Planet Gore

Inglorious Mess: Federal Court Upholds EPA’s Greenhouse-Gas Authority

In a remarkably blasé decision that included a link to a children’s cartoon, the D.C. Circuit Court of Appeals upheld the EPA’s authority to regulate greenhouse gases (GHG). The D.C. Circuit held that EPA’s Endangerment Finding (which determined that man-made greenhouse gases are “reasonably anticipated” to harm human health) was “unambiguously” correct. The three other GHG regulations before the court were not only lawful but “compelled by statute.” The court found that, under the Clean Air Act (CAA), the Endangerment Finding must be a purely “scientific judgment” of the EPA’s administrator to which the court must defer as long as the decision passes rational muster.

The court’s decision validates the EPA’s seizure of the regulatory power of the Clean Air Act to control carbon dioxide — a ubiquitous component of biological process and human activity. The supposedly “scientific judgments” of the EPA, divorced from considerations such as cost or achievability, authorize the EPA to engineer our economy and lives. Longtime chairman of the House Energy and Commerce Committee John Dingell predicted that a “glorious mess” would result from regulating CO2 under the CAA. That mess is upon us now. As Representative Dingell understood so well, the statutory architecture of the CAA is wholly unsuited to limiting CO2; carbon is wholly different from the conventional pollutants for which the CAA was designed; and the EPA’s GHG regulation will lead to monumental problems such as black-outs. Even more troubling, the sweeping terms of the CAA will insulate EPA’s decrees from judicial challenge.

The many states and private petitioners in this historic lawsuit will no doubt request review by the Supreme Court. The D.C. Circuit’s ruling relies heavily on the policy-laden, now-outdated high court decision Massachusetts v. EPA, from 2007. In that ruling, a 5–4 majority swallowed the scientific conclusion of the United Nations’ Intergovernmental Panel on Climate Change (IPCC) that man-made global warming is indeed occurring and presents a danger here and now. Noting supposed evidence of global warming all around them, the five-justice majority all but made the Endangerment Finding for the EPA.

The D.C. Circuit had no alternative but to uphold the Supreme Court’s ruling unless it was willing to review the considerable weakness, bias, and conflicting evidence that have since clouded the original IPCC assessments on which EPA relied. Instead, the court expressed “extreme deference” to the EPA, also known as “give ’em a pass!” The court entirely glossed over the science driving the Endangerment Finding, which allowed it to reach the pathetically irrelevant conclusion: “EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.”

Two years after Massachusetts v. EPA, and in between the EPA’s proposed and final Endangerment Finding in late 2009, came the many disclosures known as Climategate, which unearthed significant error and fraud in the IPCC’s pivotal Fourth Assessment Report. Among the multiple revelations in the trove of leaked e-mails was that the lead authors hid data that would have undermined the report’s key claim of unprecedented, nonstop warming concurrent with the last century of fossil-fuel-driven industrialization. The responsible climate scientists later admitted that greater warming had occurred during a medieval warming period and that data gathered over the last two decades shows slightly declining rather than warming global mean temperatures. In other words, many of the IPCC’s key predictions have failed to occur.

Outside the United Nation’s environment program (always consider the source) that houses the IPCC, NASA satellite measurements of the interplay of CO2 with other climate variables demonstrate that CO2 has almost none of the temperature-forcing strength assumed in all the IPCC models. Perhaps the Supreme Court will depart from the Massachusetts ruling and consider these new “facts,” but vigorous judicial review of the science supporting regulatory decisions is almost non-existent.

The message of the D.C. Circuit ruling is that Congress must deny EPA the authority to regulate greenhouse gases. Congress has repeatedly rejected legislation dictating aggressive reduction of GHG. The House already has passed a bill to nullify EPA’s coercive grip on GHG, and the Senate came close to the same action. Equally critical is legislation to curtail the unbounded discretion afforded to the EPA’s scientific judgments. Those judgments should be subject to judicial review so that EPA does not hide pure speculation behind the shield of technical expertise.

Without meaningful limits on EPA’s discretionary power, the agency’s regulatory purview morphs from credible environmental protection to centralized economic planning. And the latter is well under way in the unprecedented new EPA regulations to control conventional pollutants and in the steady stream of new rules for GHG. In April, the EPA proposed the first hard-edged limits on carbon-dioxide emissions from electric generating units. Because unachievable, these standards will eliminate any new coal-fired power plants and may burden existing plants that will be forced to install new controls to comply with the train-wreck rules. This is brute economic engineering that no Congress would ever pass.

Decisions of the magnitude of GHG regulation, under the IPCC’s metric of 85 percent reduction necessary to save the planet, belong to our elected representatives.

 — Kathleen Hartnett White is director of the Armstrong Center for Energy and Environment at the Texas Public Policy Foundation. From 2001 to 2007, she was chairman of the Texas Commission on Environmental Quality.

Kathleen Hartnett White — Ms. White is director of the Armstrong Center for Energy & the Environment at the Texas Public Policy Foundation. She previously served, for six years, as chairman of the Texas Commission on Environmental Quality, the second-largest environmental regulatory agency in the world.


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