Pruitt discredits non-agency science. That claim lost in court

Source: Chelsea Harvey, E&E News reporter • Posted: Monday, December 11, 2017

U.S. EPA committed a “breach of process” when formulating one of its most significant scientific findings of the last decade, Administrator Scott Pruitt said yesterday. It’s an argument that’s already been presented — and rejected — in a U.S. court of appeals.

Pruitt told members of the House Energy and Commerce Committee that the agency’s endangerment finding — its 2009 determination that carbon dioxide emissions pose a threat to public health and welfare — relied on “borrowed” work from the Intergovernmental Panel on Climate Change. He said the finding’s overall process had been “short-shrifted.”

In fact, the endangerment finding was informed not only by reports from the IPCC, but also from the U.S. Global Change Research Program, U.S. Climate Change Science Program and National Research Council, as well as studies and reports from other independent research groups.

Avi Zevin, an attorney at New York University School of Law’s Institute for Policy Integrity, pointed out that a similar criticism was presented several years ago in court, where it was rebuffed.

In 2012, the U.S. Court of Appeals for the District of Columbia Circuit rejected a variety of arguments — presented in the case Coalition for Responsible Regulation Inc. v. EPA — by industry groups and others who challenged the endangerment finding and a series of EPA rules it helped inform. Among these was the argument that EPA had “improperly delegated its judgment” to the IPCC and other organizations whose assessments of climate science helped inform the endangerment finding.

In its decision, the court responded that “this argument is little more than a semantic trick.”

“EPA simply did here what it and other decision-makers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted,” the judgment stated, adding that it’s common for such decisions to rely on large syntheses of scientific studies, of the type produced by the IPCC.

“This is how science works,” the decision added. “EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.”

The concept of the endangerment finding was born in 2007, when a Supreme Court ruling instructed EPA to determine whether greenhouse gas emissions pose a threat to human health or the environment. A version of the endangerment finding was first presented to the George W. Bush administration, although it was not made official until 2009 under the Obama administration.

Since then, the endangerment finding has formed the cornerstone of EPA’s climate-related regulations, including the Clean Power Plan. In the last year, conservatives have urged the Trump administration to challenge the finding, noting that it could still serve as the underpinning for future climate-related rules.

Pruitt has not indicated whether he will attempt to overturn the finding. But his comments yesterday mark at least the second time he’s leveled the same criticism against it — that its reliance on scientific literature from the IPCC is an unprecedented decision that undermines the integrity of its conclusions.

“There was something done in 2009 that in my estimation has never been done since and not done before that event, where they took work from the U.N. IPCC and transported it to the agency and adopted that as the core of the finding,” Pruitt said yesterday. “So there was a breach of process that occurred in 2009 that many believe was not handled the proper way.”

In an October interview with Time, he also suggested that the decision “really draws into question, did this agency engage in a robust, meaningful discussion with respect to the endangerment that CO2 poses to this country?”

While it’s unclear if Pruitt will challenge the endangerment finding, Zevin noted that attempting to use this argument as a legal justification for overturning the finding would likely be “an uphill battle,” since it’s already been addressed by the D.C. Circuit. It’s possible that such an argument could be brought again in the future and appealed all the way up to the Supreme Court, he noted — but states and industry groups attempted this several years ago, and the Supreme Court rejected their petition.

“EPA makes scientific judgments all the time that are based on research that it did not conduct — peer-reviewed research that it reviews and then uses as the basis for lots of scientific determinations,” Zevin said.

IPCC reports, specifically, may not have been commonly referenced before the endangerment finding. But it’s common for federal agencies to base their decisions on a range of scientific information available to them. In fact, EPA’s own guidelines for the dissemination of information — the same guidelines it was required to follow when preparing the endangerment finding — notes that the agency may use relevant external studies and reports to inform its decisionmaking.

Given that the IPCC is generally considered the global authority on climate science, it could be argued that excluding IPCC reports from proceedings related to the endangerment finding would have been unusual. And in any case, while EPA does conduct its own science, it’s not the federal agency known for the type of atmospheric studies necessary to inform a determination about greenhouse gas emissions. That research is most often conducted by NASA or NOAA.

Still, Pruitt has reiterated his plan to organize a “red team, blue team” exercise aimed at challenging the mainstream consensus on climate science. It’s an idea he’s been discussing for months, with the encouragement of conservative organizations like the Heritage Foundation — and at yesterday’s hearing, he suggested that mishandling of the endangerment finding process is an example of why it’s needed.

“I think one of the most important things we can do for the American people is provide that type of discussion, because it hasn’t happened at the agency,” he said. “As I indicated, the agency borrowed the work product of a third party, and we need to ensure that that discussion occurs, and it occurs in a way that the American people know that an objective, transparent review is taking place.”