Petition for Writ of Certiorari — Concerned Household Electricity Consumers Council, et al., Petitioners v. Environmental Protection Agency
Supreme Court briefOct 17, 2023
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APPENDIX TABLE OF CONTENTS
Page
United States Court of Appeals for the District
of Columbia Circuit, Judgment, May 25,
2023 .................................................................. App. 1
Environmental Protection Agency, Denial of
Petitions, April 29, 2022................................... App. 9
United States Court of Appeals for the District
of Columbia Circuit, Order Denying Rehearing, May 25, 2023 ........................................... App. 96
Seventh Supplement to Petition for Reconsideration ................................................................ App. 98
Excerpts of Brief of Petitioners, United States
Court of Appeals for the District of Columbia
Circuit ........................................................... App. 135
App. 1
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 22-1139
September Term, 2022
FILED ON: MAY 25, 2023
CONCERNED HOUSEHOLD ELECTRICITY CONSUMERS
COUNCIL, ET AL.,
PETITIONERS
V.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
AMERICAN LUNG ASSOCIATION, ET AL.,
INTERVENORS
Consolidated with 22-1140
-------------------------------------------
On Petitions for Review of a Final Action
of the Environmental Protection Agency
-------------------------------------------
Before: HENDERSON, KATSAS, and PAN, Circuit
Judges.
JUDGMENT
These consolidated cases were considered on the
record from the Environmental Protection Agency
and on the briefs and arguments of the parties. The
Court has accorded the issues full consideration and
App. 2
determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). For the reasons stated below,
it is:
ORDERED that the petitions for review filed by
the Concerned Household Electricity Consumers Council and the FAIR Energy Foundation are DISMISSED.
*
*
*
The Concerned Household Electricity Consumers
Council (“CHECC”) and the FAIR Energy Foundation
(“FAIR”) unsuccessfully petitioned the Environmental
Protection Agency (“EPA”) to reconsider its 2009 finding that greenhouse gas emissions from motor vehicles
contribute to climate change and thus endanger public
health and welfare. CHECC and FAIR now ask this
court to review the EPA’s decision not to reconsider the
2009 finding. See CHECC Am. Pet. for Rev. (June 28,
2022); FAIR Am. Pet. for Rev. (June 29, 2022); see also
42 U.S.C. § 7607(b)(1) (providing for direct review in
the D.C. Circuit). We dismiss both cases for lack of
standing.
Section 202 of the Clean Air Act requires the EPA
to regulate “any air pollutant from any class or classes
of new motor vehicles or new motor vehicle engines,
which in [its] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7521(a)(1). In
2009, the EPA found that greenhouse gases from motor
vehicles meet that statutory standard for regulation.
See Endangerment and Cause or Contribute Findings
for Greenhouse Gases Under Section 202(a) of the
App. 3
Clean Air Act, 74 Fed. Reg. 66,496, 66,497–99 (Dec. 15,
2009) (the “Endangerment Finding”); see also Massachusetts v. EPA, 549 U.S. 497, 528–32 (2007) (holding
that the Clean Air Act authorizes the EPA to regulate
greenhouse gas emissions). In the face of numerous
challenges from states and industry groups, we upheld
the Endangerment Finding and the EPA’s denials of
various petitions for reconsideration of that Finding.
See Coal. for Responsible Regul., Inc. v. EPA, 684 F.3d
102, 116–26 (D.C. Cir. 2012) (per curiam), rev’d in part
on other grounds sub nom. Util. Air Regul. Grp. v. EPA,
573 U.S. 302 (2014).
CHECC and FAIR filed new petitions for reconsideration of the Endangerment Finding in 2017 and
2019, respectively. In the alternative, they asked the
EPA to conduct a new rulemaking under § 553(e) of the
Administrative Procedure Act to issue “a new ‘NonEndangerment Finding.’ ” See CHECC 2017 Pet. 1, 4;
FAIR 2019 Pet. 3–4, 6; see also 5 U.S.C. § 553(e); 42
U.S.C. § 7607(d)(7)(B). The petitions argue that “[s]cientific research since the adoption of the Endangerment Finding has invalidated” the EPA’s earlier
conclusions regarding the link between greenhouse
gas emissions and climate change. CHECC 2017 Pet.
1; see also FAIR 2019 Pet. 2. The EPA issued its final
denial of the petitions for reconsideration in April 2022.
See Endangerment and Cause or Contribute Findings
for Greenhouse Gases Under Section 202(a) of the
Clean Air Act; Final Action on Petitions, 87 Fed. Reg.
25,412 (April 29, 2022). In denying the petitions, the
EPA determined that the arguments and evidence that
App. 4
CHECC and FAIR proffered to challenge the Endangerment Finding were “inadequate, erroneous, and deficient.” See EPA’s Denial of Petitions Relating to the
Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean
Air Act, at 1 (April 29, 2022), https://www.regulations.
gov/document/EPA-HQ-OAR-2022-0129-0053.
Article III of the Constitution “limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’ ”
Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992). Petitioners seeking relief from this court must therefore
show that they meet “the irreducible constitutional
minimum of standing,” which requires (1) “an injury in
fact . . . which is (a) concrete and particularized; and
(b) actual or imminent, not conjectural or hypothetical”; (2) “a causal connection between the injury and
the conduct complained of ”; and (3) proof that it is
“likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at
560–61 (cleaned up).
Petitioners fail to meet their burden to establish
standing because they provide no evidence that they
or any of their members have been injured by the Endangerment Finding. It is well established that “a petitioner whose standing is not self[-]evident should
establish its standing by the submission of its arguments and any affidavits or other evidence appurtenant thereto . . . with the petitioner’s opening brief.”
Sierra Club v. EPA, 292 F.3d 895, 900 (D.C. Cir. 2002).
“[T]he petitioner may carry its burden of production by
citing any record evidence relevant to its claim of
App. 5
standing and, if necessary, appending to its filing additional affidavits or other evidence sufficient to support
its claim.” Id. at 900–01; see also Twin Rivers Paper Co.
v. SEC, 934 F.3d 607, 613 (D.C. Cir. 2019) (collecting
cases and noting that “[w]e have reiterated these principles many times”); D.C. Cir. R. 28(a)(7) (codifying this
requirement in our local rules).
Here, it is not self-evident from the administrative
record that the Endangerment Finding injures petitioners. Neither CHECC nor FAIR is “directly regulated by the challenged rule.” Am. Fuel & Petrochem.
Mfrs. v. EPA, 3 F.4th 373, 379 (D.C. Cir. 2021) (citing
Sierra Club, 292 F.3d at 900). Yet petitioners submitted no affidavits or other evidence to establish standing, instead merely arguing in their briefs that the
Endangerment Finding has injured them or their
members. See Pet’rs’ Br. 31–35. Of course, arguments
in “briefs ‘are not evidence.’ ” Twin Rivers, 934 F.3d at
613 (quoting Sierra Club, 292 F.3d at 901). Under our
precedents and Circuit Rule 28(a)(7), petitioners’ failure to provide evidence of any injury from the Endangerment Finding is a sufficient ground to dismiss these
cases for lack of standing. See, e.g., Transp. Div. of Int’l
Ass’n of Sheet Metal, Air, Rail & Transp. Workers v. Fed.
R.R. Admin., 40 F.4th 646, 660–61 (D.C. Cir. 2022)
(holding that petitioners lacked standing because they
“neither identified record evidence nor submitted new
evidence to this court showing that they have members
who” were affected by the challenged agency action);
Util. Workers Union of Am. Loc. 464 v. FERC, 896 F.3d
573, 578 (D.C. Cir. 2018) (holding that petitioners who
App. 6
“made only conclusory assertions” but “offer[ed] no new
affidavits” of cognizable injury lacked standing); Am.
Chemistry Council v. Dep’t of Transp., 468 F.3d 810, 819
(D.C. Cir. 2006) (dismissing petition for review where
“petitioners submitted no affidavits or other forms of
evidence” of cognizable injury); City of Waukesha v.
EPA, 320 F.3d 228, 237 (D.C. Cir. 2003) (holding that
advocacy group that “provided no affidavit that establishes with specificity and concreteness any particular
member . . . that is likely to suffer increased drinking
water costs” had failed to establish standing).
In any event, petitioners’ theories of standing are
fatally flawed. CHECC’s claim of representational standing fails because CHECC’s arguments do not demonstrate that “at least one of its members [has] standing
to bring the petition in his or her own right.” Cmtys.
Against Runway Expansion, Inc. v. FAA, 355 F.3d 678,
684 (D.C. Cir. 2004) (citing Hunt v. Wash. State Apple
Advert. Comm’n, 432 U.S. 333, 343 (1977)). CHECC
says only that its members are each “a U.S. citizen and
a member of a household that pays electricity bills” and
that the Endangerment Finding will lead to regulations that increase the households’ electricity rates.
Pet’rs’ Br. 31. But CHECC draws no connection between the Endangerment Finding (which compels the
regulation of motor vehicle emissions under § 202(a) of
the Clean Air Act) and the price of residential electricity. Indeed, CHECC’s brief does not identify a single
regulation based on the Endangerment Finding that
has affected its members. Because CHECC has failed
App. 7
to establish that the Endangerment Finding injured
any of its members, it lacks representational standing.
Next, FAIR and CHECC both claim organizational
standing – that is, standing to sue in their own rights,
rather than on behalf of their members. To evaluate
this argument, “we ask, first, whether the agency’s action or omission to act ‘injured the organization’s interest’ and, second, whether the organization ‘used its
resources to counteract that harm.’ ” PETA v. USDA,
797 F.3d 1087, 1094 (D.C. Cir. 2015) (alteration omitted) (quoting Equal Rts. Ctr. v. Post Props., Inc., 633
F.3d 1136, 1140 (D.C. Cir. 2011)); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (explaining that an organization must assert “more than
simply a setback to the organization’s abstract social
interests”). CHECC’s organizational standing argument founders at the outset because it never states
what its mission is, much less how the Endangerment
Finding affects that mission or causes CHECC to expend resources. See Pet’rs’ Br. 34. For its part, FAIR
explains that it “seeks to educate policy makers and
the public that abundant energy is the core driver of
global prosperity and that free-market energy policies
and energy abundance will produce prosperity, security[,] and human flourishing around the world.” Id. at
33–34. But FAIR gives no hint about how it “used its
resources to counteract [any alleged] harm” from the
Endangerment Finding. PETA, 797 F.3d at 1094 (citation omitted). Accordingly, FAIR has asserted “simply a
setback to the organization’s abstract social interests,”
App. 8
which is insufficient to establish standing. Havens Realty, 455 U.S. at 379.
Petitioners’ reply brief raises additional arguments in favor of standing. See Pet’rs’ Reply Br. 3–8.
Because those contentions did not appear in petitioners’ opening brief, they are forfeited. See Scenic Am.,
Inc. v. Dep’t of Transp., 836 F.3d 42, 53 n.4 (D.C. Cir.
2016) (explaining that parties may forfeit arguments
that we have jurisdiction); Sierra Club, 292 F.3d at 900
(requiring petitioners to demonstrate standing in their
“opening brief ”). In any case, we have reviewed the additional arguments and have determined that they are
without merit.
For the foregoing reasons, we dismiss the petitions
for review for lack of jurisdiction.
Pursuant to D.C. Circuit Rule 36, this disposition
will not be published. The Clerk is directed to withhold
issuance of the mandate until seven days after resolution of any timely petition for rehearing or petition for
rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R.
41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
App. 9
EPA’s Denial of Petitions Relating to the Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the
Clean Air Act
(Filed Apr. 29, 2022)
The Environmental Protection Agency (EPA) is denying four petitions received between 2017 and 2019 regarding the Endangerment and Cause or Contribute
Findings for Greenhouse Gases under Section 202(a)
of the Clean Air Act. This decision document sets forth
the basis for this action. The Findings were signed by
the Administrator on December 7, 2009. On January
19, 2021, the EPA denied all four petitions with a very
brief discussion. On March 23, 2021, the EPA withdrew
that denial of the petitions as the response did not provide adequate justification and indicated the intent to
reassess the petitions and issue a new decision. EPA
has carefully reviewed all of the petitions, including
any supporting information submitted by petitioners,
and reviewed both the scientific record and the Administrator’s decision process underlying the 2009
Endangerment Finding in light of these petitions.
EPA’s analysis of the petitions concludes that the petitioners have provided inadequate, erroneous, and deficient arguments and evidence for their assertions that
the underlying science supporting the 2009 Endangerment Finding is flawed, misinterpreted, or inappropriately applied by EPA. Thus, EPA concludes that these
assertions do not warrant reconsideration of, or initiating rulemaking to revisit, the 2009 Endangerment
Finding. Similarly, after reviewing the petitioners’
App. 10
assertions about flaws in the process or approach that
was used to develop the 2009 Endangerment Finding,
EPA disagrees that reconsideration or reopening of the
2009 Endangerment Finding is warranted on those
grounds. 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 recent scientific assessments of the National Academies,
the US Global Change Research Program, and the
Intergovernmental Panel on Climate Change. In addition, petitioners’ claims regarding both science and
process are similar in nature and scope to those previously addressed by EPA in responding to public
comments on the proposed Endangerment Finding, in
denying prior petitions for reconsideration of the 2009
Endangerment Finding, and during judicial review of
the 2009 Endangerment Finding, which were resolved
in the 2012 decision of the U.S. Court of Appeals for the
District of Columbia Circuit upholding the 2009 Endangerment Finding.
Table of Contents
I.
Introduction ...............................................
2
II.
Background on the Endangerment and
Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the
Clean Air Act .............................................
5
App. 11
III.
Legal Framework for Review of Petitions ...........................................................
7
IV.
Background on Continued Advances in
Climate Science ......................................... 11
V.
Arguments Raised by Petitions Relating
to the Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act ..... 14
VI. Conclusion .................................................. 39
[2] I.
Introduction
EPA is denying four petitions regarding the Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act
(“2009 Endangerment Finding”) (74 Fed. Reg. 66496,
December 15, 2009), which are styled respectively as:
•
Petition for Reconsideration of “Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(A) of
the Clean Air Act,” submitted on behalf of the
Concerned Household Electricity Consumers
Council (CHECC) and seven individuals via a
letter dated February 1, 2017;
•
Petition for Rulemaking on the Issue of Greenhouse Gases and Public Health and Welfare,
submitted on behalf of the Competitive Enterprise Institute, the Science and Environmental
Policy Project, and four individual members of
the latter’s Board of Directors (CEI) in February of 2017;
App. 12
•
Petition to Reopen and Reconsider “Endangerment and Cause or Contribute Findings
for Greenhouse Gases Under Section 202(a) of
the Clean Air Act,” filed by the FAIR Energy
Foundation (FAIR), received in May of 2019;
and
•
Petition to Reconsider Endangerment and
Cause or Contribute Findings for Greenhouse
Gases under Section 202(a) of the Clean Air
Act, 74 Fed. Reg. 66496 (December 15, 2009)
Docket No. EPA-HQ-OAR-2009-0171; FRL-90918; RIN 2060-ZA14 (“Endangerment Finding”)
submitted by the Texas Public Policy Foundation on behalf of Liberty Packing Company
LLC, Nuckles Oil Co., Inc. dba Merit Oil Company, Norman R. “Skip” Brown, Dalton Trucking Company, Inc., Loggers Association of
Northern California, Construction Industry
Air Quality Coalition, and Robinson Industries, Inc (TPP), dated May 1, 2017.
Between 2017 and 2019, EPA received these four petitions, which ask the Agency either to reconsider or to
initiate rulemaking in connection with the 2009 Endangerment Finding. Some petitioners also made supplemental submissions after submitting their original
petition.1 On January 19, 2021, the EPA denied all four
1
CHECC submitted seven supplements to the original petition between May 2017 and June 2021. Five of the supplements
provide additional arguments, and the other two include lists of
88 signatories who expressed support for reconsideration of the
2009 Endangerment Finding and offered to assist in preparing a
new Endangerment Finding assessment. Eight exhibits were submitted with the TPP petition.
App. 13
petitions with a very brief discussion. On March 23,
2021, the EPA withdrew that denial of the petitions as
the response did not provide adequate justification and
indicated the intent to reassess the petitions and issue
a new decision. In the intervening time, EPA has
carefully considered all four petitions, including the
arguments presented therein and the supplemental
submissions and any information provided by the petitioners as supporting evidence of their claims (collectively “petitions”). EPA has evaluated the merit of the
petitioners’ arguments in the context of the larger body
of scientific and other relevant information available
to the Agency, such as information in the record for the
2009 [3] Endangerment Finding. This response (hereafter “Denial” or “Decision”) provides EPA’s scientific
and legal justification for denying these four petitions.
In general terms, some of these petitions argue that
recent revelations show that the science supporting EPA’s
2009 Endangerment Finding was flawed or questionable, and that EPA should therefore reconsider, reopen,
or revise the 2009 Endangerment Finding. Other petitions raise process concerns regarding the approach
used in developing the 2009 Endangerment Finding
and supporting documents. After a comprehensive,
careful review and analysis of the petitions, EPA has
determined that the petitioners’ arguments and evidence are inadequate, erroneous, and do not show that
the underlying science supporting the 2009 Endangerment Finding is flawed, misinterpreted by EPA, or inappropriately applied by EPA. Rather, the science
supporting the Administrator’s finding that elevated
App. 14
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. This
conclusion has been strongly affirmed by recent scientific assessments of the National Academies, the US
Global Change Research Program, and the Intergovernmental Panel on Climate Change. As explained further below, EPA concludes that these assertions do not
warrant reconsideration or initiating rulemaking to
reopen the 2009 Endangerment Finding. Similarly, after reviewing the petitioners’ assertions about flaws in
the process or approach that was used to develop the
2009 Endangerment Finding, EPA disagrees that reconsideration, reopening or revision of the Finding is
warranted on those grounds.
The petitioners’ arguments and claims are similar in
nature and scope to those addressed in the previous
Response to Comments for the 2009 Endangerment
Finding (“RTC”), as well as the 2010 Response to Petitions for Reconsideration (“RTP”), and the 2012 decision by the United States Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”), which
upheld the 2009 Endangerment Finding against numerous challenges, ultimately concluding that it “is
consistent with Massachusetts v. EPA and the text and
structure of the CAA, and is adequately supported by
the administrative record.” Coalition for Responsible
Regulation, Inc. v. EPA, 684 F.3d 102, 117 (D.C. Cir.
2012) (per curiam) (subsequent history omitted). In
that decision, the court denied all the petitions for
App. 15
review of the 2009 Endangerment and Cause or Contribute Findings. Id. at 113-114. Much like comments
and petitions previously considered and addressed by
EPA, the petitioners rely on faulty statistical arguments, studies that have not gone through peer review,
mischaracterizations of the science upon which EPA
relied in developing the 2009 Endangerment Finding,
and cherry-picked trends for individual metrics over
short time periods and in small geographic regions,
while ignoring the larger breadth of the climate science
literature.
As discussed in detail throughout this Decision, 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, which provides the basis for the 2009 Endangerment Finding. 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 undermine any of the
scientific conclusions that underlie the 2009 Endangerment Finding, nor do [4] the petitions lower the degrees of confidence associated with each of these major
scientific conclusions.
More specifically, the petitions and the evidence they
present do not persuade EPA that there is any reason
to question the judgments and ultimate determination
made in the 2009 Endangerment Finding based on the
record available at that time. Moreover, as the EPA has
App. 16
explained in subsequent actions, information that has
become available since 2009 “strengthen[s] and further support[s] the judgment that GHGs in the atmosphere may reasonably be anticipated to endanger
the public health and welfare of current and future
generations.” 81 Fed. Reg. 54424 (Aug. 15, 2016). Furthermore, none of the information presented in the petitions demonstrates that revisiting the agency’s prior
understanding of the following key areas of greenhouse gas and climate change science is warranted: (1)
That current and historic anthropogenic emissions of
greenhouse gases are causing concentrations of greenhouse gases in our atmosphere to rise to elevated levels essentially unprecedented in human history; (2)
that the accumulation of greenhouse gases in our atmosphere is exerting a warming effect on the global
climate; (3) that warming of the climate system is unequivocal, as is evident from multiple types of observations, including increasing average global surface
temperatures, rising ocean temperatures and sea levels, and shrinking Arctic sea ice, 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 without substantial efforts to reduce
emissions, greenhouse gas concentrations are expected
to continue to climb, leading to greater rates of future
climate change relative to historic rates; and (6) that
the threat to public health will likely mount over time
as greenhouse gases continue to accumulate in the
App. 17
atmosphere and result in ever greater rates of climate
change (74 Fed. Reg. 66517-66518, 66524).
The 2009 Endangerment Finding was based on a close
and comprehensive scrutiny of the science, as reflected
in the major science assessments, and thus decisions
about whether to reopen these Findings should not be
based on a small number of reports, most of which were
not peer reviewed, and that do not conform to sound
scientific principles. In this regard, the petitioners’ arguments regarding the scientific underpinnings of the
2009 Endangerment Finding amount to a request that
EPA ignore the deep body of science that has been built
up over several decades, and reopen, reconsider, or revise the 2009 Endangerment Finding based not on a
careful and comprehensive analysis of the science and
literature, but instead on what amount to assertions
and leaps in logic based on inadequate, cherry-picked
evidence that does not meet important standards for
quality and peer review. In addition, while some petitions raise process concerns regarding the approach
used in developing the 2009 Endangerment Finding
and supporting documents, none of the petitions persuasively demonstrate that additional procedures are
warranted or would be appropriate at this point. Because the petitions do not provide any substantial support for the argument that the 2009 Endangerment
Finding should be reconsidered, reopened, or revised,
as described more fully below, EPA is denying these petitions.
App. 18
[5] II. Background on the Endangerment
and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a)
of the Clean Air Act
In Massachusetts v. EPA, 549 U.S. 497 (2007), a case
arising from EPA’s denial of a petition for rulemaking
to regulate GHGs under CAA section 202(a), the Supreme Court held that GHGs are air pollutants within
the meaning of the CAA and thus can be regulated under the CAA. Id. at 532.The Court further concluded
that in responding to the petition the Administrator
needed to determine whether emissions of GHGs from
new motor vehicles cause or contribute to air pollution
which may reasonably be anticipated to endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision. Id. at 532-533.
The Court explained that EPA could not avoid its obligations under section 202(a) “by noting the uncertainty surrounding various features of climate change
and concluding that it would therefore be better not to
regulate at this time,” while clarifying that if “the scientific uncertainty is so profound that it precludes
EPA from making a reasoned judgment as to whether
greenhouse gases contribute to global warming, EPA
must say so.” Id. at 534. The Court further explained
that in making these scientific findings and describing
its reasons for action or inaction, the agency was bound
by the provisions of section 202(a) of the CAA and that
EPA’s decision must relate to whether an air pollutant
“causes, or contributes to, air pollution which may
App. 19
reasonably be anticipated to endanger public health or
welfare.”2 Id. at 532-533.
Following that decision, the EPA published an Advance Notice of Proposed Rulemaking (ANPRM) on
July 30, 2008 presenting information relevant to potentially regulating GHGs under the Act and soliciting
public comment on how to respond to the Court’s ruling and the potential ramifications of the Agency’s decision to regulate GHGs under the CAA (73 Fed. Reg.
44354, 44468–73).3
On April 24, 2009, the EPA proposed endangerment
and cause or contribute findings for six well-mixed
greenhouse gases under section 202(a) of the Clean Air
Act, which were addressed collectively as a single air
pollutant. 74 Fed. Reg. 18886 (April 24, 2009).4 EPA
held a 60-day public comment period, which ended
June 23, 2009, and received over 380,000 public comments. After careful review and consideration of these
comments, the EPA published final Endangerment
and Cause or Contribute Findings under section 202(a)
of the Clean Air Act on [6] December 15, 2009 (74 Fed.
2
The Supreme Court decision can be found here: https://
www.supremecourt.gov/opinions/06pdf/05-1120.pdf.
3
The 2008 ANPRM, which described and solicited comment
on numerous petitions the Agency had received to regulate GHG
emissions from both stationary and mobile sources, can be found
here: https://www.gpo.gov/fdsys/pkg/FR-2008-07-30/pdf/E8-16432.pdf.
4
The proposed finding can be found here: https://www.gpo.
gov/fdsys/pkg/FR-2009-04-24/pdf/E9-9339.pdf. The EPA held a 60day public comment period which ended June 23, 2009 and two
public hearings, and received over 380,000 comments.
App. 20
Reg. 66496):5 An extensive 11-volume Response to
Comments document accompanied the final agency action.
•
Endangerment Finding: The Administrator
found that the then current and projected
concentrations of the combined mix in the atmosphere of the six well-mixed GHGs—CO2,
methane, nitrous oxide, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride—
endanger the public health and welfare of current and future generations.
•
Cause or Contribute Finding: The Administrator found that the combined emissions of
the six well-mixed GHGs from new motor vehicles and new motor vehicle engines contribute to the GHG pollution which threatens
public health and welfare.
These findings did not themselves impose any requirements on industry or other entities.6 Following publication of the final 2009 Endangerment Finding, EPA
5
The Finding and 11 response to comment volumes, covering
a broad range of scientific, technical, review process and administrative issues, and other matters raised by the public, can be
found here: https://www.gpo.gov/fdsys/pkg/FR-2009-12-15/pdf/E929537.pdf, https://www.epa.gov/ghgemissions/appendices-and-pdfversions-epas-response-public-commentsproposed-endangerment-and.
6
These findings did compel the EPA to promulgate GHG
emission standards for new motor vehicles under section 202(a),
and the Agency has issued several such emissions standards since
May of 2010, when it, in collaboration with the National Highway
Traffic Safety Administration, finalized the first GHG emission
standards for light-duty vehicles (2012–2016 model years). 75
Fed. Reg. 25324 (May 7, 2010).
App. 21
received 10 petitions to reconsider the Finding. After
careful review and consideration of the arguments and
evidence submitted, the EPA denied these 10 petitions
for reconsideration on July 29, 2010.7
On June 26, 2012, the D.C. Circuit in Coalition for Responsible Regulation, Inc. v. EPA denied all the petitions for review of the 2009 Endangerment and Cause
or Contribute Findings. 684 F.3d 102 (D.C. Cir. 2012)
(per curiam), reh’g denied 2012 U.S. App. LEXIS 26313,
26315, 25997 (D.C. Cir. 2012). Petitions for certiorari
were filed in the Supreme Court, and on October 15,
2013, the Supreme Court granted six of those petitions
but “agreed to decide only one question: ‘Whether EPA
permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered
permitting requirements under the Clean Air Act for
stationary sources that emit greenhouse gases.’ ” Utility Air Reg. Group v. EPA, 134 S. Ct. 2427, 2438 (2014);
see also Virginia v. EPA, 134 S. Ct. 418 (2013), Pac. Legal Found. v. EPA, 134 S. Ct. 418 (2013), and Coalition
for Responsible Regulation, Inc. v. EPA, 134 S. Ct. 468
(2013) (all denying cert.). Thus, in granting further review on that single issue, the Supreme Court did not
disturb the D.C. Circuit’s holding that affirmed the
2009 Endangerment Finding. A fuller summary of the
background of the 2009 Endangerment Finding can be
7
The 10 petitions for reconsideration of the 2009 Finding
and the Agency denial can be found here: https://www.epa.gov/
climate-change/denial-petitions-reconsideration-endangermentand-cause-orcontribute-findings
App. 22
found at 81 Fed. Reg. 54422, 54425-26, 54434-35 (August 15, 2016).
[7] For additional context, we note that on August 15,
2016, the EPA issued similar findings under a different
provision of the Clean Air Act. Specifically, EPA finalized the “Finding that Greenhouse Gas Emissions
from Aircraft Cause or Contribute to Air Pollution that
May Reasonably Be Anticipated to Endanger Public
Health and Welfare.” 81 Fed. Reg. 54422.8 That action
included two findings under section 231(a)(2)(A) of the
CAA. These findings were that: (1) Elevated concentrations of the six well-mixed GHGs in the atmosphere—
CO2, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride—endanger the
public health and welfare of current and future generations within the meaning of CAA section 231(a)(2)(A)
(the endangerment finding), and (2) emissions of the
aggregate group of those same six GHGs from certain
classes of engines used in certain aircraft are contributing to the air pollution—the mix of those GHGs in
the atmosphere—that endangers public health and
welfare under CAA section 231(a)(2)(A) (the cause or
contribute finding, or contribution finding).9 The EPA
8
Available at https://www.gpo.gov/fdsys/pkg/FR-2016-08-15/
pdf/2016-18399.pdf
9
Prior to finalization, EPA informed the Science Advisory
Board (SAB) of this action and provided it an opportunity to review this approach to the underlying technical and scientific information supporting the action. A copy of the Science Advisory
Board’s letter to EPA that memorializes its decision not to undertake such a review can be found in the docket for the 2016 Findings under Section 23 1 (a)(2)(A): EPA–HQ–OAR–2014–0828.
App. 23
explained that it was “following the same approach toward technical and scientific information in this finding under section 231(a)(2)(A) as it used in the 2009
Endangerment Finding.” 81 Fed. Reg. 54440. Thus, in
the context of the 2016 Findings, EPA reviewed a number of new major peer-reviewed scientific assessments
that had been released since 2009, finding that “these
new assessments are largely consistent with, and in
many cases strengthen and add to, the already compelling and comprehensive scientific evidence detailing
the role of the six well-mixed GHGs in driving climate
change, explained in the 2009 Endangerment Finding.” 81 Fed. Reg. 54442; see also id. at 54434.
III. Legal Framework for Review of Petitions
The four administrative petitions addressed in this denial are variously framed as petitions for reconsideration or petitions for rulemaking regarding the 2009
Endangerment Finding. The petitions also variously
invoke different legal authorities, including section
307(d)(7)(B) of the CAA, the Administrative Procedure
Act at 5 U.S.C. 553(e) (APA), and the First Amendment
of the U.S. Constitution. For purposes of providing a
complete response, EPA is evaluating all of these petitions as petitions for rulemaking under the APA10 and
10
EPA is not separately addressing the claims founded in the
First Amendment to the Constitution as the APA’s petition provision in 5 U.S.C. 553(e) was designed as a specific statutory mechanism by which the public may exercise its First Amendment
right to petition the government. See U.S. Congress, Senate, Administrative Procedure Act: Legislative History, 79th Cong., 2nd
App. 24
evaluating those petitions that invoke CAA section
307(d)(7)(B) also as petitions for reconsideration under
that section. Given the ambiguities and inconsistencies in the petitioners’ legal claims, EPA reserves its
right to argue on judicial review that each petitioner
has failed to adequately invoke the proper legal authority for its petition.
[8] To the extent that the petitioners seek reconsideration of the 2009 Endangerment Finding under section
307(d)(7)(B) of the CAA, they fail to meet the statutory
criteria for such petitions. Section 307(d)(7)(B) strictly
limits petitions for 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
sess., July 26, 1946, S. Doc. 79-248 (Washington: GPO, 1946), at
359.
App. 25
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)).[11]
Thus, EPA is required to convene a reconsideration
proceeding under CAA section 307(d)(7)(B) only if a petitioner can demonstrate to EPA: (1)(a) That it was impracticable to raise the objection during the comment
period, or (1)(b) that the grounds for such objection
arose after the comment period but “within the time
specified for judicial review” and (2) that the objection
is “of central relevance to the outcome of the rule.” Section 307(d)(7)(B) does not mandate that EPA reconsider issues that actually were raised, or could have
been raised, during the period for public comment on
the proposed 2009 Endangerment Finding. Additionally, grounds for objection that arose more than 60
days after publication of the final rule12 in the Federal
11
As explained below, this is a nationally applicable action,
or in the alternative, to the extent a court might find this action
to be locally or regionally applicable, the Administrator is exercising the complete discretion afforded to him under the CAA to
make and publish a finding that it is based on a determination of
“nationwide scope or effect” within the meaning of CAA section
307(b)(1). Accordingly, any petition for judicial review of this action must be filed in the United States Court of Appeals for the
District of Columbia.
12
Under CAA section 307(d)(2), the term “rule” as used in
section 307(d) of the CAA includes “any action to which [section
307(d)] applies.” The 2009 Endangerment Finding was an “action” to which section 307(d) applied. 74 Fed. Reg. at 18889 and
n. 4 (April 24, 2009) (citing CAA section 307(d)(1)(K) and (V)) and
74 Fed. Reg. 66496, 66504-66505 (Dec. 15, 2009).
App. 26
Register are not a proper basis for a petition for reconsideration under section 307(d)(7)(B).13
The petitions fail to satisfy the criteria in CAA section
307(d)(7)(B) for mandatory reconsideration proceedings. First, petitioners fail to demonstrate either (a)
that it was impracticable to raise their objections during the comment period or (b) that the grounds for such
[9] objection arose after the comment period but
“within the time specified for judicial review.”14 Many
of the petitioners’ claims regarding the scientific basis
for the 2009 Endangerment Finding are similar in nature and scope to those previously addressed by EPA
in responding to public comments, and petitioners fail
to demonstrate that it was impracticable to raise
these objections during the period for public comment on the proposed 2009 Endangerment Finding.
For example, some petitioners point to post-comment
period information to argue that CO2 is not causing
13
See Alon Refining Krotz Springs Inc. v. EPA, 936 F.3d 628,
647-648 (D.C. Cir. 2019) (holding that the “time specified for judicial review” referenced in 307(d)(7)(B) encompasses only the initial 60-day window under section 307(b)(1) and does not extend to
subsequent 60-day periods from after-arising grounds).
14
Some of the petitions claim that EPA must convene a
proceeding for reconsideration upon a showing that (1) the information arose after the period for public comment on the Endangerment Finding and (2) the objection is of central relevance to
the outcome of the rule. (CHECC, p. 2; see also FAIR at pp. 3-4).
These claims, however, fail to accurately describe the first criterion in CAA 307(d)(7)(B), which requires a showing either 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 initial window for judicial review
under section 307(b)(1). See Alon, 936 F.3d at 647-648.
App. 27
climate problems because there is no statistically significant difference between temperatures in 1998 and
2016, although atmospheric concentrations of CO2 differed between these two years by 10%. But numerous
commenters raised substantively similar arguments
during the comment period on the 2009 Endangerment Finding, “posit[ing] the lack of correlation between global surface and satellite-derived temperature
trends and GHG changes calls into question any
cause and effect relationship” and specifically “not[ing]
global GHG emissions have dramatically risen since
2000 and yet there has not been a concomitant increase in global temperature.”15 Thus, despite the postcomment period information that petitioners now cite
to, the “objection” identified in their petitions is substantively similar to the objection raised during the
comment period on the 2009 Endangerment Finding—
i.e., the claim that an asserted lack of a statistical relationship between temperature data and CO2 concentrations over a selected time frame show that CO2 is
not causing climate problems. Petitioners fail to persuasively explain how their objection pertaining to the
climate impact of CO2 differs in any material respect
from the substantively similar objection raised in
2009, or why they could not raise the same objection in
2009 based on the temperature data and CO2 concentrations available at that time. As another example,
some petitioners point to analyses in reports from 2016
15
Comment (3-4) in the Response to Comments for the 2009
Endangerment Finding. These issues were thoroughly addressed
in the record for the 2009 Endangerment Finding. See, e.g., RTC
(3-4).
App. 28
and 2017 with the intent of showing that the cycles of
ENSO (El Nino Southern Oscillation) events are the
key driver behind the observed global warming
trend. However, several commenters raised nearly
identical objections during the public comment period
on the 2009 Endangerment Finding, arguing that “that
modes of interannual variation in oceanic temperature
and circulation such as the Pacific Decadal Oscillation
(PDO), the El Niño-Southern Oscillation (ENSO), and
the Atlantic Multidecadal Oscillation (AMO) could be
the proximate cause of most or all recent climate
changes.”16 Similarly, all of the procedural concerns
raised in the petitions, including the claim that EPA
should have submitted the proposed 2009 Endangerment Finding to the Science Advisory Board, could
have been raised during the public comment period on
the proposed 2009 Endangerment Finding.17 Nor do petitioners argue that that the 2009 Endangerment Finding was [10] not a logical outgrowth of the proposal.18
16
Comment (3-25) in the Response to Comments for the 2009
Endangerment Finding. These issues were also thoroughly addressed in the record for the 2009 Endangerment Finding. See,
e.g., RTC (3-25).
17
We note that any petition for reconsideration or rulemaking that is predicated on an alleged procedural defect in the promulgation of an existing rule is a direct challenge to the original
promulgation of that rule, which is time-barred if it falls outside
the period in which judicial review of the promulgated rule is permitted. See American Road & Transportation Builders Ass’n v.
EPA, 588 F.3d 1109, 1112 (D.C. Cir. 2009) (citing NLRB Union v.
FLRA, 834 F.2d 191, 196 (D.C. Cir. 1987)) and Alon, 936 F.3d at
643 (same).
18
See Alon, 936 F.3d at 648 (noting court’s prior construction
of impracticability prong to cover instances when the final rule
App. 29
Thus, petitioners fail to establish that it was impracticable to raise these objections at that time.
In addition, the petitioners fail to demonstrate that the
grounds for their objections arose after the comment
period but “within the time specified for judicial review” within the meaning of CAA section 307(d)(7)(B),
i.e., within 60 days after publication of the 2009 Endangerment Finding in the Federal Register. The 60day period for judicial review of the 2009 Endangerment Finding ended on February 16, 2010. 74 Fed. Reg.
66496 (December 15, 2009). It appears that the postcomment period information cited by the petitioners
became available well after that date. For example, the
CHECC petition states that the “matters in this Petition could not have been raised during the comment
period on the Endangerment Finding because the
Research Report on which this Petition principally
relies was first published on September 21, 2016,
close to seven years after the Endangerment Finding.”19 Other petitions similarly rely on documents that
became available long after February 16, 2010.20 These
was not a logical outgrowth of the proposed rule, which “involve
problems during the period for public comment on or petitioning
for review of the regulation itself—not problems that arise when
circumstances change years or decades later”).
19
CHECC petition, p. 2.
20
The FAIR petition, for example, states that it is drawing
from the Wallace Report, which was first published in September
2016 and supplemented in 2017, and cites work which appears to
have become available between in 2013 and 2019. See FAIR petition at pp. 2-5. CEI’s petition relies on information and documents
App. 30
documents fail to constitute grounds arising after
the comment period but within the time specified
for judicial review and, thus, are not a proper basis
for a petition for reconsideration under CAA section
307(d)(7)(B).21
Second, petitioners fail to demonstrate that any of
their objections “[are] of central relevance to the outcome of the rule.” Courts reviewing EPA’s bases for
denying petitions for mandatory reconsideration have
held that 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, e.g., Coalition for Responsible Regulation, 684 F.3d
at 125. Based on EPA’s conclusion that none of the objections raised in the petitions have merit, as discussed
in greater detail below, EPA finds that none of them
provide substantial support for the argument that the
2009 Endangerment Finding should be revised and
thus none are of central relevance to the outcome of the
2009 Endangerment Finding within the meaning of
CAA section 307(d)(7)(B).
In sum, the petitions for reconsideration of the 2009
Endangerment Finding do not meet the statutory criteria for mandatory reconsideration set forth in CAA
section 307(d)(7)(B). This conclusion alone supports denial of these petitions, insofar as they seek reconsideration under section 307(d)(7)(B). However, as many of
that appear to have become available between 2013 and 2017. See
CEI petition at pp. 3-5.
21
See Alon, 936 F.3d at 647-648.
App. 31
the petitions are framed as petitions for rulemaking,
either in the alternative or in the first instance, for purposes of this decision, EPA is also evaluating all of the
petitions as APA petitions for rulemaking to reopen or
revise the 2009 [11] Endangerment Finding.22 This
evaluation provides a consolidated response to all four
petitions, however they are styled. For the reasons described herein, we are denying all requests that EPA
reconsider or initiate rulemaking to reopen or revise
the 2009 Endangerment Finding.
IV. Background on Continued Advances in
Climate Science
To provide additional context for EPA’s consideration
of the claims raised in the petitions and its reasonable
decision not to reopen, revise, or reconsider the 2009
Endangerment Finding based on the petitions, EPA is
providing additional background on the continued advances in climate science. Since the 2009 Endangerment Finding, evidence regarding climatic changes has
continued to accumulate, with new records being set
for several climate indicators such as global average
surface temperatures, greenhouse gas concentrations,
and sea level rise. Additionally, major scientific assessments continue to be released that strengthen our understanding of the climate system and the impacts
that greenhouse gases have on public health and welfare for both current and future generations. These
22
Section 4(d) the APA (5 U.S.C. 553(e)) provides that “[e]ach
agency shall give an interested person the right to petition for the
issuance, amendment, or repeal of a rule.”
App. 32
updated observations and projections document the
rapid rate of climate change both globally and in the
United States. These recent assessments include:
•
23
USGCRP’s 2016 Climate and Health Assessment23 and 2017-2018 Fourth National Climate Assessment24,25
USGCRP, 2016: The Impacts of Climate Change on Human Health in the United States: A Scientific Assessment. Crimmins, A., J. Balbus, J.L. Gamble, C.B. Beard, J.E. Bell, D. Dodgen,
R.J. Eisen, N. Fann, M.D. Hawkins, S.C. Herring, L. Jantarasami,
D.M. Mills, S. Saha, M.C. Sarofim, J. Trtanj, and L. Ziska, Eds.
U.S. Global Change Research Program, Washington, DC, 312 pp.
24
USGCRP, 2017: Climate Science Special Report: Fourth
National Climate Assessment, Volume I [Wuebbles, D.J., D.W.
Fahey, K.A. Hibbard, D.J. Dokken, B.C. Stewart, and T.K. Maycock (eds.)]. U.S. Global Change Research Program, Washington,
DC, USA, 470 pp, doi: 10.7930/J0J964J6.
25
USGCRP, 2018: Impacts, Risks, and Adaptation in the
United States: Fourth National Climate Assessment, Volume II
[Reidmiller, D.R., C.W. Avery, D.R. Easterling, K.E. Kunkel,
K.L.M. Lewis, T.K. Maycock, and B.C. Stewart (eds.)]. U.S. Global
Change Research Program, Washington, DC, USA, 1515 pp. doi:
10.7930/NCA4.2018.
App. 33
[12] • IPCC’s 2018 Global Warming of 1.5°C26,
2019 Climate Change and Land27, and 2019
Ocean and Cryosphere in a Changing Climate28 assessments, as well as the three
26
IPCC, 2018: Global Warming of 1.5°C. An IPCC Special
Report on the impacts of global warming of 1.5°C above preindustrial levels and related global greenhouse gas emission
pathways, in the context of strengthening the global response to
the threat of climate change, sustainable development, and efforts to eradicate poverty [Masson-Delmotte, V., P. Zhai, H.-O.
Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. MoufoumaOkia, C. Péan, R. Pidcock, S. Connors, J.B.R. Matthews, Y. Chen,
X. Zhou, M.I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T.
Waterfield (eds.)].
27
IPCC, 2019: Climate Change and Land: an IPCC special
report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gas
fluxes in terrestrial ecosystems [P.R. Shukla, J. Skea, E. Calvo
Buendia, V. Masson-Delmotte, H.-O. Pörtner, D. C. Roberts, P. Zhai,
R. Slade, S. Connors, R. van Diemen, M. Ferrat, E. Haughey, S.
Luz, S. Neogi, M. Pathak, J. Petzold, J. Portugal Pereira, P. Vyas,
E. Huntley, K. Kissick, M. Belkacemi, J. Malley, (eds.)].
28
IPCC, 2019: IPCC Special Report on the Ocean and Cryosphere in a Changing Climate [H.-O. Pörtner, D.C. Roberts, V.
Masson-Delmotte, P. Zhai, M. Tignor, E. Poloczanska, K. Mintenbeck,
A. Alegría, M. Nicolai, A. Okem, J. Petzold, B. Rama, N.M. Weyer
(eds.)].
App. 34
volumes of the 2021 IPCC Sixth Assessment
Report (AR6).29,30,31
•
29
The NAS 2016 Attribution of Extreme Weather
Events in the Context of Climate Change32,
2017 Valuing Climate Damages: Updating
Estimation of the Social Cost of Carbon
IPCC, 2021: Summary for Policymakers. In: Climate
Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change [Masson-Delmotte, V., P. Zhai,
A. Pirani, S. L. Connors, C. Péan, S. Berger, N. Caud, Y. Chen, L.
Goldfarb, M. I. Gomis, M. Huang, K. Leitzell, E. Lonnoy, J.B.R.
Matthews, T. K. Maycock, T. Waterfield, O. Yelekçi, R. Yu and B.
Zhou (eds.)]. Cambridge University Press. In Press.
30
IPCC, 2022: Summary for Policymakers [H.-O. Pörtner,
D.C. Roberts, E.S. Poloczanska, K. Mintenbeck, M. Tignor, A.
Alegría, M. Craig, S. Langsdorf, S. Löschke, V. Möller, A. Okem
(eds.)]. In: Climate Change 2022: Impacts, Adaptation, and Vulnerability. Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change
[H.-O. Pörtner, D.C. Roberts, M. Tignor, E.S. Poloczanska, K.
Mintenbeck, A. Alegría, M. Craig, S. Langsdorf, S. Löschke, V.
Möller, A. Okem, B. Rama (eds.)]. Cambridge University Press.
In Press.
31
IPCC, 2022: Summary for Policymakers. In: Climate Change
2022: Mitigation of Climate Change. Contribution of Working
Group III to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change [P.R. Shukla, J. Skea, R. Slade, A.
Al Khourdajie, R. van Diemen, D. McCollum, M. Pathak, S. Some,
P. Vyas, R. Fradera, M. Belkacemi, A. Hasija, G. Lisboa, S. Luz,
J. Malley, (eds.)]. Cambridge University Press, Cambridge, UK
and New York, NY, USA. doi: 10.1017/9781009157926.001
32
National Academies of Sciences, Engineering, and Medicine. 2016. Attribution of Extreme Weather Events in the Context
of Climate Change. Washington, DC: The National Academies
Press. https://dio.org/10.17226/21852.
App. 35
Dioxide33, and 2019 Climate Change and Ecosystems34 assessments
[13] • NOAA’s annual State of the Climate reports published by the Bulletin of the American Meteorological Society35, most recently in
August of 2021
These assessments document the recent climatic
changes, and attribute these changes to the human-induced buildup of greenhouse gases in our atmosphere.
These recent assessments conclude that current atmospheric concentrations of greenhouse gases continue to be at elevated and essentially unprecedented
levels, primarily as a result of both historic and current
anthropogenic emissions. For example, annual average
atmospheric concentrations of one of these greenhouse
gases, carbon dioxide, measured at Mauna Loa in Hawai’i and at other sites around the world reached 416
parts per million in 2021, and has continued to rise.
Global average temperature has increased by about
1.1 °C (2.0 °F) from the 1850-1900 half-century to the
decade of 2011-2020 (IPCC 2021). The years 2014—
2020 were the seven warmest years in the 1880 – 2020
33
National Academies of Sciences, Engineering, and Medicine. 2017. Valuing Climate Damages: Updating Estimation of
the Social Cost of Carbon Dioxide. Washington, DC: The National
Academies Press. https://doi.org/10.17226/24651.
34
National Academies of Sciences, Engineering, and Medicine. 2019. Climate Change and Ecosystems. Washington, DC:
The National Academies Press. https://doi.org/10.17226/25504.
35
Blunden, J. and T. Boyer, Eds., 2020: “State of the Climate
in 2020”. Bull. Amer. Meteor. Soc.,102 (8), Si–S475, doi:10.1175/
2021BAMSStateoftheClimate.1.
App. 36
record, contributing to the warmest decade on record
with a decadal temperature of 0.82 °C (1.48 ° F) above
the 20th century.36,37 Global average sea level has risen
by about 7-8 inches (about 16-21 cm) from 1900-2015,
with almost half of this rise occurring since 1993. The
rate of sea level rise over the 20th century was higher
than in any other century in at least the last 2,800
years38. Arctic sea ice extent continues to decline in all
months of the year; the strongest reductions in September (very likely almost a 13% decrease per decade
between 1979 and 2018) are unprecedented in at least
1,000 years39.
Consistent with the robust and extensive scientific record that informed the 2009 Endangerment Finding
and the 2010 denial of petitions for reconsideration,
36
NOAA National Centers for Environmental Information,
State of the Climate: Global Climate Report for Annual 2020, published online January 2021, retrieved on February 10, 2021 from
https://www.ncdc.noaa.gov/sotc/global/202013.
37
Blunden, J. and T. Boyer, Eds., 2020: “State of the Climate
in 2020”. Bull. Amer. Meteor. Soc.,102 (8), Si–S475, doi:10.1175/
2021BAMSStateoftheClimate.1.
38
USGCRP, 2018: Impacts, Risks, and Adaptation in the
United States: Fourth National Climate Assessment, Volume II
[Reidmiller, D.R., C.W. Avery, D.R. Easterling, K.E. Kunkel,
K.L.M. Lewis, T.K. Maycock, and B.C. Stewart (eds.)]. U.S. Global
Change Research Program, Washington, DC, USA, 1515 pp. doi:
10.7930/NCA4.2018.
39
IPCC, 2019: IPCC Special Report on the Ocean and Cryosphere in a Changing Climate [H.-O. Pörtner, D.C. Roberts, V.
Masson-Delmotte, P. Zhai, M. Tignor, E. Poloczanska, K.
Mintenbeck, A. Alegría, M. Nicolai, A. Okem, J. Petzold, B. Rama,
N.M. Weyer (eds.)].
App. 37
these more recent scientific assessments continue to
document observed changes in the climate of the planet
and of the United States, and present clear support regarding the current and future dangers of climate
change. Importantly, these assessments evaluate the
findings of numerous individual peer-reviewed studies
in order to draw more general and overarching conclusions about the state of science. These assessments
synthesize thousands of individual studies and convey
the consensus conclusions of the scientific community
on what the body of scientific literature tells us. No
other source of information on climate change provides such a comprehensive and in-depth analysis
across such a large body of scientific studies and adheres to such a high and exacting [14] standard of
peer review involving multiple rounds of expert, public, and governmental review. Therefore, the robust
and comprehensive nature of these recent assessments, along with the strengthened understanding of
the climate system that they provide, provide additional context for EPA’s consideration of petitioners’
claims and support the reasonableness of EPA’s decision not to reopen, reconsider or revise the 2009 Endangerment Finding based on the assertions in the
petitions.
App. 38
V.
Arguments Raised by Petitions Relating to
the Endangerment and Cause or Contribute Findings for Greenhouse Gases Under
Section 202(a) of the Clean Air Act
a. Petition arguments & Agency Responses
CHECC, CEI, and FAIR raised a number of similar issues and relied on many of the same sources. Here we
address each of their key arguments.
i.
Petitioners’ use of Research Reports by
Wallace et al.:
CHECC, CEI, and FAIR based the bulk of their arguments on a set of reports by Wallace et al. The first such
report cited was “On the Existence of a ‘Tropical Hot
Spot’ & the Validity of EPA’s CO2 Endangerment
Finding, Abridged Research Report” by Wallace et al.
CHECC claims that this original report was peer-reviewed and published on September 21, 2016. (See
https://thsresearch.files.wordpress.com/2016/09/ef-cppsc-2016-data-ths-paper-ex-sum090516v2.pdf (“Wallace
Report”)). Several related reports were also provided—
e.g., the supplements submitted by CHECC provided
an updated April 2017 version of the Wallace Report
(see https://thsresearch.files.wordpress.com/2017/04/efdata-research-report-secondeditionfinal041717-1.pdf ),
a new report by the same authors from June of 2017,
“On the Validity of NOAA, NASA and Hadley CRU
Global Average Surface Temperature Data & The Validity of EPA’s CO2 Endangerment Finding, Abridged
Research Report” (see https:thsresearch.files.wordpress.
App. 39
com/2017/05/ef-gast-data-research-report-062817.pdf),
and another report by Wallace et al. from 2018, titled
“Comment on ‘Examination of space-based bulk atmospheric temperatures used in climate research’ by
Christy
et
al.”
(https://thsresearch.files.wordpress.com/2018/03/ef-data-comment-on-christy-et-alpaper-final042818v4.pdf ).
RESPONSE:
[15] The specific claims raised in the various reports by
Wallace et al. are discussed elsewhere in this Denial.
Here we note that despite the claims by CHECC that
the Wallace et al. reports were peer reviewed, the petitioners have presented no evidence that any of these
reports were ever submitted to a peer-reviewed academic journal or any other formal peer review process
subject to standard processes to ensure objectivity, independence, transparency, and/or scientific integrity.
For example, there is no evidence that the report was
assigned to an independent editor who selected independent reviewers with expertise in the appropriate
scientific domains who then provided an evaluation of
the report to the editor, after which the report would
be revised by the authors until the editor is satisfied
that credible concerns from the reviewers have been
addressed, after which the editor authorizes publication. Generally, peer review is considered a minimum
threshold for dissemination of scientific information,
though peer-reviewed literature can occasionally be
“complemented by other sources (such as gray literature) where appropriate” (NCA, 2018). According to
App. 40
EPA’s Peer Review Handbook, “Peer review is conducted to ensure that activities are technically defensible, competently performed, properly documented
and consistent with established quality criteria.”40
However, as noted in the 2009 Endangerment Finding,
even peer-reviewed publications are still granted less
weight than assessment reports, because, among other
reasons, “assessment reports undergo a rigorous and
exacting standard of peer review by the expert community, as well as rigorous levels of U.S. government review and acceptance. Individual studies that appear in
scientific journals, even if peer reviewed, do not go
through as many review stages, nor are they reviewed
and comment on by as many scientists” (74 Fed. Reg.
66511).
We have carefully reviewed the content described in
the Wallace et al. reports, as well as the petition claims
that rely on these reports, and respond to the key findings or assertions in responses below. Consistent with
the process used in the development of the 2009 Endangerment Finding, non-peer reviewed reports are afforded less weight when evaluating strength and value
of the information they provide. See RTC (1-1), (describing EPA’s approach to categorizing literature it
had received depending on whether or not it was peerreviewed, and, if so whether it was referenced in the
40
EPA Peer Review Handbook, 2015, page 20, https://www.epa.
gov/sites/default/files/2020-08/documents/epa_peer_review_handbook_
4th_edition.pdf, accessed 2/17/22.
App. 41
assessment literature, as well as its approach of according less weight to non-peer reviewed literature).
ii, Petitioners’ claims regarding the “three
lines of evidence”
CHECC, CEI, and FAIR all claim to have “invalidated
each of EPA’s three lines of evidence” (CHECC, p. 1).
CHECC claims that scientific research since the 2009
Endangerment Finding has invalidated these lines of
evidence, and claims that these lines of evidence provide “the basis for the Finding that human GHG emissions endanger human health and welfare” (CHECC,
p. 8). In particular, both CHECC and CEI refer to the
2016 Wallace Report in order to state that “the invalidation of the Endangerment Finding is conclusive”
(CHECC, p. 1). CEI similarly claims [16] that “in the
seven years since the Endangerment Finding was issued, new evidence and research has cast serious doubt
on the validity of its three lines of evidence” (CEI, p. 2).
RESPONSE:
The Endangerment Finding states (74 Fed. Reg. 66518):
The attribution of observed climate change to
anthropogenic activities is based on multiple
lines of evidence. The first line of evidence
arises from our basic physical understanding
of the effects of changing concentrations of
greenhouse gases, natural factors, and other
human impacts on the climate system. The
second line of evidence arises from indirect,
historical estimates of past climate changes
App. 42
that suggest that the changes in global surface temperature over the last several decades
are unusual. The third line of evidence arises
from the use of computer-based climate models to simulate the likely patterns of response
of the climate system to different forcing mechanisms (both natural and anthropogenic).
As stated in this passage, these three “lines of evidence” were used for attributing recent warming to
anthropogenic and natural factors in the 2009 Endangerment Finding. None of the petitioners have submitted sufficient evidence rebutting these lines of
evidence to support reconsidering or revising the 2009
Endangerment Finding.
While attribution of historical warming to elevated
concentrations of greenhouse gases is important, the
Agency never characterized these lines of evidence as
the “basis” for the 2009 Endangerment Finding. As the
Endangerment Finding states (74 Fed. Reg. 66497):
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.
Therefore, the Administrator considered the entirety of
the evidence regarding both historical and projected
climate change, not just the three lines of evidence
regarding attribution. Thus, even in the absence of
definite historical attribution, there is independent
App. 43
scientific evidence regarding projected climate impacts
that also supports the finding of endangerment.
While several petitioners claim that information that
has become available since the 2009 Endangerment
Finding discredit these three lines of evidence, that
claim conflicts with conclusions in the major scientific
assessments. The most recent major scientific assessments of the IPCC (the Sixth Assessment Report, or
AR6) and the USGCRP (the 4th National Climate Assessment) have only increased their confidence in the
attribution of recent warming relative to the assessments prior to 2009. The IPCC AR6 stated in August
of 2021 that “It is unequivocal that human influence
has warmed the atmosphere, ocean and land” (IPCC
AR6 Summary for Policymakers or SPM p. SPM-5).
This statement was based on the synthesis of many
scientific publications and went through a substantive
and rigorous review process. In particular, improvements in climate models, observations of both climate
drivers (such as solar variability) [17] and climate indicators (such as ocean heat), and statistical methods
allowed the AR6 assessment to more confidently attribute to human influence not only recent changes in
global temperature but also a number of other climate
variables. See also section IV above (“Background on
Continued Advances in Climate Science”) which discusses the assessments that have been released in the
past 6 years and how these assessments continue to
document observed climate changes and improve projections of future changes.
App. 44
In addition, it is important to place the Wallace et al.
report in context with the information EPA used as the
basis for the 2009 Endangerment Finding. As described in the 2009 Endangerment Finding (74 Fed.
Reg. at 66510), the Administrator relied on the major
assessments of the USGCRP, IPCC, and NRC as the
primary scientific and technical basis of her endangerment decision for a number of reasons. Among these
reasons is that “the assessments evaluate the findings
of numerous individual peer-reviewed studies in order
to draw more general and overarching conclusions
about the state of science. The USGCRP, IPCC, and
NRC assessments synthesize literally thousands of individual studies and convey the consensus conclusions
on what the body of scientific literature tells us” (74
Fed. Reg. at 66510). The 2009 Endangerment Finding
continues in explaining that: “No other source of information provides such a comprehensive and in-depth
analysis across such a large body of scientific studies,
adheres to such a high and exacting standard of peer
review, and synthesizes the resulting consensus view
of a large body of scientific experts across the world.
For these reasons, the Administrator is placing primary and significant weight on these assessment reports in making her decision on endangerment” (74
Fed. Reg. at 66511).
Response (1-2) of the Response to Comments document
from the 2009 Endangerment Finding further explains
that:
These assessment reports look at the range of
the scientific literature without “cherry-picking”
App. 45
and it is EPA’s conclusion that by placing
primary reliance on the major assessment
reports, we have ensured that the determinations are based on reports that have considered and weighed all views. EPA relied on the
major peer-reviewed assessment reports in
developing the TSD precisely to avoid an
over-reliance on and narrow consideration of
individual studies and to ensure that the Administrator’s decision would be based on a
comprehensive assessment of the scientific
literature. EPA has determined that the approach taken provided the high level of transparency and consistency outlined by EPA’s
Guidelines for Ensuring and Maximizing the
Quality, Objectivity, Utility and Integrity of Information Disseminated by the Environmental Protection Agency41.
The Wallace et al. report represents a single study conducted by a limited number of authors, provides no evidence of adequate peer review, and contains technical
arguments that do not represent the best available scientific information (as explained in detail below), the
Agency has [18] determined that this report does not
provide sufficient evidence to support reconsidering or
revising the 2009 Endangerment Finding.
41
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.
App. 46
iii. Petitioners’ argument that warming is
fully explained by natural factors
CHECC and CEI state that the results in the 2016
Wallace Report,based on 13 datasets, “clearly demonstrate—13 times in fact—that once just the ENSO [El
Nino/La Nina] impacts on temperature data are accounted for, there is no ‘record setting’ warming to be
concerned about. In fact, there is no ENSO-Adjusted
Warming at all” (CHECC, p. 10). FAIR (and CHECC in
a supplement) also cite the updated April 2017 version
of the Wallace Report, which reiterates the claim that
natural factors explain all the observed warming, but
adds consideration of another dataset (taking the total
to 14 different datasets). FAIR claims that this analysis of 14 temperature records by Wallace is the “most
thorough and sophisticated econometric and regression analysis” on that temperature data “ever done by
mankind” (FAIR, p. 9) and shows that there is no statistically significant correlation between CO2 concentrations and temperature trends. They further assert
that once ENSO is accounted for, there is no warming
at all. The 2016 and 2017 Wallace et al. reports used
the multivariate ENSO index (MEI), a cumulative
MEI metric starting in 1950, and a step function in
1977 for their statistical analysis.
A sixth supplement submitted by CHECC in 2019 provided another report by Wallace et al. from 2018, titled
“Comment on ‘Examination of space-based bulk atmospheric temperatures used in climate research’ by
Christy et al.”. This report also considers University of
Alabama Huntsville (UAH) data, and after using
App. 47
statistical methods to account for the author’s estimates of natural influences, similarly finds that there
was no residual warming left to be attributed to CO2,
though in this case the authors use a cumulate total
solar irradiance metric, the MEI (but not cumulative),
a step change in 1995, and volcanic activity in order to
fit satellite temperatures since 1979.
RESPONSE:
The petitioners cite the Wallace et al. 2016 and 2017
reports’ statistical regression of various factors against
global temperature trends with the intent of showing
that the cycles of ENSO (El Nino Southern Oscillation)
events are the key driver behind the observed global
warming trend. While such a regression can have some
value when performed carefully with a detailed understanding of the climate system, no single statistical
technique can substitute for the three key lines of evidence highlighted by the EPA in the 2009 Endangerment Finding in describing the attribution of observed
climate change to anthropogenic activities, namely: the
basic physical understanding of the climate system;
the evidence that recent changes in global surface temperatures are unusual in the historical context; and
the use of computer-based climate models grounded in
physical understanding to simulate likely patterns of
response of the climate system [19] to both anthropogenic and natural factors. See 74 Fed. Reg. 66523. We
responded to related arguments in Response 3-25 of
the Response to Comments for the 2009 Endangerment Finding:
App. 48
Claims that ENSO, [Pacific Decadal Oscillation], [Atlantic Multidecadal Oscillation] and
other known modes of internal climate variability can explain all or most of the changes
in climate that have occurred over the past
century are inconsistent with the assessment
literature, and commenters did not provide
compelling evidence that the assessment literature has reached fundamentally flawed
conclusions.
The Wallace et al. analysis does not present information that would warrant reconsidering or revising
EPA’s conclusion. In particular, Wallace et al. uses
flawed assumptions, such as reliance on a variable
called the “cumulative MEI”. The MEI is a metric related to ENSO: a positive MEI indicates El Nino conditions, a negative MEI indicates La Nina. The use of
the cumulative MEI by Wallace et al. does not incorporate a physical understanding of the climate system:
while a positive MEI in a given year is correlated with
elevated global air temperatures, Wallace et al. do not
take into account the redistribution of heat from the
ocean to the atmosphere (Cheng et al. 2019)42. By fitting individual econometric equations to each of 13
(or 14) different observed datasets, there is no consideration of thermodynamic laws concerning conservation of energy. This is in contrast to climate models,
which “are based on fundamental laws of nature (e.g.,
energy, mass and momentum conservation)” (IPCC
42
Cheng et al. Evolution of Ocean Heat Content Related to
ENSO, Journal of Climate, 2019, https://doi.org/10.1175/JCLI-D18-0607.1
App. 49
AR5, Chapter 9). The cumulative MEI is somewhat correlated with surface temperature trends from 1950 to
present (the time period examined by Wallace et al.),
but had Wallace et al. considered an extended dataset
that starts in 1871, they would have found that the
cumulative MEI does not bear any resemblance to
temperature trends from 1871 through 1950.43 This indicates that the correlation over the period considered
by Wallace et al. is spurious. If the cumulative MEI
were truly the key driver behind temperature trends,
that correlation should be observed in other time periods, not just the one selected for presentation in the
Wallace et al. report.
The Wallace et al. 2018 report introduced in the sixth
supplement from CHECC introduces a completely different set of parameters (a cumulative solar index rather than the cumulate MEI index, a step change in
1995 instead of 1977, and adding another parameter to
explain the warmth of the years 1998 and 2016) without adequately justifying why these parameters are
appropriate for this analysis. What this kind of regression approach shows is not that natural factors can explain warming (as the authors do no kind of energy
balance or other physically based analysis of the system which would be important to address that issue)
but rather that it is not difficult to fit one time series
as a function of the sum of multiple other time series
43
The extended MEI datasets is available at https://psl.noaa.
gov/enso/mei.ext/. The calculations showing the behavior of the
cumulative MEI based on this extended dataset are included in
the docket, in the file mei.analysis.3.23.22.xlsx.
App. 50
when arbitrary coefficients are allowed. Furthermore,
while the authors acknowledge that radiative forcings
resulting from volcanic eruptions and changes in solar
intensity can have influence on the climate system,
they do not explain why they believe radiative forcing
changes due to changes in greenhouse gas concentrations have no effect. A comprehensive approach should
consider all substantial contributions to changes in radiative forcing—e.g., volcanic, solar, [20] greenhouse
gases, aerosol emissions (e.g., sulfates, nitrates, and
black and organic carbon), snow albedo effects from
black carbon deposition, and land-use albedo changes—
when attempting to attribute climate changes.
Contrary to the claims of petitioners that these are the
most sophisticated econometric analyses ever done,
Wallace et al. fail to perform even basic statistical
tests. It appears that Wallace et al. just add and subtract parameters in their regression and use R squared
and t statistics to determine which fit is better. There
are statistical tests that the petitioners have not used
that are standard when trying to choose amongst different explanatory equations. For example, the Akaike
Information Criteria (Akaike, 197444) is a standard test
that is used to avoid overfitting (e.g., adding parameters to a regression can sometimes lead to overfitting,
where the R squared or t statistic may improve but
models with fewer parameters are actually considered
to be superior). Another example is that Wallace et al.
44
H. Akaike, “A new look at the statistical model identification,” in IEEE Transactions on Automatic Control, vol. 19, no. 6,
pp. 716-723, December 1974, doi: 10.1109/TAC.1974.1100705.
App. 51
use step functions in either 1977 (in their 2016 report)
or in 1995 (in their 2018 report)—but they never perform a formal breakpoint detection test, which is a
basic statistical requirement for that kind of assumption (e.g., Tomé and Miranda, 200445). These errors
would likely have been raised had the Wallace et al.
report been subject to an objective, independent, and
transparent peer review by scientists with the appropriate expertise.
Because of this incomplete statistical work and poor
choices of parameters, the attribution of historical temperature changes by Wallace et al. is substantially inferior to the attribution approaches used by the major
scientific assessments, and therefore does not provide
grounds for revisiting the 2009 Endangerment Finding.
iv. Petitioners’ arguments regarding the
“Tropical Hot Spot”
CHECC argues that climate models have been invalidated by what the petitioner describes as a failure to
match the pattern of tropospheric warming, in particular the lack of what the petitioner describes as a
“Tropical Hot Spot”. CHECC also claims that when
EPA discussed the first line of evidence for attribution
of historical climate change, “EPA is referring to its
‘greenhouse gas fingerprint’ or ‘tropical hot spot’ (‘Hot
45
Tomé and Miranda, Piecewise linear fitting and trend changing points of climate parameters, Geophysical Research Letters,
2004, https://doi.org/10.1029/2003GL019100.
App. 52
Spot’) theory, which is that in the tropics, the upper
troposphere is warming faster than the lower troposphere and the lower is warming faster than the surface” (CHECC, p. 8). FAIR similarly claims that an
amplification of warming in the troposphere over the
tropical latitudes, labeled the “tropical hot spot”, “is so
fundamental to the theory of anthropogenic global
warming that is has been labelled the ‘human fingerprint’ by which anthropogenic global warming can be
identified” (FAIR, p. 8). FAIR also claims that “IPCC’s
Fourth Assessment Report (AR4) states that the Tropical Hot Spot is ‘an integral feature of the physical understanding of the climate’s greenhouse warming
mechanism.’ ” (FAIR, p. 9). They claim that this tropical
hot spot does not appear in any of the 13 most important [21] temperature records, whether from satellites or weather balloons or ground-based weather
stations.
FAIR also relies on the tropical hot spot to argue that
climate models are not solid science. FAIR cites a
graph produced by Dr. John Christy that was presented to the US House Committee on Science, Space,
and Technology, which shows a divergence in tropical
mid-tropospheric temperature trends as assessed by
climate models relative to observations from satellites,
balloons, and reanalyses. FAIR argues that climate
models don’t involve falsifiable hypotheses, have diverged from the temperature records (in particular, the
petitioner claims that the models do not show that
warming has stopped for the past 20 years), and that
models don’t account for oceanic or solar cycles. FAIR
App. 53
states that these issues invalidate the line of evidence
regarding the use of climate models to attribute recent
warming to human causes.
RESPONSE:
Regarding the claims concerning a tropical hot spot,
the 2009 Endangerment Finding did not refer to the
“tropical hot spot” (so called because climate models
tend to show higher rates of warming aloft in the tropics as a result of global warming) as part of the first
line of evidence for attributing historical climate
change to anthropogenic influences. The term “tropical
hot spot” never appears in either the 2009 Endangerment Finding nor the 2009 Technical Support Document (“TSD”). There is also no indication that the
IPCC ever used the quote FAIR attributed to them regarding the “Tropical Hot Spot” being “an integral feature of the physical understanding of the climate’s
greenhouse warming mechanism”. In the footnote associated with that quote, FAIR references Section
9.2.2.1 of the IPCC, but the word “integral” only appears once in the entirety of Chapter 9, and in that case
in reference to its mathematical meaning, and the
phrase “tropical hot spot” does not appear at all in
Chapter 9, or in the Technical Summary of the entire
IPCC AR4 Working Group I report: it seems likely
that FAIR was actually quoting the CHECC petition
(CHECC, p. 11) rather than the IPCC. In the same footnote, FAIR quotes the IPCC stating that “Greenhouse
gas forcing is expected to produce warming in the troposphere” (FAIR p. 9, IPCC AR4 WGI p. 674) as if this
supports FAIR’s contention that the IPCC found the
App. 54
“tropical hot spot” to be an integral feature, but including a larger fraction of quote makes it clear that the
IPCC is contrasting the entire troposphere with the
stratosphere, not just the tropical mid-troposphere:
“Greenhouse gas forcing is expected to produce
warming in the troposphere, cooling in the stratosphere . . . ” (IPCC AR4 WGI p. 674). The IPCC makes
this clear in that same chapter when it states that,
“Models and observations also both show warming in
the lower part of the atmosphere (the troposphere) and
cooling higher up in the stratosphere. This is another
‘fingerprint’ of change that reveals the effect of human
influence on the climate.” (IPCC AR4 WGI p. 702-3)
The “tropical hot spot” was never labeled as a key fingerprint of anthropogenic warming in either the 2009
Endangerment Finding or by the IPCC, contrary to assertions by the petitioners.
While the petitioners mis-characterize how the IPCC
and the 2009 Endangerment Finding discuss the “tropical hot spot”, the EPA has addressed the issue of
model agreement with [22] observed vertical temperature structure, including in the tropics, in the following
places in the record for the 2009 Endangerment Finding: Section 5 of the 2009 TSD; Response 3-7 of the
Response to Comments document for the 2009 Endangerment Finding; and Volume 1.2 of the 2010 Response
to Petitions document. EPA also rejected the assertion
that observed vertical temperature structure in the
tropics is inconsistent with modeled trends in the
administrative record for the 2009 Endangerment
App. 55
Finding. Response 3-7, after a detailed discussion,
states in summary:
The TSD summarizes this issue and cites the
conclusions of the latest major assessments. It
states: “an important inconsistency[46] may
have been identified in the tropics. In the tropics, most observational data sets show more
warming at the surface than in the troposphere, while almost all model simulations
have larger warming aloft than at the surface
(Karl et al., 2006). Karl et al. (2009) claim that
when uncertainties in models and observations are properly accounted for, newer observational data sets are in agreement with
climate model results.” EPA concludes that
46
The full paragraph from the TSD (p. 50), puts the inconsistency for the tropics in context of all the other places on the
planet where the anthropogenic signal has been identified: “Not
only has an anthropogenic signal been detected for the surface
temperatures, but evidence has also accumulated of an anthropogenic influence through the vertical profile of the atmosphere.
Fingerprint studies have identified GHG and sulfate aerosol signals in observed surface temperature records, a stratospheric
ozone depletion signal in stratospheric temperatures, and the
combined effects of these forcing agents in the vertical structure
of atmospheric temperature changes (Karl et al., 2006). Karl et
al. (2009) state that more recent studies have also found human
fingerprints in the patterns of change in Arctic and Antarctic temperatures. However, an important inconsistency may have been
identified in the tropics. In the tropics, most observational data
sets show more warming at the surface than in the troposphere,
while almost all model simulations have larger warming aloft
than at the surface (Karl et al., 2006). Karl et al. (2009) state that
when uncertainties in models and observations are properly accounted for, newer observational data sets are in agreement with
climate model results.”
App. 56
the TSD’s summary of the current state of the
science on tropical tropospheric warming as
reflected in the underlying assessment literature is accurate.
Furthermore, as cautioned in the TSD (as well as in
the RTC), trends on smaller spatial and shorter temporal scales are more difficult to attribute. With respect to spatial scale, EPA has explained that “as
spatial scales considered become smaller, the uncertainty becomes larger because internal climate variability is typically larger than the expected responses to
forcing on these scales.” (TSD, p. 52 and RTC 4-15). The
petitioners’ claims about the lack of a “tropical hotspot”
are focused on just the mid-tropospheric atmosphere
above the tropical latitudes. While this is still an area
of ongoing research in terms of better constraining the
observational trends in the tropical mid-troposphere
and explaining the factors contributing to any differences seen between models and those observations, recent research (Po-Chedley et al., 202147) continues to
find that “that multidecadal variability can explain
current model–observational differences in the rate of
tropical tropospheric warming” consistent with the
previous studies cited by EPA on this subject. In addition, two recent papers using different methodologies
have suggested that estimations of tropical mid-tropospheric warming based on existing satellite and balloon studies [23] may be underestimated: Zou et al.
47
Po-Chedley et al., PNAS 2021, https://www.pnas.org/doi/
full/10.1073/pnas.2020962118
App. 57
(202148) relies only on satellites in stable orbits since
2002 to estimate the warming rate and finds it greater
than previous studies over that time period; Steiner et
al. (202049) use a radio occultation methodology starting in 2001 and similarly find a higher rate of warming. Finally, a paper by Santer et al. (202150) compares
multiple observational datasets with climate model
results and theoretical projections of how warming
should change with altitude and finds that the most
plausible interpretation is that observations have historically underestimated tropospheric warming.
Given the above, it is unwarranted to claim that climate models are invalid and unreliable due to the possible discrepancy between observations and models for
mid-tropospheric tropical temperature trends. In response to previous critiques of climate models, Response to Comments document Volume 4.1 (2009) and
the Response to Petitions Volume 1 (2010) cited Karl et
al. (200951), which stated that “despite remaining imperfections, the current generation of climate models
48
Zou, Xu, Hao, and Fu, Post-Millennium Atmospheric Temperature Trends Observed From Satellites in Stable Orbits,
Geophysical Research Letters, 2021. https://doi.org/10.1029/2021
GL093291
49
Steiner et al., Observed Temperature Changes in the Troposphere and Stratosphere from 1979 to 2018, Journal of Climate,
2020, https://doi.org/10.1175/JCLI-D-19-0998.1.
50
Santer et al., Using Climate Model Simulations to Constrain Observations, Journal of Climate, 2021, https://doi.org/10.
1175/JCLI-D-20-0768.1.
51
Karl, T., J. Melillo, and T. Peterson (eds.) (2009). Global
Climate Change Impacts in the United States. Cambridge University Press, Cambridge, United Kingdom.
App. 58
accurately portrays many important aspects of today’s
weather patterns and climate. Models are constantly
being improved and are routinely tested against many
observations of Earth’s climate system.” (RTC, Response 4-1). This assessment of the value of models despite their imperfections continues to hold true. The
2021 IPCC AR6 Technical Summary determined that
models have only improved over time, “Developments
in the latest generation CMIP6 climate and Earth system models, including new and better representation
of physical, chemical and biological processes, as well
as higher resolution, have improved the simulation of
the recent mean climate of most large-scale indicators
of climate change” (IPCC AR6 TS-16).
Therefore, petitioners’ claims regarding tropical midtropospheric temperature trends do not provide support for reconsidering or revisiting the 2009 Endangerment Finding.
v.
Petitioners’ arguments regarding Climate Sensitivity
The CEI petition claims that balloon and satellite data
demonstrate that the atmosphere is far less sensitive
to carbon dioxide forcing than predicted by the climate
models. The petitioner cites the February 2, 2016 congressional testimony of Dr. John R. Christy, Director of
the Earth System Science Center at the University of
Alabama, as evidence that “the continued accumulation of both satellite and balloon data has thrown increasing doubt over [ . . . ] the theory of how climate
App. 59
changes occur, and the associated impact of extra greenhouse gases.” The petitioners claim that EPA “largely
ignored the two most precise methods for measuring
atmospheric temperature, [24] satellites and weather
balloons” (CEI, p. 4). According to CEI, satellite and
balloon data “correlate extremely well with one another despite their being collected through distinctly
different methods,” (CEI, p. 5) making their results
more reliable. Based on Christy’s testimony, the petitioner alleges that the climate models are not to be
trusted because they do not accurately reflect past atmospheric conditions. FAIR presented a similar claim,
stating that William Happer and others have shown
that the sensitivity of climate to increases in greenhouse gas concentrations is lower than the IPCC “best
estimate” of 3 degrees warming for a doubling of carbon dioxide, with FAIR claiming that Happer “opines
the best estimate would be 1 degree C” (FAIR, p. 27),
citing a 2019 interview by Happer.
In a related argument, the CEI petition claims that
EPA’s GHG regulations will have no discernible climate impact. The petitioner claims that “a total elimination of U.S. emissions would have a near zero impact
on global climate, [ . . . ] given the satellite and balloon
data findings regarding atmospheric sensitivity” (CEI,
p. 5), quoting Christy as calculating an impact in 50
years of eliminating U.S. emissions at “0.05 to 0.08 degrees C” (CEI, p.5).
The petitioner therefore argues that “Given this impossibility of treating the ‘illness’ supposedly identified
App. 60
by EPA’s Finding, the basis for making the Finding in
the first place needs reconsideration.” (CEI, p.5-6).
RESPONSE:
The latest IPCC assessment stated that “Improved
knowledge of climate processes, paleoclimate evidence
and the response of the climate system to increasing
radiative forcing gives a best estimate of equilibrium
climate sensitivity of 3°C” (IPCC AR6, SPM-13), “with
a likely range of 2.5°C to 4°C”. This is comparable to
the 2007 IPCC AR4 assessment conclusion of “It is
likely to be in the range 2°C to 4.5°C with a best estimate of about 3°C” (IPCC AR4, SPM-12), which was
the most recent IPCC assessment at the time the 2009
Endangerment Finding. These assessments use the
full range of available information such as paleoclimate evidence, theoretical understanding, ocean heat
content, surface temperature records dating back to
the 19th century, and other sources of information, in
contrast to the approach promoted by the petitioners
which is to look only at the single comparison of climate model output with temperatures in a single region of the atmosphere measured by a limited range of
methods. In contrast, in the interview by Happer he
states that the direct effects of doubling carbon dioxide
would be 1 degree C, and then states that the IPCC is
incorrect in assuming that there would be any amplification of that warming due to changes in clouds and
water vapor. However, Happer presents no evidence
supporting his assertion that the IPCC is incorrect: in
particular, he shows no reason to expect that in a
warmer world, water vapor concentrations would not
App. 61
increase. Therefore, this claim that climate sensitivity
is low is not consistent with the findings of the assessment literature, and does not provide support for reopening or reconsidering the 2009 Endangerment Finding.
Regarding the claim that EPA “largely ignored” satellite and radiosonde/balloon temperature data, the 2009
Endangerment Finding and TSD discussed both, as
well as the larger context of atmospheric and oceanic
measurements. For example, the 2009 Endangerment
Finding described [25] satellite measured temperature
trends (“Satellite measurements of the troposphere
also indicate warming over the last 30 years at a rate
of 0.20 to 0.27 °F (0.11 °C to 0.15 °C) per decade”, 74
Fed. Reg. at 66522), and the Endangerment TSD contains a page long discussion of temperatures measured
by satellite and radiosondes (TSD, pp. 30-31), and the
Response to Comments on the 2009 Endangerment
Finding includes many responses to comments about
satellite data (e.g., RTC responses 2-41, 2-47, 2-48, 249, 2-50, 2-51). Moreover, the claim that satellites are
a more precise measure of global temperatures than
observations obtained through other means is not supported by the evidence. For example, the above response on the “tropical hot spot” includes a discussion
of possible underestimation of tropospheric temperature trends based on satellite observations. Furthermore, it is also relevant that the estimate of warming
trends from the satellite data differs by as much as
50% depending on which research group analyzes the
data because of choices about how to combine data
from different satellites, account for orbital decay, and
App. 62
other challenges—a much larger difference than the
difference between estimates of warming based on surface measurements among different research groups.
In any case, the 2009 Endangerment Finding drew
from assessments which considered the entirety of available data (e.g., surface temperature datasets, satellite
data, balloon data, ocean heat data, and indicators
such as sea ice retreat and glacial melt), appropriately
considered the strengths and weaknesses of each data
source, and determined which conclusions could be
made based on that entire body of evidence.
EPA also disagrees with the claim that EPA should reconsider the 2009 Endangerment Finding because
EPA’s GHG regulations will have no discernible climate impact. First, this claim derives from the petitioners’ mistaken assertions that climate sensitivity is
low, which EPA has addressed earlier in this response.
In addition, EPA explained in the 2009 Endangerment
Finding that the action was “a stand-alone set of findings regarding endangerment and cause or contribute
for greenhouse gases under CAA section 202(a), and
does not contain any regulatory requirements.” 74 Fed.
Reg. at 66515. Accordingly, EPA did not assess the
impacts of any future regulation as part of the 2009
Findings. Rather, EPA clarified that future proposed
regulations would be evaluated as part the separate
proceedings for those actions. Id. EPA further explained that the CAA did not require consideration of
the eventual impacts of implementing the statute if it
made an endangerment finding as part of the endangerment finding itself. Id. at 66515-16. Rather, the
App. 63
decision must be based on the science and on the statutory standard of whether the emission of the relevant
“air pollutant from any class or classes of new motor
vehicles or new motor vehicle engines, . . . cause, or
contribute to, air pollution which may reasonably be
anticipated to endanger public health or welfare.”
CAA section 202(a)(1). Indeed, the Supreme Court
had emphasized that EPA could not rely on policy considerations “which have nothing to do with whether
greenhouse gas emissions contribute to climate change”
as a reason for declining to make the “scientific judgment” contemplated by the CAA. Massachusetts, 549
U.S. at 533-34.
Moreover, EPA does not agree that its GHG regulations will have no discernible climate impact. While
this question is not relevant to the endangerment inquiry, the Agency considered the impacts of its regulations in establishing emissions standards. In the cause
or contribute inquiry for the 2009 Findings, EPA found
that motor vehicle emissions contribute to the elevated
[26] greenhouse gas concentrations and, in issuing the
first motor vehicle GHG emissions standards, EPA
found that the standards “would result in meaningful
mitigation of greenhouse gas emissions,” including estimations that those standards “would result in a reduction of about 960 million metric tons of CO2e
emissions over the lifetime of the model year 20122016 vehicles affected by the new standards.” Coalition
for Responsible Regulation, 684 F.3d at 128. See also
Massachusetts, 549 U.S. at 525-26 (“While it may be
true that regulating motor-vehicle emissions will not
by itself reverse global warming, it by no means follows
App. 64
that we lack jurisdiction to decide whether EPA has a
duty to take steps to slow or reduce it. . . . Nor is it dispositive that developing countries such as China and
India are poised to increase greenhouse gas emissions
substantially over the next century: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.”).
Accordingly, EPA is not reopening or reconsidering the
2009 Endangerment Finding based on these claims.
vi. Petitioners’ arguments regarding tampering with the temperature datasets
CHECC claims that Wallace et al. has uncovered evidence of temperature data tampering and manipulation. The second supplement, submitted by the
petitioner in July of 2017, provided a new Wallace Report from June of 2017, “On the Validity of NOAA,
NASA and Hadley CRU Global Average Surface Temperature Data & The Validity of EPA’s CO2 Endangerment Finding, Abridged Research Report” (see https:
thsresearch.files.wordpress.com/2017/05/ef-gastdataresearch-report-062817.pdf). The petitioner claims
that this new report by Wallace et al., which set out to
analyze the credibility of the global average surface
temperature datasets from NOAA, NASA and Hadley
CRU, demonstrates that these datasets have been adjusted by removing cyclical temperature patterns and
are therefore invalid. The petitioner quotes Wallace et
al. as stating, “It was found that each new version of
GAST has nearly always exhibited a steeper warming
trend over its entire history.”
App. 65
RESPONSE:
The accusation by petitioners that NOAA, NASA, and
the Hadley Climatic Research Unit all make inappropriate adjustments is very similar to accusations made
in the 2010 Petitions for Reconsideration, which were
fully responded to by the Agency at that time. For example, CEI claimed in 2010 that every adjustment “resulted in temperature trends that appeared to increase
faster than they did in reality.” (RTP Comment 1-64).
However, even the source that CEI relied upon at the
time (D’Aleo and Watts, 2010) stated the source upon
which they in turn had relied “showed that 20% of the
historical record was modified 16 times in the 2½ years
ending in 2007. 1998 and 1934 ping pong regularly between first and second warmest year” and “note[d] that
the overall trend in changes between now and Sep. 24,
2005 is very close to zero” (RTP Response 1-64), which
is not consistent with the claim that every adjustment
leads to an increase in trends. Moreover, from 20102012 a 4th independent organization, the Berkeley
Earth (berkeleyearth.org), also analyzed the surface
temperature data specifically to address concerns that
had been raised such as “potential biases from data selection, data adjustment, poor station [27] quality, and
the urban heat island effect” (https://berkeleyearth.
org/methodology/) and the estimates of historical temperature produced by this group were “quite similar to
records from Hadley’s HadCRUT4, NASA’s GISTEMP,
NOAA’s GlobalTemp, and Cowtan and Way” (Rohde
App. 66
and Hausfather, 202052). Further, all of the adjustment
procedures are documented in the peer reviewed literature. In fact, as discussed in the Response to Petitions
(RTP, Volume 1, pp. 101-102), Clear Climate Code was
able to replicate the NASA GISTEMP code in python,
and made that code publicly available. The original
GISTEMP code itself is also available (https://data.
giss.nasa.gov/gistemp/sources_v4/). There is no indication that the petitioners have reviewed the publicly
available code and the petitions have not identified any
evidence of inappropriate adjustment techniques in
that code. Nor have the petitioners or Wallace referenced any of the many publications which describe
changes and improvements between one dataset version and the next (e.g. Morice et al. 202153).
Meanwhile, the Wallace report accusations regarding
the removal of cyclical temperature pattern appears
to rely solely on isolating a few individual regions—
several cities and states in the US, one city in Greenland, and one analysis of the Arctic region—and then
asserting (without using any statistical methodologies) that a cyclical pattern exists in the temperature
records from those regions. The Wallace report then
claims that there should therefore be a similar cyclical pattern in the global temperature dataset without
52
Rohde, R. A., & Hausfather, Z. (2020). The Berkeley Earth
land/ocean temperature record. Earth System Science Data Discussions. https://doi.org/10.5194/essd-2019-259
53
Morice et al., An Updated Assessment of Near-Surface
Temperature Change From 1850: The HadCRUT5 Data Set, 2020,
https://doi.org/10.1029/2019JD032361
App. 67
discussing the fact that the regions analyzed comprise
a very small percent of the total global surface area.
Again, neither Wallace et al. nor the petitioners reference either the publicly available code or any of the
many papers describing how data are processed in order to generate global surface temperature trends,
which is a basic step to take before making accusations
of improper data tampering.
These critiques from a report that has not been peer
reviewed do not provide credible evidence that four
major climate science organizations with an extensive record of peer-reviewed literature are all independently and inappropriately adjusting their surface
temperature datasets, nor do these critiques identify
any errors in the actual code or adjustment procedures.
Therefore, this claim does not provide support for reopening or reconsidering the 2009 Endangerment
Finding.
vii. Petitioners’ arguments regarding “alarmist claims”
CHECC: A fifth supplement was submitted by the petitioner in February of 2018. This supplement included
10 brief rebuttals to what the petitioner characterizes
as “typical climate alarmists’ claims” (CHECC, fifth
supplement, p. 4). The petitioner further states that
this information “invalidates oft-repeated alarmist claims
that human emissions of GHGs will cause calamitous
changes in other state variables of the climate system
App. 68
such as sea level rise, ocean acidification, and extreme
events.” (CHECC, fifth supplement, p. 2)
[28] RESPONSE:
CHECC does not connect these claims to language in
the 2009 Endangerment Finding, or, indeed, in any
of the scientific assessment literature that was cited
in that Finding. For example, their third purported
“alarmist claim” is that “global warming is causing
more and stronger tornadoes” (CHECC, fifth supplement, p. 7). However, the Endangerment Finding does
not mention tornadoes, and the three mentions of tornadoes in the TSD are: that there are “significant uncertainties in long-term trends”; quoting Kunkel et al.
(2008) to say that “[t]here is no evidence for a change
in the severity of tornadoes . . . ”; and citing the IPCC
to state that there is “insufficient evidence to determine whether trends exist in small-scale phenomena
such as thunderstorms, tornadoes, hail, lightning, and
dust-storms” (TSD, p. 44-46). Accordingly, this list of
claims is not relevant to the 2009 Endangerment Finding and does provide any support for reconsidering or
revising the Finding.
viii. Petitioners’ claims regarding future
cooling of the climate
CHECC and FAIR both made claims that the planet is
about to cool. CHECC in their sixth supplement stated
that “based on a well-known solar activity forecast (Abdussamatov 2015) and specific assumptions on the
other natural explanatory variables (i.e., volcanic and
App. 69
oceanic/ENSO activity), Wallace 2018 also provides a
long-term forecast that UAH TLT (i.e., lower tropospheric) temperatures are very likely to exhibit a declining trend over the period through 2026 at the least”
(CHECC, sixth supplement, p. 2). FAIR made a similar
argument that cooling is imminent, citing a number of
news articles and blog posts from 2013 that recent
trends in sunspots indicate an imminent global cooling
(for example, from the Voice of Russia, that “According
to scientists from the Pulkovo Observatory in St. Petersburg, solar activity is waning, so the average yearly
temperature will begin to decline as well”, FAIR p. 14).
RESPONSE:
The claims from CHECC and FAIR that temperatures
are about to decline are not scientifically supported.
Not only has there been no evidence yet of a temperature decline after 2016 (2020 was effectively tied with
2016 for the hottest year on record54, and 2021 was tied
54
See, e.g., https://www.noaa.gov/news/2020-was-earth-s-2ndhottest-yearjust-behind-2016 (noting conclusion from NOAA analysis that the “average land and ocean surface temperature across
the globe in 2020 was 1.76 degrees F (0.98 of a degree C) above
average—just 0.04 of a degree F (0.02 of a degree C) cooler than
the 2016 record” and that the “world’s seven-warmest years have
all occurred since 2014”) (last accessed Dec. 17, 2021). See also
https://www.nasa.gov/press-release/2020-tied-for-warmest-yearonrecord-nasa-analysis-shows (noting conclusion from an separate
analysis by NASA that “Earth’s global average surface temperature in 2020 tied with 2016 as the warmest year on record” and
that the “last seven years have been the warmest seven years on
record, typifying the ongoing and dramatic warming trend”) (last
accessed Dec. 17, 2021).
App. 70
with 2018 as [29] the sixth warmest year on record55),
but this prediction of future cooling is one that EPA has
responded to previously. For example, in response 3-26
of the 2009 Endangerment Finding RTC, EPA stated:
The predictions of imminent cooling based on
cycle analysis are not consistent with the assessment literature. These studies do not present any evidence for any negative external
radiative forcings that could be of the magnitude of the positive forcing from increases in
GHG concentrations. IPCC has shown that it
is possible to explain previous temperature
trends based on reconstructions of historical
solar, volcanic, GHG, and orbital forcings, but
the methods used to explain the previous
changes cannot explain recent warming without the contribution of changes in GHG concentrations due to anthropogenic emissions.
Specifically, historical reconstructions of solar
and volcanic forcing have been used as inputs
to model simulations; these simulations explain much of the last 1,000 years of temperature change, but the recent warming cannot
be explained by the same natural forces that
explained previous temperature changes (Jansen et al., 2007). Similarly, when forced by
changes in solar forcing due to orbital parameters, coupled climate models and Earth System Models of Intermediate Complexity were
both able to capture reconstructructed [sic]
55
See, e.g., https://www.nasa.gov/press-release/2021-tied-for6th-warmest-year-in-continued-trend-nasa-analysis-shows (last
accessed March 11th, 2022).
App. 71
regional temperature and precipitation changes
(Jansen et al., 2007).
Like all these previous claims, the new claim from Wallace (2018) suffers serious flaws. First, as discussed
above in the response to the claims that Wallace et al.
could explain historical warming based on natural factors, this regression analysis by Wallace et al. is based
on incorrect assumptions. Second, the solar activity
forecast by Abdussamatov56 is not based on sound science: it appears that the forecast is based on extrapolating a short-term trend without good physical basis.
This forecast projected a decrease of 2 W/m2 between
the 1980s and 2020, with most of the decline happening between 2015 and 2020. In contrast, the IPCC AR6
assessment found that “TSI [total solar irradiance]
did not change significantly between 1986 and 2019”
(IPCC AR6 p. 2-13, 2021). Therefore, this use of an incorrect methodology applied to incorrect solar forecasts, and which is inconsistent with the available
observational data, does not provide support for reopening or reconsidering the 2009 Endangerment
Finding.
[30] ix. Petitioners’ claims that the social
cost of carbon dioxide should be negative
In a seventh supplement submitted in 2021, CHECC
argued that the social cost of CO2 should be negative
56
Abdussamatov, H, Current Long-term negative average
annual energy balance of the earth leads to the new little ice age,
Thermal Science, 2015, DOI:10.2298/TSCI140902018A
App. 72
because global average surface temperatures are fabricated, climate models are flawed, and the equilibrium
climate sensitivity to CO2 is zero. The petitioner claims
that if there is no reliable surface temperature data
set, if climate models are flawed (compared to the statistical analyses of Wallace et al.), and if climate sensitivity is zero (because there’s no empirically validated
theory showing that CO2 has influenced temperature),
then EPA’s conclusions that CO2 causes any harms
such as sea level rise, more intense storms, or any following causal argument are all wrong, and that CO2 is
actually a beneficial gas. This supplement further argues that the social cost of each trace GHG other than
CO2 should also be negative and that these are also
beneficial gases.
RESPONSE:
Importantly, the social cost of carbon played no role in
the 2009 Endangerment Finding, so arguments about
the social cost of carbon are not relevant to the 2009
Endangerment Finding. EPA’s conclusions in the 2009
Endangerment Finding about the harms from elevated
concentrations of greenhouse gases were not based on
any consideration of the social cost of carbon, but rather on the Administrator’s consideration of the full
scientific record before her, including information on
the 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. See, e.g., 74 Fed. Reg.
66497. As described in section IV above (“Background
on Continued Advances in Climate Science”) those
App. 73
conclusions have only been strengthened by later major scientific assessments. Similarly, the social cost of
the other well-mixed greenhouse gases included in the
definition of the air pollution and air pollutant evaluated in the 2009 Endangerment Finding had no impact
on the inclusion of those gases in the Findings. See, e.g.,
74 Fed. Reg. 66516-66523 (explaining the rationale for
including the six well-mixed gases in the air pollution
addressed in the 2009 Endangerment Finding based
on their common attributes); see also id. at 6653666537 (explaining the rationale for including the six
well-mixed gases in the air pollutant addressed in the
cause or contribute portion of the 2009 Finding). However, even if the social cost of carbon were relevant to
the 2009 Endangerment Finding—which it is not—petitioners’ individual arguments about the reliability of
global surface temperature data (including in light of
the data adjustment procedures), climate models, and
climate sensitivity are not well-founded, as explained
above.
x.
Petitioners’ claims that the carbon dioxide is beneficial
Similarly, FAIR argues that Massachusetts v. EPA was
wrongly decided by the U.S. Supreme Court because
carbon dioxide cannot be considered “pollution.” FAIR
justifies this claim by stating that carbon dioxide is “a
naturally occurring gas that makes up only .04 percent, or 400 parts per million, of the atmosphere. Only
about 3 percent of that tiny amount is generated by
human activities” (FAIR, p. 22). FAIR further claims
App. 74
that “[w]ithout Carbon Dioxide in the [31] atmosphere,
plants would die” and that “the historical increase in
the atmosphere’s CO2 concentration has stimulated
vegetative and agricultural productivity” leading to
benefits for humans (FAIR, pp. 22-23). FAIR also argues that “the effect of C02 [sic] in causing warming
declines logarithmically asymptotically to zero, as CO2
concentration increases” (FAIR, p. 25). FAIR also argues that CO2 has been at much higher concentrations
in the geologic past, that the 300 ppm preindustrial
level of CO2 was near the 200 to 250 ppm minimum
necessary for plant survival, and that changes in CO2
precede changes in temperature. CEI also claims that
atmospheric carbon levels have been 15 times greater
in the past, “without known adverse effects.”
RESPONSE:
FAIR’s assertions are based on several incorrect assumptions. First, although issues related to beneficial
effects and historic concentrations of carbon dioxide
were addressed at length in the record for the 2009
Endangerment Finding, FAIR’s assertions misunderstand the core bases of the 2009 Endangerment Finding, for example by failing to recognize that the 2009
Endangerment Finding is directed at “elevated concentrations” of GHGs in the atmosphere. See e.g. 74 Fed.
Reg. 66497; see also, e.g., RTC 9-7 and RTP 3-8 (addressing similar arguments). In addition, the IPCC
AR6 assessment determined that it is “unequivocal
that the increase of CO2, CH4, and N2O in the atmosphere over the industrial era is the result of human activities” (IPCC AR6, 2021): the increase due to
App. 75
humans for CO2 is 47% (IPCC AR6, 2021), not the 3%
claimed by FAIR. While FAIR is correct that the relationship of CO2 concentrations and radiative forcing
(or the “effect of CO2 in causing warming”) is logarithmic, FAIR is incorrect that this implies an asymptote:
in fact, a logarithmic relationship implies a constant
increase for every doubling of the concentration of
the gas, without any asymptote57. Whether CO2 was
higher in the geologic past (e.g., more than 2 million
years ago) is irrelevant to the question of endangerment, as the climate of the planet was dramatically different in that era, and humans had not yet evolved.
Further, this argument was addressed in the Response
to Comments for the 2009 Endangerment Finding:
“Although GHG concentrations in the distant past
have substantially exceeded current levels, the existence of high GHG concentrations in the very distant
past does not demonstrate that there are not negative
consequences of high concentrations in the present, as
addressed in the assessment literature” (RTC 3-54); see
also RTC 9-7 (noting that “while CO2 concentrations
may be low compared to the average of the past billion
years, EPA finds it is much more relevant that CO2
concentrations are very likely higher than anything
seen in the past million years.”). Ice cores show that
CO2 concentrations were as low as 180 ppm during
57
This is part of the basic definition of a logarithm. E.g.,
“Does the graph of a general logarithmic function have a horizontal asymptote? . . . No. A horizontal asymptote would suggest a
limit on the range, and the range of any logarithmic function
in general form is all real numbers” from https://opentextbc.ca/
precalculusopenstax/chapter/graphs-of-logarithmic-functions/.
App. 76
glacial maxima several times over the past million
years (IPCC AR5 Chapter 5, p. 391), and plants survived those periods: given today’s concentrations of 416
ppm, there is no concern that CO2 concentrations
could drop below the minimum necessary for plant survival.
[32] In addition, we note that where relevant EPA reasonably considered the potential beneficial impacts of
GHGs in the 2009 Endangerment Finding and the
supporting record, as well as the associated risks and
related uncertainties. See, e.g., 74 Fed. Reg. 66524 (describing EPA’s consideration of both beneficial and
adverse effects). To provide just one example, EPA’s
discussion of food production and agriculture acknowledged evidence that increased CO2 and temperature
would likely cause the life cycle of grain and oilseed
crops to progress more rapidly. See id. at 66531. However, EPA also noted that such beneficial influences
needed to be considered in light of various other effects,
such as potential effects on pest and weed growth and
disease. Id. In addition, EPA noted that “higher temperature increases, changing precipitation patterns
and variability, and any increases in ground-level
ozone induced by higher temperatures, can work to
counteract any direct stimulatory carbon dioxide effect, as well as lead to their own adverse impacts.” Id.
Taking both near- and long-term trends into account,
the Administrator concluded that “the body of evidence
points towards increasing risk of net adverse impacts
on U.S. food production and agriculture, with the potential for significant disruptions and crop failure in
App. 77
the future.” Id. at 66531-66532. This type of nuanced
consideration, based on an extensive and well-support
scientific record, stands in stark contrast to the petitions’ oversimplified assertions. Moreover, impacts on
ecosystems and agriculture are only a small part of the
total impact of elevated GHG concentrations, and the
Administrator considered the entirety of the impacts
of GHGs when making her conclusions.
Furthermore, EPA does not agree with the claim that
Massachusetts v. EPA was wrongly decided because
greenhouse gases should not be considered air pollution. To the contrary, as described in the 2009 Endangerment Finding, EPA interprets the definition of the
term “air pollutant” in section 302(g) of the CAA to include greenhouse gases. See, e.g., 74 Fed. Reg. at 66510.
EPA also fully explained in the 2009 Endangerment
Finding why it considers the six well-mixed greenhouse gases air pollution, as that term is used in section 202(a) of the CAA. See, e.g., 74 Fed. Reg. at 6651666517 (summarizing reasons for defining the air pollution addressed by the 2009 Endangerment Finding as
the combination of six well-mixed greenhouse gases);
see also 74 Fed. Reg. at 66536-66537 (describing rationale for defining the air pollutant as the combination of the same six well-mixed gases).
For these reasons, the arguments by petitioners that
CO2 is harmless—or even net beneficial—do not counter
the extensive and well-supported record that supported the 2009 Endangerment Finding and the later
evidence that has only strengthened those conclusions.
Accordingly, EPA concludes that none of these claims
App. 78
warrant reopening or reconsidering the 2009 Endangerment Finding.
xi. Petitioners’ claim that a lack of warming between 1998 and 2016 is evidence
that CO2 has no impact
The CEI petition claims that there has been no statistically significant atmospheric warming despite a
continued increase in carbon dioxide levels. The petitioner asserts that the two warmest years on record,
and their corresponding atmospheric carbon dioxide
concentrations, in parts per million (ppm), are 1998
(367.13 ppm) and 2016 (404.48 ppm). They argue that
while the difference in atmospheric carbon dioxide concentrations between these two years was 10%, the difference in temperature was only 0.02 degrees Celsius.
They calculate that this temperature [33] difference is
not statistically significant at the 95% confidence level.
CEI states that the 18 year period between 1998 and
2016 is twice as long as the seven to ten years that
were discussed in the 2009 Endangerment Finding as
not showing a strong trend in temperatures, and that
therefore this period cannot be dismissed as a “limited
analysis”. The petition further surmises that this lack
of a strong warming trend over that period of time
“draws into serious question EPA’s contention that
we have an adequate ‘physical understanding of the
effects of changing concentrations of GHGs . . . on the
climate system.’ ”
App. 79
FAIR made a similar claim that satellite data showed
no warming between February of 1997 and October of
2015. The petitioners state that this lack of warming
disproves the line of evidence regarding the unusual
nature of the warming over the last several decades.
RESPONSE:
The petitioners’ argument that the climatic effect of
CO2 is disproved by the lack of a statistically significant difference between the temperatures in 1998 and
2016 is both incorrect and a rehash of prior arguments
that were already addressed. Similar logic was already
addressed in the 2009 Response to Comments document. Furthermore, the statistical analysis from the
petitioners lacks rigor, and does not consider the entirety of the data. Moreover, the additional years of
temperature observations after the release of the 2009
Endangerment Finding support the Finding rather
than undermine it. Therefore, this argument from the
petitioners is not grounds to reopen or reconsider the
2009 Endangerment Finding.
First, Response 3-4 from the 2009 Response to Comments examines the argument that CO2 and temperature are not linked if temperatures do not rise over a
short period where CO2 emissions are rising, stating
that “Climate over the 21st century can and likely
will produce periods of a decade or two where the
globally averaged surface air temperature shows no
trend or even slight cooling in the presence of longerterm warming.” None of the data that the petitioners
App. 80
present is inconsistent with the conclusions from this
response.
Second, by focusing only on whether 1998 and 2016 are
not distinguishable statistically, or whether the trend
from 1998 to 2016 is statistically significant, the petitioners are not properly considering how the variability inherent in climate trends interacts with statistical
significance tests. Because there is year to year variability due to factors such as ENSO events, the uncertainty in trend calculations for short time periods
can be large. This is particularly true for satellite data,
as tropospheric temperatures are more sensitive to
ENSO events than surface temperatures. Therefore, a
lack of statistical significance is not meaningful for
short term trends in this context. Similarly, simply
looking only at whether there is a statistically significant difference in temperature between two single
years is not an adequate basis for determining the
trend over the intervening period, as it does not consider any information for the intervening years.
[34] This can be seen when temperature trends at the
time of the 2009 Endangerment Finding are compared
to temperature trends including recent data: the 2009
TSD cited temperature trends from 1980 to 2008 of
0.16-0.17 degrees C/decade (TSD, p. 29, for the NOAA,
NASA, and HadCRUT temperature datasets). The
IPCC AR6 has updated temperature trends from 1980
through 2020: these trends range from 0.18-0.20 degrees C/decade (IPCC AR6, p. 2-46, for seven different temperature datasets). For satellite temperatures
measuring tropospheric temperatures, the 2009 TSD
App. 81
cited estimates for temperature trends from 1979 to
2008 ranging from 0.12 to 0.19 degrees C/decade (TSD,
p. 30), and the IPCC now estimates trends for 1980 to
2019 of 0.13 to 0.23 degrees C/decade (IPCC AR6, p. 249, six lower troposphere datasets). Therefore, the
most recent data indicates that the rate of warming is
increasing, contrary to the petitioners’ arguments.
In addition, this issue was addressed by the Fourth National Climate Assessment (NCA4, 2018), which noted
that while the rate of surface temperature warming
may have slowed temporarily in the early years of the
21st century, ocean heat content continued to rise unabated.58 Because the oceans have a much larger thermal mass than the atmosphere, small fluctuations in
ocean heat due to changes in currents (such as ENSO)
can lead to larger fluctuations in atmospheric temperature, such that a reduction in atmospheric warming
may not “represent a slowdown in warming of the climate system but rather is an energy redistribution
within the oceans” (Yan et al. 201659). The continued
increase in ocean heat content over the period after
1998 indicates that this is the case: while atmospheric
58
Wuebbles, D. J., D. R. Easterling, K. Hayhoe, T. Knutson,
R. E. Kopp, J. P. Kossin, K. E. Kunkel, A. N. LeGrande, C. Mears,
W. V. Sweet, P. C. Taylor, R. S. Vose, and M. F. Wehner, 2017:
Our Globally Changing Climate. Climate Science Special Report:
Fourth National Climate Assessment, Volume I. Wuebbles, D. J.,
D. W. Fahey, K. A. Hibbard, D. J. Dokken, B. C. Stewart, and T.
K. Maycock, Eds., U.S. Global Change Research Program, Washington, DC, USA, 35–72. doi:10.7930/J08S4N35. Box 1.1.
59
Yan, X.-H. et al. The global warming hiatus: slowdown or
redistribution? Earths Futur. 4, 472–482 (2016)
App. 82
temperatures may have fluctuated, there was no slowdown in total warming of the Earth system. The NCA4
went on to state that:
For short periods of time, from a few years to
a decade or so, the increase in global temperature can be temporarily slowed or even reversed by natural variability (see Box 2.1).
Over the past decade, such a slowdown led to
numerous assertions that global warming had
stopped. No temperature records, however,
show that long-term global warming has ceased
or even substantially slowed over the past
decade (NCA4, p. 76)
This is another example of petitioners cherry-picking
narrow temporal windows from specific long-term datasets to attempt to support their assertions, without
accounting for more complete information (longer time
periods, larger geographic regions, and more temperature metrics). Therefore, this claim does not provide
support for reopening or reconsidering the 2009 Endangerment Finding.
xii. Petitioners’ claim that recent warming
is far from unusual
[35] The CEI petition claims that recent changes in
global temperature are far from unusual. The petitioner
states that a “more recent, comprehensive review of
the scientific literature” than the 2009 Endangerment
Finding comes to the conclusion that recent fluctuations in temperature are “within the bounds of natural
variability.”
App. 83
RESPONSE:
EPA addressed several claims debating whether recent temperatures are unusual in the 2010 Response
to Petitions (Vol. 1, p. 8):
Placing the paleoclimate work into the broader
climate science context, the TSD cites the U.S.
Global Change Research Program (USGCRP)
statement 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 (Karl et
al, 2009).” The phrase in Karl et al. regarding
“indirect historical estimates” refers to the
paleoclimate reconstructions based on proxies. Following Karl’s statement, the unusual
nature of the current warming in the context
of the past 1,000 years contributes to one of
the lines of evidence supporting the attribution of current warming to human activities.
Note that “unusual” does not mean unprecedented, and past warming must be considered
in the light of what we know about past climatic forcings such as solar and volcanic activity. Additionally, in the IPCC chapter on
attribution, Hegerl et al. (2007) states that
“[a]nalyses of palaeoclimate data have increased confidence in the role of external influences on climate.” Hegerl et al. are stating
that paleoclimate information improves our
understanding of the difference between how
the climate responds to external changes, such
as changes in solar radiation, orbital characteristics, GHG concentrations, or atmospheric
App. 84
loadings of aerosols (such as from volcanic
eruptions), compared to internal changes such
as el Niño events.
The EPA also responded to numerous similar comments regarding temperatures over the past 1000
years: see Reponses 2-62 through 2-69 of the 2009 Response to Comments document. In the 2009 Endangerment Finding itself, EPA responded to these comments
(74 Fed. Reg. 66523):
A number of commenters argue that the
warmth of the late 20th century is not unusual relative to the past 1,000 years. They
maintain temperatures were comparably warm
during the Medieval Warm Period (MWP) centered around 1000 A.D. We agree there was a
Medieval Warm Period in many regions but
find the evidence is insufficient to assess
whether it was globally coherent. Our review
of the available evidence suggests that Northern Hemisphere temperatures in the MWP
were probably between 0.1 °C and 0.2 °C below the 1961–1990 mean and significantly below the level shown by instrumental data
after 1980. However, we note significant uncertainty in the temperature record prior to
1600 A.D.
Improved paleoclimate data has only increased the
confidence of scientists in the unusual nature of
the current climate, with the IPCC AR6 assessment
finding that global surface temperature has increased
faster since 1970 than in any other 50-year period
over at least the last 2000 years (high confidence).
App. 85
Temperatures during the most recent decade (2011–
2020) exceed those of the [36] most recent multi-century warm period, around 6500 years ago [0.2°C to 1
°C relative to 1850–1900] (medium confidence). Prior
to that, the next most recent warm period was about
125,000 years ago when the multi-century temperature [0.5°C to 1.5°C relative to 1850–1900] overlaps
the observations of the most recent decade (medium
confidence).
Separately, the CEI argument that recent temperature
changes are within the bounds of natural variability
has been addressed in the 2009 Response to Comments
(Response 3-6):
As stated in an earlier response, elevated GHGs
are not the only determinant of changes in
temperature at the surface and in the troposphere, though most of the observed increase
in global temperatures since the mid-20th
century has been attributed to the observed
increase in GHG concentrations. Elevated
GHGs act in addition to aerosols, land albedo
changes, volcanoes, solar changes, and internal variability. A review of the literature
shows that there are scientifically compelling
explanations for the pattern of global temperature change over the past century. The information on attribution assessed by the IPCC,
USGCRP, and CCSP, as summarized in the
TSD, is consistent with the observed temperature record and therefore does not call into
question the evidence supporting attribution
of most of the observed warming since 1950 to
increased GHG concentrations.
App. 86
The response also quoted the IPCC assessment (Hegerl
et al., 2007) as stating that, “many observed changes
in surface and free atmospheric temperature, ocean
temperature, and sea ice extent, and some large-scale
changes in the atmospheric circulation over the 20th
century are distinct from internal variability and consistent with the expected response to anthropogenic
forcing.” Effectively, the timing and patterns of the recent climatic changes, and lack of observed natural
drivers, eliminate the possibility that natural variability has significantly contributed. More recent assessments have only strengthened the conclusion that
recent warming can be attributed to human influence
(e.g., the IPCC AR6 SPM at page SPM-6 stated, “It
is very likely that well-mixed GHGs were the main
driver of tropospheric warming since 1979”).
Therefore, the science regarding the unusual nature of
recent temperature change has only grown stronger
since the 2009 Endangerment Finding, and the argument by CEI that recent temperature change is not unusual does not support reconsidering or reopening the
Endangerment Finding.
xiii. Petitioners’ objection that EPA should
have submitted the 2009 Endangerment
Finding to the SAB
TPP states that EPA should reconsider the 2009 Endangerment Finding because EPA failed to comply
with a nondiscretionary statutory mandate in 42
U.S.C. §4365(c)(1) by failing to submit the 2009
App. 87
Endangerment Finding to the EPA Scientific Advisory
Board (SAB) for peer review. (TPP, p. 13). TPP argues
that EPA was required to submit the 2009 Endangerment Finding to the SAB because it falls within the
definition of a “rule” in the Administrative Procedure
Act, citing 5 U.S.C. §551(4), and thus is a “regulation”
subject to the SAB submittal requirement in 42 U.S.C.
§4365(c)(1). TPP further asserts that EPA triggered
the SAB submittal requirement by providing the
2009 Endangerment Finding to the Office of Management and Budget (OMB), pursuant to Executive Order
(E.O.) 12866. TPP argues that this failure to submit
was not [37] harmless error, pointing to adverse economic impacts the 2009 Endangerment Finding allegedly had. TPP further contends that if EPA had made
the 2009 Endangerment Finding available to the SAB,
the SAB would have identified various gaps that TPP
asserts were in the 2009 Endangerment Finding, such
as EPA’s alleged failure to address whether the Finding or any of the related GHG rules would remove dangers to human health or welfare, influenced EPA’s
evaluation of the science, and the review would have
led to “significant change” in the 2009 Endangerment
Finding. (TPP, pp. 4-5, 26-28, 30-31).60
TPP states that “the SAB submittal requirement
was raised during the public comment period on the
60
TPP’s petition contains a number of other assertions with
which EPA does not necessarily agree. However, to the extent
those issues are not directly relevant to resolving the substance
of TPP’s petition, EPA is not further addressing them in this Denial.
App. 88
proposed Endangerment Finding.” (TPP, p. 8). Additionally, while acknowledging the D.C. Circuit’s decision in
Coalition for Responsible Regulation, Inc. v. EPA, 684
F.3d 102 (D.C. Cir. 2012), which addressed, inter alia,
challenges to the 2009 Endangerment Finding based
on EPA’s alleged failure to submit it to the SAB, TPP
argues that the court’s decision does not constrain EPA
from reconsidering the Finding. (TPP, p. 18-28). Finally, TPP argues that EPA has inherent discretion to
reconsider the 2009 Endangerment Finding, that EPA
“may determine as a matter of policy that the [2009
Endangerment Finding] should have been submitted
to [SAB],” and that EPA’s failure to do so “triggers reconsideration of the [2009 Endangerment Finding].”
(TPP, pp. 28-29).
RESPONSE
Petitioner’s assertions regarding submission of the
2009 Endangerment Finding to the SAB rehash a procedural argument that was raised during judicial review of the 2009 Endangerment Finding and resolved
in EPA’s favor. The D.C. Circuit upheld the 2009 Endangerment Finding after considering claims that EPA
had failed to satisfy the statutory mandate in 42 U.S.C.
4365(c)(1) to “make available” to the SAB “any proposed criteria document, standard, limitation, or regulation under the Clean Air Act” at the time it provides
the same “to any other Federal agency for formal review and comment.” Coalition for Responsible Regulation, 684 F.3d at 124. The court further held that “even
if EPA violated its mandate by failing to submit the
Endangerment Finding to the SAB, . . . Petitioners
App. 89
have not shown that this error was of such central relevance to the rule that there is a substantial likelihood
that the rule would have been significantly changed if
such errors had not been made.” Id. (citing standard in
CAA section 307(d)(8) for challenges to procedural determinations).
EPA disagrees with the Petitioner’s claim that it was
required to submit the 2009 Endangerment Finding to
the SAB for review under 42 U.S.C. 4365(c)(1), as that
provision did not apply. EPA previously addressed this
procedural claim in detail, particularly in Response 37 in Volume 3 of its 2010 Response to Petitions. As EPA
explained in that response, while 42 U.S.C. 4365(c)(1)
requires EPA to make “any proposed criteria document, standard, limitation, or regulation” available to
SAB, the proposed 2009 Endangerment Finding was
not a proposed “criteria [38] document, standard, limitation, or regulation” and thus did not fall within the
scope of that provision. EPA also explained in the record for the 2009 Endangerment Finding that it was
“not a regulation promulgated under Section 202(a)
of the CAA, as they do not include any regulatory
text, and they do not impose any requirements on any
person other than EPA.” (RTC 11-7). Further, even assuming for the sake of argument that the 2009 Endangerment Finding falls within the APA’s definition of
“rule,” that would not change EPA’s conclusion that
EPA was not required to make the 2009 Endangerment Finding available to the SAB. EPA does not interpret 42 U.S.C. 4365(c)(1) to apply to documents that
are not regulations, and are not otherwise specified,
App. 90
but might fit within the APA’s expansive definition of
“rule.”
EPA also provided additional responses regarding the
issue of SAB submittal in the 2010 Response to Petitions. See RTP, Response 3-7. For example, EPA explained in 2010 that the petitioners objecting to the
lack of SAB review had not provided substantial support for the argument that the 2009 Endangerment
Finding should be revised, particularly in light of the
strength and credibility of the scientific underpinnings
of the 2009 Endangerment Finding and the absence of
any information indicating that lack of SAB review undermined that scientific basis. See RTP, Response 3-7.
TPP fails to identify any new information or changed
circumstances that necessitate reconsideration of EPA’s
prior conclusion that the SAB submittal requirement
in 42 U.S.C. 4365(c)(1) did not apply to the 2009 Endangerment Finding. In light of EPA’s extensive prior
explanations of its grounds for concluding that the
SAB submittal requirement did not apply to the 2009
Endangerment Finding, the D.C. Circuit’s decision in
Coalition for Responsible Regulation rejecting challenges to the 2009 Endangerment Finding on this basis, and TPP’s failure to identify any new information
or changed circumstances that warrant reevaluation of
EPA’s prior procedures, EPA does not see any basis in
TPP’s petition for reopening or reconsidering the 2009
Endangerment Finding.
TPP asserts that if EPA had submitted the 2009
Endangerment Finding to the SAB, it would have
App. 91
provided advice that could have led to changes in
EPA’s approach or analysis. However, EPA’s subsequent experience with the SAB refutes that assertion. EPA did provide the SAB information on a later
GHG Endangerment Finding under title II of the
CAA, the proposed GHG Endangerment and Cause or
Contribute Findings under CAA section 231 for Aircraft, which followed an approach that mirrored the
agency’s approach for the 2009 Endangerment Finding.61 Consistent with the then-applicable SABadopted process for determining whether to initiate review of major planned actions identified in the Unified
Regulatory Agenda by EPA, an SAB Work Group was
charged with identifying actions for further consideration by the Chartered SAB. See Memorandum Re:
Preparations for Chartered Science Advisory Board
(SAB) Discussions of EPA Planned Agency Actions and
their Supporting Science in the Fall 2014 Regulatory
Agenda, from James R. Mihelcic, Chair, SAB Work
Group on EPA Planned Actions for SAB Consideration
of the Underlying Science, to Members of the Chartered SAB and SAB Liaisons (April 28, 2015) (“Mihelcic Memo”). The work group recommended that the
2016 Aircraft Findings did “not merit further SAB consideration,” explaining that EPA would rely on work
products, including reports prepared by other entities,
such as IPCC, USGCRP, and NRC, which “undergo extensive review and thus would not require any further
review by the SAB.” Mihelcic Memo, Att. C at p. C-20.
Further, the work group’s recommendation explained
61
81 Fed. Reg. 54,422 (August 15, 2016).
App. 92
that
the
[39] “approach that EPA will take to making inferences
from these work products involves considerations for
which there is precedent in the endangerment finding
that was made in 2009 under Section 202 of the Clean
Air Act” and which had been subject to judicial review.
Id. at pp. C-20 to C-21. It also noted that the “action
clearly deals with issues that involve major environmental risks.” Id. at p. C-21. These statements counter
TPP’s suggestion that if the 2009 Endangerment Finding were made available to SAB, it would have identified gaps in EPA’s approach or advised changes. SAB
may—but is not required to—provide advice or comments on documents or actions made available to it.
See 42 U.S.C. 4365(c)(2). SAB declined to review the
2016 Findings, “recogniz[ing] that the action will be
based on information that has been well-reviewed and
that will be based on inference approaches for which
there is precedent.” Letter from Dr. Peter S. Thorne, Re:
Science Advisory Board (SAB) Consideration of EPA
Planned Actions in the Fall 2014 Unified (Regulatory)
Agenda and their Supporting Science (June 16, 2015)
(EPA-SAB-15-009).
Finally, TPP’s claim that EPA has inherent authority
to reconsider the 2009 Endangerment Finding, coupled
with its claim that EPA’s “failure to do so triggers reconsideration of the finding,” appears to conflate EPA’s
discretionary authorities with its nondiscretionary duties under the CAA. To the extent EPA has discretion
to reconsider the procedures that led to its promulgation of the 2009 Endangerment Finding, EPA declines
App. 93
to exercise that discretion here, for all of the reasons
discussed above, and this declination does not trigger
any mandatory duty to reconsider the 2009 Endangerment Finding. Accordingly, EPA is denying TPP’s
request that EPA reopen or reconsider the 2009 Endangerment Finding to make it available to the SAB
for review.
VI. Conclusion
For all of the reasons discussed above, EPA concludes
that these four petitions relating to the 2009 Endangerment Finding fail to identify any information or circumstances that warrant rulemaking under the APA.
We also find that, to the extent the petitioners seek reconsideration of the 2009 Endangerment Finding under section 307(d)(7)(B) of the CAA, they fail to meet
the statutory criteria for such petitions. Accordingly,
the petitions are denied.
The decision to deny the four petitions is a final agency
action for purposes of section 307(b)(1) of the CAA,
which governs judicial review of final actions by the
EPA. This action is not a rulemaking and is not subject
to the various statutory and other provisions applicable to a rulemaking.
Section 307(b)(1) provides, in part, that petitions for
review must be filed in the United States Court of
Appeals for the District of Columbia Circuit (D.C. Circuit): (i) when the agency action consists of “nationally
applicable regulations promulgated, or final actions
taken, by the Administrator,” or (ii) when such action
App. 94
is locally or regionally applicable, but “such action is
based on a determination of nationwide scope or effect
and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.” For locally or regionally applicable final
actions, the CAA reserves to the EPA complete discretion whether to invoke the exception in (ii).
[40] This final action is “nationally applicable” within
the meaning of CAA section 307(b)(1). In the alternative, to the extent a court finds this final action to be
locally or regionally applicable, the Administrator is
exercising the complete discretion afforded to him under the CAA to make and publish a finding that this
action is based on a determination of “nationwide
scope or effect” within the meaning of CAA section
307(b)(1).62 This action relates to the 2009 Endangerment Finding, which is nationally applicable. The 2009
Endangerment Finding concerns risks from greenhouse gas pollution and contributions to such pollution
that occur across the nation, and the result of the denial of these four petitions is that the existing nationally applicable 2009 Endangerment Finding remains
in place and undisturbed. Further, both the 2009 Endangerment Finding and EPA’s previous denial of petitions for reconsideration of that Finding were
62
In deciding whether to invoke the exception by making and
publishing a finding that this final action is based on a determination of nationwide scope or effect, the Administrator has also
taken into account a number of policy considerations, including
his judgment balancing the benefit of obtaining the D.C. Circuit’s
authoritative centralized review versus allowing development of
the issue in other contexts and the best use of Agency resources.
App. 95
previously reviewed by the D.C. Circuit, see Coal. for
Responsible Regul., Inc. v. EPA, 684 F.3d 102 (D.C. Cir.
2012) (per curiam) (subsequent history omitted). Moreover, the 2009 Endangerment Finding triggered EPA’s
statutory duty to promulgate motor vehicle standards
under section 202(a) of the CAA, for which judicial review is also only available in the D.C. Circuit and
which have effects in more than one federal judicial
circuit.63 For these reasons, this final action is nationally applicable or, alternatively, the Administrator is
hereby exercising the complete discretion afforded to
him by the CAA to make and publish a finding that
this action is based on a determination of “nationwide
scope or effect” within the meaning of CAA section
307(b)(1).
63
In the report on the 1977 Amendments that revised section
307(b)(1) of the CAA, Congress noted that the Administrator’s determination that the “nationwide scope or effect” exception applies would be appropriate for any action that has a scope or effect
beyond a single judicial circuit. See H.R. Rep. No. 95–294 at 323,
324, reprinted in 1977 U.S.C.C.A.N. 1402–03.
App. 96
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
-----------------------------------------------------------------------
No. 22-1139
September Term, 2022
EPA-87FR25412
Filed On: July 20, 2023
Concerned Household Electricity
Consumer’s Council, et al.,
Petitioners
v.
Environmental Protection Agency,
Respondent
---------------------------American Lung Association, et al.,
Intervenors
---------------------------Consolidated with 22-1140
BEFORE:
Srinivasan, Chief Judge; Henderson,
Millett, Pillard, Wilkins, Katsas, Rao,
Walker, Childs, Pan, and Garcia, Circuit Judges
App. 97
ORDER
Upon consideration of petitioners’ petition for rehearing en banc, and the absence of a request by any
member of the court for a vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
App. 98
BEFORE THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
In re:
Endangerment and Cause
or Contribute Findings for
Greenhouse Gases Under
Section 202(a) of the
Clean Air Act
EPA Docket No.
EPA-HQ-OAR-2009-01
SEVENTH SUPPLEMENT TO PETITION FOR
RECONSIDERATION OF “ENDANGERMENT
AND CAUSE OR CONTRIBUTE FINDINGS
FOR GREENHOUSE GASES UNDER
SECTION 202(a) OF THE CLEAN AIR ACT”
Filed by
Concerned Household Electricity Consumers Council,
consisting of Joseph D’Aleo, Clement Dwyer, Jr.,
Russell C. Slanover, Scott M. Univer, James P.
Wallace III, Robin D. Weaver, and Douglas S. Springer
Francis Menton
Law Office of Francis Menton
85 Broad Street, 18th floor
New York, New York 10004
(212) 627-1796
fmenton@
manhattancontrarian.com
Harry W. MacDougald
Caldwell Carlson,
Elliott & DeLoach LLP
Two Ravinia Drive,
Suite 1600
Atlanta, Georgia 30346
(404) 843-1956
hmacdougald@
ccedlawyers.com
Attorneys for Concerned Household Electricity
Consumers Council and its members
App. 99
[ii] TABLE OF CONTENTS
Introduction and Summary of Argument ............
1
Argument .............................................................
3
A.
The Social Cost of CO2 (SC-CO2) is Negative; CO2 is a Beneficial Gas ......................
3
1. Global Average Surface Temperature
(GAST) data is a total fabrication .......
3
2. Proof of GAST data fabrication invalidates each of the three lines of evidence in 2009 GHG Endangerment
Finding ................................................
5
3. The climate models are fundamentally
flawed and cannot be used for attribution of global warming to rising atmospheric CO2/GHG concentration levels .
8
4. Climate models are fundamentally
flawed since the Equilibrium Climate
Sensitivity of CO2 is actually zero.
Therefore, the SCC estimation/modeling systems, which always link such
climate models to economic models,
are also fundamentally flawed ............ 13
5. When postulated as separate falsifiable hypotheses, each of the Alarmist
Claims is rejected ................................ 14
6. One cannot reject That SC-CO2 is less
than 0. Therefore, CO2 is a Beneficial
Gas ....................................................... 18
B.
The Social Cost of Each Trace GHG Other
than CO2 is also Negative; therefore, each
Trace GHG is a Beneficial Gas .................. 19
App. 100
1. The Equilibrium Climate Sensitivity
of each of the other GHGs currently
subject to future emissions reduction
regulation, e.g., Methane, N2O, CFCs
and HFCs, has been calculated incorrectly for years and is actually zero ...... 19
2. The Social Cost of Each Trace GHG
Other than CO2 is also Negative; therefore, each is also a Beneficial Gas ......... 21
C.
Recommendations Based on Science Arguments ......................................................... 22
[1] SEVENTH SUPPLEMENT TO
PETITION FOR RECONSIDERATION OF
“ENDANGERMENT AND CAUSE OR
CONTRIBUTE FINDINGS FOR
GREENHOUSE GASES UNDER
SECTION 202(a) OF THE CLEAN AIR ACT”
Pursuant to Section 307(d) of the Clean Air Act, 42
U.S.C. § 7607(d) and 5 U.S.C. § 553(e), the Concerned
Household Electricity Consumers Council (“CHECC”),
consisting of Joseph D’Aleo, Clement Dwyer, Jr., Russell C. Slanover, Scott M. Univer, James P. Wallace III,
Robin D. Weaver and Douglas S. Springer, hereby submit this seventh supplement to their January 20, 2017
Petition (“Petition”) to the U.S. Environmental Protection Agency (“EPA” or “the Agency”) to convene a proceeding for reconsideration of the “Endangerment and
Cause or Contribute Findings for Greenhouse Gases
Under Section 202(a) of the Clean Air Act” published
by the Agency on December 15, 2009 (74 F.R. 66496,
Dec. 15, 2009) (original EPA Docket No. Docket EPA-
App. 101
HQ-OAR-2009-171) (“the Endangerment Finding”), by
submitting the following:
On January 19, 2021, then-EPA Administrator Andrew
Wheeler denied the CHECC Petition.
Thereafter, on March 23, 2021, current EPA Administrator Michael S. Regan sent counsel for CHECC a letter “withdrawing the denial of your petitions as this
response does not provide an adequate justification for
the denial. The EPA therefore intends to reassess the
petitions and to issue a new decision in due course.”
Since the Petition remains under consideration by the
Agency, CHECC submits this seventh supplement to
its Petition.
INTRODUCTION AND
SUMMARY OF ARGUMENT
There have been many recent assertions concerning
fraud in peer-reviewed and published work in science—including climate. (See e.g.., GWPF Observatory,
7 May 2021). All work cited here is peer-reviewed, published and purposely set up so as to be easily reproducible. No rebuttals have been received by the lead
authors on any of the work cited.
Here we summarize the arguments presented below.
App. 102
[2] Section A: The Social Cost of CO2 (SC-CO2) is
Negative; CO2 is a Beneficial Gas.
1.
Global Average Surface Temperature (GAST)
data is a total fabrication.
2.
Proof of GAST data fabrication invalidates
each of the Three Lines of Evidence in the
2009 GHG Endangerment Finding.
3.
Climate models are fundamentally flawed
and cannot be used for attribution of global
warming to rising atmospheric CO2/GHG concentration levels.
4.
Climate models are fundamentally flawed
since the Equilibrium Climate Sensitivity of
CO2 is actually zero; thus, the current SCC
estimation/modeling systems, always involving such climate models linked to economic
models, are also fundamentally flawed.
5.
Finally, each of the Alarmist Claims when
postulated as a separate falsifiable hypothesis
should also be rejected.
6.
That SC-CO2 is less than 0 cannot be rejected.
Thus, CO2 is a Beneficial Gas
Section B: The Social Cost of Each Trace GHG
Other than CO2 is also Negative; therefore each
Trace GHG is a Beneficial Gas
1.
The Equilibrium Climate Sensitivity (ECS) of
each of the other GHGs currently subject to
future emissions reduction regulation, e.g.,
Methane, N2O, CFCs and HFCs has been
App. 103
calculated incorrectly for years and is actually
zero.
2.
Therefore, the social cost of each trace GHG
other than CO2 is also negative; therefore,
each is also a beneficial gas.
[3] ARGUMENT
A. THE SOCIAL COST OF CO2 (SC-CO2) IS NEGATIVE; CO2 IS A BENEFICIAL GAS
Social Cost of Greenhouse Gases calculations (e.g., SCCO2) are used in the policy making process to estimate
the value to society of marginal reductions in greenhouse gas emissions, or conversely, the social costs of
increasing such emissions. The current regulatory process assumes as a validated claim that SC-CO2 is
greater than 0, where the only open issue now is how
much bigger than zero.
This claim is invalidated if the hypothesis that SC-CO2
is less than 0 cannot be rejected; that is, that CO2 is not
a pollutant but rather is a beneficial gas. Following is
a proof that such is the case.
1. GLOBAL AVERAGE SURFACE TEMPERATURE (GAST) DATA IS A TOTAL FABRICATION.
A peer-reviewed Climate Science Research Report entitled On the Validity of NOAA, NASA and Hadley
CRU Global Average Surface Temperature Data & The
Validity of EPA’s CO2 Endangerment Finding,
App. 104
Abridged Research Report was published in June 2017.
This research was done pro bono.
The objective of this research was to test the hypothesis that these Global Average Surface Temperature
(GAST) data sets are sufficiently credible estimates of
global average surface temperatures such that they
can be relied upon for climate modeling and policy
analysis purposes. The relevance of this research is
that proof of the validity of EPA’s 2009 CO2 Endangerment Finding requires GAST data to be a valid representation of reality.
In this research report, past changes to the previously
reported historical data are quantified. It was found
that each new version of GAST data has nearly always
exhibited a steeper warming linear trend over its more
than 100 year plus history. And, it was nearly always
accomplished by each [4] reporting entity systematically removing the previously existing cyclical temperature pattern.
This was true for all three entities providing GAST
data measurement, NOAA, NASA and Hadley CRU. As
a result, this research sought to validate the current
estimates of GAST using the best available relevant
data.
The conclusive findings were that the three GAST data
sets are not a valid representation of reality. In fact,
the magnitude of their historical data adjustments
which removed their cyclical temperature patterns are
totally inconsistent with published and credible U.S.
and other temperature data.
App. 105
Thus, despite current claims of record setting warming, it is impossible to conclude from the NOAA, NASA
and Hadley CRU GAST data sets that recent years
have been the warmest ever.
Finally, since GAST data set validity is a necessary
condition for EPA’s CO2 Endangerment Finding, it too
is invalidated by these research findings. This means
that EPA’s 2009 claim that CO2 is a pollutant has been
decisively invalidated by this research. (See the June
2017 GAST Research Report: https://thsresearch.files.
wordpress.com/2017/05/ef-gastdata-research-report062817.pdf and https://thsresearch.files.wordpress.com/
2017/07/ef-gast-datasecondsupplementtopetitionfinal.pdf )
While this research report provided ample evidence
that the current officially reported GAST data are
simply not credible, there is a far simpler proof of that
fact that can be understood more quickly and easily.
Over the period 1900-2000, there is virtually no credible surface temperature data available for at least 40%
of the surface of the Earth. This follows from the fact
that the Southern Hemisphere’s surface is over 80%
ocean (.50* .80 = .40), and essentially no credible temperature data were captured monthly for these vast
oceans over this time period.
Hence, it never made any sense to even attempt to
compute a GAST data set including this time period
unless the purpose was to construct a temperature
data set that could be made to have virtually any pattern over that time period that the institutions involved desired to portray as reality. In truth, with
App. 106
literally no credible temperature data available for
well over 40% [5] of the Earth’s surface, these institutions were only limited by what was credible to the outside world.
Thus far, not knowing these facts, most relevant parties, e.g., regulators, environmentalists, and government officials, have been far too accepting of the GAST
record as a valid global temperature database. Information
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