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Revisiting the EPA Endangerment Finding

Ross McKitrick

Environmental Protection Agency administrator Scott Pruitt is
mulling over how, or whether, to respond to demands
from climate skeptics that he reexamine the science that obligates
the EPA to issue costly carbon-emission regulations. While he has
recently acknowledged that agency staff
short-circuited the science review early in the regulatory process,
he may not realize that the EPA inspector general’s office flagged
this problem years ago, and the agency staff blew him off by means
of a preposterous legal fiction that has long been in need of
correction.

In 2009 the EPA issued the Endangerment Finding, which created a
statutory obligation to regulate carbon emissions. In the lead-up
to this decision the EPA had published its Technical Support
Document. Numerous petitions for reconsideration were subsequently
filed with the administrator citing evidence of bias and
cherry-picking in this report, but all of them fell on deaf
ears.

In April 2010, Senator James Inhofe (R., Okla.) asked the EPA’s
Office of the Inspector General to review the adequacy of the
peer-review process behind the Technical Support Document. The EPA
was not happy with what he unearthed.

It turns out that the federal government has rules in place
governing how the scientific basis for regulations should be
reviewed. Guidelines from the Office of Management and
Budget issued under the Information Quality Act impose varying
requirements depending on the uses to which a scientific assessment
will be put. The most rigorous process is for so-called Highly
Influential Scientific Assessments (HISA). These are scientific
assessments that will, among other things, lead to rules that have
an annual economic impact exceeding $500 million.

The inspector general issued a lengthy report in 2011 concluding (pp. 15-22)
that the EPA’s science assessment for the Endangerment Finding was
highly influential, but the peer-review process fell short of the
required standard. It even violated internal EPA guidelines, by
failing to publicly report the review results and cutting corners
in ways that potentially hindered the work of reviewers.

The EPA argued back, rather brazenly, that their report was not
an assessment at all, merely a summary of previous findings by the
U.N. Intergovernmental Panel on Climate Change, the National
Climate Assessment, and other reports, and these documents —
not any original research by the EPA — underpinned the
Endangerment Finding.

The inspector general rejected this argument for several
reasons. First, the EPA study clearly was an assessment, since it
selected certain lines of evidence for emphasis or exclusion and
used data not found in the underlying reports. Second, the
guidelines do not allow an agency such as the EPA to rely on peer
reviews conducted by outside groups such as the IPCC or the
National Climate Assessment team. Third, the inspector general
noted (p. 53) numerous occasions when the EPA cited the Technical
Support Document as the basis of its Endangerment Finding.

The EPA then argued that even if it was an assessment, it was
not “highly influential.” Since the Endangerment Finding was being
issued on a “stand-alone” basis with no specific regulations
attached, the investigation ended without resolution.

Thereafter the EPA proceeded to issue rules like the Clean Power
Plan with impacts far exceeding $500 million annually. By declining
to designate its science assessment as highly influential, the EPA
skirted the need to conduct the required peer review, but in so
doing it thwarted the intent of the statutory guidelines and
undermined the ethical basis of its actions.

While the courts may not demand that this situation be
rectified, Pruitt himself should. Administrative honesty demands
it, especially since the determination has large potential economic
ramifications. Specifically Pruitt needs to declare that the
Technical Support Document was a Highly Influential Scientific
Assessment that should have been reviewed as such in the first
place, and he should see to it that such a review now takes
place.

While climate activists may object, they have also spent years
insisting that the science is settled, so if they are right, they
have no reason to worry about the outcome. And if they are unhappy
that this might delay the next round of rule-making, they should
direct their ire at Pruitt’s predecessor, who ought to have
undertaken the review back in 2011 rather than playing semantic
games to justify evading statutory peer-review requirements.

Regardless of Pruitt’s views on climate science, he should agree
that the regulatory process needs to be honest and procedurally
sound. This alone gives him sufficient grounds to initiate the
review that was supposed to have been done years ago.

Ross
McKitrick
is a professor of economics at the University of
Guelph and an adjunct scholar of the Cato Institute.