Deepening legal woes surrounding a Trump administration report that casts aspersions on climate science presents legal risks for EPA’s effort to repeal the endangerment finding — unless it gives up its attempts to challenge the tenets of climate change.
The report, written by five climate contrarians selected by Energy Secretary Chris Wright, is a pillar of EPA’s assertion that the 2009 scientific finding exaggerates the dangers of rising temperatures and should be severed from the government’s reasoning that the Clean Air Act doesn’t authorize regulation of heat-trapping emissions from cars and other sources.
EPA can’t easily remove the embattled paper from its rule revoking the endangerment finding unless the agency sacrifices its explicit assault on climate science. The finding is a scientific assertion written in 2009 that greenhouse gas emissions endanger public health. It empowered the agency to regulate six greenhouse gases like other air pollutants.
The draft repeal, released July 29, relied mostly on a legal argument claiming that the government had erred in using the Clean Air Act to regulate greenhouse gas pollution when it doesn’t pose an immediate danger to the public from direct exposure.
But EPA tacked on an “alternative” rationale that questioned whether science supported the Obama-era conclusion that human-induced emissions endanger public health and welfare.
That part of the draft was based almost solely on the work of the so-called Climate Working Group — composed of the small band of outside climate skeptics assembled by Wright who have long argued that mainstream scientists overstate the risks of warming. Since the report was released, it has been criticized by scientists for cherry picking data, spreading false claims and regurgitating debunked arguments about the causes of global warming.
The report has also been challenged legally, with a judge in September describing it as an overtly political exercise. Last week, the same judge, William Young of the U.S. District Court for the District of Massachusetts, ordered the Department of Energy to release records related to the secretive working group, in a decision that marked a key victory for environmental groups who sued the Trump administration for failing to follow federal disclosure rules.
Former EPA officials and specialists in regulatory law say the agency is likely to remove the DOE report from the rule before it’s finalized early next year.
If it does, they say, EPA would face legal obstacles to keeping the science-based justification as part of the final repeal. EPA can’t simply replace the DOE report in the final rule with other scientific assertions that support its claim that climate change does not present dangers to the public. That would require EPA to issue a supplemental proposal, the lawyers said, potentially delaying the final endangerment finding rollback for months.
“I think the science-based analysis was tethered to this report, and so I don’t think that there’s a plausible path forward to finalize [the rule] on the science without relying on the report,” said Meghan Greenfield, a former EPA attorney, referring to the DOE report.
“The core science analysis was that there’s more doubt about climate change than we thought, and maybe climate change is net beneficial. The report was the basis for those findings,” said Greenfield, who is now a partner with Jenner & Block LLP.
Asked by POLITICO’s E&E News whether it still views the DOE report to be a credible basis for undoing the finding, EPA said that it had always viewed the repeal to be “legal in nature.”
“We refer you to the U.S. Department of Energy for comment on the Climate Working Group,” the agency said.
‘Fatal flaws’
The embattled report, spanning 141 pages, conflicts sharply with consensus scientific findings about the way human-made greenhouse gas emissions are changing the climate and what that means for society.
The panel was handpicked by Wright and worked outside of the public eye in a way that environmental challengers say flouted the Federal Advisory Committee Act of 1972, which governs how agencies may assemble and use outside experts.
The law, known as FACA, sets guidelines for member selection, balancing expertise and viewpoints and transparency that DOE didn’t follow. That made it possible for the working group to release its report in July, two months after it was assembled, to coincide with EPA’s endangerment finding proposal.
Wright said at the joint announcement for the report and endangerment draft in Indianapolis on July 29 that the Obama EPA “didn’t understand climate change” when it wrote the finding 16 years ago.
“They didn’t appreciate how energy works,” Wright said. “But this ruling happened, and it happened because they couldn’t do it through the House and the Senate and the presidency the normal law-making process, they found a backdoor way to take away your freedom and to make your life more expensive and shrink your life opportunities.”
But since then, the working group and its report have run into legal headaches that weren’t resolved when Wright disbanded the group in September. The Environmental Defense Fund and Union of Concerned Scientists sued DOE for violating FACA. They also sued EPA for using the report to help justify its decision to repeal the endangerment finding.
This month, the administration has dialed back its legal defense of the report. Attorneys with DOE last week backed away from their contention that the working group was exempt from FACA because it amounted to a “literature review.”
Young, the judge handling the case involving the DOE report, said in a decision last Monday that the Trump administration had until Dec. 22 to release records related to Wright’s working group.
Even if DOE complies with that order, plaintiffs in the case and other critics argue that the report’s inaccuracies should prevent it from being used as EPA’s primary basis for overturning the endangerment finding on scientific grounds.
“There’s multiple fatal flaws of the report,” said Chris Frey, who enumerated those in a formal request for correction to DOE in August. Frey, who led EPA’s Office of Research and Development during the Biden administration, said the department had acknowledged the request but hasn’t issued a correction.
‘They would have a problem in court’
The judge’s Dec. 22 deadline is for DOE to release documents, but critics say the department violated other FACA rules as well. Even if all procedural concerns around the working group’s transparency, public input and member selection “magically disappeared,” Frey said, DOE and the five-member panel also ignored requirements governed by the Information Quality Act related to peer review. He also asserted that EPA skirted the Clean Air Act’s criteria for science used in rulemakings.
“So, there’s sort of a litany of things that this report fails to achieve,” Frey said. “There’s nothing that prevents political leadership at EPA from citing this report, but I think they’re going to create tremendous legal vulnerabilities for any decision that comes from citing the report.”
Erin Murphy, a senior attorney with EDF, also noted that EPA disclosed publicly as part of the draft repeal’s docket that it reviewed and used an earlier draft of the working group’s report. That’s a problem, she said, because the public wasn’t made aware of the group’s existence until July 29.
“If EPA utilized the Climate Working Group report — which they did based on the publicly available information — that is a violation of FACA if they failed to comply with the transparency requirements in that law,” said Murphy.
“So, in our view, that was enough reliance on the report to show that EPA and DOE both had obligations under FACA related to the group,” she added.
Pat Parenteau, a senior fellow for climate policy in the Environmental Law Center at Vermont Law School, said Young could order EPA not to use the report in its final decision on endangerment.
“That is a remedy based on a FACA violation,” he said. “I think either Young will preclude EPA from considering [including the report], or the record is going to be so discredited that D.C. Circuit [Court of Appeals] won’t give it credence.”
If EPA doesn’t cite the DOE report in the final repeal or if it is barred from doing so, the agency probably can’t offer a new scientific basis that justifies the draft’s conclusion that human-made greenhouse gas emissions don’t endanger public health without delaying the final rules for months, according to one former EPA official.
“I think they would have a problem in court if they didn’t give the public the opportunity to comment on the basis of their rules,” said Jeff Holmstead, who served as EPA’s air chief in the George W. Bush administration.
Holmstead said he expects EPA to withdraw the science argument in the final version, and move forward with a legal contention that EPA never had authority to regulate greenhouse gases under a key provision of the Clean Air Act.
“There’s no way they could have responded in a meaningful fashion to all the comments they got on the science,” said Holmstead, who represents industry clients at Bracewell LLP, referring to EPA’s recent public comment period.
“This has been a relatively fast rulemaking,” he added. “And if they’re planning to have the final rule out by the end of the year or shortly thereafter, I think that’s a pretty strong signal that they’ll be relying on their primary [legal] argument.”
EPA received reams of stakeholder comments in September raising procedural and substantive problems with the DOE report. The National Academies of Sciences, Engineering and Medicine, which provides independent advice to the government on issues of science and policy, released its own report in September that contradicted the Climate Working Group’s findings and reaffirmed the link between human emissions and harmful warming.
EPA received more than a half-million comments on the draft but has uploaded fewer than 31,000 to the rule’s public docket.
Reporter Lesley Clark contributed.
Jean Chemnick can be reached on Signal at jchemnick.01.
