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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Petition for Writ of Certiorari — Concerned Household Electricity Consumers Council, et al., Petitioners v. Environmental Protection Agency | Frix