[We thank Texas
Climate News and Bill Dawson, who have published the following report on their
website: http://texasclimatenews.org/wp/?p=5248
. Please visit TCN for excellent scientific coverage of climate issues,
especially those confronting Texas and the Southwest.]
June 27, 2012
Judges unanimously reject Texas’ challenge of federal
greenhouse-gas rules
Texas – and its courthouse allies among industries and other
states – took it on the chin Tuesday in a stinging rebuke from a federal
appeals court in Washington, which unanimously rejected their challenges
against the Environmental Protection Agency’s regulation of heat-trapping,
climate-changing greenhouse gases.
Texas, along with Virginia, was a leader of a 14-state group
with litigation challenging the rules. Gov. Rick Perry and Attorney General Greg
Abbott, both Republicans, have been strongly outspoken in their criticism of
the EPA’s climate-protection actions, saying they would badly damage the
state’s economy.
However, the U.S. District Court of Appeals for the District
of Columbia Circuit, in a ruling by a chief judge appointed by Republican
Ronald Reagan and two judges appointed by Democrat Bill Clinton, declared the
EPA’s “endangerment finding” that greenhouse gases threaten human health and
the environment and its subsequent regulations to limit emissions of those
gases from vehicles “are neither arbitrary nor capricious,” as the challengers
claimed.
The judges likewise ruled that the EPA’s challenged
interpretation of the Clean Air Act – that the law authorizes the agency’s
current regulation of greenhouse gases – “is unambiguously correct,” and also
that none of the petitioners had standing to challenge associated EPA rules
that focus its regulatory effort on major greenhouse-gas sources.
A central element of Texas’ own attack on the EPA’s climate
initiatives was the allegation, echoing climate-change skeptics, that the
agency had, in Abbot’s words, “outsourced the scientific basis for its
greenhouse gas regulation” to the Intergovernmental Panel on Climate Change
(IPCC). The work of that United Nations-sponsored body involves participation
of hundreds of scientists from the U.S. and other countries.
The judges’ ruling on such claims that the EPA had thus
“delegated” its scientific review to others was withering, calling it “little
more than a semantic trick” and oblivious to “how science works.”
State and Industry Petitioners
assert that EPA improperly “delegated” its judgment to the IPCC, USGCRP [U.S.
Global Change Research Program] and NRC [National Research Council] by relying
on these assessments of climate-change science. … This argument is little more
than a semantic trick. EPA did not delegate, explicitly or otherwise, any
decision-making to any of those entities. EPA simply did here what it and other
decision-makers often must do to make a science-based judgment: it sought out
and reviewed existing scientific evidence to determine whether a particular
finding was warranted. It makes no difference that much of the scientific
evidence in large part consisted of “syntheses” of individual studies and
research. Even individual studies and research papers often synthesize past
work in an area and then build upon it. This is how science works. EPA is not
required to re-prove the existence of the atom every time it approaches a
scientific question.
Addressing Texas’ and other challengers’ arguments against
the IPCC’s reliability as a source of valid scientific conclusions, the judges
said:
State Petitioners point out that
some studies the IPCC referenced in its assessment were not peer-reviewed, but
they ignore the fact that (1) the IPCC assessment relied on around 18,000
studies that were peer-reviewed, and (2) the IPCC’s report development
procedures expressly permitted the inclusion in the assessment of some
non-peer-reviewed studies (“gray” literature).
Moreover, as EPA determined, the
limited inaccurate information developed from the gray literature does not
appear sufficient to undermine the substantial overall evidentiary support for
the Endangerment Finding. State Petitioners have not, as they assert, uncovered
a “pattern” of flawed science. Only two of the errors they point out seem to be
errors at all, and EPA relied on neither in making the Endangerment Finding.
The judges were similarly robust in their disagreement with
Texas’ argument that EPA officials should have spelled out precisely which
greenhouse-gas concentrations, rate of climate change or climate-change impacts
it deems to be unsafe:
According to Texas, without defining
these thresholds and distinguishing “safe” climate change from climate change
that endangers, EPA’s Endangerment Finding is just a “subjective conviction.”
[…]
In its essence, Texas’s call for
quantification of the endangerment is no more than a specialized version of
Industry Petitioners’ claim that the scientific record contains too much
uncertainty to find endangerment. EPA relied on a substantial record of
empirical data and scientific evidence, making many specific and often
quantitative findings regarding the impacts of greenhouse gases on climate
change and the effects of climate change on public health and welfare. Its
failure to distill this ocean of evidence into a specific number at which
greenhouse gases cause “dangerous” climate change is a function of the
precautionary thrust of the CAA [Clean Air Act] and the multivariate and
sometimes uncertain nature of climate science, not a sign of arbitrary or
capricious decision-making.
The Associated Press reported that Texas officials may appeal the appellate
ruling to the Supreme Court. The AP quoted Abbott as saying that the Reagan and
Clinton appointees on the appeals court had “failed to rein in the unelected
bureaucrats at the agency who are holding our country’s energy independence and
fragile economy hostage to a radical environmental agenda.”
The Texas office of the Environmental Defense Fund, an
advocacy group that joined 15 states and other organizations in intervening in
support of the EPA, posted a statement on its Texas Clean Air Matters Blog that
asserted the court had “thoroughly rebuked” Texas and others “who attack
science and obstruct progress in reducing climate pollution.”
Dallas Morning News reporter Randy Lee Loftis, writing on
that newspaper’s “The Scoop Blog,” noted that while the court had “rejected every challenge to
the rules,” Texas and other petitioners “will probably take the case to the
Supreme Court,” which had ruled that the EPA has the authority to issue
greenhouse-gas regulations in 2007.
Loftis identified “the big questions” involved in the
litigation and summed up its current status this way:
Is global warming science real and does the Clean Air Act
govern emissions of greenhouse gases?
For now, the courts’ answer is an unqualified yes.
– Bill Dawson
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