Legal Analysis of AGW and EPA: Peabody Energy

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The petition was denied. See:
solarcycle24com.proboards.com/index.cgi?action=display&board=talkanything&thread=1298&page=2#52202

This Topic contains highlight notes from a partial reading of the 240 pages in:

Peabody Energy Company, Peter Glaser, Alexander C. Schoch, Fredrick D. Palmer, Mary L. Frontczak, Mark E. Nagle, Michael H. Higgins, and Soo Jin Kim. Petition to EPA: Your Agency Has No Legal Option but to Reexamine its Endangerment Finding. SPPI Reprint Series. Science and Public Policy Institute, February 11, 2010. Pages 240
scienceandpublicpolicy.org/images/stories/papers/reprint/no_legal_option.pdf

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Docket No. EPA-HQ-OAR-2009-0171
Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act 74 Fed. Reg. 66496 (Dec. 15, 2009)

Petition For Reconsideration By Peabody Energy Company

"Peabody Energy Company respectfully requests that the United States Environmental Protection Agency (“EPA” or “Agency”) reconsider its Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act published at 74 Fed. Reg. 66,496 (Dec. 15, 2009).1 Peabody’s petition is based primarily on the release of email and other information from the University of East Anglia (“UEA”) Climatic Research Unit (“CRU”) in November of last year.2 The CRU information undermines a number of the central pillars on which the Endangerment Finding rests, particularly the work of the Intergovernmental Panel on Climate Change (“IPCC”).

"Given the seriousness of the flaws that the CRU material reveals in the development of the IPCC reports, and given EPA’s extensive reliance on those reports, the Agency has no legal option but to reexamine the Endangerment Finding in light of this new information. Indeed, the analytical process in which EPA engaged in reaching its Endangerment Finding is so tainted by the flaws now revealed in the IPCC reports that the Agency must take the unusual step of convening full evidentiary hearings in order to provide an open and fair reconsideration process.".

The petition is referenced by footnotes to the CRU e-mails and to law and precedent. Some of the scientific papers are referenced as well. There is no bibliography.

The EPA may argue that all its actions are perfectly justified under the situation to which "Post-Normal Science" applies. Unfortunately, Post-Normal Science is not "Science" as generally understood. "

"How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn't make it a leg." -- Abraham Lincoln

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New Evidence Disclosed

"EPA must reconsider its Endangerment Finding based on new material that was not available during the comment period and which is central to the outcome that EPA reached in promulgating its Endangerment Finding. EPA failed to properly exercise its judgment as required by the Clean Air Act (“CAA”) and acted in an arbitrary and capricious fashion by relying almost exclusively on flawed reports of the IPCC in attributing climate change to anthropogenic greenhouse gas (“GHG”) emissions.

As evidenced by material that became available last fall from CRU, as well as additional information that has become available since the Endangerment Finding was issued, the IPCC reports were not the product of a rigorous, transparent and neutral scientific process." (ES 1)

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Abandonment of U.S. Standards and Requirements

"Indeed, contrary to the CAA and the Information Quality Act (“IQA”), EPA largely ceded its obligation to make a “judgment” as to whether GHGs may endanger public health and welfare to the IPCC, an international body that is not subject to U.S. data quality and transparency standards and whose reports were prepared in direct disregard of those standards. As a result, EPA is set to begin regulating GHG emissions based on a scientific process that was conducted without the basic procedural safeguards set forth in U.S. law to ensure the reliability and accuracy of the scientific conclusions underlying the Agency’s Endangerment Finding. As an agency of the United States, however, whose regulatory actions will have far-reaching consequences for U.S. citizens, EPA must abide by U.S. standards and not the standards of international bodies whose actions are governed by different norms.

"Accordingly, the EPA should reconsider its Endangerment Finding in light of the recently discovered defects in the IPCC’s procedures and convene full evidentiary hearings to provide an open and fair
reconsideration process." (ES 2)

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EPA did not follow its requirement to perform independent analysis, but delegated that responsibility to the IPCC.

"EPA recognized in the Endangerment Finding that it is responsible for verifying that scientific information on which the Agency relies meets standards for quality, integrity and transparency that are set forth in U.S. law, including the CAA and the IQA.19 EPA stated that it ensured compliance with these standards here by reviewing the IPCC’s written procedures for preparation of that body’s science assessment reports." (ES 9)

The IPCC report, which the EPA accepted as authoritative, has been shown to be deficient by subsequent disclosures (ClimateGate). "More to the point is EPA’s reference to the NRC report as to the uncertainty of temperature reconstructions prior to 1600. In fact, the NRC’s discussion of uncertainty concluded with the statement that, because of the uncertainty, it is no more than “plausible” that the Northern Hemisphere was warmer during the last few decades of the 20th century than during any comparable period over the preceding millennium.

"However, the EPA held to its position that it had determined that 'compelling' scientific evidence supports the conclusion that anthropogenic GHG emissions are the “root cause of recently observed climate change.” (ES 22)

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Temperature observations are not cooperating with the models.

"In fact, the CRU emails reveal that the lack of warming has caused leading IPCC scientists to question the assumed physical understanding of the climate system on which the models are based. Just last fall, even after the studies that EPA relied on had been produced, Trenberth conceded that the lack of warming exposes science’s basic lack of understanding of the climate system:

“Saying it is natural variability is not an explanation. What are the physical processes? Where did the heat go?” Trenberth concluded that either the understanding of the climate system reflected in the climate models is wrong:

"How come you do not agree with a statement that says we are no where close to knowing where energy is going or whether clouds are changing to make the planet brighter. We are not close to balancing the energy budget. The fact that we can not account for what is happening in the climate system makes any consideration of geoengineering quite hopeless as we will never be able to tell if it is successful or not! It is a travesty!

"Or else the data is wrong:

"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. The CERES data published in the August BAMS 09 supplement on 2008 shows there should be even more warming: but the data are surely wrong. Our observing system is inadequate." (ES 25-26)

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Scientific misbehaviour #1: (ES 26-31)

"Abject Lack of Transparency"

"The CRU materials also show a determined effort to stonewall attempts by third parties to obtain basic information underlying the scientific studies that were used in the IPCC reports.... The emails reveal that these scientists refused to disclose information that would allow their studies to be replicated and critiqued because they saw themselves in a battle with “skeptics” who they considered to be “bozos” and “morons” and perpetrators of fraud." (ES 26)

"Indeed, concern over communications these scientists had had concerning the drafting of AR4 was so great that they mutually agreed to destroy those communications in order to avoid disclosure under FOIA....Quoting Jones: 'Can you delete any emails you may have had with Keith re AR4? Keith will do likewise. He’s not in at the moment — minor family crisis. Can you also email Gene and get him to do the same? I don’t have his new email address. We will be getting Caspar to do likewise.'" (ES 27)

"Improper Editorial and Peer Review Practices in Drafting IPCC Reports"

"The CRU material reveals a series of improper practices in the drafting of the IPCC reports that confirms that the reports were agenda-driven and not a neutral presentation of science. The report authors rejected inclusion of or dismissed peer-reviewed papers that disagreed with their views, authors simultaneously acted as reviewers, contributing authors were not disclosed, publication deadlines were manipulated to included supporting papers, reviewer comments were rejected based on fabrications of the views of the authors of the relevant literature, and data sources used in unpublished papers that were included in the reports were not made available to reviewers. Perhaps worst of all, scientific conclusions were reached based on secondary material supplied by advocacy groups for the purpose of advancing the policy agendas of the IPCC’s authors, conclusions that, perhaps not surprisingly, have now been forced to be retracted." (ES 29)

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Scientific misbehaviour #2: (ES 26-31)

"Publication Abuses"

"The CRU scientists and their American colleagues engaged in a variety of practices to manipulate the peer-reviewed literature to favor publication of papers that supported their views and to discourage publication of papers that contradicted their views.... That being the case, these scientists took steps to ensure that “skeptics” did not have access to. That being the case, these scientists took steps to ensure that “skeptics” did not have access to peer-reviewed literature." (ES 29)

"Conclusion" of Scientific misbehaviour section

"Dr. Briffa had it exactly right when he reported to his colleagues that “the needs of the science and the IPCC” “were not always the same.” In fact, the IPCC process has been revealed to be as much about advocacy as about science. And the CRU material is only one thin slice of information concerning the drafting of the TAR and AR4. It seems that every day new revelations appear about flaws in the accuracy of the IPCC’s conclusions and in the process that was used to select information that would, and would not, be included in the reports.

"Given EPA’s extensive reliance on the IPCC, particularly on the critical attribution issue, that taint now extends to the Endangerment Finding. EPA has effectively delegated its judgment under section 202(a) of the CAA to an international body that acted contrary to basic U.S. standards of information quality, integrity and transparency." (ES 31)

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For a searchable list of ClimateGate Emails (07 March 1966 to November 12, 2009) referenced by the Peabody Petition, see
“East Anglia Confirmed Emails from the Climate Research Unit - Searchable.” Opinion. Opinion Times, July 24, 2010. www.eastangliaemails.com/index.php

"On 20 November 2009, emails and other documents, apparently originating from with the Climate Research Unit (CRU) at the University of East Anglia.... The authenticity of these emails has been confirmed by most of the relevant parties including the CRU at University of East Anglia and many of the authors. These emails contain some quite surprising and even disappointing insights into what has been happening within the climate change scientific establishment. Worryingly this same group of scientists are very influential in terms of economic and social policy formation around the subject of climate change."

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In conclusion, Peabody asserts:

"Given EPA’s extensive reliance on the IPCC, particularly on the critical attribution issue, that taint now extends to the Endangerment Finding. EPA has effectively delegated its judgment under section 202(a) of the CAA to an international body that acted contrary to basic U.S. standards of information quality, integrity and transparency. In the interests of good science and policy, and as required by law, EPA must now reconsider its Endangerment Finding in light of the CRU revelations. The importance of low-cost, reliable energy to the economy is too high for EPA to begin regulation based on such an uncertain foundation." (ES 31-32)

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Grounds for Petition to Reconsider

"Section 307(d)(7)(B) of the CAA provides that the Agency must reconsider a rulemaking decision if (1) a party brings new material to EPA’s attention that could not have been raised during the comment period and (2) if such material is centrally relevant to the outcome of the rule. Under section 307(d)(7)(B):

"Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comments (including any public hearing) may be raised during judicial review. If the person raising an objection can demonstrate that it was impracticable to raise such an objection within such time 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.

"Since the CRU material was not released until November 2009, plainly the grounds for Peabody’s Petition here arose after the June 2009 comment deadline. In addition, as shown below, the grounds for Peabody’s Petition are of central relevance to the outcome of the Endangerment Finding. EPA is therefore now required to convene proceedings to reconsider that finding." (II-1)

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Topics of Section III: The CRU Material Calls Into Question EPA’s Near Total Reliance On What It Terms The “Assessment Literature,” And Particularly The Work Of The IPCC

A. Despite the Section 202(a) Requirement that the Administrator Exercise Her Own Expert Judgment, the Administrator Did Not Independently Judge the Science and Instead Relied Primarily on Summary Scientific Reports Produced by Third Parties

1. Section 202(a) Requires the Administrator to Exercise Independent Judgment
2. The Administrator Concedes that She Relied Primarily on What She Characterizes as the “Assessment Literature” in Making Her Endangerment Finding
3. The Administrator’s Reliance on the “Assessment Literature” to Satisfy Procedural Obligations

a. Obligations as to Data Availability (III-3)
b. Obligations as to Quality and Transparency (III-4)
c. Obligations as to Peer Review (III-5)
d. Comment Deadline (III-5)

4. EPA Particularly Relied on the IPCC for Determining that 20th Century Warming Was Primarily Caused by Anthropogenic GHG Emissions (III-6)

B. The CRU Material Undermines the Administrator’s Reliance on the “Assessment Literature” (III-7)

1. The IPCC Reports on Which EPA Relied for Its Attribution Finding Are Not Subject to Peer Review as
Typically Used in Scientific Journals (III-7)
2. The CRU Material Demonstrates that EPA’s Confidence in the Processes by Which the “Assessment
Literature” Was Developed Was Misplaced (III-10) Wegman Report

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Topics of Section IV: The CRU Material Undermines Confidence In The Key IPCC Conclusion That Current Climate Conditions Are Likely Unprecedented And Outside The Range Of Natural Variability (IV-1)

A. The Importance of Placing Today’s Temperatures in Context (unprecedented?) (IV 1)

B. The IPCC’s Evolving Position on the Climate of the Last 1000 Years (MWP and LIA vanish under Mann?) (IV 2)

C. The Disregard of Uncertainties and Conflicting Information as Part of an Attempt to Create a “Nice, Tidy” Version of the 20th Century as the Warmest in 1000 Years (IV 6)

1. Supposedly neutral scientists acting as advocates (IV)

a. TAR (IV 7)
b. Between the TAR and AR4 (IV 9)
c. AR4 (IV 13)
d. Subsequent Rejection of AR4 Conclusion that MWP Was Heterogeneous (IV 17)

2. The Divergence Problem and Tricks to Hide the Decline (IV 18)

a. The divergence problem (IV 18)
b. Hiding the decline (IV 19)
b.i. Jones uses the “trick” (IV 19)
b.ii. Mann’s “trick” as used in TAR (IV 21)
c. The CRU emails, divergence, and the trick (IV 23)
d. Divergence Turns Out to Be a Serious Problem After All (IV 28)

3. Problems with the Hockey Stick (IV 32)

4. The NRC Report Does Not Justify EPA’s Conclusion that Temperatures in the Last Several Decades Are Unusual (IV 35) (Why the NRC report "does not support the ultimate conclusion that EPA apparently seeks to draw from it.... The NRC report, however, does not reach the conclusion that there is “compelling” evidence that the temperatures of the last several decades are “unusual” in the last 1000-2000 years.")

D. The CRU Material Undermines EPA’s and the IPCC’s Conclusion that the Much Warmer Periods Earlier in the Holocene Were the Result of Orbital Wobbles (IV 37)

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Summary as to Paleoclimate

"The IPCC’s analysis is far from the fair and neutral examination of the science that one would expect in a report so extensively relied on by EPA. It appears to have been driven as much by an advocacy agenda as by science, and it plainly overstated its conclusion that temperatures in the latter part of the 20th century were likely unprecedented in 1000 years. In fact, neither AR4 nor the NRC report provides “compelling” evidence that temperatures in the latter part of the 20th century were so unusual in the last 1000-2000 years as to inevitably lead to the conclusion that anthropogenic GHGs must be the cause."



(All of which is perfectly acceptable under the aegis of "Post-Normal Science")

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Topics of Section V: Apart From The Paleoclimate, EPA’s Other Evidence Of Attribution Is Undermined By The CRU Material And Otherwise Does Not Provide A Rational Basis For The Endangerment Finding. (V-1)

A. Climate Response to Increasing GHGs (V-1)

1. Late 20th Century Warming (V-3)

a. Conclusions Undermined by Lack of Warming from 1998-2008 (V-3)
b. Are the Climatological Records Accurate? (V-8)
b.i. Problems in the CRU Data (V-8)
b.ii. EPA’s Rationales (V-11)

2. Human Fingerprint on the Tropical Troposphere (V-13)
3. Sum as to Temperature “Fingerprints” (V-23)

B. The CRU Material Contradicts EPA’s Explanation of Why the Failure of the Planet to Warm Over the Last Decade Is Consistent with Climate Models (V-24)

1. Easterling and Wehner and Knight et al. Do Not Provide Comfort That the Models Can Account for the Lack of Warming (V-25)
2. Problems with Easterling and Wehner and Knight et al. (V-26)

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Topics of Section VI: Contrary To EPA’s Perception That The IPCC Was An Open Process, The CRU Material Reveals A Pattern Of Blocking Access To Underlying Data And Even Destroying Data. (VI-1)

A. Data Requests Involving the Hockey Stick. (VI-2)
B. Other McIntyre Requests. (VI-6)
C. Interested Persons Resort to FOIA. (VI-11)
D. Refusals to Provide Information Related to the IPCC and Destruction of Records. (VI-16)
E. FOIA Requests Lead to Revelation that CRU Cannot Replicate Its Temperature Records and, In Fact, Has Destroyed Raw Temperature Data that It Used in Creating Those Records. (VI-22)
F. Initial Obstruction and then Compelled Disclosure of Underlying Data on the Asserted Tropical “Fingerprint”. (VI-31)
G. Under Pressure, the Group Finally Realizes that Their Refusals to Disclose Data Are Contrary to Good Scientific Practice. (VI-38)
H. The Actions of these Scientists in Refusing to Disclose Data and Information Used in their Studies and Otherwise of Relevance to Public Discourse on Scientific Issues Flatly Contradicts EPA and the Administration’s Commitment to Transparency and Openness. (VI-39)

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Topics of Section VII: Improper Editorial And Peer-Review Practices Were Used In Developing IPCC Reports, Contrary To EPA Information Quality Act Requirements. (VII-1)

A. Rejection of Literature that Disagreed with Lead Authors’ Views. (VII-1)

B. IPCC Authors Acting as Reviewers. (VII-4)

C. Contributing Authors Not Identified. (VII-6)

D. Manipulation of Publication Deadlines. (VII-9)

E. Reliance on Inappropriate Non-Peer Reviewed Secondary Sources Material From Advocacy Groups. (VII-13)

1. Himalayan Glaciers. (VII-13)
2. African Agricultural Production. (VII-16)
3. Amazon Rain Forests. (VII-18)
4. Melting Mountain Ice. (VII-20)
5. Netherlands Below Sea Level. (VII-21)
6. Other Instances of Reliance on Advocacy Group Material. (VII-21)

F. Fabrication of Information in Responding to Reviewer Comments in Order to Justify Information Contained in AR4 Report. (VII-24)

G. Failure to Make Data Sources of Unpublished Material Relied on in Text Available to Reviewers. (VII-27)