EPA can review the CO2 endangerment finding on procedural grounds

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.


About the Author: David Wojick, Ph.D.

David Wojick is a journalist and policy analyst. He holds a doctorate in epistemology, specializing in the field of Mathematical Logic and Conceptual Analysis.

  • Immortal600

    The court ruling on CO2 has to be one of he dumbest court decisions in history.

    • David Wojick

      Unfortunately not. In the 1990 amendments to the Clean Air Act the legal definition of “pollutant” was changed to include causing climate change. The Supreme Court merely pointed this out, which is their job. Congress is to blame. This is why Pruitt keeps saying that Congress should fix the resulting mess.

      • Immortal600

        Ok. I see what you are saying. A shame Congress did such a stupid thing.

        • David Wojick

          Indeed, but it was kind of a feel good time. Congress also created the US Global Change Research Program in 1990 and then the Senate ratified the UN Framework Convention on Climate Change in 1992. Horrendous errors in retrospect.

          • “Errors” ?
            The very first Search I ran on the topic of ‘global warming’ ( that was Nov 30, 2009. The University of Guelph long ago issued a paper showing how such calculation was impossible – though I question if land temperature averages from scattered readings could accurately depict global trends on an ocean covered planet with regular convection effects – including water cycle storms- or be meaningful anyway ) brought up a cached article ( LaRouche ) which was immediately jumped on as untrustworthy by online ‘commentators’.
            But the implications were too dire not to investigate. That was, of course, the piece on a 1974 conference in which Margaret Meade pushed for a presentation that CO2 change would push warming trend, rather than the then current cooling promotion.
            If you look at the predictions for another cycle of mini ice age due to reduction in sun spots and dimming of the Sun, such a promotion could affect energy supply and increase costs, literally freezing out ‘underdeveloped’ countries which are systematically defrauded by foreign exchange hokum and dysfunctional edicts from the World Bank.
            People tend to forget the target of 9-11 was the same as when a tower was targeted for an explosion in a van in a parkade there – the Trade Center. The U.S. military is the biggest user of fossil fuels on the planet. Ensuring supply would be Job One.
            The IPCC is a UN bureaucracy pushing for a tax it would administer. Such control could involve trillions annually. No impartial assessment is possible in such circumstances – especially from a place dedicated to swaying government policies worldwide and formed with manmade climate perversion as an institutional assumption which it had no responsibility to investigate

            • KirtGriffin

              The interesting part of the 1974 conference, “The Atmosphere: Endangered or Endangering” headed my Margaret Meade, was that they were aware of the upcoming warming trend before it actually began, making it clear to me that they were aware of the cyclic nature of our climate. In reading through the accounts of the conference, it was amazing that a few were calling them out on their predetermined conclusions. Paul Ehrlich was there pushing his over-population agenda, which, according to Jaworowski’s paper, “CO2:The Greatest Scandal of Our Time”, was the primary concern that lead to the development of the FCCC, Biodiversity Convention, Agenda 21 and Wildlands Project at the Rio ’92 sham.

              • Control of ‘conversation’ by way of misrepresenting others’ opinions so as to ‘discredit’ what was not said in the first place ( signalled by lack of links to supposed thought ) is part of organized harassment designed to foist false testimony as if it was authoritative. The best irony is that natural change is greater than the specious ‘fears’ promoted as Doom and relegates such to minor variation of less than measurement accuracy. That’s not surprising given that current thought is that pressure is the determining variable and actual atmospheric mix is irrelevant.