By Bill Dawson
In a strongly foreshadowed action, Texas officials announced Tuesday that they are formally challenging the U.S. Environmental Protection Agency’s finding that greenhouse gases are harmful to human health and the environment.
The two Texas petitions – one asking the EPA to reconsider its finding and the other asking a federal appeals court to review it – are aimed at preventing the agency from regulating emissions of carbon dioxide and other pollutants blamed for global warming.
The EPA’s “endangerment finding” about carbon dioxide and other greenhouse gases blamed for global warming – the direct target of the Texas challenge – does not in itself impose mandatory limits on their release, but is a legal prerequisite for such regulation under the Clean Air Act.
The finding was proposed last April, drawing strong criticism from Gov. Rick Perry and other Texas officials, and was adopted and issued by the EPA in December.
The EPA said at that time that the finding was legally necessary before that agency and the U.S. Department of Transportation’s National Highway Safety Administration could finalize their jointly proposed emission standards for greenhouse-gas emissions from light-duty vehicles.
The EPA’s endangerment finding – and its prospect of administratively-issued regulations – also are seen as a political tool for the Obama administration to help persuade Congress to pass a legislative plan for more broadly limiting greenhouse gases from various sources. Such a bill narrowly passed the House last summer, but the Senate has not acted and the chances for a climate measure to be enacted are now highly uncertain.
The announcement of Texas’ effort to stop EPA action on greenhouse emissions was made jointly by Perry, Attorney General Greg Abbott and Agriculture Commissioner Todd Staples, all Republicans. Echoing earlier charges by Perry and various top state officials, they said EPA regulation would be harmful to the Texas economy – especially to traditional energy industries and to agriculture. They also strongly criticized the validity of scientific research documenting and projecting global warming.
(These are not the first legal arguments put forward by the state with regard to federal regulation of greenhouse gases. In a court case that cleared the way for the EPA to regulate heat-trapping gases under the Clean Air Act, Texas sided with the Bush administration’s argument that the EPA had no such authority, but the Supreme Court ruled in a 5-4 decision in 2007 that it did.)
Perry said Tuesday that Texas was challenging the EPA on the issue now “to protect the Texas economy and the jobs that go with it, and defend Texas’ environmental successes against this federal overreach.”
The state’s petition for EPA reconsideration of its finding takes particular aim at the United Nations’ Intergovernmental Panel on Climate Change, the world’s leading scientific body on the subject, over several recently reported errors in the IPCC’s major 2007 reports and controversial disclosures of several IPCC-affiliated researchers’ previously private emails.
A few of the hundreds of emails, to and from a research center at a British university, have been cited by climate change skeptics as evidence of data manipulation. But scientists involved in the communications have denied that. The Associated Press concluded after “an exhaustive review” that the messages “don’t support claims that the science of global warming was faked.” And other scientists have said the IPCC’s problems do not undermine their firm conclusion that greenhouse gases are warming the atmosphere and changing the climate.
Abbott sided with the skeptics in that dispute, charging that the “EPA outsourced the scientific basis for its greenhouse gas regulation to a scandal-plagued international organization that cannot be considered objective or trustworthy.” His petition alleges that the emails “reveal a cadre of activist scientists colluding and scheming to advance what they want the science to be – even where the empirical data suggest a different outcome.”
A press release issued by Perry’s office said the IPCC had been “discredited,” but also suggested that reducing greenhouse emissions is generally desirable: It cited Texas actions to advance cleaner energy production and asserted that Texas has “reduced carbon dioxide emissions more than nearly every other state” without federal regulations.
(As Texas Climate News reported last November, an analysis of federal data by environmental groups showed then that Texas remained the state with the greatest carbon dioxide emissions at the end of a 2004-07 study period, but had the second-largest decline in the volume of CO2 released during those years, which represented the latest available statistics.)
The announcement of Texas’ challenge against the EPA finding came one day before today’s deadline for such petitions and amid filings of a number of them.
On Tuesday, for instance, Reuters reported that the National Association of Manufacturers, the American Petroleum Institute and the National Petrochemical and Refiners Association had also announced challenges; the Richmond Times-Dispatch reported that Virginia’s Republican attorney general was asking the EPA to reconsider; and the Greenwire news service reported that the U.S. Chamber of Commerce had petitioned a federal appeals court.
Not all of the parties complaining about the endangerment finding are expected to contest the science behind it, as Texas is doing, however.
Roger Martella, former EPA general counsel during the George W. Bush administration, said he expects the groups to pursue a variety of strategies to attack the finding.
“Many of the petitioner groups take the position that global climate change is a serious issue that warrants action and will want to avoid turning the endangerment litigation into a debate on climate change science itself,” Martella said.
“Instead, these groups are more likely to focus on the legal and record basis for EPA’s endangerment determination – in other words, whether EPA is asking the right questions, looking at the right information, and meeting its burden in finding endangerment under the standards set forth in the Clean Air Act.”
Texas environmental leaders quickly condemned the state’s action and rejected the argument that, as Staples put it, the EPA’s finding (which he called a “regulation”) was based on “faulty data.”
Jim Marston, Texas regional director of the Environmental Defense Fund, issued a statement saying that the “EPA’s decision is based on a two hundred page synthesis of major scientific assessments by the U.S. Climate Change Science Program, the U.S. Navy, the U.S. Department of Agriculture, the National Research Council, the National Oceanic and Atmospheric Administration, the National Aeronautical and Space Administration, the U.S. Fish and Wildlife Service, the Centers for Disease Control and Prevention, the U.S. Geological Survey, the Intergovernmental Panel on Climate Change, the Arctic Climate Impact Assessment, the National Snow and Ice Data Center, the NOAA National Climatic Data Center, CNA Corporation, and others.”
Environmentalists are not the only ones backing the EPA over greenhouse-gas regulation. Last month, 16 states (including five with Republican governors) and New York City asked a federal appeals court for permission to intervene on the EPA’s side in a challenge by petitioners including the National Cattlemen’s Beef Association and coal and mining companies.
In their request, the 16 states and New York City said halting the EPA’s regulatory initiative would put their citizens “at risk of a range of increased health effects due to climate change, and risks of impacts to welfare will also increase. Notably, climate change is expected to result in increased regional ozone pollution due to higher average temperatures and weaker air circulation. Increased regional ozone pollution will produce associated risks in respiratory infection, aggravation of asthma, and premature death.”
(Perry also opposes the EPA’s proposed strengthening of the national health standard for ground-level ozone pollution, as do his appointees at the Texas Commission on Environmental Quality.)