One of my favorite legal maxims is “never argue substance when you can argue procedure.” The reason is that procedure is much easier for the Courts to rule on.
It looks like EPA Administrator Scott Pruitt has a good procedural argument for reopening the Obama era false finding that CO2 emissions endanger human health and welfare. This in turn could lead to the correct finding — that it does not. Absent the finding of harm there is no longer a statutory mandate for EPA to regulate CO2 under the Clean Air Act.
What has emerged is something of a smoking gun. To push the metaphor, the gun was fired way back when the adverse Endangerment Finding was made, but it is still smoking.
The particulars are explained in a recent National Review article by the Cato Institute’s Dr. Ross McKitrick, a long time critic of EPA’s climate alarmism. Back when the Endangerment finding came out, Senator James Inhofe asked the EPA Inspector General (the IG) to look into the way it was done. Inhofe has been the Senate’s leading skeptic of climate alarmism for decades. He and I (and some others) once jointly sued the National Science foundation over the wildly alarmist first National Climate Assessment, almost 20 years ago.
There were a number of criticisms leveled at EPA at the time, including by myself. In particular, EPA relied very heavily on other people’s assessments, especially those of the UN Intergovernmental Panel on Climate Change (IPCC), which is wildly alarmist.
It now turns out that the IG issued a lengthy report saying that EPA had indeed violated the federal procedural rules for doing this sort of thing under the Data Quality Act. The key concept here is what is called a “highly influential scientific assessment” or HISA. It sounds big and it is.
A HISA is defined as an assessment that is likely to be used to support regulations that have a significant cost. The Endangerment Finding is certainly a scientific assessment, specifically assessing the potential for American CO2 emissions to have harmful effects. The adverse finding triggered regulatory actions with potentially astronomical costs. The Clean Power Plan alone was estimated to cost tens of billions of dollars a year.
That the Endangerment Finding is a HISA seems beyond doubt, but this did not deter the Obama EPA, which was hell bent on regulating CO2. EPA headquarters simply claimed that the Endangerment Finding was not a HISA and ignored the IG report. EPA’s silly arguments are discussed at length in the IG report, which is fascinating reading.
Administrator Pruitt now has a golden opportunity to right this wrong. The IG report is still blowing the whistle. (Dare I say that the best way to blow the whistle is with a smoking gun? Will the metaphor police knock on my door?)
It is not a matter of repealing the Endangerment Finding, which would be very difficult from a legal standpoint. It is a matter of redoing it, this time following the required procedures, in which case an opposite finding might well be found.
This is especially true if Pruitt also does a Red Team exercise on the climate change scientific debate, which he says he wants to do. This exercise will reveal what the IPCC refuses to admit, namely that there is no convincing evidence that our CO2 emissions endanger anyone.
In recent Congressional testimony, Pruitt said that there was something procedurally questionable about the Endangerment Finding. He did not elaborate, but the real time EPA Inspector General’s scathing report certainly supports his view. The IG was there at the time.
So it looks like Pruitt has everything he needs to proceed at this point. Let’s hope he now does so. The original Endangerment Finding is pure alarmism that needs to go into the trash.