Comment on Endangerment Proposal

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From the Executive Summary:

This comment is divided into two main parts. The first part addresses the scientific basis of the Endangerment Proposal as discussed in EPA’s proposed rule and the related Technical Support Document (TSD).  The second part addresses the legal basis and regulatory implications of the Endangerment Proposal, drawing upon EPA’s July 2008 Advanced Notice of Proposed Rulemaking, Regulating Greenhouse Gases under the Clean Air Act.

CEI advises EPA not to adopt its Endangerment Proposal as a final rule. The science presented in the proposal and TSD is highly selective, ignoring the research, arguments, and assessments of so-called climate skeptics. EPA may regard the skeptics as quibblers or worse, but ignoring an argument does not refute it. Absent a serious consideration of opposing viewpoints, the public cannot have confidence in EPA’s conclusions.

To state the problem another way, §202 of the CAA requires the Administrator to exercise her “judgment.” Yet in every instance, the Endangerment Proposal and TSD simply defer to the judgment of the self-proclaimed scientific “consensus” represented by the UN Intergovernmental Panel on Climate Change (IPCC) and the U.S. Climate Science Change Program (CSCP).

Most critically, EPA does not apply its judgment to the core scientific issue—climate sensitivity. If climate sensitivity is low, as investigations by Dr. Richard Linden (Massachusetts Institute of Technology), Dr. William Gray (Colorado State University), and Dr. Roy Spencer (University of Alabama Huntsville) suggest, then 21st century warming is likely to be below the low-end (1.8ºC) IPCC “best estimate,”  and endangerment of public health and welfare is not “reasonably anticipated.” 

Statutory and constitutional reasons also counsel EPA not to finalize the Endangerment Proposal. An endangerment finding will trigger a regulatory cascade with potentially devastating economic impacts that Congress never intended or approved when it enacted §202. Regulatory litigation rather than legislative deliberation will determine the direction of public policy and the extent of the burdens imposed on the private sector, vitiating our democratic system. We could end up with a Mega-Kyoto system without the people’s elected representatives ever casting a vote. Moreover, the only way EPA can regulate greenhouse gases under the CAA without risk of administrative chaos and economic disaster is to flout statutory language, play lawmaker, and effectively “amend” the statute, violating the separation of powers.

Had the Justices known what the ANPR and other analyses have brought to light about the regulatory ramifications of establishing greenhouse gas emission standards under §202, they might well have decided Mass. v. EPA differently. Few if any of the Justices would have openly and directly ordered EPA to undertake the kinds of extreme measures to which an endangerment finding logically leads.

Such measures include subjecting tens of thousands of previously unregulated buildings and facilities to Prevention of Significant Deterioration (PSD) pre-construction permitting requirements, and establishing National Ambient Air Quality Standards (NAAQS) for greenhouse gases that even outright de-industrialization would be insufficient to attain.