While considerable attention has been paid by me and others to the cozy UK “inquiries”, Climategate is featuring prominently in another not-so-cozy forum in the US, though the connection has not been articulated to a larger audience.
A June 18 article in the New York Times reports:
Three judges issued an order (pdf) Wednesday that the motions for remand be placed on hold as EPA considers numerous petitions asking it to reconsider the finding.
The order freezes the motions for remand until two weeks after the agency makes a decision, or until Aug. 16, whichever comes first. That was the action sought by EPA, which has said it expects to decide on the petitions for reconsideration in late July.
These various petitions are animated by Climategate documents. Here’s my understanding of the present rollcall of proceedings.
(1) 10 petitions to EPA for reconsideration of the Endangerment Finding – see here and EPA motion here ;
(2) 17 petitions in court that the Endangerment Finding be remanded to EPA for further consideration – see here – consolidated as Coalition for Responsible Regulation Inc., et al., v. EPA. (Individual states appear to be parties to these petitions.);
The decision reported on Friday delays these remand petitions pending EPA’s promised disposition of the Petitions for Reconsideration at the end of July.
The docket here commences with motions by Virginia and Alabama calling on the court to remand the Endangerment Finding to EPA requiring them to take further evidence, citing the Climategate emails. The motion (Apr 15, 2010) says:
Despite the explosive revelations of climate-gate, EPA insouciantly issued its Finding on December 15, 2009 without providing any mechanism for the consideration of this new information. Despite the pendency of motions for reconsideration, the agency has announced its intent to begin rule-making in reliance on the un-re-examined Finding.
Respondent EPA moved (further down same docket here) to hold these motions in abeyance pending the disposition of the Petitions for Reconsideration. Massachusetts intervened here. In its response, EPA stated that it anticipated a decision on the Petitions for Reconsideration by the end of July:
EPA is in the process of carefully reviewing the ten petitions for reconsideration (and seven supplements thereto) submitted to the Agency, and anticipates that it will issue its decision with respect to all the petitions on or about July 30, 2010.
The decision reported on Friday (as I understand it) pushed the petitions asking for the matter to be remanded to EPA back to the earliest of August 16 or two weeks after the EPA rules on the Petitions for Reconsideration.
What makes these motions of particular interest to those interested in Climategate is that some of the petitions for reconsideration here contain detailed summaries and commentaries on the Climategate emails – the detail of which places the negligence of the Oxburgh “inquiry” in clear focus.
The longest petition is by Peabody Energy (238 pages), the second longest (58 pages) by Pacific Legal Foundation.
Thus in addition to the UK inquiries, the Climategate emails have embroiled the disposition of the EPA Endangerment Finding ( see here for the Endangerment Finding and many volumes of responses.)
Climate Audit 
42 Comments
The EPA wishes Climategate had never happened. To that end, they are pretending it did not. As you see, several states are already challenging their intention to move forward in spite of evidence. The mandate for the EPA clearly states that they can only move forward with over whelming evidence that comes from “peer reviewed” sources (not exactly those words, but most scholars impute those words to the mandate).
The longer it goes on before the EPA moves, the more likely the courts are going to hold things up as more challenges are raised to the documents the EPA used for its justification of their – snip overly editorializing language.
Please go lightly on political comments.
I am interested in technical comments on legal process. I realize that most readers are more interested in discussing politics than fine points of procedure. Nonetheless please take such discussion elsewhere. There are some interesting procedural issues here.
It’s not clear to me what weight the US courts or EPA can give to Climategate per se, since these are private e-mails that were not released with the permission of the sender or recipient, or via a successful FOI request.
(This is not to say that the EPA ruling was either authorized by the 1970 Clean Air Act or justified by the science. Climategate has simply made the latter all the more apparent.)
if it was a criminal matter, purloined evidence might be inadmissible, provided the evidence was leaked or hacked by an “agent of the state.” This, however, is a civil matter pertaining to determining policy, and it’s not all together clear who or how the new information actually made it into the public domain. I suspect the court will entertain the information as material, especially if it implies and underlying fraud to influence public policy making. The toothpaste is out of the tube. If the Supreme Court can refer to foreign precedents, certainly a lower court can consider foreign data that, in point of fact, underlies the information and American data sets the EPA used to make a policy finding.
Correct, don. There is basically no such thing as the exclusionary principle (the principle that procedural misconduct should be remedied, in part, by excluding evidence from court) in American civil law. Furthermore, there is a strong general bias in favor of considering all available evidence, including evidence that is or was confidential. In fact, I’ve seen courts essentially run rough-shod over the secrecy of proprietary information.
Even privileged information (which is the top of the confidentiality chain, more protected than merely “confidential” information) is generally regarded as fair game once the privilege has been breached, so long as it wasn’t breached by the party seeking to profit from that information before the court in question.
From the Pacific Legal Foundation’s petition to the EPA concerning the Endangerment Finding, in reference to the Climategate revelations : ” …. the e-mails and documents suggest that the CRU scientists questioned the reliability of their own data, the methodologies used in developing and analyzing such data, and the conclusions based thereon.”
Once again we are reminded of the importance of taking the time and trouble to develop one’s own perspectives and opinions about the topic of AGW and its true potential for harm to people and the environment; and not to depend solely upon the pronouncements of publicly funded agencies for rational scientific and public policy-making guidance.
One thing the government could do for us of value would be to create a knowledge management engine of AGW topical material along the same lines as the Yucca Mountain Licensing Support Network (LSN). Something that’s useful for both the pro and the con viewpoints to reference easily when making their various arguments.
The EPA will probably deal with these the way it did the comments on the initial “Endangerment finding”-In the words of John Christy’s comments:
I can’t imagine anything that would cause the EPA to actually change it’s mind. Unfortunately the procedures involved will not be the deciding factor, or will facts. Politics is probably the only consideration determining the outcome in the real world. I will stop at that point as Steve asked above.
Hu, The EPA can is not affected by the methods of disclosure in the climategate case. The law about illegal search and seizure is aimed at the government not doing it. Once it hit the public domain, it is basically like any other information. And so is “legally” usable.
That being said, the climategate papers deal less with the information that the EPA can use (or is supposed to use based upon rules and guidelines). The actual data of Climategate did not, to my knowledge, credit or discredit any peer reviewed Papers, so the EPA would not be affected by the contents of the information revelation.
I think we was refering to whether it would be considered admissable evidence, not whether the use of it would be violation of the law.
With regard to you latter point, that rather depends on what you think the EPA needs to do in it’s “finding” with regard to it’s reliance on the literature (really the IPCC and CCSP) and the possibility of a bias result from that reliance. One of the things which is quite clear, IMAO, from the emails is that there was an effort to skew the literature, and major reports. The EPA made no attempts to account for the possibility of ordinary publication bias in assessing the “endangerment”, so an additional, gatekeeping bias can only be a further source of skewness in the EPA’s assessment. It is also the case that such bias has great significant for the choice of the EPA to rely on official documents rather than make it’s own assessment of the science and literature. Since many in the emails were lead authors of the IPCC and involved in the CCSP, their gatekeeping efforts would suggest that the EPA can’t rely on those documents for unbiased assessment. And yet that is exactly what they did.
Phil, I recommend you read one (or more) of the briefs. I’m not sure what definition of “discredit” you’re using, but the emails clearly undermined the ability to draw scientifically justified conclusions from virtually every paper relied upon.
As the briefs point out, the emails show that the HADCRUT record has been “fudged,” with insufficient documentation for independent review of the “value-added” processes. Consequently no paper, whether peer reviewed or not, which relied upon this data, can be relied upon by the EPA.
Personally, I conclude that this situation means that no valid scientific conclusions can be drawn from any such paper, but it is unnecessary to draw such a strong conclusion for this purpose. The specific question being addressed is whether the EPA has provided sufficient scientific justification (according to the standards it has been charged to operate under) to begin rulemaking (i.e. regulating conduct) based on its finding that anthropogenic GHGs pose a substantial threat of harmful climate change. I find that the briefs make a powerful showing that it has not.
Andrew and Qbeamus,
I do not disagree with either of you. However, while the revelations did call into question some of the methods and data used by East Anglia et. al., they did not actually discredit any of the work that the EPA has to use, by law, for their decision making.
That was my point. I was not trying to imply that the climategate revelations were not serious, only that from a strict policy standpoint for the EPA, it is a non-sequitur. Now if the revelations are used to discredit the basis for the EPA regulations, that is another matter. But it also requires an additional step.
Phil, it’s a useful distinction you’re making, but I’m not sure I follow your point. It seems like you’re unaware that the basis for the EPA’s endangerment finding (which is itself the requisite basis for any regulation) was, explicitly, the IPCC’s ARs, which are themselves based upon the CRU’s work. Or are you simply pointing out that those of us who are following this issue closely should not lose sight of the fact that most people aren’t following so closely, and are therefore likely to be confused by the ellipsis?
What is it, exactly, that you do not agree with us about?
By law, the EPA has to follow recognized work like the IPCC report (recognized by the peers in the field). While Climategate and subsequent revelations have called into question everything about the IPCC AR4, as yet it has not been withdrawn, and therefore still stands and is usable.
That sounds stupid (and is), but you have to realize how governments work. Strictly on rules. The rules say X, so they can do X even if X has been shown to be wrong. In this case, the IPCC report has been shown to be wrong, but has not been superceded. So they can use it. The court challenges will ask the courts to declare that the IPCC report is not worth the paper it is printed on (and there will be and already are challenges being made on that basis to the EPA rules). So until a court rules, since the report meets the requirements of the law for the EPA, they can do it. And you never know what kind of judge you are going to get. Many of them do not care about the law, only about what is “good” and “fair” to the people, which of course is totally contradictory to the intent of the role of judges.
I agree with you in principal and think the basis for the EPA ruling is bogus. However, looking at it legally, they have most of the high cards now, and any court challenge is going to take years to wind its way to the supreme court (and then it will depend upon if the court has been stacked with more Ruth Ginzbergs or Anthony Scalias).
Isn’t it clear that the SC did not say that the EPA had the authority to do anything, only that the EPA may do something. This puts the EPA squarely on the hook for the decision, there is not SC mandate as I read the SC decision.
I know many are saying the SC mandated, but it did not. It was merely SC weasel wording. Read it yourself and note the word ‘may’, not shall.
So lacking a SC mandate the EPA must basically justify scientifically what they are attempting to do, which is getting harder by the day. The EPA said they relied solely on the UN IPCC for their data, as the internal EPA science contradicted the UN IPCC.
Tight squeeze here.
Not to me it isn’t – not when the majority opinion holds, however preposterously, that “the [Clean Air Act’s] definition [of ‘air pollutant’] embraces all airborne compounds of whatever stripe…”
While the SC said that EPA may regulate CO2 and other GHG’s as pollutants, the endangerment finding is how the EPA is able to define an airborne compound as a pollutant.
The case before the courts is whether the finding, using the IPCC as the principal source of evidence, can stand up to the Clean Air Act’s requirements for evidence in such a finding.
As was pointed out by our host previously, and by Henry above regarding the Peabody brief, the rules of evidence for EPA are not met by the IPCC.
Just to add another wrinkle:
The CAA also establishes a threshold for regulation of any stationary source producing greater than 250 tons annually. The regulations for CO2, as proposed, establish a limit of anything emitting greater than 25,000 tons annually. By establishing the 25,000 ton limit the regulation exempts many small sources of CO2 but also seems to violate the language of the act and certainly past precedent. This issue is probably not ripe for court challenge until the regulation is approved.
Steve: can you provide the sections that establish the respective limits?
Steve,
A discussion of the CAA, past precedent, and the proposed GHG regulations is here:
http://www.perkinscoie.com/news/pubs_detail.aspx?op=updates&publication=2636
EPA appears to be using a rather novel approach in exempting sources that produce less the 25,000 TPY of CO2e but more than the typical limit of 100/250 TPY.
The majority opinion doesn’t recognize that as an option. It says the statute defines CO2 as a pollutant, and puts the onus on EPA to justify not regulating it, which justification will presumably be reviewable by the judiciary.
This claim in Peabody’s submittal seems to me to get to the heart of the legal basis for overturning the EPA finding:
“… [the] EPA largely ceded its obligation to make a “judgment” as to whether GHGs may endanger public health and welfare to the IPCC, an international body that is not subject to U.S. data quality and transparency standards and whose reports were prepared in direct disregard of those standards. As a result, EPA is set to begin regulating GHG emissions based on a scientific process that was conducted without the basic procedural safeguards set forth in U.S. law to ensure the reliability and accuracy of the scientific conclusions underlying the Agency’s Endangerment Finding. As an agency of the United States, however, whose regulatory actions will have far-reaching consequences for U.S. citizens, EPA must abide by U.S. standards and not the standards of international bodies whose actions are governed by different norms.”
That is, the EPA did not follow the procedures prescribed in by US law. Despite the politics, this approach might have a chance.
I agree completely. Peabody raises an important issue of process in claiming that “EPA is set to begin regulating GHG emissions based on a scientific process that was conducted without the basic procedural safeguards set forth in U.S. law to ensure the reliability and accuracy of the scientific conclusions…” Given the recent history of climate science, it is hard to imagine a case where the safeguards provided by the Information Quality Act (IQA) could have more practical relevance.
While accepting that public policy should be informed by science, we acknowledge that science is at best imperfect. Scientists make mistakes. To protect ourselves against this, we have laws, specifically the IQA, that hold scientists and their work to high standards of transparency, openness and integrity. Thanks to the University of East Anglia, we now know the consequences of failure to enforce these laws.
If the IQA means anything, it would seem to apply to the case at hand.
The IQA. Who knew? Interesting.
How the EPA implements the IAQ:
Click to access 20060403_holloman.pdf
Requires especially high standards for significant technical work.
I have been reading the Peabody Coal 238 page claim.
Every few pages are loaded with significant observations.
The e-mails contain admissions that there not only many findings contrary to warming, but they were deliberately ignored.
The admissions in the e-mail that the data was adjusted came in several forms. The software programs and the data sets. There were admissions to motives to destroy data because it could work against the warming claims.
The legal process tells us the first step was taking temps. Some were adjusted to look more favorible. (Not clean data)
The second step was to draw conclusions and publish them in the IPCC reports. Again these IPCC articles were based upon dubious and altered data sets.
The third step was for the EPA to accept the predictions and conclusions from the IPCC reports and the EPA would prove any of the experiments but accept them in good faith.
The fourth step was to issue rulings based on sloppy articles and data that can damage commerce and the economy.
The EPA relied on the IPCC reports as all being “peer reviewed” for the basis for the EPA rules. This should stop the EPA action on its own through the Information Quality Act.
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The OMB guidlines are well worth reading.
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Information Quality Act (Data Quality Act)
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Sec. 515 (a) In General — The Director of the Office of Management and Budget shall, by not later than September 30, 2001, and with public and Federal agency involvement, issue guidelines under sections 3504(d)(1) and 3516 of title 44, United States Code, that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of title 44, United States Code, commonly referred to as the Paperwork Reduction
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http://www.whitehouse.gov/omb/fedreg_reproducible/
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OMB HOME • FEDERAL REGISTER NOTICES
OFFICE OF MANAGEMENT AND BUDGET
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Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies
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AGENCY: Office of Management and Budget, Executive Office of the President.
ACTION: Final Guidelines.
Slightly off-topic I know, but Bishophill has found this email from the UK government’s Chief Scientific Officer, John Beddington, to Oxburgh.
“Dear Ron
Much appreciated the hard work put into the review, general view is a blinder played. As we discussed at HoL, clearly the drinks are on me!
Best wishes, John”
Playing a “blinder” in the UK means having an outstanding game and making a significant contribution to the team. I wonder what he could mean? (HoL is the House of Lords, I wonder what they discussed and why Beddington owes Oxburgh a drink?)
Thank you Steve for your objective presentation. Having signed petitions to both EPA and the court, it appears to me that this is the prudent way to proceed. EPA first determines if it will reconsider its endangerment finding. If it chooses not to reconsider, then the court considers the petitions to review the finding. Now we have some idea of time frames. ClimateGate provided a basis for requesting reconsideration by EPA.
Ken H.
It seems that EPA has already drafted rules on the matter. See
http://www.epa.gov/NSR/actions.html
Click to access 20100413final.pdf
Although Mass v EPA was about regulation of new automobiles, as I read the rule, EPA has now taken the position that regulating new automobiles under the Clean Air Act permitting structure would lead to “absurd results” (due to the requirement to issue millions of permits) and so they’ve decided to regulate large stationary sources instead. I don’t have time to review the legal history of this, but it seems not impossible that some of the arguments may now seem a little ironic.
Steve,
They decided that they had the power to stop farmers from farming certain areas on their land due to the fact that water may eventually drain its way to a navigable waterway and thus was within the power of the federal govt to regulate. Thus, areas of the farm that got muddy were “wetlands” and wetlands were subject to their regulation.
All automobiles are registered. Why couldn’t the permits be issued with the registration process? Tens of Millions of registrations are processed every year including millions of new ones. These are tracked through change of ownership.
Here in Quebec, three is a compulsory liability insurance that is paid with the driver’s licence and in registration payments for each automobile owned.
A permitted ‘pollution source’ must track the amount of emissions on an annual basis and fill out various ‘compliance reports’.
There are 200+ million registered vehicles in the US, tracking exact fuel consumption by vehicle would be a problem.
But automobiles are fueled by CO2-generating gasoline, so it would be trivial to apply the permits to the quantity of gasoline at the producer or distributor level, and this is not a valid excuse.
If the permits were auctioned to the highest-bidding producers or distributors by the Treasury (or a direct C tax were placed on gasoline) the proceeds would go to the Treasury, and then Congress could use them to pay off past spending or to indulge in new spending. More likely, however, EPA would simply pass permits out for free to incumbent companies such as BP and Exxon, who would then be enriched beyond OPEC’s wildest dreams as the quantitity of permits was reduced and hence their value increased.
This point deserves a separate thread, but I’m noting it here for now. Here’s how EPA goes from Mass v EPA to point sources – the “Johnson Memo”. It is an EPA interpretation that in effect says that EPA will leverage the new automobile decision to regulate CO2. See the history in these references:
http://epa.gov/nsr/guidance.html
Click to access 20091007_51535.pdf
I haven’t seen much discussion of this, though I’ve paid attention to these procedures only in passing.
Can the petitions for reconsideration be amended in light of the ongoing review of the IPCC procedures by the InterAcadamey Council (IAC)?
Two critical submissions by climate scientists are from John Cristy and Roger Pielke Sr.:
Click to access christyjr_iac_100615.pdf
Christy’s first recommendation is the IAC should consult with Stephen McIntyre.
Steve wrote:
“as I read the rule, EPA has now taken the position that regulating new automobiles under the Clean Air Act permitting structure would lead to “absurd results” (due to the requirement to issue millions of permits) and so they’ve decided to regulate large stationary sources instead.”
It is an interesting admission that applying the Clean Air Act as written to CO2 emissions would lead to “absurd results”. Isn’t this a self-evident reasons to infer that the Clean Air Act was not intended to apply to CO2 emissions?
Bingo
The Supreme Court did not rule CO2 a pollutant. The Congress of the United States did so under its “broad”, “sweeping” and “capacious” definition of “air pollutant”. The Supreme Court merely said that the EPA follow the law and issue a ruling.
Justice Stevens. “MASSACHUSETTS ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL.,” April 2, 2007. http://www.supremecourt.gov/opinions/06pdf/05-1120.pdf
Page 29 (Opinion): While the Congresses that drafted §202(a)(1) might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language of §202(a)(1) reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (“[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth” (internal quotation marks omitted)). Because greenhouse gases fit well within the Clean Air Act’s capacious definition of “air pollutant,” we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles.
Page 30 (Opinion): While the statute does condition the exercise of EPA’s authority on its formation of a “judgment,” 42 U. S. C. §7521(a)(1), that judgment must relate to whether an air pollutant“ cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare,” ibid….
Put another way, the use of the word “judgment” is not a roving license to ignore the statutory text. It is but a direction to exercise discretion within defined statutory limits….
Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. Ibid. To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design.
Page 32 (Opinion): In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change.
VIII: The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
SCALIA, J. (Dissenting, Page 10 footnote 2): Not only is EPA’s interpretation reasonable, it is far more plausible than the Court’s alternative. As the Court correctly points out, “all airborne compounds of whatever stripe,” ante, at 26, would qualify as“physical, chemical, . . . substance[s] or matter which [are] emitted into or otherwise ente[r] the ambient air,” 42 U. S. C. §7602(g). It follows that everything airborne, from Frisbees to flatulence, qualifies as an “air pollutant.” This reading of the statute defies common sense.
Re: WA777 (Jun 22 14:10), Additionally,
Page 13 (Opinion): It is therefore familiar learning that no justiciable “controversy” exists when parties seek adjudication of a political question, Luther v. Borden, 7 How. 1 (1849), when they ask for an advisory opinion, Hayburn’s Case, 2 Dall. 409 (1792), see also Clinton v. Jones, 520 U. S. 681, 700, n. 33 (1997), or when the question sought to be adjudicated has been mooted by subsequent developments, California v. San Pablo & Tulare R. Co., 149 U. S. 308 (1893). This case suffers from none of these defects.
Does it now?
Then it did the same for oxygen – which of course would not be anything like a reasonable interpretation of the statute.
Sounds like that evil substance, di-hydro monoxide.
I keep wondering when the EPA is going to start regulating the GHG – water vapor. It is a much more powerful GHG and it is a product of combustion just like CO2. It is also a “waste product” from farming and many other industries.
The Massachusetts government defined the pits and skins of grapes left from the pressing of grapes during wine making a “Hazardous Waste” The government then required the micro-winery to use Clean Harbors to dispose of the pits and skins instead of the normal method – composting. Therefore there is certainly legal precedence for declaring ordinary materials “hazardous”
If CO2 is declared hazardous I think this is the next step – regulation of water.
“But not only did British investigators clear the East Anglia scientist at the center of it all, Phil Jones, of scientific impropriety and dishonesty in April, an investigation at Penn State cleared PSU climatologist Michael Mann of “falsifying or suppressing data, intending to delete or conceal e-mails and information, and misusing privileged or confidential information” in February. In perhaps the biggest backpedaling, The Sunday Times of London, which led the media pack in charging that IPCC reports were full of egregious (and probably intentional) errors, retracted its central claim—namely, that the IPCC statement that up to 40 percent of the Amazonian rainforest could be vulnerable to climate change was “unsubstantiated.” The Times also admitted that it had totally twisted the remarks of one forest expert to make it sound as if he agreed that the IPCC had screwed up, when he said no such thing.”
http://www.newsweek.com/blogs/the-gaggle/2010/06/25/newspapers-retract-climategate-claims-but-damage-still-done.html
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