Chamber of Commerce seeks public hearing on scientific evidence of climate change; EPA calls request a "waste of time"
Yesterday the Los Angeles Times reported that “[t]he US Chamber of Commerce, trying to ward off potentially sweeping federal emissions regulations, is pushing the Environmental Protection Agency to hold a rare public hearing on the scientific evidence for man-made climate change.” In its blog, the US Chamber highlighted the LA Times story on the Chamber’s “efforts to force transparency from the EPA on their finding that greenhouse gases emissions are a danger to public health and welfare.” According to William Kovacs, the Chambers’ Senior Vice President, the Chambers’ June 23, 2009 Petition for EPA to Conduct Its Endangerment Finding Proceeding on the Record Using Administrative Procedure Act (APA) §§ 556 and 557 would put “the science of climate change on trial.”
Sections 556 and 557 of the APA set forth the procedures an agency must follow in conducting hearing “required by section 553 or 554” of the APA. Section 553 covers agency rulemaking and states, in relevant part: “[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply.” (553(c) Emphasis added). Section 554 covers adjudications and similarly applies “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.” (Emphasis added)
But the US Chamber does not argue that the Clean Air Act requires an on-the-record hearing. Instead it states that the Agency has authority to hold an on-the-record process. Footnote 119 of the petition states:
The Chamber is not asserting that the Clean Air Act expressly requires this. United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973). But neither does the Clean Air Act preclude it. The Agency has the authority to adopt an on-the-record process of its own volition, in accord with its own promises of transparency and scientific integrity. Clean Air Act section 307(d)(1)’s indication that the “provisions of section 553 through 557 and section 706 of Title 5 shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies” cannot be interpreted in referencing sections 553-557 of the APA to mean that EPA is prohibited from voluntarily applying such procedures, but only that EPA does not have a statutory obligation to use such procedures. It does not address EPA’s discretion in deciding whether to do so.
The US Chamber argues that EPA should exercise its discretion to hold an on-the-record hearing because “(1) scientific or technical issues are ‘complex’; (2) the problem posed is so ‘open-ended’ that the agency would benefit from diverse views; (3) the costs errors may pose are ‘significant.’ 1 C.F.R. § 305.76-3(1) (1993).”
The US Chamber’s announcement touched off a rhetorical rumble. According to the LA Times, Chamber officials described the hoped-for hearing as "the Scopes monkey trial of the 21st century." A climate scientist associated with the Union of Concerned Scientists responded that the proposal “brings to mind for me the Salem witch trials, based on myth.” EPA claimed the hearing would be a “waste of time.”
It is unclear what the Chamber’s next step will be if EPA does not change its mind and embrace the Chamber’s view that an on-the-record hearing would be valuable. While William Kovacs noted that litigation is a “certainty” regardless of what EPA does, it is not clear whether the Chamber would litigate EPA’s denial of the petition (which notes the Agency’s discretion to hold a hearing), EPA’s final endangerment finding, or both.
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