Why EPA Might Purge Climate Skepticism from Its Endangerment Repeal

by Jean Chemnick (E&E News Climatewire) The DOE report by climate contrarians has caused legal problems for Administrator Lee Zeldin’s attempts to roll back the scientific finding. -- Deepening legal woes surrounding a Trump administration report that casts aspersions on climate science presents legal risks for EPA’s effort to repeal the endangerment finding — unless it gives up its attempts to challenge the tenets of climate change.

The report, written by five climate contrarians selected by Energy Secretary Chris Wright, is a pillar of EPA’s assertion that the 2009 scientific finding exaggerates the dangers of rising temperatures and should be severed from the government’s reasoning that the Clean Air Act doesn’t authorize regulation of heat-trapping emissions from cars and other sources.

EPA can’t easily remove the embattled paper from its rule revoking the endangerment finding unless the agency sacrifices its explicit assault on climate science. The finding is a scientific assertion written in 2009 that greenhouse gas emissions endanger public health. It empowered the agency to regulate six greenhouse gases like other air pollutants.

The draft repeal, released July 29, relied mostly on a legal argument claiming that the government had erred in using the Clean Air Act to regulate greenhouse gas pollution when it doesn’t pose an immediate danger to the public from direct exposure.

But EPA tacked on an “alternative” rationale that questioned whether science supported the Obama-era conclusion that human-induced emissions endanger public health and welfare.

That part of the draft was based almost solely on the work of the so-called Climate Working Group — composed of the small band of outside climate skeptics assembled by Wright who have long argued that mainstream scientists overstate the risks of warming. Since the report was released, it has been criticized by scientists for cherry picking data, spreading false claims and regurgitating debunked arguments about the causes of global warming.

The report has also been challenged legally, with a judge in September describing it as an overtly political exercise. Last week, the same judge, William Young of the U.S. District Court for the District of Massachusetts, ordered the Department of Energy to release records related to the secretive working group, in a decision that marked a key victory for environmental groups who sued the Trump administration for failing to follow federal disclosure rules.

Former EPA officials and specialists in regulatory law say the agency is likely to remove the DOE report from the rule before it’s finalized early next year.

If it does, they say, EPA would face legal obstacles to keeping the science-based justification as part of the final repeal. EPA can’t simply replace the DOE report in the final rule with other scientific assertions that support its claim that climate change does not present dangers to the public. That would require EPA to issue a supplemental proposal, the lawyers said, potentially delaying the final endangerment finding rollback for months.

The panel was handpicked by Wright and worked outside of the public eye in a way that environmental challengers say flouted the Federal Advisory Committee Act of 1972, which governs how agencies may assemble and use outside experts.

The law, known as FACA, sets guidelines for member selection, balancing expertise and viewpoints and transparency that DOE didn’t follow. That made it possible for the working group to release its report in July, two months after it was assembled, to coincide with EPA’s endangerment finding proposal.

The Environmental Defense Fund and Union of Concerned Scientists sued DOE for violating FACA. They also sued EPA for using the report to help justify its decision to repeal the endangerment finding.

This month, the administration has dialed back its legal defense of the report. Attorneys with DOE last week backed away from their contention that the working group was exempt from FACA because it amounted to a “literature review.”

“I think they would have a problem in court if they didn’t give the public the opportunity to comment on the basis of their rules,” said Jeff Holmstead, who served as EPA’s air chief in the George W. Bush administration.

Holmstead said he expects EPA to withdraw the science argument in the final version, and move forward with a legal contention that EPA never had authority to regulate greenhouse gases under a key provision of the Clean Air Act.

EPA received more than a half-million comments on the draft but has uploaded fewer than 31,000 to the rule’s public docket. READ MORE