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Vol. VII, No. 5

Cooler Heads Digest


Vol. VII, No. 5



Court Orders EPA to Hand Over Climate Change Documents


The Environmental Protection Agency has been ordered by the U.S. District Court for the District of Columbia to produce “climate change” documents requested under the Freedom of Information Act by the Competitive Enterprise Institute (CEI), or to justify their withholding.  CEI, a non-profit free market advocacy group, requested the documents to determine whether or not the agency was engaging in activities to implement the Kyoto Protocol “through the backdoor” in opposition to congressional prohibition.


“Now we can finally begin assessing how far the agency has gone toward backdoor implementation of the Kyoto Protocol,” said Christopher C. Horner, CEI Counsel who filed the lawsuit.  “We also remain fascinated by a point of which the Court took particular note:  How does EPA explain their shift in alarmism from the global cooling scare of years past to the current emphasis on catastrophic global warming?”


The documents that the EPA has been ordered to hand over are expected to show that the agency has violated the “Knollenberg Provision,” originally sponsored by Rep. Joe Knollenberg (R-MI).  The provision prohibits the federal government from spending money to implement the Kyoto Protocol, which has not been ratified by the U.S. Senate.


“By this Order, the D.C. District Court joins CEI’s puzzlement over the Administration’s refusal to turn over documents on the basis that their release ‘may potentially harm U.S. interests in ongoing Kyoto negotiations’,” said Horner.  “And it adds to the mounting public embarrassments over the refusal by various officials to execute the President’s rejection of Kyoto, instead continuing to try to cut a deal for a treaty the President assured the public he rejected in America’s interest.”


The court ruling, said Horner, will likely expose attempted backdoor implementation during the Clinton Administration.  The EPA has until March 31 to either produce the documents or explain to the satisfaction of the court why they are withholding them.


Analyst Shreds AG’s CO2 Case


State Attorneys General from several states have filed notice on two separate occasions this year of their intent to sue the U.S. Environmental Protection Agency for failing to regulate carbon dioxide.  The first notice came on January 30, informing EPA Administrator Christine Todd Whitman that the Attorneys General of Massachusetts, Connecticut, and Maine planned to sue under Section 108 of the Clean Air Act (CAA), which they claim obligates Whitman to list CO2 as a pollutant that endangers public health and safety.


The second notice came on February 20 when the three AGs, joined by four others representing New York, New Jersey, Rhode Island and Washington, informed Whitman of intent to sue unless she promulgates New Source Review Performance Standards for power plant emissions of CO2 under section 111 of the CAA.


In a critique of the two letters, Marlo Lewis, a senior fellow at the Competitive Enterprise Institute, accuses the AGs of engaging in “mere word play” and a “sophomoric attempt to turn statutory construction into a game of ‘gotcha’.”


The question, argues Lewis, is “Did Congress delegate to EPA the power to regulate CO2?  When Congress enacted and amended the CAA, did it intend for EPA to set up a mandatory greenhouse gas control program?”  The answer is clearly no, according to Lewis.  As he has noted elsewhere and repeats in the current critique, CO2 is not mentioned in any CAA regulatory provisions and only once in a non-regulatory provision.  The clincher, however, is the statement within the non-regulatory provision that, “Nothing in this subsection shall be construed to authorize the imposition on any person of air pollution control requirements.”


Moreover, the AGs want the EPA to declare CO2 a pollutant under the National Ambient Air Quality Standards (NAAQS) program. But NAAQS is a program that deals with “place-specific air quality programs,” which “measures local pollution levels against national air quality standards and seeks to remedy local problems via state implementation plans.” 


It doesn’t make any sense to attempt to regulate CO2 under the NAAQS provision because regardless of where the CO2 is emitted, it has the same potential impact on the climate.  “If EPA set NAAQS for CO2 above current atmospheric levels, the entire country would be in attainment, even if U.S. consumption of hydrocarbon fuels suddenly doubled,” says Lewis.  “Conversely, if EPA set a NAAQS for CO2 below current levels, the entire country would be out of attainment, even if all power plants, factories, and automobiles shut down.”


The second notice of intent to sue is a new innovation in the AGs attempt to force the EPA to regulate CO2.  This one seeks to force Administrator Whitman to set New Source Performance Standards (NSPS) for CO2 emission from electric generating units.  NSPS requires different categories of stationary sources to meet certain performances.  Lewis points out that the NSPS program was enacted in 1970, “years before global warming was even a gleam in Al Gore’s eye.”  Nor did Congress instruct the EPA to address global warming in the NSPS program when it amended the CAA in 1977 and 1990.


Sen. Patrick Leahy (D-VT) introduced legislation to amend the NSPS to cap CO2 from power plants in the 105th, 106th, and 107th Congresses.  Each time the bill attracted zero co-sponsors.  It’s absurd, says Lewis, to argue that Congress implicitly empowered EPA to cap CO2 in 1970 given Leahy’s efforts to provide that authority and Congress’s flat rejection of those efforts.   “The phrase ‘laughed out of court’ was invented for just such inanities.”  Lewis makes several other cogent and damning critiques of the AG’s arguments. 


He concludes by challenging EPA Administrator Whitman to show leadership in the face of these attacks.  These notices are designed to force her to choose between the President’s opposition to CO2 regulation and the career bureaucrats who want to increase their power over the U.S. economy, says Lewis.  “Whitman must decide where her loyalties lie - with the rule of law, economic growth, and affordable energy, or with the rule of bureaucrats, regulatory excess, and Kyoto-style energy rationing.”  The critique, The Anti-Energy Litigation Of The State Attorneys General: From Junk Science To Junk Law, is available at




UK Leader Endorses Ambitious Carbon Reduction Goals


UK Prime Minister Tony Blair has thrown his support behind a government plan that would severely restrict greenhouse gas emissions, require large increases in the use of renewable energy, and block any further construction of nuclear power plants.  The plan, which was set out in a white paper policy document released by the government on Feb. 24, was hailed by the prime minister as a “step change in the UK’s energy strategy over the next 50 years.”


The plan calls for a reduction in carbon dioxide emissions of 60 percent by the year 2050.  The massive reductions would to take place without the aid of nuclear power and would rely heavily on building renewable energy capacity as well as energy efficiency. The plan calls for a large increase in renewable energy production, requiring that 20 percent of the nation’s energy be produced from renewable sources by 2020.


In a speech endorsing the plan, Blair claimed that the technology is available to make the steep reductions in CO2 emissions without hurting economic growth. He also stated that, “It is clear Kyoto is not radical enough” and that he will “continue to make the case to the U.S. and to others that climate change is a serious threat that we must address together as an international community.”


The Financial Times criticized Mr. Blair in a Feb. 25 editorial, stating that, “Having fixed the end, he has not willed the means.”  It goes on to say that the white paper “opens a necessary debate on the conflict between energy and the environment but does not provide an answer on how to combine them.”  The editorial noted that a Downing Street document published last year said that, “It would be unwise for the UK now to take a unilateral decision to meet the [60 percent] target in advance of international negotiations on longer-term targets.”


It concludes that, “Eventually, the government will have to temper its moral passion for renewables with certain realities,” namely with “awareness that renewable energies can never be a complete solution, because most of them do not work on calm or cloudy days…. If avoiding carbon emissions is the priority, this is better performed by nuclear reactors than anything else.”




Another Hit for the Climate Models


It’s not everyday that the climate models take it on the proverbial chin.  It just seems like it.  In a paper presented at the Annual Meeting of the American Meteorological Society, Dr. Junhong Wang with the National Center of Atmospheric Research discussed his research team’s findings that the amount of water vapor in the upper atmosphere is much greater than previously thought - at least over Oklahoma and Kansas.


The researchers have built a new radiosonde instrument, called Snow White (SW), which measures relative humidity more accurately than the old instruments, which have been the basis for all upper atmosphere climate records.  The new radiosonde will serve as the new reference case from which all previous measurements will be calibrated.


In test runs over Kansas and Oklahoma, the researchers found that below six kilometers the old and new radiosondes agree reasonably well but then diverge at altitudes above six kilometers.  At about 11.4 to 12.7 kilometers, SW found a supersaturation layer, which could be the cirrus cloud layer.  Previous measurements found relative humidity of below 30 percent.


This finding is important because high altitude cirrus clouds do not block sunlight, indeed they are often invisible to the naked eye, but very efficiently block outgoing infrared radiation (heat), causing a net warming.  Where humidity is high, however, the relative effect of greenhouse gases, such as carbon dioxide, on temperature is smaller than in low humidity areas. 


That’s why most anthropogenic warming is predicted to take place in extraordinarily dry (and cold) regions such as Siberia.  If the humidity data used in a computer model is too low, then the model will overestimate the effect of greenhouse gases.  And, the climate models will predict too much warming.  The paper is available at


Melting in Arctic May be Natural


Researchers from the Norwegian Polar Institute and the Norwegian Meteorological Institute have compiled data from the ship logs of early Arctic explorers and whalers to determine the sea ice extent from 1553 to 2002.


What they have found is that the current retreat of ice observed in the Arctic occurred before in the early 1700s.  While this evidence doesn’t rule out that the current melting is due to man’s greenhouse gas emissions, it certainly suggests that it may be entirely natural.  “If you go back to the early 1700s you find that sea ice extent was about the same as it is now,” said Chad Dick of the Arctic Climate Systems Study.


The researchers also found that sea ice has declined by about 33 percent over the past 135 years, but that most of that retreat occurred before significant manmade emissions of greenhouse gases.  This also means that the current melting could be due to natural cycles.  “The evidence at the moment is fairly inconclusive,” said Mr. Dick.  “The fact is there are natural cycles in sea ice extent and we’re not outside the range of those natural cycles at the moment.”


Mr. Dick also noted that if the current warming is indeed due to natural cycles, we should begin to see ice thickening again in the near future.  It will take about ten more years at the current rate of thinning to get beyond the range that we’d expect if the decline in sea ice is due to natural cycles (Globe and Mail, February 27, 2003).  The World Wildlife Fund is publishing the sea charts on CD-ROM (




Alexis de Tocqueville Institution

Americans for Tax Reform

American Legislative Exchange Council

American Policy Center

Association of Concerned Taxpayers

Center for Security Policy

Citizens for a Sound Economy

Committee for a Constructive Tomorrow

Competitive Enterprise Institute

Consumer Alert

Defenders of Property Rights

Frontiers of Freedom

George C. Marshall Institute

Heartland Institute

Independent Institute

National Center for Policy Analysis

National Center for Public Policy Research

Pacific Research Institute

Seniors Coalition

60 Plus Association

Small Business Survival Committee