EPA endangerment finding and petition for review - the court battle over GHG regulation begins
On December 23, 2009, a Petition for Review was filed in the U.S. Court of Appeals for the D.C. Circuit challenging the US Environmental Protection Agency’s (USEPA) final action and its December 7, 2009 findings that: 1) new motor vehicles and engines cause or contribute to greenhouse gases; and 2) greenhouse gases in the atmosphere threaten public health and welfare of current and future generations. (Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act).
Many of the same companies that filed the Petition are part of a coalition of companies and trade associations that submitted over 133 pages of comments in late June 2009 challenging the Proposed Rule for USEPA’s findings. The coalition questioned the process USEPA used to support its Findings. In addition the coalition asserted that USEPA relied primarily on synthesis reports published by the Intergovernmental Panel on Climate Change (IPCC) and U.S. Climate Change Program – not on underlying science and data. The coalition believes the synthesis reports are insufficient, uncertain, and inadequate to support the findings regarding manmade greenhouse gases and global warming. The coalition also asserted that USEPA did not consider evidence from scientists that disagree that all or most of the climate change that has occurred in the last few centuries is due to human causes.
The timing of the Coalition’s June comments and Petition For Review is worth noting in light of the fact that the USEPA findings came out just before the United Nations Climate Change Conference in Copenhagen (held on December 7th through the 18th), just after the November 23 disclosure that data had been taken from the Climatic Research Unit (CRU) of University of East Anglia and the October 2009 petition filing by the Competitive Enterprise Institute (CEI) to reopen the proceedings for the EPA’s Proposed Findings because the CEI was concerned about evidence concerning the destruction of data at the CRU. Lastly while the USEPA denied the CEI’s request, the CRU is now in the process of doing an internal review and expects results of its review in Spring 2010. CRU stated that the purpose of the review is to determine whether there is any evidence of the manipulation or suppression of data, which is at odds with acceptable scientific practice and may therefore call into question any of the research outcomes.
Given all of the above, it is likely that the comments by coalition of companies mentioned above, the CEI, and others (including OMB) will likely be a road map of the issues that will be addressed in the Petition motions to be filed in February 2010. Clearly, the battle in the courts over how to regulate greenhouse gases is just beginning.
