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.
Center for Biological Diversity follows ESA climate change rulemaking petition with litigation
*Co-authored with Amy Garber.
On January 15, 2009, the Center for Biological Diversity (“CBD”) filed a complaint in the US District Court for the District of Columbia against the US Environmental Protection Agency (EPA) and the Interior, Commerce, Agriculture, Transportation, and Defense Departments, seeking declaratory and injunctive relief. In its complaint, CBD claimed that those federal agencies had violated the Administrative Procedure Act by failing to make merits determinations within a “reasonable” amount of time in response to a petition filed by CBD on February 1, 2007. The petition, entitled “Endangered Species and Global Warming Initiative: An Administrative Procedure Act Petition to Enhance the Recovery of Endangered Species and Address the Growing Impacts of Global Warming on Imperiled Species,” proposed a series of specific modifications to federal regulations at 50 C.F.R. Parts 17, 402, and 424 to require analysis and mitigation of federal actions “that impact the relationship between global warming and endangered plants and animals.”
CBD filed its 2007 petition with the Administrator of the US EPA and the Secretaries for the US Departments of the Interior, Commerce, Agriculture, Transportation, Energy and Defense. In the petition, CBD noted that “Human-induced global warming is already playing a significant role in habitat loss and the spread of invasive species and has contributed to the extinction of numerous species.” To address this issue, the CBD-recommended modifications would broadly require, in part, that federal agencies:
- include global climate change analysis in all federal decision-making which could potentially affect endangered species recovery;
- enhance data support for recovery plans and specify all data gaps inhibiting recovery plan completion and adoption;
- adhere to a three-year time frame for recovery plan adoption following endangered species listings;
- adopt all backlogged recovery plans within ten years; and
- adopt a schedule for listing all species warranting Endangered Species Act protection.
CBD cited Massachusetts v. EPA in arguing that the US Supreme Court “recognized the urgent threat to human well-being and the environment as a result of climate change, and permitted advocacy groups to petition and sue federal agencies that do not dispense of their statutory duties as they relate to global warming.” CBD seeks, in part, a court order requiring the federal agencies to, within sixty days, either identify a time frame within which they would have to substantively respond to the petition or issue a denial.
The CBD complaint appears novel in at least one respect – it is “outcome-neutral.” CBD neither argues that the federal agencies’ collective failure to respond was a constructive denial nor that a denial of the petition would be unlawful. CBD’s omission of the Energy Department (the only agency which actually denied the petition) from the list of defendants demonstrates this outcome-neutral approach. In light of the complaint’s structure and relief requested, the lawsuit would end after the federal agencies respond, regardless of whether the agencies granted or denied the CBD Petition.
CBD’s outcome-neutral complaint is at least partially attributable to the prospect of Obama administration modifications to federal climate change policy. The CBD press release that accompanied the complaint contained the following statement:
We filed the [Petition] in 2007 to jump-start the reinvention of federal conservation policy. The Bush administration ignored the petition. With this lawsuit, we provide the Obama administration with a legal platform to develop integrated, government-wide policies to speed the recovery of endangered species and limit the impact of global warming. We look forward to working with the new administration to resolve the suit and begin the hard work of turning the ship of state … around after eight years of stalling.
An unnamed CBD attorney also stated to Inside EPA (“Activists May Defer Suits in Favor of Climate Talks with Obama EPA,” Vol. 30, No. 3, Jan. 23, 2009) that the lawsuit “allows us to formally ‘queue up’ and make sure, legally, that global warming impacts … are not forgotten or swept under the rug with the new administration.”
