Last week, a three-judge panel of the federal District Court of Appeals for the D.C. Circuit heard two days of oral arguments in the lawsuit challenging the Environmental Protection Agency’s regulation of greenhouse gas emissions using the Clean Air Act.  The consolidated suit, Coalition for Responsible Regulation vs. EPA, challenges the EPA’s 2009 Endangerment Finding (EF) that greenhouse gas emissions “endanger human health and welfare,” the automobile tailpipe emissions rule, and the “tailoring rule” that exempts smaller stationary emissions sources from being regulated — in contradiction of the explicit language in the 1970 Clean Air Act.

First some background: in April 2007, the U.S. Supreme Court ruled that carbon dioxide, a non-toxic, natural component of the atmosphere — and essential for life on Earth — could be considered an atmospheric pollutant under the Clean Air Act (CAA) of 1970 — and could therefore be regulated by EPA.  But there was an important proviso: the EPA first had to demonstrate that CO₂ endangered human health and welfare.  Accordingly, in 2009, the EPA issued an Endangerment Finding (EF), backed up by a Technical Support Document (TSD).  A large number of petitioners then filed lawsuits against the EPA, including the states of Alabama, Texas, and Virginia, disputing the EF.  (My organization, the Science and Environmental Policy Project (SEPP), is one of the petitioners; we concentrate on the scientific validity of the TSD.)

The purpose of the original lawsuit, Commonwealth of Mass. vs EPA, was to force the EPA to regulate CO₂ as a pollutant from motor-vehicle tailpipe emissions.  To overcome the problem of “standing,” Mass. presented an affidavit written by the chief scientist of the Environmental Defense Fund, claiming that putative future warming caused by the greenhouse gas CO₂ would lead to extensive flooding of New England coastal regions.  There are three things wrong with this claim: one, there is no evidence that an increase in CO₂ would lead to appreciable warming; two, there is no evidence that any warming, should it occur, would accelerate ongoing sea-level rise; and three, it would seem improper for the Supreme Court to accept an affidavit from an obviously biased source.  Unfortunately, the Department of Justice refused our technical help and did not adequately argue the case.

As things stand now, the Appeals Court may render a decision in June 2012.  There’s a possibility that either party may ask the full Court to meet en banc.  But if the Court turns down the request, there is bound to be an appeal to bring the case before the Supreme Court.

There are many problems with the EPA’s Endangerment Finding.  Some are administrative and some are legal, but there are also very basic scientific problems.

Administratively, the EPA was required to submit its EF to its Scientific Advisory Board (SAB); it failed to do that, and this may make the current EF invalid.  As reported by the EPA’s inspector general, the EPA also failed to carry out an independent analysis of the underlying science.  Instead, the EPA relied on three external reports that were all biased in the same direction: the flawed IPCC report of 2007, reports of the U.S. Climate Change Science Program, and a later report of the National Academy of Sciences.  The trouble is that these three reports are not independent evaluations of the available scientific evidence; they involved pretty much the same scientists, just wearing different hats.  The EPA made no attempt to obtain any contrary analysis of the science or to carry out its own, presumably unbiased analysis.

Under the terms of the CAA, the EPA is not required to consider the cost and other negative consequences of its proposed regulations.  Nevertheless, it is fairly obvious that these will drastically raise the cost of energy, including also the cost of heating and air-conditioning — with grave impacts upon the health and welfare of low-income groups in the population.

There are also many legal problems with the EF.  Once CO₂ becomes a “criteria pollutant,” then under the terms of the Clean Air Act, the EPA must set a National Ambient Air Quality Standard (NAAQS) — as it did for each of the six current criteria pollutants.  After all, it is the NAAQS that is relevant to human health and welfare and defines a true pollutant; limitations on emissions are simply a means to achieve a critical legal NAAQS.  In the case of CO_2, however, this is clearly impossible.  No amount of EPA regulation of U.S. emitting sources, whether cars, power stations, etc., can achieve a targeted NAAQS without the cooperation of the rest of the world, and principally China.  Nor can the EPA even define a target NAAQS for CO₂.

A second legal problem has to do with the actual regulation of CO₂ emitters.  Under the Clean Air Act, the EPA is required to deal with every source that emits more than 100 or 250 tons of a pollutant a year.  In the case of CO₂, this would involve millions of sources, including apartment buildings, hospitals, etc.  Realizing the impossibility of dealing with so many sources, the EPA has issued a “Tailoring Rule,” which arbitrarily limits attention only to sources of more than 100,000 tons per year.  But the TR is not established by law; Congress would have to amend the CAA to permit the EPA to carry out its plan.

To summarize, the core legal issues can be thought of as a series: 1) does the 2007 Supreme Court decision require an EF to regulate motor-vehicle emissions, 2) do such regulations then require also regulation of stationary sources (EPA’s goal), 3) is the EPA’s tailoring of the regulations to only large emitters permitted under the law, and 4) does strict application of the law lead to absurd results?

But the main objection to the EF — and the one that we have concentrated on — is the EPA’s so-called “evidence” that a rise in CO₂ will have a noticeable impact on global climate.  In fact, since we filed the objection to the EF and TSD and agreed to become a co-plaintiff in the lawsuit, the scientific evidence has moved even farther in our favor.  We feel more sure now that the continuing increase in CO₂ has caused no appreciable warming in the crucial interval 1978-1997 — contradicting all climate-model results.  There has been no observed warming trend of Earth’s atmosphere, either — which atmospheric theory predicts should have been about double that of the surface.  There has been no observed warming trend in the oceans, and most of the geological, non-thermometer (“proxy”) data we have studied show no warming in recent decades.

Nevertheless, in spite of the many objections to the EF, it is still possible that the courts will defer to the EPA and permit regulation of CO₂ to proceed.  It would be a great economic calamity if this were to happen.  It would also be a severe blow to the rational use of science in public policy-making.

S. Fred Singer is professor emeritus at the University of Virginia and director of the Science & Environmental Policy Project.  His specialty is atmospheric and space physics.  An expert in remote sensing and satellites, he served as the founding director of the US Weather Satellite Service and, more recently, as vice chair of the US National Advisory Committee on Oceans & Atmosphere.  He is a senior fellow of the Heartland Institute and the Independent Institute.  In 2007, he founded and chaired NIPCC (Nongovernmental International Panel on Climate Change).  For recent writings see http://www.americanthinker.com/s_fred_singer/ and also Google Scholar.