United States Environmental Protection Agency
Docket EPA-HQ-OAR-2009-0171
TN RE: ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR GREENHOUSE GASES UNDER SECTION 202(a) OF THE CLEAN AIR ACT; FINAL RULE, 74 FR 66,495 (DEC. 15, 2009)
Petition For Reconsideration of the Nongovernmental International Panel on Climate Change, the Science and Environmental Policy Project, and the Competitive Enterprise Institute
S. Fred Singer, Co-Founder Nongovernmental International Panel on Climate Change 1600 S. Eads St.# 712-S Arlington, VA 22202 [email protected]
Kenneth A. Haapala, Exec. Vice President Science and Environmental Policy Project 9634 Boyett Court Fairfax, VA 22032 (703) 978-6025 [email protected]
Sam Kazman, General Counsel* Competitive Enterprise Institute 1 1899 L Street, NW, l2 h Floor Washington, D.C. 20036 (202) 331-2265 [email protected] *contact person for petitioners
February 12, 2010 Petition for Reconsideration To the Environmental Protection Agency Regarding Its Final Rule Concerning Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act
Office of the Administrator, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW, Washington, DC 20004
Jeremy Martinich, Climate Change Division, Office of Atmospheric Programs (MC-62071), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460
Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20004
SUMMARY
On December 7, 2009, EPA issued its final determination that carbon dioxide and other greenhouse gases threaten public health and welfare. In our view, this Endangerment Finding was unjustifiably based on unscientific reports by the UN Intergovernmental Panel on Climate Change (IPCC) and scientifically indefensible global temperature datasets. For the reasons set forth below, that failing has become even clearer in light of disclosures and other events which occurred in the last three months, and which continue to occur.
During the period for public comment, which closed on June 23, 2009, the Nongovernmental International Panel on Climate Change (NIPCC) and the Science and Environmental Policy Project (SEPP), and the Competitive Enterprise Institute (CEI) requested, in oral testimony and written submissions, that EPA withdraw its proposed Endangerment Finding because it was not based upon the best science available. Rather, the proposed finding was based on scientifically flawed studies. As we and numerous others pointed out, EPA's proposed finding and its Technical Support Document (TSD) relied almost exclusively on the reports of the IPCC, particularly the Fourth Assessment Report (AR4) published in 2007. But both the IPCC report and EPA's proposal and TSD suffered from major flaws: 1) they omitted critical temperature data; 2) they were inconsistent with principles of science and violated EPA's Information
1 1 Quality Guidelines ; 3) they lacked tested theory; 4) they were based on invalid methodology; and 5) they relied upon invalid models that fail basic tests and had no predictive power.
As shown below, those flaws have become even more evident in light of new developments, to the point that EPA's failure to take those developments into account would rob its decision of any semblance of validity whatsoever.
I THE NEW DEVELOPMENTS DESCRIBED IN THIS PETITION OCCURRED AFTER THE END OF EPA'S COMMENT PERIOD, AND IN LARGE PART AFTER EPA ISSUED ITS FINAL RULE. GIVEN THEIR IMPORTANCE, THEY CLEARLY MEET THE LEGAL STANDARD FOR RECONSIDERATION.
Section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B), states:
"If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such an objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed."
EPA's comment period closed on June 23, 2009. Since that time, a series of disclosures and reports have revealed the scientifically improper and highly questionable procedures and practices used by the IPCC and by the organizations upon which it relies. Of special note is the improper treatment of datasets relied upon by the EPA, which renders any conclusions based on them scientifically indefensible. For these reasons, a proceeding for reconsideration is clearly warranted.
II IT IS CLEARER THAN EVER THAT EPA'S CLAIM OF UNEQUIVOCAL WARMING IS SCIENTIFICALLY INDEFENSIBLE
EPA justifies its claim of unequivocal warming in the last few decades by stating:
"The global surface temperature record relies on three major global temperature datasets, developed by NOAA, NASA, and the United Kingdom's Hadley Center. All three show an unambiguous warming trend over the last 100 years, with the greatest warming occurring over the past 30 years."
74 FR 66,517. But recent reports demonstrate highly improper treatment of these datasets, making EPA's claim of warming trends scientifically indefensible:
1 EPA Information Quality Gui4elines. EPA.( accessed Feb 12, 2010)
2 • In mid-August the Climatic Research Unit (CRU) at the University of East Anglia announced that it no longer holds the original raw data to its datasets, but only the modified data which CRU terms as "value-added."2 This data dumping was confirmed by the Sunday Times (London) on November 29, which noted that the CRU had received repeated requests for this data under the British Freedom of Information Act. The CRU action renders independent review and verification of the 150-plus year temperature trends published by the Hadley Center-CRU impossible a clear violation of basic principles of science and was found by the British Information Commissioner's Office to be a violation of the British Freedom of Information Act. 3 4
• On December 15, 2009, the Russian Institute of Economic Analysis (lEA) reported that the Hadley Center-CRU probably tampered with Russian climate data and that the Russian meteorological station data do not support human-caused global warming. It was well established that Hadley Center-CRU had dropped many stations in the colder regions of Russia presumably because these stations were no longer maintained. The Russian lEA stated that the stations still report temperatures, but that the reports are ignored by Hadley Center-CRU. Only 25% of the reporting stations are used and they are in population centers that are influenced by the urban heat island effect. Rural areas were also ignored, giving the data yet another warming bias. " lEA believes that Russian meteorological-station data did not substantiate the anthropogenic global-warming theory." "The scale of global warming was exaggerated due to temperature distortions for Russia accounting for 12.5% of the world's land mass. The lEA said it was necessary to recalculate all global-temperature data in order to assess the scale of such exaggeration." Consequently, the Hadley Center-CRU dataset has been highly compromised; reporting global surface temperature trends that are unreliable and likely have a strong warming bias of an unknown magnitude. 5
• On January 14, 2010, meteorologist Joe D' Aleo and computer expert E. Michael Smith reported that NOAA's National Climatic Data Center (NOAA-NCDC) and the NASA's Goddard Institute of Space Studies (NASA-GISS) had dropped many meteorological stations from their data bases in recent years. The dropped stations,
2 CRU Data Availability. Climatic Research Unit. (accessed Feb 12, 2010)
3 Leake, Jonathan. Climate Change Data Dumped. November 29,2009. Times Online. (accessed Feb 12, 2010)
4 Bale, David. New Twist in UEA Climate Change Row. Jan 28, 2010. Norwich Evening News 24. (accessed Feb 12, 201 0)
5 What the Russian Papers Say. Dec 16, 2009. Rianovosti. (accessed Feb 12, 2010)
3 many of which continue to function properly, are generally in colder climates. The actions by NOAA -NCDC and NASA-GISS compromise their datasets, making their reported temperature trends unreliable and likely to have strong warming biases of unknown magnitude.6
1 • On January 29 h, a major new study by meteorologists Joe D' Aleo and Anthony Watts was issued, Surface Temperature Records: Policy Driven Deception ?7 Its basic conclusion is that "global data bases are seriously flawed and can no longer be trusted to assess climate trends or rankings or validate model forecasts. And, consequently, such surface data should be ignored for decision making." See fn.7 at p.5. Among its specific findings are the following:
• "Instrumental temperature data for the pre-satellite era (1850-1980) have been so widely, systematically, and unidirectionally tampered with that it cannot be credibly asserted there has been any significant ' global warming' in the 20th century." • "All terrestrial surface-temperature databases exhibit very serious problems that render them useless for determining accurate long-term temperature trends." • "Global terrestrial temperature data are gravely compromised because more than three-quarters of the 6,000 stations that once existed are no longer reporting." • "There has been a severe bias towards removing higher-altitude, higher latitude, and rural stations, leading to a further serious overstatement of warming." • "Contamination by urbanization, changes in land use, improper citing, and inadequately-calibrated instrument upgrades further overstates warming." • "Numerous peer-reviewed papers in recent years have shown the overstatement of observed longer term warming is 30-50% from heat-island contamination alone." • "Satellite temperature monitoring has provided an alternative to terrestrial stations in compiling the global lower-troposphere temperature record. Their findings are increasingly diverging from the station-based constructions in a manner consistent with evidence of a warm bias in the surface temperature record." • "Changes have been made to alter the historical record to mask cyclical changes that could be readily explained by natural factors like multidecadal ocean and solar changes." • "An inclusive external assessment is essential of the surface temperature record of CRU, GISS and NCDC 'chaired and paneled by mutually agreed to c. Global Warming: The Other Side- segment 4, KUSI News. (accessed Feb 12, 2010)
7 D' Aieo, Joseph and Anthony Watts. Surface Temperature Records: Policy Driven Deception?. Jan 29, 2010. Science and Public Pol icy Institute. (accessed Feb 12, 2010)
4 climate scientists who do not have a vested interest in the outcome of the evaluations. "'
See fn.7 at p.4. The report gives specific case studies of data manipulation, such as the fact that NASA modified 20% of the historical record 16 times in two an one-half years ending in 2007. This manipulation was not random. To the contrary, every instance of manipulation resulted in temperature trends that appeared to increase faster than they did in reality.
• In late January 2010, the findings of D' Aleo, Watts, and Smith were confirmed by investigative journalists. They found, for example, that in the 1980s 600 Canadian monitoring stations were used in the NOAA dataset. Now only 35 are used, with only one above the Arctic Circle. Yet, Environment Canada reports that the government maintains 1400 stations with over 100 above the Arctic Circle. 8
The Hadley Center-CRU, NOAA-NCDC and NASA-GISS are the three organizations that report global surface temperatures and whose temperature trends were specifically cited by the EPA in its Endangerment Finding. Yet, as shown above, these organizations have dropped many reporting stations, generally in colder climates (that is, at higher latitudes or higher elevations). None of these organizations have given any scientific explanation for selectively dropping stations. The global surface temperatures and temperature trends announced by these organizations have thus been highly compromised and are likely to have strong warming biases. As a result, EPA's reliance on them is not scientifically defensible.
By contrast, EPA's Endangerment Finding ignores satellite datasets which, unlike surface datasets, provide comprehensive coverage of the globe. The satellite dataset produced by the University of Alabama, Huntsville is freely available for independent review and verification. This dataset meets the critical principle of science of repeated, independent verification. These data show modest thirty year warming trends in the middle to upper latitudes of the Northern Hemisphere, little warming of the tropics and the Southern Hemisphere, and distinct cooling of the Antarctic region - hardly the endangering global warming proclaimed by EPA.
On October 5, 2009, CEI filed a petition to reopen the comment period in light ofCRU's admission that it destroyed the original data. On December 15, 2009, EPA dismissed this petition by stating:
"The Hadley Centre/Climate Research Unit (CRU) temperature record (referred to as HadCR UT) is just one of three global surface temperature records that EPA and the assessment literature refer to and cite. National Oceanic and Atmospheric Administration (NOAA) and National Aeronautics and Space Administration (NASA) also produce temperature records, and all three temperature records have been extensively peer reviewed. Analyses of the three global temperature records produce essentially the same long-term trends as noted in the Climate Change Science
8 Foot, Richard. Scientists using selective temperature data, skeptics say. Jan 20, 2010. National Post. (accessed Feb 12, 201 0)
5 Program (CCSP) (2006) report " Temperature Trends in the Lower Atmosphere;· IPCC (2007), and NOAA's study 5 " State ofthe Climate in 2008".;;
74 FR 66,504. But as demonstrated above, all three datasets have been extensively compromised. In the words ofthe D'Aleo-Watts study:
"NOAA's NCDC, in Asheville, NC, is the source ofthe Global Historical Climate Network (GHCN) and of the US Historical Climate Network (USHCN). These two datasets are relied upon by NASA's GISS in New York City and by Hadley/CRU in England. Since all three use the same data, all three have experienced the same de gradation in data quality in recent years. In the following email, CRU's Director at the time, Phil Jones, acknowledges that CRU mirrors the NOAA data: 'Almost all the data we have in the CRU archive is exactly the same as in the GHCN archive used by the NOAA National Climatic Data Center. '"
D' Aleo-Watts at 9 (italics added).
III THERE IS NEW EVIDENCE THAT SCIENTIFIC STUDIES THAT UNDERCUT GLOBAL WARMING CLAIMS WERE SUPPRESSED Starting on November 19, 2009, emails from the CRU were leaked to the public. These emails reveal coordinated efforts in both Britain and the US to suppress independent studies that are contrar y to IPCC conclusions of human-caused global warming. Thus, the lPCC scientific review process has a systematic bias of an unknowable magnitude in favor of human-induced warming. Consequently, the EPA Endangerment Finding is severely undermined by a systematic bias of an unknowable magnitude in favor of human-induced warming.9 10
IV RECENT DISCLOSURES MAKE IT CLEAR THAT UNSCIENTIFIC CLAIMS AND REPORTS WERE UTILIZED BY THE IPCC
Recent reports reveal the IPCC AR4 includes many claims without a scientific basis:
A) Tree Ring Data, Melting Glaciers and Injured Rainforests
• At the October, 2009 annual meeting of the Geological Society of America, Professor Don Easterbrook demonstrated how tree ring data from Russia, which show a cooling after 1961, were artfully truncated in graphs presented in IPCC publications. (See attachment at p.12.) This truncation gave the false impression that the tree ring data 1 agree with reported late 20 h Century surface temperature data, when in fact they did
9 Johnson, Keith and Gautam Naik. Lawmakers Probe Climate £mails. Nov 24, 2009. The Wall Street Journal. (accessed Feb 12, 2010)
10 Monckton, Christopher. Climategate: Caught Green-Handed!. Nov 30, 2009. Science & Public Policy Institut (acce e. ssed on Feb 12, 2010)
6 not. T his artful deceit, now exposed, indicates that the IPCC Assessment Report 4 (AR4) is scientifically questionable. The CRU emails leaked in November confirmed that this deception was deliberate.
• In Nove mber, 2009 an internationally recognized expert on Himalayan glaciers, V.K. Raina, produced a comprehensive study that totally contradicted the IPCC reports on Himalayan glacier melts, showing those reports to be flimsily documented exaggerations. Even though 11 this report had been independently documented , the Chairm an of the IPCC, Rajendra Pachauri, dismissed it as "voodoo science." But in Januar y, 2010, Dr. Murari Lal, the coordinating lead author of the AR4 chapter on Asia, admitted that AR4 had deliberately exaggerated the possible melt of the Himalayan glaciers. "We thought that if we can highlight it, it will impact policy makers and politicians and encourage them to take some concrete action." This admi ssion demonstrates that the AR4 is a political document and not a scientific one. 12
• In late January, 2010, additional reports revealed that IPCC claims that warming would cause extensive adverse effects in the Amazon rainforests and on coral reefs came not from peer reviewed science but from publications by environmental groups such as the World Wildlife Fund and Greenpeace. Further, claims of glacier melts in the An des and the Alps came from anecdotal comments in a magazine article and a master thesis. Thus, the IPCC claim that the findings in AR4 are based on peer reviewed science is false. 13 14 15
• On February 3, 2010, Jairam Ramesh, the Environment Minister Government of India, one of the nations most impacted by the politicized IPCC claim of disappearing glac iers, announced that India is forming its own independent climate change review panel that will not depend on IPCC reports. "There is a fine line between climate
11 It was reviewed by Professor Cliff Oilier, School of Earth and Environment, University of West Australia for th Government e of India. Dr. Oilier provided his review to SEPP. (accessed Feb 12, 2010)
12 Rose, David. Glacier Scientist: I knew data hadn 't been verified Jan 24, 2010. Daily Mail. (accessed Feb 12, 201 0)
1 ·' Booker, Christopher. Amazongate: new evidence of the IPCC'sfailures. Jan 30,2010. Telegraph. (accessed Feb 12, 201 0)
14 Laframboise, Donna. Greenpeace and the Nobel- Winning Climate Report. Jan 28, 2010. Nofrakkingconscnsus. (accessed Feb 12, 201 0)
15 Editorial.· Climate de bate needs facts, not anecdotes. Feb 3, 2010. NZ Herald. (accessed Feb 12, 2010)
7 science and climate evangelism. I am all for climate science but not for climate evangelism. I think people misused the IPCC report,11 Ramesh said. 16 B) Harm to African Agriculture
• On February 7, 2010 the Sunday Times reported on the extent to which false claims that warming will destroy rain based agriculture in Africa permeate IPCC findings and UN pronouncements. These claims were made in the IPCC's Synthesis Report:
"This is the IPCC's most politically sensitive publication, distilling its most important science into a form accessible to politicians and policy makers. Its lead authors include Pachauri himself.
In it he wrote: 'By 2020, in some countries, yields from rain-fed agriculture could be reduced by up to 50%. Agricultural production, including access to food, in many African countries is projected to be severely compromised.' The same claims have since been cited in speeches to world leaders by Pachauri and Ban [Ki-moon, the UN secretary-general].
Speaking at the 2008 global climate talks in Poznan, Poland, Pachauri said: 'In some countries of Africa, yields from rain-fed agriculture could be reduced by 50% by 2020.' In a speech last July, Ban said: 'Yields from rain-fed agriculture could fall by half in some African countries over the next 10 years.'
This· weekend Professor Chris Field, the new lead author of the IPCC's climate impacts team, told The Sunday Times that he could find nothing in the report to support the claim.
' I was not an author on the Synthesis Report but on reading it I cannot find support for the statement about African crop yield declines."'
The claim is in fact based on a non-peer reviewed 2003 policy paper written for a Canadian think tank. 17
EPA repeats these unsubstantiated claims about the possible destruction of rain-based African agriculture in its TSD:
"Agricultural production, including access to food, in many countries and regions is projected to be severely compromised by climate variability and change. The area suitable for agriculture, the length of growing seasons, and yield potential,
•r• India to have own panel on climate change: Jairam Ramesh. Feb 4, 2010. Hindustan Times. (accessed Feb 12, 201 0)
17 Leake, Jonathan. Africagate: top British scientist says UN panel is losing credibility. Feb 7, 2010. Times Online. (accessed F eb 12, 201 0)
This is yet another example of how EPA's finding is based on political reports rather strictly scientific ones.
C) More Destructive Storms
EPA claims that global warming will lead to storms that are more intense and therefore more destructive:
"The evidence concerning how human induced climate change may alter extreme weather events also clearly supports a finding of endangerment, given the serious adverse impacts that can result from such events and the increase in risk, even if small, of the occurrence and intensity of events such as hurricanes and floods. Additionally, public health is expected to be adversely affected by an increase in the severity of coastal storm events due to rising sea levels."
74 FR 66,497-98. The claim of increased storm severity is based on a similar contention by the IPCC in AR4. However:
• On January 24, 2010, the Sunday Times (London) reported that the AR4 wrongly linked natural disasters to global warming. AR4 claimed that global warming is causing increases in property losses. Yet the Sunday Times discovered the published report upon which this claim was based actually stated: "We find insufficient evidence to claim a statistical relationship between global temperature increase and catastrophic losses."19
This revelation is particularly devastating because it goes not only to EPA's failure to adequately review the false science of the IPCC, but also the failure of USGRCP and NRC to perform independent review. All three organizations accepted the IPCC findings as physical fact and the best available science, when it clearly was not either. For example, the NRC report "Potential Impacts of Climate Change on U.S. Transportation" starts by assuming that the worst of the IPCC findings are correct, especially the false link between warming and natural disasters. Then it exacerbates its incorrect approach by using IPCC models that have never been independently verified and therefore have no predictive power. From this it derives estimates of future damage to the US transportation system from global warming. This is not science, but wild speculation. The similar reports by the CCSP, which are incorporated by the USGRCP, are equally invalid.
1 " TSD Table 16.1, p. 162. (accessed Feb 12, 2010)
19 Leake , Jonathan. UN wrongly linked global warming to natural disasters. Jan 24, 2010. Times Online. (accessed Feb 12, 201 0)
9 In short, the scientific assessments of the USGRCP and the NRC, used by EPA to buttress its Endangerment Finding accepted the IPCC reports as definitive. Thus, these assessments are actually extensions of the IPCC findings, incorporating its faults and errors. Contrary to EPA claims, they do not provide any independent scientific support whatsoever. v CONTRARY TO EPA'S HIGH PRAISE FOR IT, THE IPCC REPORT HAS BEEN REVEALED TO BE A POLITICAL DOCUMENT, NOT A SCIENTIFIC ONE
In its fina l decision EPA described the IPCC report in glowing terms. In the agency's words, it was one of the three assessments that formed the Administrator's "primary scientific and technical basis of her endangerment decision ... " 74 FR 66,510. These assessments supposedly "represent the current state of knowledge on the key elements for the endangerment analysis" and "convey the consensus conclusions on what the body of scientific literature tells us." 74 FR 66,511. They "undergo a rigorous and exacting standard of peer review by the expert community, as well as rigorous levels of U.S. government review and acceptance." /d.
EPA concluded its paean with this laudatory language:
"It is EPA's view that the scientific assessments of the IPCC, USGRCP, and the NRC represent the best reference materials for determining the general state of knowledge on the scientific and technical issues before the agency in making an endangerment decision. No other source of information provides such a comprehensive and in-depth analysis across such a large body of scientific studies, adheres to such a high and exacting standard of peer review, and synthesizes the resulting consensus view of a large body of scientific experts across the world. For these reasons, the Administrator is placing primary and significant weight on these assessment reports in making her decision on endangerment." /d.
The disclosures and events described above make it clear that EPA's characterization of the IPCC report is flatly wrong. Moreover, other disclosures demonstrate that, at heart, the report is a political document:
• Among the CRU documents disclosed in November, 2009, is an email from Dr. Keith Briffa, CRU Deputy Director and an IPCC lead author: "I tried hard to balance the needs of the science and the IPCC , which were not always the same 20 ... " (April 29, 2007)(italics added) ;
• Another email, from Dr. Tom Wigley, an IPCC contributing author, states: "In my (perhaps too harsh) view, there have been a number of dishonest presentations of model results by individual 21 authors and by !PCC." (Oct. 14, 2009)(italics added) ;
20 Briffa, Keith. Email. Apr 24, 2007. (accessed Feb 12, 2009)
21 Wigley, Tom. Email. Oct 14,2009. (accessed Feb 12, 2010)
10 • At a conference during the week of February 8, 2010, organized by the UK newspaper Guardian, the paper posed this question to experts: "How to reform the IPCC?'' The article on the conference stated that "Perhaps unknown to many people, the process is started and finished not by scientists but by political officials, who steer the way the information is presented in so-called summary for policymakers (SPM] chapters. Is that right, the Guardian asked?" Anton Imeson, a former IPCC lead author from Netherlands, responded: "The Nobel prize was for peace not science ... government employees will use it to negotiate changes and a redistribution of resources. It is not a scientific analysis of climate change." "For the media, the IPCC assessments have become an icon for somet hing they are not. To make sure that it does not happen again, the IPCC should change its name and become part of something else. The IPCC should have never allowed itself to be branded as a scientific organisation. It provides a review of published scientific papers but none of this is much controlled by independent scientists." (Italics added).22
EPA continues to insist that IPCC is a scientific organization but people in the organization realize it is not. Rather, it is political policy organization that reviews and reports science that support its goals. v CONCLUSION
New disclosures and studies, some as recent as last week, demonstrate that EPA's Endangerment Finding rests on unscientific and politicized documents that have no credibility. Because these revelations occurred after EPA's public comment period, and because they severe! y undermine the IPCC report and other studies relied upon by EPA, the agency's reconsideration of its final rule is not only warranted, but required.
Respectfully submitted,
S. Fred Singer, Co-Founder Nongovernmental International Panel on Climate Change
Kenneth A. Haapala, Executive Vice President Science and Environmental Policy Project
<-"--..__.. ~:~?."t...Ct'.~ --... ___ Sam Kazman, General ounsel Competitive Enterprise Institute On behalf of all petitioners
February 12, 2010
22 Adam, David and Suzanne Goldenberg. How to reform the IPCC. Feb 10, 2010. Guardian. (accessed Feb 12, 2010)
11 ATTACHMENT
An Explanation of How lvfichael tdann Hid the Decline Graphs Presented by Professor Don Easterbrook
O.l"C - ---
SOURCE : [email protected]. 2009 Portland GSAAnnual Meeting (18-21 October 2009)
12 United States Environmental Protection Agency
Docket EPA-HQ-OAR-2009-0171
INRE: ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR GREENHOUSE GASES UNDER SECTION 202(a) OF THE CLEAN AIR ACT; FINAL RULE, 74 FR 66,495 (DEC. 15, 2009)
Supplement to Petition For Reconsideration of the Nongovernmental International Panel on Climate Change, the Science and Environmental Policy Project, and the Competitive Enterprise Institute
S. Fred Singer, Co-Founder Nongovernmental International Panel on Climate Change 1600 S. Eads St.# 712-S Arlington, VA 22202 [email protected]
Kenneth A. Haapala, Exec. Vice President Science and Environmental Policy Project 9634 Boyett Court Fairfax, VA 22032 (703) 978-6025 [email protected]
Sam Kazman, General Counsel* Competitive Enterprise Institute 1899 L Street, NW, 12th Floor Washington, D.C. 20036 (202) 331-2265 [email protected] *contact person for petitioners
February 16, 2010 Supplement to Petition for Reconsideration To the Environmental Protection Agency Regarding Its Final Rule Concerning Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act
Office of the Administrator, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW, Washington, DC 20004
Jeremy Martinich, Climate Change Division, Office of Atmospheric Programs (MC-6207J), Environmental Protection Agency, 1200 Pennsylvania Ave., NW ., Washington, DC 20460
Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20004
Petitioners hereby supplement their Petition for Reconsideration (filed February 12, 2010) with the following points: I DR. PHIL JONES' LATEST STATEMENTS UNDERCUT EPA'S ENDANGERMENT FINDING
On February 13th, a BBC interview with Dr. Phil Jones, head of the British Climate Research Unit (CRU), was posted, which revealed some major disagreements with EPA's Endangerment Finding and reversals of his prior views.
For example, EPA states in its fmal rule that warming has continued in recent years, declaring that "eight of the 10 warmest years on record have occurred since 2001." 74 FR 66,517.
But in answer to the BBC interviewer's question, "Do you agree that from 1995 to the present there has been no statistically-significant global warming?", Dr. Jones replies "yes" (explaining that there has been warming, but that it was not statistically significant). 1
1 BBC News, Q&A: Professor Phil Jones, Feb. 13,2010, http:/inews.bbc.co.uk/2/hi/science/nature/85 J 1670.stm; see also Daily Mail, Climategate U-turn 1 Dr. Jones goes on to state that from.January 2002, there has been actual cooling, though it was not statistically significant. This appears to contradict his past statements on how the period 200 1-07 was wanner than the previous decade?
Dr. Jones' comments on the recent lack ofwanning are consistent with the views stated by at least three other scientists in the Climategate emails.
• Dr. Kevin Trenberth, IPCC coordinating author and head of the Climate Analysis Section at the National Center fo~ Atmospheric Research (Oct. 14, 2009): "The fact is that we can't account for the lack of warming at the moment and it is a travesty that we can't."3
• Dr. Thomas Wigley, IPCC contributing author (later in the above thread): " ... here are some notes of mine on the recent lack ofwanning."
• Dr. Stephen H Schneider, editor of the journal Climate Change (October 11, 2009), referring to ''the past 10 years of global mean temperature trend stasis ...." 4
EPA states that "the greatest warming occur[ed] over the last 30 years." 74 FR 66,5 17.
But according to Dr. Jones, for the periods 1860-1880, 1910-1940, 1975-1998, and 1975-2009, the warming rates did not show any accelerating trends. In his words, "the warming rates for all 4 periods are similar and not statistically significantly different from each other."5
If there has been no change in warming rates, this contradicts one of EPA's basic contentions. During this same period, atmospheric levels of carbon dioxide and other greenhouse gases levels dramatically increased-according to EPA, to "essentially unprecedented levels". 74 FR 66,517. Yet if increasing levels ofthese gases did not produce a clear acceleration of warming, then the role of these gases as a major driver of temperature becomes even more dubious.
as scientist at centre ofrow admits: There has been no global warming since 1995, Feb. 14, 2010, http://www .dailymai I. co. uk/news/article-1250872/Cl imategate-U-tum-Aston ishment-scientist centre-global-warm ing-emai 1-row-adm its-data-organ ised.htm l?ITO= 1490
2 New24.com, Earth still warming, Jan. 11, 2008, http://www .news24.com/Content/SciTech/News/ I 132/ I249c?74c6df42cca 1302d82e4236ef6/ I 1- 01-2008-06-57/Earth still warming#
3 1255532032.txt, http://www .eastangl iaemai ls.com/emails.php?eid= I 054&fiiename= 1255532032.txt
4 125531833l.txt, http://www .eastangliaemails.com/emails.php?eid= 1047 &filename= 125531833 l.txt
5 See fn.l. 2 As one appellate court has noted, a situation such as this "on its face, raises questions about the reliability of the EPA's projections. While courts routinely defer to agency modeling of complex phenomena, model assumptions must have a 'rational relationship' to the real world. See, e.g., Chemical Mfrs. Ass'n v. EPA, 28 F.3d 1259, 1265 (D.C.Cir.l994)." Appalachian Power Co. v. EPA, 249 F.3d 1032, 1053 (D.C. Cir. 2001).
II THE IPCC'S CLAIMS REGARDING HURRICANES, ADOPTED BY EPA, ARE NOW IN EVEN MORE SERIOUS DOUBT
A new report on hurricanes, independently reviewed and released only today, finds no increase in storm or hurricane frequency over the last 60 years. The report, 1999-2009: Has the Intensity and Frequency ofHurricanes Increased?, by Dr. Les Hatton, Kinston University, London, concludes:
"Over the periods 1999-2007 or 1999-2009, it can be concluded that there is no evidence to support that the average number oftropical storms, hurricanes, major hurricanes or proportion ofhurri canes which mature into major hurricanes has changed in the last 60 years". 6 ld at 11 (emphasis in orginal). The report goes on to note that "the match between the data and the IPCC 2007 analysis is poor at best." ld at 15.
7 This not only undercuts EPA's increasingly questionable reliance on the IPCC report , it also undermines EPA's own claims regarding the supposedly increased risk of storms and hurricanes. See 74 FR 66,498.
Ill EPA's HIGHLY QUESTIONABLE USE OF THE ABSURDITY CANON IN ITS PROPOSED TAILORING RULE REQUIRES THAT THE AGENCY RECONSIDER ITS ENDANGERMENT FINDING
In comments filed with EPA on December 28 and 30, 2009, the National Association of Homebuilders (NAHB) pointed out that EPA's proposed Tailoring Rule8 involved an unprecedented use by the agency ofthe "absurdity canon" of statutory construction. In NAHB's words: "Apparently for the first time in its 40-year history, EPA proposes in the Tailoring Rule
6 http://www .leshatton.org/Documents/H urricanes-are-not -getting-stronger. pdf; see also http://www.leshatton.org/Hurricanes 20 I O.html
7 The Register (UK), Now IPCC hurricane data is questioned, Feb. 15, 2010, http://www .theregister.co.uk/20 l 0/0'> I 15/hatton on hurricanes/
8 EPA, Prevention ofSignificant Deterioration and Title V Greenhouse Gas Tailoring Rule, 74 FR 55,292 (Oct. 27, 2009).
3 to invoke the absurdity canon of construction in interpreting a law it administers." NAHB, Legal Comments on EPA's Tailoring Rule and Interrelated Agency Actions, at 1.9
The Tailoring Rule proposal was issued on October 27, four months after the close of the public comment period in EPA's Endangerment proceeding. The agency's discussion of the absurdity canon in its proposal makes it seems as ifthe agency is doing little out of the ordinary. See 74 FR 55,306-07. However, as the NAHB comments point out, EPA's approach here is anything but ordinary.
And it is doubly extraordinary, given that EPA provided no real warning about the inevitability of these problems to the Supreme Court when, Massachusetts v. EPA , 549 U.S. 497 (2007), it considered the agency's authority to regulate carbon dioxide under the Clean Air Act. In fact, the Prevention of Significant Deterioration (PSD) program is not mentioned in that decision, and the National Ambient Air Quality Standards program to which PSD applies is mentioned only in the dissent. Jd. at 559 (Scalia, J., dissenting).
As NAHB points out, in Massachusetts the parties advocating regulation actually contended that a ruling in their favor would have no implications at all for the PSD program:
"The Supreme Court briefs filed by the Commonwealth of Massachusetts and the other petitioners in Massachusetts clearly took the position that resolving the Massachusetts case did not require a resolution of questions about the applicability to greenhouse gases of the Clean Air Act's stationary source control provisions. Indeed, the petitioners in Massachusetts went farther and insisted that the Court could decide the case in their favor, possibly paving the way for regulation ofGHGs under Title II ofthe Act, without any consequences for National Ambient Air Quality Standards program at all."
NAHB comments, Attachment Bat 7. As for EPA, NAHB states that "while the Solicitor General's brief in Massachusetts did note that the NAAQS program could not be coherently applied to GHG emissions, that brief also importantly noted (immediately after making that observation) that '[t]he petition for rulemaking in this case did not request that EPA promulgate NAAQS for greenhouse gases, but instead sought regulation of greenhouse gas emissions from new motor vehicles.'"
/d. NAHB concludes, in short, that, given
" ... that the Massachusetts petitioners argued that the NAAQS issue was not before the Court; and that the Solicitor General's briefing did not contest that point; that neither the petitioners, nor Solicitor General, nor the Massachusetts Court mentioned the PSD and Title V programs; and that neither side nor the court mentioned the absurdity canon, all arguments relating to the Title V, PSD and NAAQS programs clearly remain unresolved in the wake of Massachusetts."
/d. But in our view, the implications of this omission are even more serious. If EPA had forthrightly admitted to the Supreme Court that construing the Clean Air Act to cover carbon dioxide would end
9 NAHB's comments, Document ID EPA-HQ-OAR-2009-0171-11690.1 , were filed in both the Tailoring Rule proceeding and in several other related proceedings. They can be found at http://www.regulations.gov/search/Regs/home.html#documentDetaii?R=0900006480a75f96
4 up forcing EPA to resort to the absurdity canon to deal with that construction, the outcome in Massachusetts might well have been totally different.
EPA created this dilemma through both its briefing in Massachusetts and its wholly discretionary decision to issue its Endangerment Finding. Like the Supreme Court's decision, that finding contains no mention of any need to resort to the absurdity canon. EPA's dubious resort to that canon for the purpose of re-writing, by administrative means, the clear and unambiguous numerical thresholds in the Clean Air Act is a de facto admission of error. When an agency's own actions create absurd results, it should not be able to evade those results through ad hoc means. EPA's need to paper over the statutory contradictions that it itself created constitute a powerful, independent ground for reconsidering the action that has brought the agency to this point-the Endangerment Finding itself.
IV CONCLUSION
For the foregoing reasons, in addition to those previously set forth in Petitioners' Petition for Reconsideration (filed February 12, 2010), EPA should reconsider its Endangerment Finding.
Respectfully submitted,
S. Fred Singer, Co-Founder Nongovernmental International Panel on Climate Change
Kenneth A. Haapala, Executive Vice President Science and Environmental Policy Project -~~ /2;-~ ~ Sam Kazman, General Counsel Competitive Enterprise Institute Counsel for Petitioners
February 16,2010
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