts in making
its science based judgment on endangerment.
---------------------------------------------------------------------------
\48\ We note that EPA has addressed the concerns about the
approach set forth in the Proposed Tailoring Rule raised by state
permitting authorities. In response to the very comments raised by
petitioners here, as well as other comments, EPA revised its
approach for implementing its tailoring rule approach to allow for
faster state adoption of the solution. Final Prevention of
Significant Deterioration (PSD) and Title V Greenhouse Gas Tailoring
Rule 75 FR at 31518, 31579-84 (June 3, 2010) (Final Tailoring Rule).
Moreover, EPA also finalized applicability thresholds that are
higher than those proposed, and otherwise refined the phase-in of
permitting for GHGs to better accommodate the workload. Id. at
31523-25.
---------------------------------------------------------------------------
EPA further disagrees with the arguments that it must grant
[[Page 49587]]
reconsideration and reopen the Findings because since the close of the
comment period EPA has recognized that the Findings would lead to the
LDVR, which triggers the PSD and title V requirements, which in turn
would give rise to ``absurd results'' in the permitting provisions
applicable to some stationary sources. The fact that the impacts from
PSD and title V permitting may be absurd does not mean that EPA can
reinterpret section 202(a) to allow the consideration of those absurd
results, and then find no endangerment or avoid making a determination
on endangerment.
What petitioners fail to analyze is how, given the overwhelming
science supporting the endangerment finding (see above), EPA could
decline to issue the Findings because of policy/implementation concerns
unrelated to the science and unrelated to the question of whether there
is endangerment, and not violate the Supreme Court's decision in
Massachusetts v. EPA. As discussed above, EPA disagrees with
petitioners who argue that ``Massachusetts requires EPA to carefully
consider [the absurdity doctrine] implications for the Agency's overall
statutory interpretation.'' Chamber at 13. The Supreme Court was clear
that GHG fit within the definition of ``air pollutant'' under the CAA,
and that when considering the question of endangerment the
Administrator may consider only the science. EPA ``must ground its
reasons for action or inaction in the statute,'' and the statutory
endangerment provision in section 202(a) required that EPA's ``exercise
of judgment must relate to whether an air pollutant `cause[s], or
contribute[s] to, endangerment.'' This was a ``direction to exercise
discretion within defined statutory limits,'' and the Court explicitly
rejected EPA's authority to exercise its judgment for policy reasons
not related to ``compl[iance] with this clear statutory command.''
Massachusetts at 532-533. Petitioners would have us ignore the clear
mandate of the Court's decision on the premise that if the case had
been argued differently, the Court would have rendered a different
opinion. EPA reasonably followed the instructions from the Supreme
Court as provided in Massachusetts.
Even if EPA had the authority and could reconsider its statutory
authority under CAA section 202(a) in light of the absurdity doctrine,
rather than follow petitioners' implied approach, EPA would follow the
approach set out in the Final Tailoring Rule--a narrow solution that
focuses on that part of the CAA where the absurdity originates. EPA's
approach balances the goal of improving public health and the
environment by tackling air pollution problems with the goal of
avoiding absurd results.\49\ Petitioners would apply the absurd results
doctrine too broadly, undertaking a sweeping approach that negates any
and all regulation of GHGs under the CAA in order to avoid problems
that have arisen in specific programs. EPA's targeted use of the absurd
results doctrine in the Tailoring Rule is the better approach to
reconciling all its obligations under the CAA. EPA has interpreted the
statute as a whole, and interpreted it in a manner that does not allow
difficulties in one program to nullify the various other Congressional
provisions that may be relevant to climate change under the CAA.
---------------------------------------------------------------------------
\49\ In response to objections which are based in part on
allegations that EPA must reconsider its final decision because new
evidence allegedly shows that the LDVR will not get meaningful
reductions, EPA has already stated in the final Findings that it
does not need to find that any attendant regulations flowing from an
endangerment finding would ``fruitfully attack'' or prevent at least
a substantial part of the danger in order to find endangerment. 74
FR at 66507-08.
Moreover, contrary to one petitioner's implied allegation, EPA
did not consider the benefits resulting from stationary source
emissions reductions when issuing the Findings, and the petitioner
did not point to any evidence that EPA did base the Findings on such
considerations. Finally, to the extent petitioners are arguing that
EPA should reevaluate its approach to absurd results because there
is little environment or public health benefit from the LDVR which
followed the Findings, EPA disagrees. See Section IV.B responding to
comments regarding NHTSA rules.
---------------------------------------------------------------------------
Applying the Chevron two step test, EPA must, at Step 1, determine
Congressional intent. Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984).
Under the absurd results doctrine ``the literal meaning of statutory
requirements should not be considered to indicate Congressional intent
if that literal meaning would produce a result that is senseless or
that is otherwise inconsistent with--and especially one that
undermines--underlying congressional purpose.'' Final Tailoring Rule,
75 FR at 31517. Looking at section 202(a) of the CAA, congressional
intent appears clear, under Chevron Step 1, that Congress intended the
Administrator to regulate emissions of air pollutants from new motor
vehicles if the Administrator found that such emissions cause or
contribute to air pollution which endangered public health or welfare.
The Supreme Court stated that ``[i]f EPA makes a finding of
endangerment, the Clean Air Act requires the agency to regulate
emissions of the deleterious pollutant from new motor vehicles.''
Massachusetts at 533. Moreover, the Supreme Court has held that when
making the endangerment finding the Administrator must look only at the
science. There are no absurd results in the specific actions under
section 202(a) of either issuing an endangerment finding itself or in
issuing standards applicable to GHG emissions from new motor vehicles.
The absurd results stem from the contents of other statutory
provisions, the PSD and Title V provisions discussed in the Tailoring
Rule, not section 202(a). Even for those provisions, in the Final
Tailoring Rule EPA specifically determined that the PSD and title V
provisions indicate a clear congressional intent to cover at least the
largest sources of GHGs under these programs. Id. at 31517. Taking all
of these facts together, EPA's approach to utilization of the absurdity
doctrine gives the greatest effect to the various provisions of the CAA
and the overall congressional intent under the CAA, by minimizing the
scope of limitation on statutory provisions in the application of the
absurd results doctrine.
As EPA discussed in the Tailoring Rule:
``[i]n determining and implementing congressional intent, it is
important that the statutory provisions at issue be considered
together--(1) The obligation to make a determination on endangerment
and contribution under CAA section 202(a); (2) if affirmative
endangerment/cause or contribute findings are made, the obligation
to promulgate standards applicable to the emissions of any such air
pollutant from new motor vehicles or new motor vehicle engines under
CAA section 202(a); and (3) the PSD and title V applicability
provisions. The most appropriate reading, and certainly a reasonable
reading, is that we are required to take the action we have taken,
that is to issue the findings, promulgate the LDVR, and promulgate
the Tailoring Rule. Our approach gives effect to as much of
Congress's intent for each of these provisions, and the CAA as
whole, as possible.
With respect to the endangerment/cause or contribute findings
under CAA section 202(a), congressional intent is clear that, as we
stated in making the Findings and the Supreme Court held in
Massachusetts v. EPA, we are precluded from considering factors
other than the science based factors relevant to determining the
health and welfare effects of the air pollution in question.
Accordingly, as discussed above, EPA determined that the Agency was
precluded from deferring or foregoing the findings due to concern
over impacts on stationary sources affected by PSD or title V
requirements. See 74 FR at 66496, 66500-01 (``Taken as a whole, the
Supreme Court's decision clearly indicates that policy reasons do
not justify the Administrator avoiding taking further action on the
questions here.''); see also Massachusetts v. EPA, 549 U.S. at 533;
see also (74 FR 66515-16, December 9, 2009) (The Administrator
``must base her decision about endangerment on the science,
[[Page 49588]]
and not on the policy considerations about the repercussions or
impact of such a finding.''). Moreover, as EPA also noted, ``EPA has
the ability to fashion a reasonable and common-sense approach to
address greenhouse gas emissions and climate change. 74 FR at
66516.'' (75 FR 31574, June 3, 2010)(footnote omitted).\50\
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\50\ This reasonable and common-sense approach includes the kind
of step by step approach that includes regulation of GHG emissions
from new motor vehicles, as described by Justice Stevens in
Massachusetts, when discussing the issue of standing. Id. at 524.
The petitioners merely continue to disagree with EPA's
interpretation of the Supreme Court decision and question EPA's ability
to address permitting concerns, rather than provide anything new in
their petitions on this topic.
To the extent the petitioners are requesting that EPA reconsider
and defer or forego issuance of the Findings to avoid causing an absurd
result from implementation of the separate PSD and title V programs
until such time as EPA could fully implement these programs without an
absurd result, underlying this claim is the assumption that this
approach would allow EPA to avoid the ``absurd results'' that are
discussed in the Tailoring Rule, which states:
``* * * there is no basis at this point to determine that
streamlining will ultimately allow full compliance with the PSD and
title V requirements. Rather, it is possible that EPA may conclude
that none of the available streamlining techniques will allow all
GHG sources at the statutory thresholds to comply with PSD and title
V requirements in a manner that does not impose undue costs on the
sources or undue administrative burdens on the permitting
authorities. Under these circumstances, EPA may then permanently
exclude GHG source categories from PSD or title V applicability
under the absurd results doctrine. Moreover, it may well take many
years before EPA is in a position to come to a conclusion about the
extent to which streamlining will be effective and therefore be able
to come to a conclusion as to whether any source categories should
be permanently excluded from PSD or title V applicability. In our
rulemaking today, we describe what actions we expect to take in the
first 6 years after PSD and title V are triggered for GHG sources,
and we may well be in a situation in which we continue to evaluate
streamlining measures and PSD and title V applicability to GHG
sources after this 6-year period.
Accordingly, deferring the endangerment/cause or contribute
findings and LDVR until such time that PSD and title V streamlining
would allow full implementation of these programs at the statutory
limits would serve only to delay the benefits of the LDVR, as well
as the benefits that come from phasing in implementation of the PSD
program to cover larger sources first. It would rely on an
assumption that is unfounded at this point, that is, that such full
compliance will be required at some point in the future. Delaying
the emissions benefits of the LDVR and the related emissions
benefits from partial implementation of the PSD program fails to
implement Congress' intent that the endangerment/cause or contribute
findings ``shall'' lead to emissions standards for new motor
vehicles contributing to the endangerment, and related emissions
controls for the same air pollutant under the PSD program. EPA need
not determine at this time what approach would be appropriate if
there was a determination that full compliance with PSD and title V
would in fact occur at some point in the future. In this case,
absent such a determination, it would be improper to rely on
speculation of such a future possibility as a basis under section
202(a) to defer or forego issuance of the LDVR on the grounds that
EPA should defer or forego the LDVR to avoid causing an absurd
result. Likewise there is no basis to defer proceeding at this time
with the streamlining of the PSD and title V programs.
With respect to the PSD and title V applicability requirements,
as we discuss elsewhere, we believe that Congress expressed a clear
intent to apply PSD and title V to GHG sources and that the phase-in
approach incorporated in the Tailoring Rule is fully appropriate.
Proceeding now with the endangerment/contribution findings and LDVR,
even if phasing-in of the PSD and title V programs is required, is
consistent with our interpretation of the PSD and title V
applicability requirements. Delaying the endangerment/contribution
findings or LDVR, and thereby delaying the triggering of PSD and
title V requirements for GHG sources, would lead to the loss of a
practicable opportunity to implement the PSD and title V
requirements in important part, and thereby lead to the loss of
important benefits. As discussed elsewhere, promulgating the LDVR
and applying the PSD and title V requirements to the largest GHG
sources, as we do in this Tailoring Rule, is practicable because the
sources that would be affected by the initial implementation steps
we promulgate in this rule are able to bear the costs and the
permitting authorities are able to bear the associated
administrative burdens. Promulgating the LDVR now provides important
advantages because the sources that would be affected by the initial
steps are responsible for most of the GHG emissions from stationary
sources.
It should also be noted that as discussed elsewhere in this
rulemaking, our ability to develop appropriate streamlining
techniques for PSD and title V requirements is best done within the
context of actual implementation of the permitting programs, and not
in isolation of them. That is, because the great majority of GHG
sources have not been subject to PSD and title V requirements, we
will need to rely on the early experience in implementing the
permitting requirements for the very large sources that initially
will be subject to those requirements in order to develop
streamlining techniques for smaller sources. It is the real world
experience gained from this initial phase that will allow EPA to
develop any further modifications that might be necessary. This
would not and could not occur if the LDVR were delayed indefinitely
or permanently, so that PSD and title V requirements were not
triggered. It is unrealistic to expect that delaying action until a
future tailoring rule could resolve all of the problems identified
in this rulemaking, absent any real world implementation experience.
At its core, commenters' argument is that EPA should delay (if
not forego altogether) doing anything to address GHG emissions and
the problems they cause until it can do so in a way that does not
cause any implementation challenges, even if that delay results in
continued endangerment to public health and welfare. EPA does not
take such a myopic view of its duties and responsibilities under the
CAA. Congress wrote the CAA to, among other things, promote the
public health and welfare and the productive capacity of the
population. CAA Sec. 101(b)(1). EPA's path forward does just this.
Thus, proceeding with the endangerment/cause or contribute findings,
the LDVR, and with PSD and title V through the phase-in approach of
the Tailoring Rule maximizes the ability of EPA to achieve the
Congressional goals underlying CAA sections 202(a) and the PSD and
title V provisions, and the overarching CAA goal of protecting
public health and welfare. Congress called for EPA (1) to determine
whether emissions from new motor vehicles contribute to air
pollution that endangers, (2) if that the determination is
affirmative, to issue emissions standards for new motor vehicles to
address the endangerment, and (3) to implement the PSD and Title V
program to address similar emissions in their permitting program as
another tool to address the air pollutant at issue. Delaying both
the LDVR and PSD/title V implementation, as commenters have called
for, would run directly counter to these Congressional expectations.
Commenters' calls for deferral or foregoing of the findings or LDVR
are generally phrased in a conclusory fashion, and do not
demonstrate how EPA could take the required CAA actions concerning
GHGs while remaining within the requirements of each of the various
CAA provisions, and achieving the overall goals of the CAA. As such
the comments do not provide a valid basis for the deferral of agency
action they suggest.'' (75 FR 31575-56; June 3, 2010).
As explained above, EPA is resolving the absurdity caused by the
statutory thresholds in the PSD and title V permitting programs not by
avoiding an endangerment finding or avoiding all regulation under the
CAA, but rather by interpreting the statute in a way that gives effect
to the greatest extent possible to both section 202(a) and the
applicable permitting provisions. This gives the greatest effect
possible to the congressional intent about addressing air pollutant
problems that endanger public health and welfare, while also focusing
the permitting programs, at least initially, on large stationary
sources. EPA's targeted use of the absurd results doctrine in the
Tailoring Rule is a reasonable approach to reconcile the various
statutory obligations under the CAA at issue here.
[[Page 49589]]
EPA also disagrees with petitioners who argue either implicitly or
explicitly that EPA has admitted, through its invocation of the absurd
results doctrine in the Proposed Tailoring Rule, that it cannot
regulate GHGs under the CAA without violating the statute. While, in
the Tailoring Rule, EPA has noted that applying the statutory
thresholds in the PSD and title V programs to greenhouse gases
immediately for all sources would present problems, and may indeed lead
to absurd results even in the long run, EPA did not and does not take
the position that all regulation of GHGs under the CAA leads to absurd
results or is illegal. In fact, just the opposite is true. EPA has
issued reasonable, effective GHG emissions standards for light duty
vehicles, and has announced plans for further GHG emissions standards
for later model year light-duty vehicles. EPA also plans to propose the
same for heavy-duty motor vehicles. Moreover, by applying, inter alia,
the doctrines of absurd results and administrative necessity, EPA has
been able to avoid the absurd results that could arise from applying
the statutory thresholds for PSD and title V to greenhouse gases.\51\
The concept behind the absurd results doctrine is that an agency can
(if not must) ignore the literal meaning of a statute in order to
effectuate congressional intent. That is exactly what EPA's approach
does--ignore only the statutory thresholds for PSD and title V in order
to effectuate congressional intent under the CAA as a whole. EPA's
reliance on one or more doctrines of administrative law when
interpreting the statute is not evidence of the illegality of EPA's
actions; rather it is evidence of the reasonable approach EPA took to
interpreting and implementing the statute.
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\51\ Contrary to one petitioner's argument, EPA did not craft
the Tailoring Rule in response to the global nature of greenhouse
gas concentrations and climate change. Rather, it is the much higher
amounts at which greenhouse gases are emitted by stationary sources,
compared to existing criteria and other regulated air pollutants,
that necessitated EPA's reasonable approach to permitting. The
absurdity that EPA was trying to avoid was permitting stationary
sources much smaller than Congress intended when writing the
permitting provisions of the CAA. The global nature of greenhouse
gases and climate change was not the reason for the Tailoring Rule.
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Finally, EPA is also denying the petitions because, while the
Tailoring Rule was proposed after the close of the comment period for
the Findings, EPA discussed the impact of applying the PSD and title V
statutory thresholds to GHGs, and the potential need to tailor those
programs as appropriate, in the July 2008 ANPR. 73 FR 44354, 44497-514,
44503 (``we have identified two legal doctrines that may provide EPA
with discretion to tailor the PSD program to GHGs: Absurd results and
administrative necessity.''), 44512 (discussing same legal theories in
context of title V). Indeed, EPA received comments from some of the
same entities that are petitioning for reconsideration now regarding
the Agency's position about its ability to craft a reasonable approach
to addressing GHGs under the CAA, including the CAA permitting
programs. See, e.g., Comments submitted by Marlo Lewis for the
Competitive Enterprise Institute (EPA-HQ-OAR-2009-0171-2898.1). Thus,
while EPA itself may have elaborated regarding the potential for absurd
results from GHG permitting at the statutory thresholds in the Proposed
Tailoring Rule, the issue was not raised for the first time in the
Tailoring Rule; it had already been raised in the ANPR, and there was
nothing preventing petitioners from commenting on the issue in their
comments on the proposed Findings (as indeed some did). Commenters on
the proposed Findings also argued that the Supreme Court was unaware of
the impacts of the permitting programs when deciding Massachusetts. RTC
Volume 11 at 5. Thus, objections based on the need to apply the absurd
results doctrine to the PSD and title V programs, and on arguments
related to how EPA defended its actions in Massachusetts, could have
been (and indeed were) raised during the comment period on the Findings
and are not appropriately raised in petitions for reconsideration.
B. NHTSA Rule
The Chamber of Commerce raised objections based on the authority of
the National Highway Traffic Safety Administration (NHTSA) to issue
Corporate Average Fuel Economy (CAFE) standards for new motor vehicles.
Specifically, the Chamber argued that the federal government must
choose between two alternative regulatory approaches: Seeking to
regulate GHG emissions using NHTSA's authority, under EPCA as revised
by EISA or, alternatively, regulating such emissions on authority of
Title II of the CAA. According to the Chamber, NHTSA has recently
acknowledged it has adequate legal authority under EPCA and EISA to
regulate greenhouse gas emissions, independent from EPA's authority
under CAA section 202(a), therefore EPA must reconsider the
Endangerment Finding because it cannot claim to generate the public
health benefits from CAA mobile source GHG emissions reductions. The
Chamber argues that according to EPA, the Endangerment Finding,
standing alone, produces no current public health or welfare benefits
but will instead produce such benefits in the future, but only if it
effectively serves as a precondition for the regulation of GHG
emissions from new motor vehicles or some other category of emission
sources. Thus, the Chamber concludes, EPA has justified the
Endangerment Finding as a means to the end of new motor vehicle
regulation.
The Chamber claims that this core rationale for EPA's Endangerment
Finding and regulatory program can no longer bear scrutiny. It argues
that if EPA affirmatively wishes to pursue an Endangerment Finding to
regulate emissions from new motor vehicles, it must explain what it can
add to a NHTSA-only rulemaking. According to the Chamber, EPA may not
rely on a presumed need for motor vehicle regulations that could be
accomplished through NHTSA regulations alone. (Chamber, 19-23)
Petitioner claims that EPA issued and justified the Endangerment
Finding based on the need for emissions reductions from EPA regulation
of new motor vehicles, and the expectation that such EPA regulation
would achieve the expected emissions reductions. That argument
mischaracterizes EPA's position.
Consistent with the statutory language, legislative history and
Supreme Court case law, EPA determined whether atmospheric
concentrations of greenhouse gases are reasonably anticipated to
endanger public health or welfare, and based that determination on the
scientific and other evidence relevant to the issues of endangerment.
As EPA made clear, CAA section 202(a) limited the issues EPA could
consider in making a determination concerning endangerment, and they
did not include consideration of the degree of reductions that would
reasonably be achieved by regulations to control emissions from new
motor vehicles. EPA clearly stated that:
``As the Supreme Court made clear in Massachusetts v. EPA, EPA's
judgment in making the endangerment and contribution findings is
constrained by the statute, and EPA is to decide these issues based
solely on the scientific and other evidence relevant to that
decision. EPA may not ``rest[] on reasoning divorced from the
statutory text,'' and instead EPA's exercise of judgment must relate
to whether an air pollutant causes or contributes to air pollution
that endangers. Massachusetts v. EPA, 549 U.S. at 532. As the
Supreme Court noted, EPA must ``exercise discretion within defined
statutory limits.'' Id. at 533. EPA's belief one way or
[[Page 49590]]
the other regarding whether regulation of greenhouse gases from new
motor vehicles would be ``effective'' is irrelevant in making the
endangerment and contribution decisions before EPA. Id. Instead
``[t]he statutory question is whether sufficient information exists
to make an endangerment finding'' Id. at 534.
The effectiveness of a potential future control strategy is not
relevant to deciding whether air pollution levels in the atmosphere
endanger. It is also not relevant to deciding whether emissions of
greenhouse gases from new motor vehicles contribute to such air
pollution. Commenters argue that Congress implicitly imposed a third
requirement, that the future control strategy have a certain degree
of effectiveness in reducing the endangerment before EPA could make
the affirmative findings that would authorize such regulation. There
is no statutory text that supports such an interpretation, and the
Supreme Court makes it clear that EPA has no discretion to read this
kind of additional factor into CAA section 202(a)'s endangerment and
contribution criteria. In fact, the Supreme Court rejected similar
arguments that EPA had the discretion to consider various other
factors besides endangerment and contribution in deciding whether to
deny a petition. Massachusetts v. EPA, 549 U.S. at 532-35.'' (74 FR
66496, 66507-8; December 15, 2009).
This excerpt was in response to comments arguing that EPA should
take into account the emissions impacts of EPA's then upcoming rule to
control emissions of greenhouse gases from light-duty vehicles and
trucks, and consider that the CAFE standards issued by NHTSA would
effectively achieve the same reductions. Id. at 66501, 66507. Just as
the effectiveness of future motor vehicle regulations was not relevant
to determining endangerment, EPA made it clear that CAA section 202(a)
did not allow EPA to consider issues such as future adaptation and
mitigation, which reflected how society responded to the issue of
endangerment, not whether endangerment existed. Id. at 66512-514.
Thus, it is clear that EPA did not justify or base its Endangerment
Finding on either the need for emissions reductions from EPA
regulations of new motor vehicles, or the expectation that such an EPA
regulation would achieve emissions reductions. EPA rejected suggestions
during the rulemaking that EPA refrain from issuing and Endangerment
Finding because NHTSA has the authority to issue CAFE standards that
also reduce greenhouse gases, as discussed above. The Chamber is
raising basically the same issue raised in the rulemaking, and has
presented no reason that would support any different response. EPA is
rejecting Chamber's request for the same reasons it rejected these same
kinds of requests in the rulemaking.
It is also clear that it was eminently practicable for the Chamber
to raise this issue in the comment period. As described above, various
commenters pointed to NHTSA's separate authority, and argued that NHTSA
would effectively achieve the same reductions as EPA, undermining the
basis for EPA's Endangerment Finding. Id. at 66507. Also see 66544, in
the context of the Contribution Finding. The Chamber raises the same
kind of objection here, and could have raised it during the comment
period. While they point to a subsequent statement by NHTSA indicating
that NHTSA's statutory authority is separate from EPA's, that is not
new or different information concerning NHTSA's authority and does not
change the nature of the Chamber's objection. Their failure to raise
their objection in a timely manner is another reason to reject their
request to reconsider on these grounds.
As part of their argument, the Chamber claims that EPA must explain
what it can add to a NHTSA-only rulemaking. This is one part of the
argument raised above, and is rejected for the same reasons. As with
the arguments discussed above, the Chamber could have raised this
argument during the comment period, and the failure to do so is another
reason to reject their request to reconsider on these grounds.
In any case, EPA has explained in detail how the recently issued
regulations under CAA section 202(a) to control emission of greenhouse
gases from light-duty vehicles and trucks differ from NHTSA's CAFE
program for the same vehicles, and why it was important for EPA to
issue its rule. In the final rule issuing greenhouse gas emissions
standards for new motor vehicles, EPA responded to comments that it
should delay issuance of the motor vehicle standards until a later
time, to avoid concerns over stationary source permitting impacts. EPA
stated:
``[The Supreme Court in Massachusetts] stated that under section
202(a), ``[i]f EPA makes [the endangerment and cause or contribute
findings], the Clean Air Act requires the agency to regulate
emissions of the deleterious pollutant.'' 549 U.S. at 534. As
discussed above, EPA has made the two findings on contribution and
endangerment. 74 FR 66496 (December 15, 2009). Thus, EPA is required
to issue standards applicable to emissions of this air pollutant
from new motor vehicles.
The Court properly noted that EPA retained ``significant
latitude'' as to the ``timing * * * and coordination of its
regulations with those of other agencies'' (id.). However it has now
been nearly three years since the Court issued its opinion, and the
time for delay has passed. In the absence of these final standards,
there would be three separate Federal and State regimes
independently regulating light-duty vehicles to increase fuel
economy and reduce GHG emissions: NHTSA's CAFE standards, EPA's GHG
standards, and the GHG standards applicable in California and other
states adopting the California standards. This joint EPA-NHTSA
program will allow automakers to meet all of these requirements with
a single national fleet because California has indicated that it
will accept compliance with EPA's GHG standards as compliance with
California's GHG standards. 74 FR at 49460. California has not
indicated that it would accept NHTSA's CAFE standards by themselves.
Without EPA's vehicle GHG standards, the states will not offer the
Federal program as an alternative compliance option to automakers
and the benefits of a harmonized national program will be lost.
California and several other states have expressed strong concern
that, without comparable Federal vehicle GHG standards, the states
will not offer the Federal program as an alternative compliance
option to automakers. Letter dated February 23, 2010 from
Commissioners of California, Maine, New Mexico, Oregon and
Washington to Senators Harry Reid and Mitch McConnell (Docket EPA-
HQ-OAR-2009-0472-11400). The automobile industry also strongly
supports issuance of these rules to allow implementation of the
national program and avoid ``a myriad of problems for the auto
industry in terms of product planning, vehicle distribution, adverse
economic impacts and, most importantly, adverse consequences for
their dealers and customers.'' Letter dated March 17, 2010 from
Alliance of Automobile Manufacturers to Senators Harry Reid and
Mitch McConnell, and Representatives Nancy Pelosi and John Boehner
(Docket EPA-HQ-OAR-2009-0472-11368). Thus, without EPA's GHG
standards as part of a Federal harmonized program, important GHG
reductions as well as benefits to the automakers and to consumers
would be lost. In addition, delaying the rule would impose
significant burdens and uncertainty on automakers, who are already
well into planning for production of MY 2012 vehicles, relying on
the ability to produce a single national fleet. Delaying the
issuance of this final rule would very seriously disrupt the
industry's plans'' (75 FR 25314, 25402; May 7, 2010).
EPA also noted that the greenhouse gas standards issued by EPA
achieved greater overall reductions in greenhouse gases than NHTSA's
CAFE standards. Id at n.165, 25402; also see 25397, 25549-50. Thus, EPA
has explained in full the reasons for refusing to delay issuance of
EPA's motor vehicle emissions standards, and what EPA's rule adds to
NHTSA's CAFE rule. As noted above, these issues are not relevant to the
issues EPA considers in making a determination on endangerment under
CAA section 202(a).
[[Page 49591]]
C. Other Issues
1. Effects of the Findings and Subsequent Rulemakings on States and
Businesses
Many of the petitioners provide detailed information regarding the
impact that they allege would flow from the Findings; these discussions
are in addition to arguments based on the Proposed Tailoring Rule (see
Section IV.A of this Notice for the response to the arguments based on
the Proposed Tailoring Rule). For example, the State of Texas, in
addition to providing information regarding efforts the State has made
to address GHGs, details harm it predicted could occur to the State
through allegedly adverse impacts to its farming and ranching, mineral
interest revenue stream, and oil and gas sector. Texas at 5-7, 32-34.
The State also discusses what it describes as the ``fallout'' from the
Findings. Id. at 34-38. More specifically, the State of Texas discusses
resolutions and bills that have been introduced in the U.S. House of
Representatives and the U.S. Senate, comments from the Small Business
Administration's Office of Advocacy on the Proposed Tailoring Rule,\52\
and various inquiries into, or statements about, the CRU e-mails and
IPCC.
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\52\ The State of Texas stated that this letter was provided to
the endangerment docket (EPA-HQ-OAR-2009-0171), but it was actually
submitted to the docket for the Proposed Tailoring Rule (EPA-HQ-OAR-
2009-0571).
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The State of Virginia, while not providing any additional
information regarding the alleged impacts of the Findings, states that
``EPA's remote finding of endangerment to health and welfare fail to
consider and properly weigh the offsetting harms to health and welfare
necessarily flowing from economically destructive regulation.''
Virginia at 3.
The petitioners' information regarding the impact to petitioners
and others often follows sections of the petitions in which petitioners
raise allegedly new concerns with the science underlying the Findings.
The information regarding the impact from the Findings is most often
provided in order to emphasize to EPA the necessity of reconsidering
the Findings based on those earlier concerns.\53\ See, e.g., Texas at
35 (``In light of these * * * concerns * * * the Administrator's
improper handling of the scientific assessment process takes on an even
greater meaning.''); Letter from WV Coal Assn. at 1 (``EPA's findings
would have a grave impact on our industry and the thousands of West
Virginians who depend on the production and use of our high quality
coal everyday * * *. This makes it all the more important that EPA
suspend its decision and reconsider it in light of these important new
developments.'').
---------------------------------------------------------------------------
\53\ Petitioners also provide this information in the context of
requesting an administrative stay of the Findings from EPA. See
Section II for a discussion of EPA's denial of these stay requests.
---------------------------------------------------------------------------
The objections based either explicitly or implicitly on EPA's
decision to not consider the impacts of greenhouse gas regulations when
making the Findings could have been, and indeed were, raised during the
public comment period on the Findings. Thus, they are not properly
raised in CAA section 307(d) petition for reconsideration and are
therefore denied.
Moreover, as discussed elsewhere in this Decision and supporting
material, this information is essentially irrelevant to the scientific
based questions before EPA when making the endangerment and
contribution findings. EPA already explained in the Findings how the
potential impacts from the regulations that may follow an endangerment
finding are not proper considerations when determining whether GHGs may
reasonably be anticipated to endanger public health or welfare. See
generally, 74 FR at 66515-16; see also id. at 66515 (The Administrator
``must base her decision about endangerment on the science, and not on
policy considerations about the repercussions or impact of such a
finding.''); id. at 66516 (``Therefore, it is reasonable to interpret
the endangerment test as not requiring the consideration of the impacts
of implementing the statute in the event of an endangerment finding as
part of the endangerment finding itself.'').
Finally, as detailed elsewhere in this Decision and RTP document,
the CRU e-mails and other scientific information provided by the
petitioners do not call into question the underlying science, EPA's
reliance on it, or the Administrator's final determination.
2. A Formal Rulemaking Process Is Not Required
One petitioner discusses why EPA should not only reconsider the
Findings, but also utilize the formal rulemaking process in the
reconsideration proceedings. Peabody Energy at IX-9 to IX-18.
Essentially, the petitioner believes that the questions raised by the
CRU e-mails and errors in IPCC AR4 are so serious that EPA's
responsibilities to address them can be discharged only through
granting reconsideration, and undertaking a formal rulemaking process.
More specifically, the petitioner states that ``[a]n on-the-record
proceeding is necessary to rectify the substantial flaws in the process
that EPA has employed, flaws that stem from the abuses infecting the
studies on which the Endangerment Finding is principally based.''
Peabody Energy at IX-9.
In support of its argument, petitioner first notes that while EPA
may not be required by the CAA to undertake an on-the-record
proceeding, nothing prohibits EPA from undertaking more process than is
required by statute. Id. at IX-9 to IX-10. The petitioner then argues
that case law and ``other authoritative guidance,'' specifically
guidance from the Administrative Conference of the United States
(ACUS), ``make clear than an evidentiary hearing'' on the petitions for
reconsideration is warranted. Id. at IX-10. The petitioner contends
that a formal evidentiary hearing will fix EPA's record, which they
claim is ``wholly inadequate'' and cannot justify finding endangerment
to public health.\54\ More specifically, they claim that a ``responsive
thrust and parry'' about the science underlying the Administrator's
decision, including ``secondary sources'' such as the IPCC, should
occur and that the informal rulemaking proceeding EPA undertook does
not allow for this. Peabody Energy at IX-16.
---------------------------------------------------------------------------
\54\ EPA responds to the argument regarding the public health
finding in section IV.B.I of the Findings and Volume 5 of the RTC
document.
---------------------------------------------------------------------------
Comments suggesting that EPA undertake a formal rulemaking process,
not only could have been raised, but were raised, during the comment
period for the Findings. 74 FR at 66504-05, 66510-12. Thus, they are
not appropriately raised in petitions for reconsideration. Please see
the above portions of the Findings, RTC Volume 1, and Section III of
this Decision for further discussion on why EPA's denial of the request
for formal hearing in the Findings, and the agency's continued reliance
on the assessment reports, is reasonable.
To the extent that the petitioners are re-raising these comments in
light of the CRU e-mails and IPCC developments, and asking for EPA to
reconsider its prior denial of the request for a formal rulemaking
hearing, for the reasons explained elsewhere in this Decision and
supporting materials, these materials do not necessitate EPA granting
reconsideration, let alone initiating the exceedingly rare process of a
formal, on-the-record rulemaking. When all is said and done, the CRU e-
mails and IPCC errors do not call into question the science supporting
the Administrator's decision. They surely do not rise to the level of
``extremely
[[Page 49592]]
compelling circumstances'' that petitioner argues would justify a court
dictating that EPA undertake formal rulemaking procedures. Peabody
Energy at IX-10.
Petitioner argues that while EPA is not required by the CAA to
follow a formal rulemaking process, EPA has the authority to convene
such a hearing and nothing in the CAA should be read to ``limit EPA's
discretion in deciding whether to do so.'' Peabody Energy at IX-9. n.
494. The petition also notes that EPA is equipped to undertake such a
hearing, citing the existing procedures for adjudications, 40 CFR
22.3(a). While EPA may have the discretion to provide more process than
the minimum required by CAA section 307(d), EPA notes that the petition
does not discuss how a formal on-the-record hearing process would fit
within the informal rulemaking proceedings mandated by the CAA. See 74
FR at 66505 (noting that original request also did not discuss how a
formal hearing would fit with CAA requirements). Nor does it discuss
how the 40 CFR part 22 regulations, which are entitled ``Consolidated
Rules of Practice Governing the Administrative Assessment of Civil
Penalties and Revocation/Termination or Suspension of Permits'' and
cover administrative adjudicatory proceedings for specifically
delineated civil penalty or permit actions, would authorize the type of
hearing petitioner suggests, or even how they would work assuming EPA
chose to apply them as suggested by petitioner.
The cases cited by petitioner stand for the unsurprising
proposition that some circumstances justify more or different
procedures than others. But they do not, as petitioner alleges, lead to
the inevitable conclusion that the only reasonable recourse for EPA is
to undertake a formal rulemaking process.\55\ Indeed, that would be a
departure ``from the very basic tenet of administrative law that
agencies should be free to fashion their own rules of procedure.''
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 544 (1978).
In Vermont Yankee the Supreme Court rejected an argument similar to
that being made by petitioner here--that the issues before the agency
were so complex and important that they necessitated more process,
including cross-examination, even if such procedures were beyond the
minimum required. Id. at 539-49. Also see Kennecott, 684 F.2d at 1020
fn 33.
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\55\ The extremely compelling circumstances found by courts in
the cases cited by petitioners do not exist here. See People of the
State of Illinois v. United States, 666 F.2d 1066, 1082-83 (7th Cir.
1981) (court relied upon a combination of unique factors including
that the Interstate Commerce Commission had allowed cross-
examination on some information in an adjudicatory proceeding, but
not other similar information, and the cross-examination had been
found to be ``critical to achieving an accurate determination of the
facts.''); National Wildlife Federation v. Marsh, 721 F.2d 767,
(11th Cir. 1983) (the court merely required the Army Corps of
Engineers to follow its own longstanding internal procedures when
issuing a permit). EPA also notes that two of the cases the
petitioner cites for the proposition that ``cross examination is the
most effective way to ascertain the truth,'' Peabody at IX-15, are
criminal cases, therefore it is not surprising that cross-
examination was at issue. The third, discussed above, involved a
decision in which the agency had already decided to allow cross-
examination. People, 666 at 1083.
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To the extent that petitioner argues that EPA's record is
inadequate if it does not include the ``thrust and parry'' of a formal
rulemaking hearing, with cross examination, EPA disagrees. Congress
clearly indicated that the robust informal rulemaking procedures of CAA
section 307(d) are appropriate for the myriad complex issues that EPA
must address when issuing particular CAA rules. Nothing that
petitioners have provided call into question EPA's decision to follow
the clear direction provided in section 307(d).
Indeed, the robust informal rulemaking requirements of section
307(d) of the CAA ensure adequate and appropriate notice and comment
for CAA decisions. See generally 74 FR 66500-05 (discussing the public
involvement in development of the Findings, including EPA's careful
review and response to more than 380,000 public comments). Moreover,
the section 307(d) reconsideration process provides ample opportunity
for petitioners, and any other interested party, to submit to EPA for
consideration new information which they believe is of central
relevance to the Administrator's final decision, and hence necessitates
reconsideration of that decision. Other than continuing to disagree
with EPA's denial of the original request for a formal rulemaking, and
continuing to state its opinion that the science and regulatory impact
from an endangerment finding demands more process, petitioner has not
demonstrated why the clearly applicable procedures of section 307(d)
are inadequate, let alone why only the rarely-used formal rulemaking
process is the only reasonable path forward. Petitioners have submitted
over 500 pages of reconsideration petitions, as well as attachments
consisting of hundreds of pages that contain information including
dozens of studies, more than 300 pages of computer code, and more than
1000 e-mails. Peabody Energy and other petitioners have had a full
opportunity, both in the underlying rulemaking and in the
reconsideration process, to submit whatever information or evidence
they want concerning the variety of scientific and other issues of
concern to them, such as those identified at Peabody IX-12. EPA's
lengthy and detailed Denial, including this document and the RTP
document, carefully examines each objection raised and explains why
each objection is untimely and/or not of central relevance. The CAA
reconsideration process provides ample opportunity for interested
parties to present new information to EPA, and for EPA to examine that
information. Petitioner has not identified what cross examination it
thinks is required to ``ensure that results reached by EPA reflect
scientific truths''. For example, do they envision cross examination of
all of the authors of the thousands of studies discussed in the
rulemaking, or discussed in an assessment report? Cross examination of
every author and other participant in an assessment report? Cross
examination of agency scientists? And for all of these, on what
subjects and issues? The administrative record includes the assessment
reports and their integration of the science within areas of climate
research and across various areas of climate research, as well as EPA's
TSD and additional reports and studies provided by commenters. The
proposed and final Findings also included the Administrator's judgments
and conclusions on all of this evidence. Petitioners have failed to
explain what facts they would like cross examination on, what witnesses
they envision cross examining, and how any such examination would add
in any way, much less a practical way, to the ability they already
have, through submission of comments and petitions to reconsider, to
attack and contest at length any and all of these parts of the informal
rulemaking record. They have failed to demonstrate how their broad,
general assertions of a better process would actually work as a
practical way to better ensure the scientific integrity of the record
before the Agency. It is quite reasonable for EPA to rely on the robust
and in-depth informal rulemaking procedures followed in this
rulemaking, as mandated by Congress, rather than embark on the rarely-
used formal rulemaking pathway.
As discussed in the final Findings, the ACUS guidelines are non-
binding recommendations regarding ``important circumstances tending to
suggest the desirability of such procedural devices''. 1 U.S.C. 305.76-
3(1). EPA notes that the ACUS recommendations cited by petitioner are
not specifically for the formal rulemaking proceedings
[[Page 49593]]
suggested by petitioner. Rather, they are more general, for ``[h]earing
argument and other oral presentation, when the presiding agency
official or officials may ask questions, including questions submitted
by interested persons.'' 1 U.S.C. 305.76-3(1)(f). The CAA requires a
hearing and opportunity for oral presentation, CAA section 307(d)(5),
and EPA held two hearings during which interested parties could present
their arguments and information and EPA could ask questions. Thus, EPA
has already undertaken procedures similar to those recommended by the
ACUS.
Last, part of the recommendation of the ACUS not raised by
petitioner is the following:
An agency should employ any of the devices specified in
paragraph 1 or permit cross-examination only to the extent that it
believes that the anticipated costs (including those related to
increasing the time involved and the deployment of additional agency
resources) are offset by anticipated gains in the quality of the
rule and the extent to which the rulemaking procedure will be
perceived as having been fair.
1 U.S.C. 305.76-3(3).
For all the reasons stated above, in the final Findings, and
elsewhere in this document and supporting material, EPA does not
believe that the potential for gains in the quality of the
Administrator's decision, if any, would offset the costs, both in terms
of agency resources and delay. Moreover, the section 307(d) rulemaking
process is quite fair, providing adequate opportunity for everyone, and
not just parties who could afford to participate in a formal hearing,
to present their views. Contrary to petitioner's argument, it resulted
in a record that is both scientifically sound and adequate.
For all the foregoing reasons, the request to reconsider its prior
decision and undertake a formal rulemaking, evidentiary hearing
process, is denied.
3. Discretion in Making an Endangerment Finding
Peabody Energy argues that whatever discretion EPA may have in
making an Endangerment Finding, it must justify and defend the specific
findings of endangerment it actually made. More specifically, Peabody
Energy argues that EPA did not assess the danger as low risk/high
magnitude. It found instead both a high risk and high magnitude of
harm, citing the following quotes from the Findings--``[t]he scientific
evidence is compelling that elevated concentrations of heat-trapping
greenhouse gases are the root cause of recently observed climate
change'' and ``[m]ost of the observed increase in global average
temperatures since the mid-20th century is very likely due to the
observed increase in anthropogenic GHG concentrations,'' with ``very
likely'' defined as 90-99% probability. Thus, they conclude, EPA must
now defend its high risk/high harm conclusion, even if arguendo it had
discretion to make a lower finding of endangerment.
Peabody Energy argues that this distinction between the
Endangerment Finding that EPA might be authorized to make and the
Endangerment Finding it actually made is crucial in light of the CRU
material. Peabody contends that even if EPA might still be able to make
an Endangerment Finding of some kind (a fact that Peabody does not
concede), that would not justify the Endangerment Finding that EPA
actually made and would not form a sufficient basis to allow EPA to
deny the petitions for reconsideration. Peabody argues that the
regulation that EPA ultimately proposes must be guided by the nature
and extent of the endangerment that EPA has found, because a high risk/
high magnitude endangerment finding might justify one level of
regulation, while a different finding might justify a different level.
Thus, Peabody Energy claims the question that EPA must answer at the
endangerment phase is not just ``endangerment, yes or no?,'' but
specifically what type of endangerment. In that context, Peabody Energy
argues that the revelations in the CRU material mean that EPA must
reconsider its Endangerment Finding no matter what level of legal
discretion the Agency has. Peabody Energy at IX-6 to 9.
Peabody Energy vastly oversimplifies the basis for EPA's
Endangerment Finding, characterizing it as a simple ``high risk/high
magnitude'' decision. With respect to existence of climate changes and
attribution to anthropogenic emissions of greenhouse gases, the
Administrator concluded that:
the scientific evidence linking human emissions and resulting
elevated atmospheric concentrations of the six well-mixed greenhouse
gases to observed global and regional temperature increases and
other climate changes to be sufficiently robust and compelling.
74 FR at 66523.
Based on this, the Administrator considered a wide variety of
categories of public health and welfare that could be affected by the
climate changes. The Administrator:
considered the state of the science on how human emissions and the
resulting elevated atmospheric concentrations of well mixed
greenhouse gases may affect each of the major risk categories, i.e.,
those that are described in the TSD, which include human health, air
quality, food production and agriculture, forestry, water resources,
sea level rise and coastal areas, the energy sector, infrastructure
and settlements, and ecosystems and wildlife. The Administrator
understands that the nature and potential severity of impacts can
vary across these different elements of public health and welfare,
and that they can vary by region, as well as over time.
Id at 66509.
For each of these categories the Administrator took into account
the varying degree of certainty of an impact as well as the potential
magnitude of an impact. She considered both beneficial as well as
adverse impacts. Id at 66524-537. There was no simple ``high risk/high
magnitude'' paradigm. Instead, the Administrator was aware that:
because human-induced climate change has the potential to be far
reaching and multi-dimensional, not all risks and potential impacts
can be characterized with a uniform level of quantification or
understanding, nor can they be characterized with uniform metrics.
Given this variety in not only the nature and potential magnitude of
risks and impacts, but also in our ability to characterize, quantify
and project into the future such impacts, the Administrator must use
her judgment to weigh the threat in each of the risk categories,
weigh the potential benefits where relevant, and ultimately judge
whether these risks and benefits, when viewed in total, are judged
to be endangerment to public health and/or welfare.
Id at 66523-24.
Instead of the simple approach described by Peabody Energy, the
Administrator properly exercised her judgment by taking into
consideration the complexity and breadth of the range of risks and
harms presented by the evidence.
In this context, Peabody Energy and other petitioners focus their
arguments and claims almost exclusively on the question of the
existence of climate change and its attribution to anthropogenic
emissions of greenhouse gases. After considering their claims, EPA is
denying the petitions to reconsider for the reasons described above.
They have not provided substantial support for the argument that the
Endangerment Finding should be revised, and EPA continues to find that
the ``scientific evidence linking human emissions and resulting
elevated atmospheric concentrations of the six well-mixed greenhouse
gases to observed global and regional temperature increases and other
climate changes to be sufficiently robust and compelling.''
In sum, contrary to Peabody Energy's assertion EPA did not employ a
simplified ``high risk/high magnitude'' paradigm in making the
Endangerment Finding. Instead the Administrator
[[Page 49594]]
carefully and comprehensively considered the recognized broad range of
varying risks and harms across multiple sectors of public health and
welfare. In addition, EPA is not now changing its Endangerment Finding
or using its discretion under section 202(a) to base it on a ``lower
finding of endangerment''.
V. Conclusion
For all of the reasons discussed above and in the accompanying RTP
document, the petitions to reconsider the Endangerment and Cause or
Contribute Findings for Greenhouse Gases under Section 202(a) of the
Clean Air Act are denied, as are the petitions for an administrative
stay.
Dated: July 29, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-19153 Filed 8-12-10; 8:45 am]
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