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.
Antelope Creek tar sands oil project challenged by environmental groups
The Sierra Club and the Indigenous Environmental Network have filed a complaint in a Utah federal court alleging that the proposed Antelope Creek tar sands oil project will disrupt wildlife, poison and dry up rivers, and harm human health with hazardous air pollutants – including greenhouse gas emissions. Specifically, the complaint states that the Department of the Interior and other defendants violated the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA) by failing to prepare an Environmental Impact Statement (EIS) and failing to allow for public participation in the agency’s decision. The complaint alleges that the project anticipates the construction of 288 closely spaced new oil wells and will employ experimental thermal recovery methods. According to the Sierra Club, greenhouse gas emissions from tar sands production are three times those of conventional oil and gas production.
According to the complaint, approval of the Antelope Creek project was based on an Environmental Assessment (EA) conducted in 2003. The complaint states that NEPA requires the preparation of a more comprehensive EIS, and that an EA can only be relied upon if the proposed action will not significantly impact the environment. The plaintiffs allege that the EA prepared for the Antelope Creek project was not sufficient because, inter alia, it “failed to even attempt to characterize or address greenhouse gas emissions from the specific processes Petroglyph proposes to employ.”
An executive at Petroglyph Energy, the company proposing the Antelope Creek project, has issued a statement questioning the basis for the lawsuit. According to Petroglyph Energy executive vice president Paul Powell, “Petroglyph has not been approved for any permits to expand drilling in the area. No action has been initiated, and none is planned to take place. So, the lawsuit doesn’t make sense.” The Bureau of Land Management has not issued any permits to Petroglyph related to the project. According to Powell, “the proposed project was stopped when the permits were not approved.”
The Bureau of Land Management has jurisdiction over roughly 60% of the land at issue, while the rest of the land is administered under tribal authority. The Bureau of Indian Affairs is a named defendant in the complaint along with the Department of the Interior. Both are alleged to have violated NEPA by approving the project and issuing related permits.
Tar sands development has been largely concentrated in Canada to date, and is becoming one of the largest single emitters of greenhouse gases. Sierra Club estimates that tar sand production could increase greenhouse gases in the United States from 27 to 126 million tons by 2015.
