an expert panel discussion on climate science for lawyersiamas, dr. maccracken also serves on the...
TRANSCRIPT
ENERGY BAR ASSOCIATION CLIMATE CHANGE & EMISSIONS COMMITTEE
MEETING AND TELEPHONE CONFERENCE
April 7, 2010
*PLEASE NOTE TIME CHANGE 12:30 p.m. - 2:00 p.m. (Eastern Time) 9:30 a.m. - 11:00 a.m. (Pacific Time)
Location: Jones Day, 51 Louisiana Avenue, N.W. Washington, DC
An Expert Panel Discussion on Climate Science for Lawyers
PROGRAM MATERIALS
VOLUME I
SPEAKER BIOGRAPHIES AND PRESENATIONS
AND
LIST OF SUPPLEMENTAL MATERIALS
An Expert Panel Discussion on Climate Science for Lawyers
Governments, energy suppliers and others around the world are contemplating large expenditures to address the consequences of climate change caused by greenhouse gas emissions as identified in reports from the United Nations’ Intergovernmental Panel on Climate Change (IPCC). The most recent IPCC Report (released in 2007) stated that “warming of the climate system is unequivocal”, and that such warming “is very likely due to the observed increase in anthropogenic greenhouse gas concentrations” released by man’s energy production and other activities. However, asserted errors and data limitations in the IPCC 2007 Report, including revelations affecting the scientific process used to develop those conclusions and supporting data sets, have introduced challenges by a number of scientists and companies who do not agree with the level or significance of climate change. Information used as the basis of these challenges became public in November 2009 when emails and data from the Climatic Research Unit (CRU) of the University of East Anglia in the United Kingdom were anonymously distributed, triggering investigations. This information has been asserted to demonstrate efforts to compromise the integrity of climate science and its conclusions, and to further demonstrate inadequacies in the IPCC Report and its supporting data. Disagreement over the presence of climate change and the significance of man-made factors against the natural variability of the Earth’s climate continues among the scientific community. The Panel will explain the state of climate change and possible consequences, identify ongoing research, discuss the significance of the CRU (i.e. “Climategate”) materials and other recently asserted errors in the IPCC 2007 Report and what these disagreements might mean for future climate change policy development. This panel will provide attorneys with an understanding of the science behind climate change policy proposals, and of the implications of the recent controversies surrounding the CRU files and IPCC Report errors. This program will also provide a foundation for subsequent, EBA planned panel discussions on the regulatory and legal frameworks being proposed to address climate change, including particularly EPA’s Endangerment Finding adopted at least in part in reliance on the IPCC Report. Moderator: Professor Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law at the George Washington University Law School Panelists: Michael MacCracken, Ph.D., Chief Scientist for Climate Change Programs with
the Climate Institute in Washington D.C. Patrick J. Michaels, Ph.D., Senior Fellow in Environmental Studies at the Cato Institute and Distinguished Senior Fellow in the School of Public Policy at George Mason University
Organizers: Walter R. Hall, II, Attorney-at-Law Philip M. Marston, Marston Law Mosby G. Perrow, Jones Day Zachary L. Seder, Sky Fuel, Inc. O. Julia Weller, Pierce Atwood, LLP Assistance with Written Materials: Misti Groves and Monica Schwebs, Bingham McCutchen
Richard J. Pierce, Jr.
George Washington University Law School
Lyle T. Alverson Professor of Law
Biographical Sketch Before joining the Law School faculty, Professor Pierce taught at Columbia University, the University of Virginia, Southern Methodist University, Tulane University, and the University of Kansas. He also was dean of the University of Pittsburgh School of Law. He practiced with Sutherland, Asbill & Brennan in Washington, D.C. Professor Pierce is author or co-author of Administrative Law and Process (4th ed. 2004); Regulated Industries (4th ed. 1999); Administrative Law Treatise (4th ed. 2002); and Economic Regulation (1994). He has written numerous articles on government regulation, regulatory economics, and the characteristics of the markets for electricity and natural gas.
Education B.S., Lehigh University; J.D., University of Virginia
Michael MacCracken, Ph.D. Chief Scientist for Climate Change Programs, Climate Institute
Michael MacCracken has been Chief Scientist for Climate Change Programs with the Climate Institute in Washington DC since 2002; he was also elected to its Board of Directors in 2006. Both of these positions are held on a volunteer basis.
Dr. MacCracken received his B.S. in Engineering degree from Princeton University in 1964 and his Ph.D. degree in Applied Science from the University of California Davis/Livermore in 1968. His dissertation used a 2-D climate model to evaluate the plausibility of several hypotheses of the causes of ice ages. Following his graduate work, he joined the Physics Department of the University of California's Lawrence Livermore National Laboratory (LLNL) as an atmospheric physicist. His research in the ensuing 25 years included numerical modeling of various causes of climate change (including study of the potential climatic effects of greenhouse gases, volcanic aerosols, land-cover change, and nuclear war) and of factors affecting air quality (including photochemical pollution in the San Francisco Bay Area and sulfate air pollution in the northeastern United States). At LLNL, he also served as division leader for atmospheric and geophysical sciences from 1987-1993 and as deputy division leader from 1974-1987.
From 1993-2002, Dr. MacCracken was on assignment as senior global change scientist to the interagency Office of the U.S. Global Change Research Program (USGCRP) in Washington D.C., also serving as its first executive director from 1993-1997. From 1997-2001, he served as executive director of the USGCRP's National Assessment Coordination Office, which coordinated the efforts of 20 regional assessment teams, 5 sectoral teams, and the National Assessment Synthesis Team (which was constituted as a federal advisory committee) that prepared the national climate impacts assessment report that was forwarded to the President and on to the Congress in late 2000. During this period with the Office of the USGCRP, Dr. MacCracken also coordinated the official U.S. Government reviews of several of the assessment reports prepared by the Intergovernmental Panel on Climate Change (IPCC), and he was a co-author/contributing author for various chapters in the IPCC assessment reports.
When Dr. MacCracken's assignment with the Office of the USGCRP concluded on September 30, 2002, he simultaneously retired from LLNL. In addition to his activities with the Climate Institute, he served on the integration team for the Arctic Climate Impact Assessment from 2002-2004. Dr. MacCracken is also near completing a 4-year term (2003-2007) as president of the International Association of Meteorology and Atmospheric Sciences (IAMAS), members of which are the national academies of science or their equivalent in about 50 nations. As president of IAMAS, Dr. MacCracken also serves on the executive committees of International Union of Geodesy and Geophysics (IUGG) and the Scientific Committee for Oceanic Research (SCOR). From 2004 to 2005, he served on a panel of the Scientific Committee on Problems in the Environment that prepared a report on what is known about the likelihood and consequences of an asteroid or comet impact, and from 2004-2007 on a scientific expert group convened by Sigma Xi and the UN Foundation at the request of the UN's Commission on Sustainable Development to suggest the best measures for mitigating and adapting to global climate change.
Dr. MacCracken is a fellow of the American Association for the Advancement of Science (AAAS) and a member of the American Meteorological Society, the Oceanography Society, and the American Geophysical Union, among other organizations. His affidavit relating global climate change and impacts on particular regions was recently cited favorably by Justice Stevens in his opinion in the recent decision in Massachusetts et al. versus EPA.
Patrick J. Michaels
Senior Fellow in Environmental Studies
Patrick J. Michaels is a Distinguished Senior Fellow in the School of Public Policy at George Mason University. He is a past president of the American Association of State Climatologists and was program chair for the Committee on Applied Climatology of the American Meteorological Society. Michaels was also a research professor of Environmental Sciences at University of Virginia for thirty years. Michaels is a contributing author and reviewer of the United Nations Intergovernmental Panel on Climate Change, which was awarded the Nobel Peace Prize in 2007. His writing has been published in the major scientific journals, including Climate Research, Climatic Change, Geophysical Research Letters, Journal of Climate, Nature, and Science, as well as in popular serials such as the Washington Post, Washington Times, Los Angeles Times, USA Today, Houston Chronicle, and Journal of Commerce. He was an author of the climate "paper of the year" awarded by the Association of American Geographers in 2004. He has appeared on most of the worldwide major media. Michaels holds A.B. and S.M. degrees in biological sciences and plant ecology from the University of Chicago, and he received a Ph.D. in ecological climatology from the University of Wisconsin at Madison in 1979.
PANELISTS Michael MacCracken, Ph.D., Chief Scientist for Climate Change Programs with the Climate Institute in Washington D.C. Biographical Information: Climate Institute (http://www.climate.org/about/maccracken-
bio.html) Selected Publications:
MacCracken, Michael C., Prospects for Future Climate Change and the Reasons for Early Action, em: The Magazine for Environmental Professionals (June 2008) (available at Climate Institute, http://www.climate.org/PDF/MacCracken-CritReviewSummary-final.pdf) MacCracken, Michael C., Prospects for Future Climate Change and the Reasons for Early Action, Journal of Air and Waste Management (June 2008) (available at Climate Institute, http://www.climate.org/PDF/MacCracken-CritReviewSummary-final.pdf) Moore, Frances C & MacCracken, Michael C., Lifetime-leveraging: An approach to achieving international agreement and effective climate protection using mitigation of short-lived greenhouse gases, International Journal of Climate Change Strategies and Management, Vol. 1 No. 1, 2009 pp. 49-62 (available at Climate Institute, http://www.climate.org/PDF/MacCracken_Lifetime-Leveraging.pdf)
Patrick J. Michaels, Ph.D., Senior Fellow in Environmental Studies at the Cato Institute and Distinguished Senior Fellow in the School of Public Policy at George Mason University Biographical Information: The Cato Institute (http://www.cato.org/people/patrick-
michaels), Selected Publications:
Patrick J. Michaels & Robert C. Balling Jr., Climate of Extremes: Global Warming Science They Don't Want You to Know (Cato Institute 2009) (search www.cato.org for title - - available for purchase - The Forward & Chapter 1 - A Global Warming Science Primer are available for download)
SUPPLEMENTAL INFORMATION Global Climate Change Science IPCC Fourth Assessment Report: Climate Change 2007 (AR4) (http://www.ipcc.ch/publications_and_data/publications_and_data_reports.htm#1).
Dr. Schneider, Stephen H., a Professor at Stanford University and supporter of the need to take action to mitigate Climate change, has an extensive web page which comprehensively describes the debate and science (http://stephenschneider.stanford.edu) Singer, Fred S et al., Nature, Not Human Activity, Rules the Climate: Summary for Policy Makers of the Report of the Nongovernmental International Panel on Climate Change, (Chicago, The Heartland Institute, 2008) (search www.sepp.org for title) Endangerment Finding Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act: Final Rule, 74 Fed. Reg. 66496 (Dec. 15, 2009) (http://www.epa.gov/climatechange/endangerment/downloads/Federal_Register-EPA-HQ-OAR-2009-0171-Dec.15-09.pdf). Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, Environmental Protection Agency (http://www.epa.gov/climatechange/endangerment.html last visited March 28, 2010). Technical Support Document for Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, Environmental Protection Agency (Dec. 7, 2009) (available at http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480a8407d or http://www.epa.gov/climatechange/endangerment/downloads/Endangerment%20TSD.pdf) State of the Climate in 2008, Special Supplement to the Bulletin of the American Meteorological Society Vol. 90, No. 8, August 2009, NOAA (http://www.ncdc.noaa.gov/oa/climate/research/2008/ann/bams/full-report.pdf). Competitive Enterprise Institute, Proposed NCEE Comments on Draft Technical Support Document for Endangerment Analysis for Greenhouse Gas Emissions under the Clean Air Act, (March 2009 Draft), available at www.cei.org http://cei.org/cei_files/fm/active/0/DOC062509-004.pdf Competitive Enterprise Institute, Comments re Proposed Endangerment and Cause or Contrbute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act, Docket ID No. EPA-HQ-OAR-2009-0171, available at www.epa.gov (http://www.epa.gov/climatechange/endangerment/petitions.html) Climate Gate Begley, Sharon, The Truth About ‘Climategate’, Newsweek.com (http://www.newsweek.com/id/225778).
Delingpole, James, Climategate: Michael Mann’s very unhappy New Year, Wattsupwiththaat.com, http://wattsupwiththat.com/2010/01/06/climategate-michael-manns-very-unhappy-new-year/ Dozier, Kimberly, “Climate Gate” Casts Cloud on Change Meet, CBSNews.com (http://www.cbsnews.com/stories/2009/12/05/eveningnews/main5908487.shtml) Fahrenthold, David A. & Juliet Eilperin, In e-mails, science of warming is hot debate, WashingtonPost.com (http://www.washingtonpost.com/wp-dyn/content/article/2009/12/04/AR2009120404511.html) Gulledge, Jay, This Thanksgiving, I’m thankful we base policy decisions on peer-reviewed science instead of emails!, www.pweclimate.org (Nov. 24, 2009) (http://www.pewclimate.org/blog/gulledgej/thanksgiving-i%E2%80%99m-thankful-we-base-policy-decisions-peer-reviewed-science-instead-emai Kaufman, Leslie, Among Weathercasters, Doubt on Warming, NYTimes.com, http://www.nytimes.com/2010/03/30/science/earth/30warming.html?src=me&ref=homepage Lott, John, Why You Should be Hot and Bothered About “Climate Gate’, FoxNews.com (http://www.foxnews.com/opinion/2009/11/24/john-lott-climate-change-emails-copenhagen/) Revkin, Andrew, Hacked E-Mail is New Fodder for Climate Dispute, NYTimes.com (http://www.nytimes.com/2009/11/21/science/earth/21climate.html?_r=1). Sheppard, Marc, Understanding Climategate’s Hidden Decline, AmericanThinker.com, (April 1, 2010) http://www.americanthinker.com/2009/12/understanding_climategates_hid.html
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Energy Bar AssociationApril 7, 2010
• Legal Framework for Considering the EPA Finding and Climategate
• Richard J. Pierce, Jr.
Procedural Posture
• 10/20/99 19 environmental groups file petition for EPA rulemaking to regulate GHG
• 9/8/03 EPA denies petition• 7/15/05 DC Circuit upholds EPA 2 to 1• 4/2/07 Supreme Court reverses EPA 5 to 4• 12/7/09 EPA finds that GHG are pollutants that
cause global warming• Multiple petitions for review and petitions for
reconsideration are pending
2
Standard on Review
• Arbitrary and capricious• Did EPA adequately explain its decision?• Court can review only record before EPA• Will EPA reopen the record?• Republican panels of DC Circuit are 4
times as likely to reverse EPA as Democrat panels
Implications of Finding
• EPA can and must regulate GHG• Nature and scope of regulation highly
uncertain• Clean Air Act Is a poor fit with global
warming• Attempt to use threat of CAA regulation to
induce congressional action has failed
3
Remedy
• Vacate and remand, or• Remand only?
Climate Science in Six Well‐Documented Findings1
Michael MacCracken Chief Scientist for Climate Change Programs
Climate Institute Washington, DC
As the science of climate change has been advancing, there is more and more information about what appears to be happening and what is likely to happen in the future—but also many aspects about what lies ahead remain only roughly understood. At the same time, as the nation has moved closer and closer to real action on climate change, more and more people are moved to learn about and examine the climate science. With the prospect of changes to the nation’s energy system likely to disrupt the status quo, the strengths and weaknesses of scientific understanding are receiving much closer scrutiny, some due to curiosity as a wider array of interested experts build up their knowledge about the issue, some by those seeking to determine how best to prepare and adapt, and some by those working to develop effective and optimal policies—but some by those seeking to have action postponed and some by those misrepresenting the science, or at least obscuring the key findings that have prompted the international conference of the parties in Copenhagen to develop a plan for global action. With so much information, so many voices and articles, and so many perspectives being offered, it should not be surprising that the public has become a bit overwhelmed, apparently having trouble understanding that the key findings are well understood to justify action by policymakers while at the same time there remain a great many of the details that are under active investigation by the scientific community. This note is intended to summarize the key findings—in particularly those that some leaders indicate that the risks posed by climate change are so clearly established that emissions reductions must begin immediately. Background: Because the climate system is extremely complex, and projecting changes out to a hundred years and more into the future is necessarily fraught with difficult questions and uncertainties, the Intergovernmental Panel on Climate Change (IPCC) was established in 1988 by the World Meteorological Organization and the United Nations Environmental Programme in a process that would draw together the understanding of the international scientific community. For the past 20 years, the IPCC has been conducting assessments of the effects of human activities on climate, the resultant impacts on the environment and society, and options for slowing and stopping climate change. These assessments have spurred significant gains in scientific understanding of climate change and, through their wide‐ranging and rigorous review process, gained extensive credibility, including the endorsements of the academies of science of many countries and many professional societies.
1 This summary was prepared for posting on Daily Kos. The talk for the Energy Bar Association will summarize these points, using graphics to illustrate the key points.
The assessment reports include detailed and well‐referenced chapters on a full range of all the critical scientific topics and carefully reviewed summaries of the detailed science for both policymaker and technical audiences (all of the materials are available at http://www.ipcc.ch/publications_and_data/publications_and_data_reports.htm). That the very significant findings in the series of Summary for Policymakers reports have been unanimously endorsed is a clear indication that the problem is real; the smoothing of the text to gain unanimity, however, also indicates that the reports are not at the cutting edge of science (i.e., IPCC is not some sort of super‐green organization as is sometimes charged). A consequence of this caution, which is also a characteristic of the scientific community (its processes tend to prevent jumping to conclusions without strong evidence), is that each of the four IPCC assessments has found reason to consider climate change more imminent and serious than the previous one, and this tendency seems very likely to continue with the Fifth Assessment Report due in 2013. Summary of the Key Findings: The most important findings on climate change science can be summarized in six statements that are each supported by multiple lines of evidence (and so not put at risk by questions about any one set of data). There are of course many additional details about climate change and expected impacts to be worked out, but the six points alone are so well established and serious that it is clear action to reduce emissions is needed to moderate the very significant, and quite possibly irreversible, impacts that lie ahead. The six key points, each of which is further elaborated on in a few paragraphs in a succeeding section, can be briefly summarized as follows: 1. Emissions from human activities, particularly the combustion of fossil fuels, are changing
atmospheric composition, especially by raising the concentrations of climate‐warming gases;
2. These higher concentrations will intensify the natural greenhouse effect, leading to global warming and associated changes in climate that will persist for centuries;
3. Changes in the climate are already evident and consistent with a human influence becoming the dominant influence in the late 20th century;
4. Future climate change is projected to be substantial if emissions continue to increase without restriction;
5. Both the environment and society will be impacted in significant ways as a result of both climate change and the rise in the atmospheric carbon dioxide (CO2) concentration; and
6. Slowing the ongoing changes in atmospheric composition and climate will require substantial reductions in greenhouse gas (GHG) emissions over coming decades in order to limit anthropogenic interference with the climate system and avoid the most harmful environmental and societal consequences.
The first two findings are very well established; the second two findings are becoming increasingly well established; and the last two findings address the challenge society faces in dealing with the issue. The supporting evidence for these findings is presented briefly in the following sections, both to help in your understanding, and so that you can help explain climate change and its importance to others—not by assertion, but by reasoning.
Finding 1: Human Activities Are Changing Atmospheric Composition. In 2008, the atmospheric CO2 concentration measured at the Mauna Loa Observatory in Hawaii was ~385 parts per million by volume (ppmv). This concentration, which closely tracks the concentration at other stations around the globe, is ~22% higher than the value of ~315 ppmv observed when the station was established in 1957 and ~37% above the pre‐industrial value of ~280 ppmv. The concentrations of other GHGs, such as methane (CH4), nitrous oxide (N2O), chlorofluorocarbons (CFCs), and other halocarbons, are also well above their preindustrial level and still rising. Because the removal processes are slow relative to the emissions, the increased concentrations, except for CH4, will persist for centuries or longer, transforming the problem into an intergenerational issue These increases in atmospheric concentrations are being driven by a range of human activities. Initial emissions of CO2 resulted from plowing of land for agriculture and deforestation. Emissions from these sources are estimated to have been contributing ~1.5 ± 0.5 PgC/yr (1 PgC = 1 petagram of carbon = 1015 grams of carbon) for the past 50 years. [Note that those in the policy community work with emissions of CO2 rather than of the carbon, and so these numbers have to be multiplied by 3.67 to account for the mass of the two oxygen atoms.] The combustion of coal, oil, and natural gas, which transfers geologically stored carbon into the atmosphere, was about equivalent to the land use contribution in 1950, but has grown dramatically since then. Annual fossil‐fuel emissions totaled ~7 PgC/yr in 2000 and have been over 8 PgC/yr the past few years. This acceleration in emissions is occurring primarily as a result of the rapid growth in the global economy (until in 2009), especially due to the increase in the number of coal‐fired power plants being constructed in China and southern and eastern Asia being built to alleviate the poverty of people in those regions. While approaches are available to limit the emissions of many of the non‐CO2 GHGs, most projections suggest continuing rapid increases in CO2 emissions unless strong policy actions are taken. Finding 2: The Increasing CO2 Concentration Will Warm the Planet. The Earth’s climate is different than that of the Moon largely because of the presence of the Earth’s atmosphere. Rather than incoming solar radiation directly striking the surface, the atmosphere intervenes, reflecting and absorbing some of the incoming solar radiation and letting only about half reach the surface. This energy warms the surface until the incoming flow of energy is balanced by emission of infrared (IR) radiation. Most of the IR radiation emitted upward is absorbed by the GHGs and radiated back toward the surface, causing further energy gain by the surface that must be balanced by warming and emission of more upward‐directed IR radiation. This absorption of upward IR radiation, with much radiated back toward the surface tends to impede the natural cooling of the planet, having an effect like that of a greenhouse, although because of a different physical mechanism. As a result, the Earth’s surface temperature is, on average, ~33 °C (about 59°F) higher than it would be if there were no greenhouse effect. Mars and Venus provide excellent tests of scientific understanding that GHGs cause this warming to occur. The surface temperature of Venus is much higher than that of Earth, but not
because Venus is closer to the Sun. On a per‐unit‐area basis, the very bright clouds that make Venus so visible in the night sky limit the absorption of solar radiation to less than the amount absorbed by the Earth. Instead, Venus’s very high atmospheric concentrations of GHGs allow some solar energy to pass through, but then recycle the IR radiation over and over to pump up the surface temperature. Although the Martian atmosphere is mainly CO2, it is farther from the Sun; lacking water vapor, its surface temperature is only slightly elevated by its GHGs and so well below the surface temperature of the Earth. Once adjustments are made for the very different compositions and pressures of the atmospheres of these planets, the same radiation models used to simulate solar and IR radiation fluxes in the Earth’s atmosphere explain the conditions observed on the Earth’s sister planets. Without doubt increasing the concentrations of GHGs will amplify the warming by a significant amount, leading to climate change and sea‐level rise. Finding 3: Human Activities Are Already Changing the Earth’s Climate. The increasing upturn in global average temperature since the start of the Industrial Revolution is one indication the global climate is changing. Overall warming since the mid‐19th century totals ~0.8°C (almost 1.5°F), with most of the increase occurring since 1970. For years before the thermometer network was established, proxy indicators (e.g., histories of tree ring characteristics, pollen types, coral growth, etc.) suggest that present global average surface temperatures are higher than at any time in the past thousand years, and likely much, much longer (the Northern Hemisphere was apparently a degree or so warmer for a several thousand year period centered on a period perhaps 4000 years ago as a result of changes in the timing and shape of the Earth’s orbit around the Sun). Increases in ocean temperatures and in sea level (because ocean warming causes thermal expansion); reductions in sea ice, mountain glaciers, snow cover, and, increasingly, in ice sheet mass; and poleward and upward shifts in the ranges of temperature‐sensitive species all provide reinforcing evidence that change is already underway. To evaluate the relative contributions to recent climate change of natural influences (e.g., changes in solar radiation and volcanic activity) and human‐induced influences (e.g., increases in GHG concentrations, changes in aerosol loadings, changes in stratospheric ozone), global atmosphere‐ocean models have been used to determine their individual and combined signs and patterns of change. The newest model results match changes in temperature since the start of the 20th century on not only a global basis, but also on a continental‐scale basis. Changes in the early 20th century appear to have been mainly due to natural influences, with the warming influence of GHG increases being offset by the cooling influence of sulfate aerosols. For the past several decades, however, natural factors have likely played a very small role (solar radiation has actually been slightly decreasing) and the observed warming can only be explained by the rising concentrations of GHGs. Because the net atmospheric lifetimes of most GHGs is decades to centuries (depending on species), their emissions keep accumulating in the atmosphere and will exert a strong warming influence for many centuries.
Finding 4: Much Greater Climate Change Lies Ahead IPCC’s 2007 assessment presents projections of changes in climate from an international set of comprehensive atmosphere‐ocean‐land‐cryosphere models for three scenarios of how international society and its sources of energy (and therefore GHG emissions) might evolve in the absence of specific policy actions to limit GHG emissions. For the 21st century, the models project the global average temperature will increase to ~2.5–4.5°C (~4.5‐8°F) above its pre‐industrial level. While this may seem like a modest increase compared to the change in average temperature from winter to summer or as a result of moving from New York to Arizona, this shift will be affecting everyone and the entire environment in all seasons. As another comparison, the increase is equivalent to approximately half of the global warming since the peak of the last glacial about 20,000 years ago when 2 km of ice covered northern North America, and will increase the global average temperature to well above the last interglacial period about 125,000 years ago, when sea level was 4–6 m (~13‐20 feet) higher than at present, likely due mainly to substantial melting of the Greenland ice sheet. For the next few decades, the global average temperature is projected to increase 0.2–0.3°C (~0.35 to 0.55°F) per decade. This rate of warming is initially not strongly dependent on the emissions scenario, in part, because the mix of energy technologies will change only slowly and, in part, because much of the warming over the next couple of decades will be a result of the continuing warming influence of past emissions. Beyond 2050, however, how our energy choices evolve over coming decades, with or without policy, will make an increasing difference. Warming is not all that will occur. Storm tracks will shift in response to the changes in temperature gradients and airflows, leaving some regions drier and high latitudes likely wetter. Precipitation tends to become more intense, continuing recent trends, leading to more drenching rains and flooding. Away from the storm tracks, higher temperatures increase evaporation, decreasing soil moisture and causing faster transition to drought conditions. The warming of the oceans and melting glaciers alone are projected to contribute to sea‐level rise of ~0.3–0.5 m (~1‐2 feet) by 2100, which is roughly double the rise that occurred due to climate change during the 20th century. Based on what happened 125,000 years ago when orbital variations caused the world to be slightly warmer, loss of ice from the Greenland and Antarctic ice sheets could double to triple this amount, and cause substantial additional rise in sea level thereafter. Finding 5: Substantial Societal and Environmental Impacts Will Result. Even in the absence of temperature change, the rise in the CO2 concentration alone will affect the biosphere. On land, the increase will tend to help plants grow faster and use available soil moisture more efficiently. To the extent that crops can out‐compete the weeds and pests that will also benefit, this can increase agricultural yields, especially in the most productive areas. In the oceans, however, the rising CO2 concentration will decrease the ocean acidity (i.e., make the pH less basic). This effect is already reducing the depth at which calcium carbonate sediments dissolve. By mid‐century, further ocean acidification will very likely threaten shell‐forming organisms at the base of the
marine food web, the skeletons of fish, and the world’s coral atolls, which provide homes to significant numbers of species. The potential seriousness of this issue is only just emerging. Climate change itself will have a wide range of dramatic consequences. In many cases, the effects will more rapidly and intensely impact the poor and indigenous peoples because they have fewer resources for proactive adaptation. Warming will force the relocation of many species. As high latitude species are crowded out by species from lower latitudes, they will be pushed toward extinction, leading to significant loss of global biodiversity. For food and fiber production, increases are likely in mid‐latitudes for small warming, but larger warming will lead to very hot and dry periods during the growing season; in addition, pressure from pests and weeds will increase significantly. In some regions, pest outbreaks are already killing off key tree species, increasing the likelihood and intensity of wildfire under the increasing hotter and drier weather conditions caused by global warming. Human health is likely to be most impacted by more frequent and intense heat waves, greater threats of insect and other vector‐borne diseases, and challenges posed by more extreme weather. Of most long‐term concern are the disruptions of coastal habitats and the dislocations of people and infrastructure that are expected from significant sea‐level rise, with the effects initially felt in low‐lying river deltas. By late in the century, however, effects will have much more extensive impacts, especially in regions exposed to higher storm surges from more intense tropical cyclones. Finding 6: Significant Emission Reductions Are Required to Stabilize the Climate To limit the projected impacts, the nations of the world, including the United States, adopted the United Nations’ Framework Convention on Climate Change (UNFCCC) in the early 1990s. Its objective is to stabilize “greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system,” doing so in a manner that would protect ecosystems and food production while enabling “economic development to proceed in a sustainable manner.” Achieving stabilization will only be possible by reducing emissions of GHGs to match their removal rates by physical, chemical, and biological processes. Stabilizing at near the present CO2 concentration, which is the primary cause of the global warming observed today, would require cutting emissions to ~80% below present levels. Because such a sharp reduction would take time, the CO2 concentration seems likely to rise to well above its present level of ~385 ppmv unless very aggressive policy actions are taken—and taken quickly. Unfortunately, even the most optimistic of IPCC’s emissions scenarios result in the CO2 concentration rising to more than 500 ppmv (and effectively even higher due to the warming contributions of increases in the concentrations of other GHGs). Less ambitious efforts to control emissions are projected to lead to a CO2 concentration of 700–1000 ppmv. As a result, returning atmospheric composition to a state compatible with the present climate will essentially require going to very near zero emissions for CO2 and other long‐lived gases, with much of the reduction achieved by 2050 and the rest by 2100.
Fortunately, in getting started on the path to sharp reductions in emissions, significant reductions can be achieved through increases in efficiency, and experience has taught us that such “low‐hanging fruit” tends to regrow as innovation proceeds. If we pursue a portfolio approach of matching the most appropriate technologies to needs and environmental conditions, aggressive research also seems very likely to provide an array of cost‐effective sources of energy that do not release CO2. There are also many available and inexpensive approaches to reducing emissions of non‐CO2 warming influences. In particular, sharp reductions in the species with relatively short atmospheric lifetimes, so methane, precursors to tropospheric ozone, and black carbon, their warming influence would quickly go down, likely relatively rapidly reducing the rate of climate change. References to Recent Papers (all downloadable from http://www.climate.org/topics/climate‐change/maccracken‐proposal‐north‐south‐framework.html) MacCracken, M. C., 2008: Prospects for Future Climate Change and the Resources for Early Action: A Summary of the 2008 Critical Review, em: The Magazine for Environmental Management and awma.org (Air and Waste Management Association), June 2008, 31‐35 (much of this paper was drawn from this paper). MacCracken, M. C., 2008: Prospects for Future Climate Change and the Reasons for Early Action, Journal of the Air and Waste Management Association, 58, 735‐786. Moore, F. C., and M. C. MacCracken, 2009: Lifetime‐leveraging: An approach to achieving international agreement and effective climate protection using mitigation of short‐lived greenhouse gases, International Journal of Climate Change Strategies and Management 1, 42‐62.
Cap and Trade Regulation or Legislation
Patrick J. MichaelsDistinguished Senior Fellow
School of Public PolicyGeorge Mason University
Senior FellowCato Institute
Waxman-Markey
•3% below 2005 emissions in 2012•16% below 2005 by 2020•42% below 2005 by 2030•83% below 2005 by 2050
0
5
10
15
20
25
1800 1850 1900 1950 2000 2050 2100
Year
Per C
apita
CO
2 Em
issi
ons
(met
ric to
ns)
2005
US per capita CO2 emissions
POST-2005 VALUES BASED UPON WAXMAN-MARKEYand U.S. Census Bureau projections
U.S. Annual CO2 Emissions
5200
5300
5400
5500
5600
5700
5800
5900
6000
6100
2005 2006 2007 2008 2009Year
U.S
. Ann
ual C
O2
Emis
sion
s (m
mtC
O2)
Waxman-Markey (U.S.-only)
Waxman-Markey (Kyoto Countries)"Business-as-Usual"
0.000
0.500
1.000
1.500
2.000
2.500
3.000
3.500
2050
Glo
bal T
empe
ratu
re C
hang
e (C
)Impacts of Waxman-Markey on Projected Global Temperatures
Year 2050
1.584°C 1.540°C 1.500°C
Waxman-Markey (U.S.-only)
Waxman-Markey (Kyoto Countries)
"Business-as-Usual"
0.000
0.500
1.000
1.500
2.000
2.500
3.000
3.500
2100
Glo
bal T
empe
ratu
re C
hang
e (C
)Impacts of Waxman-Markey on Projected Global Temperatures
Year 2100
2.959°C 2.847°C 2.738°C
COST ESTIMATES
(This Page Intentionally Left Blank)
FROM CONGRESS TO EPA
EPA Endangerment Finding (December 7, 2009):
“Most of the observed increase in global average temperatures since the mid-20th century is very likely* due to the observed increase in anthropogenic GHG [greenhouse gas] concentrations.”
* EPA defines “very likely” as a 90 to 99% probability
“Observed” Global Temperature History, 1950-2009
Total RiseObs. = 0.702°C
(sources: HadCRUT3)
“Observed” Global Temperature History, 1950-2009“Adjusted” for SST Errors
Total RiseObs. = 0.702°CAdj. = 0.552°C
Adjusted Temperature Rise is 79% of “Observed”(sources: HadCRUT3; Thompson et al., 2008)
“Observed” Global Temperature History, 1950-2009“Adjusted” for SST + Non-climatic Influences
Total RiseObs. = 0.702°CAdj. = 0.468°C
Adjusted Temperature Rise is 67% of “Observed”(sources: HadCRUT3; Thompson et al., 2008; McKitrick and Michaels, 2007)
“Observed” Global Temperature History, 1950-2009“Adjusted” for SST + NonClim + Stratos H2O
Total RiseObs. = 0.702°CAdj. = 0.408°C
Adjusted Temperature Rise is 58% of “Observed”(sources: HadCRUT3; Thompson et al., 2008; McKitrick and Michaels, 2007; Solomon et al., 2010)
“Observed” Global Temperature History, 1950-2009“Adjusted” for SST + NonClim + Stratos H2O + Black Carbon
Total RiseObs. = 0.702°CAdj. = 0.306°C
Adjusted Temperature Rise is 44% of “Observed”(sources: HadCRUT3; Thompson et al., 2008; McKitrick and Michaels, 2007; Solomon et al., 2010; Ramanathan and Carmichael, 2009)
“Observed” Global Temperature History, 1950-2009“Adjusted” for SST + NonClim + Stratos H2O + BC + Sun
Total RiseObs. = 0.702°CAdj. = 0.204°C
Adjusted Temperature Rise is 29% of “Observed”(sources: HadCRUT3; Thompson et al., 2008; McKitrick and Michaels, 2007; Solomon et al., 2010; Ramanathan and Carmichael, 2009; Scafetta, 2009)
URGENCY?
IPCC’s 21 Models for Climate Change—Realistic CO2 Changes
Projected (A1B) and Observed Temperatures
Observed Trend
Model Projections
Atmospheric Carbon Dioxide Concentration(Observed and Projected)
ATMOSPHERIC METHANE
SOURCESBovine Flatulence
Rice Paddy AgricultureCoal MiningLeaky Pipes?
Atmospheric Methane (Duglokenky 09) IPCC 2001 (same as 2007) Overlay
Methane, 1983-2008 (Dlugokenky 09)
Projected (A1B) and Observed Temperatures
Observed Trend
Model Projections
ENERGY BAR ASSOCIATION CLIMATE CHANGE & EMISSIONS COMMITTEE
MEETING AND TELEPHONE CONFERENCE
April 7, 2010
*PLEASE NOTE TIME CHANGE 12:30 p.m. - 2:00 p.m. (Eastern Time) 9:30 a.m. - 11:00 a.m. (Pacific Time)
Location: Jones Day, 51 Louisiana Avenue, N.W. Washington, DC
An Expert Panel Discussion on Climate Science for Lawyers
PROGRAM MATERIALS
VOLUME II
ENDANGERMENT FINDING
SELECTED SUBMISSIONS TO EPA FROM PUBLIC OFFICIALS*
* Please note that many other comments and Petitions for Reconsideration are available at www.regulations.gov by searching for the EPA Endangerment Finding rulemaking docket, which is Docket No. EPA-HQ-OAR-2009-0171.
TnngrPss of t4P United #ttttrs U04illotall, DT 20515
December 2, 2009
The Honorable Lisa Jackson Administrator U.S . Environmental Protection Agency 1200 Pennsylvania Avenue, N. W. Washington, D.C . 20460
Dear Administrator Jackson:
We request that the Environmental Protection Agency (EPA) conduct a thorough and transparent investigation into the questions raised by the disclosure of emails from Climatic Research Unit of the University of East Anglia (CRU). Additionally, EPA should withdraw the Proposed Endangerment Finding, as well as the Light Duty Vehicle Rule, and the Greenhouse Gas Tailoring Rule until the Agency can demonstrate that the science underlying these regulatory decisions has not been compromised.
As you are aware, the scandal involves a number of climate change scientists and institutions that have played prominent roles in the development of the U.N.'s Intergovernmental Panel on Climate Change (IPCC) reports, most recently, the Fourth Assessment . EPA heavily relied on the IPCC's findings and conclusions in its development and justification for the controversial proposed Endangerment Finding. ~ Given the multiple regulatory efforts that hinge on the Endangerment Finding and consequently the integrity of the IPCC reports, it is imperative that EPA act swiftly and with transparency to analyze the numerous questions that have been raised by the disclosure of the emails . -- --
A large volume of email messages and documents, sent by prominent American and British climate researchers, were recently released from the CRU. The content of the emails raises serious questions that demand your attention . The scientists involved are climate science experts whose work is integrated into the fabric of the IPCC and its reports. The CRU wields significant influence in climate change circles and works closely with the U.N.'s IPCC.2 According to the British Telegraph, "Their importance cannot be overestimated."3 Professor Philip Jones, the CRU's director and the author of
Proposed Endangerment and Cause and Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 18886, 18894 (proposed April, 24, 2009) (stating that, "the TSD therefore relies most heavily on the major assessment reports of both the Intergovernmental Panel on Climate Change (IPCC) and the U.S . Climate Change Science Program (CCSP). EPA took this approach rather than conducting a new assessment of the scientific literature. The IPCC and CCSP assessments base their findings on the large body of many individual, peer reviewed studies in the literature, and then the IPCC and CCSP assessments themselves go through a transparent peer-review process.") .
'- Andrew Revkin, Hacked E-Mail Is New Fodder for Climate Dispute, NY TIMES, Nov. 21, 2009 ; John Lott, Why You Should Be Hot and Bothered About Climate Gate, FOXNEwS.CoM, Nov. 24, 2009 ; Declan McCullagh, Congress May Probe Leaked Global Warming E-Mails, CBSnews.com, Nov. 24, 2009 . ' Christopher Booker, Climate Change: This is the Worst Scientific Scandal of our Generation, THE TELEGRAPH, (Nov . 28, 2009).
PRINTED ON RECYCLED PAPER
The Honorable Lisa Jackson December 2, 2009 Page 2
some of the most controversial emails, is in charge of the two key sets of data used by the IPCC to draw up its reports .4 His global temperature record is the most important of the four sets of temperature data on which the IPCC and governments rely.5 Therefore, the questions raised by these emails regarding the ethics and integrity of these scientists go to the very core of the discipline and work relied upon by the EPA.
The Wall Street Journal reported that in the emails, "Scientists appear to urge each other to present a ̀ unified' view on the theory of man-made climate change while discussing the importance of the `common cause,' to advise each other on how to smooth over data so as to not compromise the favored hypothesis; to discuss ways to keep opposing views out of leading journals; and to give tips on how to 'hide the decline' of temperature in certain inconvenient data."6 According to the Netiv York Times, the emails provoke three fundamental questions - whether "the correspondence reveals efforts by scientists to shield raw data, preventing it from being examined by independent researchers" ; whether the documents "prove that the data underlying climate scientists' conclusions about warming are murkier than the scientists have said" ; and whether "the email messages indicate that climate scientists tried to prevent publication of papers written by climate skeptics ." 7
The answers to each of these questions are of great importance . The suggestion that these scientists prevented the dissemination, peer review, and publication of dissenting views is particularly alarming . Since the IPCC only considers peer reviewed publications, any effort to control the peer review process is the equivalent of controlling the content of IPCC reports .
During your tenure, EPA has rapidly advanced several regulatory schemes to reduce domestic emissions of greenhouse gasses (GHGs). The key regulatory decision is the Proposed Endangerment Finding, which finds that Carbon Dioxide and other Greenhouse Gases endanger human health and welfare.g In drafting the Technical Support Document, the scientific basis for the regulatory decision, EPA relied heavily on the findings and conclusions of the IPCC's Fourth Assessment Report ('`Fourth Assessment") .9 Given the multiple regulatory efforts that hinge on the Endangerment Finding, it is imperative that EPA act swiftly and with transparency to answer these questions.
In Massachusetts v. EPA, the Supreme Court made clear that the EPA has discretion in the timing of its issuance of any regulations . 10 The D.C . Circuit has also
1d ' Id. 6 Editorial, Global Warming With the Lid Off, WALL ST . J, Nov . 24, 2009 . ' Andrew Revkin, Hacked Email Data Prompts Calls for Changes in Climate Research, NY Times (Nov . 28, 2009). 8 Robin Bravender, EPA Sends Endangerment Finding to White House, E &E NEWS, PM, November 9, 2009, available at http://www.eenews.net/eenewspm/2009/11/09/archive/1?terms=endangerment . 9 Proposed Endangerment Finding, supra note 1 . 10 Massachusetts v. EPA, 549 U.S . 497, 533 (2007) .
The Honorable Lisa Jackson December 2, 2009 Page 3
stated that nothing in the Supreme Court's decision "imposes a specific deadline by which EPA must determine whether a particular air pollutant poses a threat to public health or welfare."" Therefore, EPA should withdraw the Proposed Endangerment Finding, as well as the Light Duty Vehicle Rule, and the Greenhouse Gas Tailoring Rule until the agency can demonstrate the science underlying these regulatory decisions has not been compromised.
In addition to its own investigation, we respectfully request that your agency turn over all documents and records related to the communications or other interactions with Hadley CRU dating from March 2007 through December 1, 2009 to our respective Committees . If you have any questions regarding this request, please contact Kristina Moore, House Oversight and Government Reform Committee at 202-225-5074, Brian Clifford, Subcommittee on Oversight, Senate Environment and Public Works Committee at 202-224-6176, Bryan Zumwalt, Subcommittee on Clean Air and Nuclear Safety, Senate Environment and Public Works Committee at 202-224-4623 ; or Raj Bharwani with the Select Committee on Energy Independence and Global Warming at 202-225-0110 .
Darrell E. Issa Ranking Member House Oversight and Government -Reform Committee
F. James Sensenbrenner Ranking Member House Select Committee on Energy Independence and Global Warming
Cc: The Honorable Carol Browner The Honorable John Holdren
Sincerely,
arragso, M.D . Ranking Member S~6committee on Oversight
nate Committee on Environment and ublic Works
David Vitter Ranking Member Clean Air and Nuclear Safety Senate Committee on Environment and Public Works
1 I Massachusetts v. EPA, No . 03-1361, Order, Document No . 0121688432, at 2 (D.C . Circuit June 26,
2008).
BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
In re: ) ) EPA Docket No. Endangerment and Cause or Contribute ) Findings for Greenhouse Gases Under ) EPA-HQ-OAR-2009-0171 Section 202(a) of the Clean Air Act ) )
PETITION FOR RECONSIDERATION OF “ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR
GREENHOUSE GASES UNDER SECTION 202(a) OF THE CLEAN AIR ACT”
Filed by
United States Representative John Linder (GA–7th District), U.S. Representative Dana Rohrabacher (CA-46th District), U.S. Representative John Shimkus (IL–19th District),
U.S. Representative Phil Gingrey (GA–11th District), U.S. Representative Lynn Westmoreland (GA–3rd District), U.S. Representative Tom Price (GA–6th District), U.S. Representative Paul Broun (GA–10th District), U.S. Representative Steve King (IA–5th
District), U.S. Representative Nathan Deal (GA–9th District), by and through Southeastern Legal Foundation Inc.
Shannon L. Goessling Executive Director & Chief Legal Counsel Southeastern Legal Foundation Inc. 6100 Lake Forrest Drive, Suite 520 Atlanta, Georgia 30328 (404) 257-9667 Edward A. Kazmarek Counsel to Southeastern Legal Foundation Inc. Kazmarek Geiger & Laseter LLP 3490 Piedmont Road, Suite 201 Atlanta, GA 30305 404-812-0840 Harry W. MacDougald Counsel to Southeastern Legal Foundation Inc. Caldwell & Watson LLP 5825 Glenridge Dr., N.E. Building Two, Suite 200 Atlanta, GA 30328-5579 (404) 843-1956
ii
PETITION FOR RECONSIDERATION OF
“ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR GREENHOUSE GASES UNDER SECTION 202(a) OF THE CLEAN AIR ACT”
TABLE OF CONTENTS
I. Introduction .............................................................................................................................. 1 II. Legal Standard.......................................................................................................................... 3 III. Manipulation Of The “Scientific” Basis For The Endangerment Finding ............................... 5 A. Climategate reveals a serious lack of integrity in the underlying data and models, such
that it is doubtful that any process can be trusted until the data and models are validated and their integrity assured. .................................................................................. 7 1. Climategate reveals that the computer code for the climate models was defective
and manipulated, without any meaningful oversight or controls................................. 7 2. Climategate reveals the systematic manipulation of data as necessary to produce a
pre-determined result. ................................................................................................. 11 a. “Hide the Decline”................................................................................................ 11
b. Smoking Gun At Darwin, Australia...................................................................... 12
c. Data Manipulation in Russia................................................................................. 14
d. Other manipulations of climate data. .................................................................... 15
3. The Climategate cabal tried to conceal their data from researchers, especially those likely to reach contrary conclusions. ................................................................. 15
4. E-mails were apparently altered or deleted to cover up wrongdoing. ........................ 17 5. Summary. .................................................................................................................... 18
B. Climategate shows that the processes of peer review, consensus building, and scientific evaluation were fundamentally corrupted to the point that EPA should reconsider its reliance on the reports and analyses that led to the Endangerment Finding. ............................................................................................................................. 18 1. Suppression of Dissenting Views. .............................................................................. 19 2. Persecution and black-balling of journals, editors, and reviewers.............................. 19 3. The contents of reports, including the IPCC reports, were altered to eliminate any
suggestion of any non-consensus on key points. ........................................................ 21 4. Summary. .................................................................................................................... 22
C. The Climategate e-mails reveal a systematic effort by self-proclaimed “gatekeepers” to enforce scientific orthodoxy. ........................................................................................ 23
IV. The Need For Reconsideration............................................................................................... 24 V. Conclusion.............................................................................................................................. 25
I. INTRODUCTION
Pursuant to Section 307(d) of the Clean Air Act, 42 U.S.C. § 7607(d), United States
Representative John Linder (GA–7th District), U.S. Representative Dana Rohrabacher (CA-46th
District), U.S. Representative John Shimkus (IL–19th District), U.S. Representative Phil Gingrey
(GA–11th District), U.S. Representative Lynn Westmoreland (GA–3rd District), U.S.
Representative Tom Price (GA–6th District), U.S. Representative Paul Broun (GA–10th
District), U.S. Representative Steve King (IA–5th District), U.S. Representative Nathan Deal
(GA–9th District), by and through Southeastern Legal Foundation Inc. (“SLF”), hereby petition
the U.S. Environmental Protection Agency (“EPA” or “the Agency”) to convene a proceeding for
reconsideration of the “Endangerment and Cause or Contribute Findings for Greenhouse Gases
Under Section 202(a) of the Clean Air Act” published by the Agency on December 15, 2009 (74
F.R. 66496, Dec. 15, 2009) (“the Endangerment Finding”).
As is more fully shown below, newly revealed information, in what is being referred to as
“Climategate1,” indicates that the purportedly “scientific” information on which the Agency
relied was the subject of a number of systematic manipulations, including collusion to withhold
scientific information, deletion of e-mails and raw data to prevent discovery of key facts,
1 “Climategate” (some commentators refer to it as the “Watergate” of climate science) refers to the release of some 1000 e-mails, 2000 documents, and some computer code, all pertaining to climate research over the period from 1996 to 2009. The controversy centered around a few individuals at several universities, although the implications extend to several journals, the content of various government reports, and the reliability of several important sets of data. In an interview with The Guardian, Mr. Phil Jones, one of the principals in the controversy, confirmed that the e-mails sparking most of the controversy appear to be genuine. “Climate scientist at centre of leaked email row dismisses conspiracy claims: Phil Jones of the University of East Anglia denies emails provide evidence of collusion by climatolgists to fix data.” The Guardian (Nov. 24, 2009), found at: http://www.guardian.co.uk/environment/2009/nov/24/climate-professor-leaked-emails-uea (last visited Dec. 22, 2009) As of December 1, 2009, the University of East Anglia announced that Mr. Jones was to stand aside as director of CRU while a review was conducted to examine e-mail exchanges to determine whether there is evidence of suppression or manipulation of data. “Climate research chief Phil Jones stands down pending inquiry into leaked emails: Director denies conspiracy claims and stands by scientists' findings on global warming.” The Guardian (Dec. 1, 2009), found at: http://www.guardian.co.uk/uk/2009/dec/01/climate-change-scientist-steps-down (last visited Dec. 23, 2009).
2
manipulation of data and computer code to create false impressions, and concerted efforts to
boycott key journals and exclude disagreement.2 Although some of the participants have
attempted to brush aside the incident, describing it variously as a “smear campaign” or “a
tempest in a teapot” or “a misunderstanding of normal scientific give-and-take,” in fact the
“Climategate” incident goes to the very heart of the scientific theories on which EPA relies in the
Endangerment Finding.
Because the full extent of the corruption of scientific processes was not known during the
public comment period, obviously it was impracticable to raise these objections at that time. In
addition, these objections are plainly of central relevance to the Endangerment Finding. As is
more fully shown below, EPA relies expressly and extensively on the integrity of the scientific
processes, the credibility of which is gravely undermined by Climategate. Whatever one may
think of how Climategate may ultimately affect the content of the Endangerment Finding, it is
beyond any reasonable dispute that EPA must convene a proceeding to consider the question. To
refuse to do so would be irrational, arbitrary, and obstinate.
The sections that follow further explain the basis for this Petition as follows: Section II
sets out the legal standard governing consideration of this Petition; Section III details the nature
and extent of the manipulation of the underlying climate data and “scientific” literature, and
shows how these manipulations call into question the bases for the Endangerment Finding; and
Section IV explains why EPA should convene a proceeding to consider the effect of the
Climategate revelations on the Endangerment Finding.
2 The full breadth of the “Climategate” scandal is continuing to unfold and the main sources of information are various news sources, mostly online. Where appropriate, such references are provided below.
3
II. LEGAL STANDARD
Section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B), states in relevant
part:
If the person raising an objection can demonstrate to the Administrator 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.
Thus, EPA is required to convene a proceeding for reconsideration upon a showing of two
conditions precedent: (1) the information arose after the period for public comment on the
Endangerment Finding and (2) the objection is of “central relevance to the outcome of the rule.”
The first element is easily met. The public comment period for the proposed
Endangerment Finding closed on June 23, 2009. The Climategate scandal first surfaced in late
November 2009.3 (Note, although the most common description of the incident is that the release
of the e-mails in question was caused by “hackers,” to date these supposed “hackers” have never
been identified, and it remains an open question as to whether the release of revealing e-mails
should be attributed to “hackers” or “whistleblowers,” i.e. insiders motivated by a legitimate
desire to shed light on the scandalous goings-on of the culpable parties.)4
The second element is also clearly met. The Climategate documents and their
implications are of central relevance to the Endangerment Finding because they go to the core
requirements of Section 202, including the public’s opportunity to comment on those provisions
3 “Hackers target leading climate research unit.” BBC News, 20 November 2009, found at: (http://news.bbc.co.uk/2/hi/8370282.stm (last visited 20 December 2009). 4 For a technical computer networking analysis concluding that it was likely a leak, see Levsin, Lance. “Comprehensive network analysis shows Climategate likely to be a leak.” Found at: http://wattsupwiththat.com/2009/12/07/comprhensive-network-analysis-shows-climategate-likely-to-be-a-leak/ (last visited Dec. 23, 2009)
4
under 307(d)(3), and the consistency of those provisions with the Act and with fundamental
standards of reasoned agency decisionmaking. This challenged error, as discussed in detail
below, is “so serious” that there is a substantial likelihood that the rule would have been
significantly changed if such errors had not been made. See 42 U.S.C. 7607 (d)(8),
(d)(9)(D)(iii). See e.g., NRDC v. Herrington, 768 F.2d 1355, 1421 (D.C.Cir. 1985) (holding that
agencies are obliged to produce substantial evidence for major assumptions in rulemaking). The
information revealed by Climategate directly impeaches the validity and reliability of the
purported scientific consensus on which EPA relies, the factual data upon which the
Endangerment Finding is based, and the validity and reliability of the methodology used in
determining and analyzing said data. Under Section 307(d)(3), EPA is clearly required to include
this information in the docket and receive public for comment prior to final promulgation of the
rule.
Since this new information is of “central relevance” to the outcome of the rule, and arose
after the mandatory public comment period, it would be an abuse of discretion not to give the
public the opportunity to comment on said information. As stated above, Section 307(d)(3)
requires that this information is published for public comment. Moreover, courts have held that
“meaningful public comment” is essential to both the structure and the spirit of section 307. See
Sierra Club v. Costle, 657 F.2d 298, 398 (D.C.Cir. 1981), rev’d on other grounds, Ruckelshaus v.
Sierra Club, 463 U.S. 680 (1983)(finding that if documents upon which EPA intended to rely had
been entered on the docket too late for any meaningful public comment such that the structure
and the spirit of section 307 would have been violated).
In summary, therefore, the central question for the Administrator’s determination in
response to this Petition is whether the Climategate information is of central relevance to the
5
“outcome” of the rule, i.e. its ultimate finding that “six greenhouse gases taken in combination
endanger both the public health and the public welfare of current and future generations.” As
shown in Section III, below, SLF submits that the answer is a resounding ”Yes.”
III. MANIPULATION OF THE “SCIENTIFIC” BASIS FOR THE ENDANGERMENT FINDING
As widely noted, the “global warming” debate sometimes has more the hallmarks of
political or religious polemics than rational consideration of impartial scientific analysis.5
Indeed, it has even been suggested that EPA’s Endangerment Finding was foreordained by
political considerations, predetermined long before any “consideration” of the merits of scientific
debate.6 For purposes of this Petition, however, SLF assumes only that, whatever the course of
events leading to EPA’s Endangerment Finding, the Agency should now fairly consider the
nature of the Climategate scandal in considering whether to convene a proceeding to permit
additional public input.
The Endangerment Finding states that EPA relied in large part on a number of
purportedly “scientific” reports, principally those of the Intergovernmental Panel on Climate
Change (“IPCC”), the U.S. Climate Change Science Program (“CCSP”) and U.S. Global Change
Research Program (“GCRP”), and the National Research Council (“NRC”). See Technical
5 For example, Venezuelan Marxist Dictator Hugo Chavez received a standing ovation at the recent climate conference in Copenhagen, Denmark when he said, “Our revolution seeks to help all people…socialism, the other ghost that is probably wandering around this room, that’s the way to save the planet, capitalism is the road to hell….let’s fight against capitalism and make it obey us.” Taylor, Lenore. “Penny Wong jeered, Hugo Chavez cheered.” The Australian (Dec. 17, 2009). Found at: http://www.theaustralian.com.au/politics/penny-wong-jeered-hugo-chavez-cheered/story-e6frgczf-1225811179614 (last visited Dec. 23, 2009). 6 EPA acknowledged but rejected this allegation, noting it had been suggested. “that the President’s and Administrator Jackson’s announcement indicated that the endangerment rulemaking was but a formality and that a final endangerment finding was a fait accompli. Commenters argue that this means the result of this rulemaking has been preordained and the merits of the issues have been prejudged.” Endangerment Finding at p.66502. Consideration of the Climategate fiasco should not be dictated by political considerations, but by a fair evaluation of what those materials indicate about the underlying “science.”
6
Support Document for “Endangerment and Cause or Contribute Findings for Greenhouse Gases
under Section 202(a) of the Clean Air Act” (December 7, 2009) (the “TSD”), pp. 4-5. These
sources were relied upon because:
[T]hey 1) are very recent and represent the current state of
knowledge on GHG [greenhouse gas] emissions, climate change
science, vulnerabilities, and potential impacts; 2) have assessed
numerous individual, peer-reviewed studies in order to draw
general conclusions about the state of science; 3) have been
reviewed and formally accepted, commissioned, or in some cases
authored by U.S. government agencies and individual government
scientists; and 4) they reflect and convey the consensus
conclusions of expert authors.
TSD, p.5. Throughout the TSD, the Agency expressly and impliedly assumes that the scientific
data and reports on which the Endangerment Finding is based reflect impartial, reasoned
analysis. For example, EPA relies on the IPCC “Climate Change 2007: Impacts, Adaptation and
Vulnerability. Contribution of Working Group II to the Fourth Assessment Report” to conclude
that there is “very high confidence” (i.e. a 9/10 chance, TSD p.23 at n.24) that the “global
average net effect of human activities since 1750 has been one of warming, with a radiative
forcing of +1.6 (+0.6 to +2.4) W/m2.” TSD p. 23. Other examples abound, as shown below.
The Climategate scandal is relevant, therefore, on three grounds. First, Climategate
reveals a serious lack of integrity in the underlying data and models, such that it is doubtful that
any process can be trusted until the data and models are validated and their integrity assured.
Second, Climategate shows that the processes of peer review, consensus building, and scientific
7
evaluation were fundamentally corrupted to the point that EPA should reconsider its reliance on
the reports and analyses that led to the Endangerment Finding. Third, Climategate reveals a
disturbing, anti-scientific compulsion for mandatory orthodoxy. Each of these points is
discussed below.
A. CLIMATEGATE REVEALS A SERIOUS LACK OF INTEGRITY IN THE UNDERLYING DATA AND MODELS, SUCH THAT IT IS DOUBTFUL THAT ANY PROCESS CAN BE TRUSTED UNTIL THE DATA AND MODELS ARE VALIDATED AND THEIR INTEGRITY ASSURED.
By way of background, EPA should not underestimate the importance of the CRU data
nor the extent to which Climategate reveals the deliberate manipulation of that data.
The Climate Research Unit (“CRU”) at the University of East Anglia is one of only two
available sets of data for worldwide surface temperatures. The CRU dataset constitutes one of the
most important sets of information on which all analyses of anthropogenic global warming
(“AGW”) are based. In addition, the models used by CRU formed the basis for IPCC’s models of
future global warming. EPA itself relies on IPCC’s analyses in formulating its conclusion in the
Endangerment Finding.
Accordingly, evidence of tampering with the CRU data and models must be taken very
seriously. The Climategate revelations show such tampering in scandalous terms.
1. CLIMATEGATE REVEALS THAT THE COMPUTER CODE FOR THE CLIMATE MODELS WAS DEFECTIVE AND MANIPULATED, WITHOUT ANY MEANINGFUL OVERSIGHT OR CONTROLS.
Included within the Climategate files are a number of very revealing documents, but one
in particular is very disturbing, the “HARRY_READ_ME.txt” file.7 What this file reveals is an
appalling series of manipulations of the data and the code, with no provisions for review, no
7 A printout of the HARRY_READ_ME.txt file is submitted in conjunction with this Petition for Reconsideration (hereinafter referred to “ReadMe.txt”). References to page numbers in the file refer to page numbers in the submitted printout.
8
QA/QC on the data or the code, no double-check on data integrity. As has been noted by several
commentators, the HARRY_READ_ME.txt file really is the “smoking gun” of the AGW
argument.
You can't imagine what this has cost me - to actually allow the operator to assign false WMO codes!! But what else is there in such situations? Especially when dealing with a 'Master' database of dubious provenance (which, er, they all are and always will be). False codes will be obtained by multiplying the legitimate code (5 digits) by 100, then adding 1 at a time until a number is found with no matches in the database. THIS IS NOT PERFECT but as there is no central repository for WMO codes - especially made-up ones - we'll have to chance duplicating one that's present in one of the other databases. In any case, anyone comparing WMO codes between databases - something I've studiously avoided doing except for tmin/tmax where I had to - will be treating the false codes with suspicion anyway. Hopefully. Of course, option 3 cannot be offered for CLIMAT bulletins, there being no metadata with which to form a new station. This still meant an awful lot of encounters with naughty Master stations, when really I suspect nobody else gives a hoot about. So with a somewhat cynical shrug, I added the nuclear option - to match every WMO possible, and turn the rest into new stations (er, CLIMAT excepted). In other words, what CRU usually do. It will allow bad databases to pass unnoticed, and good databases to become bad, but I really don't think people care enough to fix 'em, and it's the main reason the project is nearly a year late.8
(Emphasis added).
Discovered that WMO codes are still a pain in the arse. And that I'd forgotten to match Australian updates by BOM code (last field in header) instead of WMO code - so I had to modify newmergedbauto. Also found that running fixwmos.for was less than successful on VAP, because it's already screwed: … I am seriously close to giving up, again. The history of this is so complex that I can't get far Enough into it before by head hurts and I have to stop. Each parameter has a tortuous history of manual and semi-automated interventions that I simply cannot just go back to early versions and run the update prog. I could be throwing away all kinds of corrections - to lat/lons, to WMOs (yes!), and more.
8 ReadMe.txt, p.105.
9
So what the hell can I do about all these duplicate stations? Well, how about fixdupes. for? That would be perfect - except that I never finished it, I was diverted off to fight some other fire. Aarrgghhh. I - need - a - database - cleaner. What about the ones I used for the CRUTEM3 work with Phil Brohan? Can't find the bugger!! Looked everywhere, Matlab scripts aplenty but not the one that produced the plots I used in my CRU presentation in 2005. Oh, FUCK IT. Sorry. I will have to WRITE a program to find potential duplicates. It can show me pairs of headers, and correlations between the data, and I can say 'yay' or 'nay'. There is the finddupes.for program, though I think the comment for *this* program sums it up nicely: ' program postprocdupes2 c Further post-processing of the duplicates file - just to show how crap the c program that produced it was! Well - not so much that but that once it was c running, it took 2 days to finish so I couldn't really reset it to improve c things. Anyway, *this* version does the following useful stuff: c (1) Removes and squirrels away all segments where dates don't match; c (2) Marks segments >5 where dates don't match; c (3) Groups segments from the same pair of stations; c (4) Sorts based on total segment length for each station pair' You see how messy it gets when you actually examine the problem?9
(Emphasis added.)
Then - comparing the two candidate spc databases: spc.0312221624.dtb spc.94-00.0312221624.dtb I find that they are broadly similar, except the normals lines (which both start with '6190') are very different. I was expecting that maybe the latter contained 94-00 normals, what I wasn't expecting was that thet are in % x10 not %! Unbelievable - even here the conventions have not been followed. It's botch after botch after botch. Modified the conversion program to process either kind of normals line.10
(Emphasis added.)
OH FUCK THIS. It's Sunday evening, I've worked all weekend, and just when I thought it was done I'm hitting yet another problem that's based on the hopeless
9 ReadMe.txt, pp. 270, 297. 10 ReadMe.txt, p.19.
10
state of our databases. There is no uniform data integrity, it's just a catalogue of issues that continues to grow as they're found.11
Wrote 'makedtr.for' to tackle the thorny problem of the tmin and tmax databases not being kept in step. Sounds familiar, if worrying. am I the first person to attempt to get the CRU databases in working order?!!12
(Emphasis added.)
Well, dtr2cld is not the world's most complicated program. Wheras cloudreg is, and I immediately found a mistake! Scanning forward to 1951 was done with a loop that, for completely unfathomable reasons, didn't include months! So we read 50 grids instead of 600!!! That may have had something to do with it. I also noticed, as I was correcting THAT, that I reopened the DTR and CLD data files when I should have been opening the bloody station files!!13
(Emphasis added.)
Back to the gridding. I am seriously worried that our flagship gridded data product is produced by Delaunay triangulation - apparently linear as well. As far as I can see, this renders the station counts totally meaningless. It also means that we cannot say exactly how the gridded data is arrived at from a statistical perspective - since we're using an off-the-shelf product that isn't documented sufficiently to say that. Why this wasn't coded up in Fortran I don't know - time pressures perhaps? Was too much effort expended on homogenisation, that there wasn't enough time to write a gridding procedure? Of course, it's too late for me to fix it too. Meh14
(Emphasis added.)
The entire HARRY_READ_ME.txt file is so riddled with such damning admissions that
there’s really little point in highlighting them all. The key conclusion is inescapable: no
reasonable person can conclude that the models that CRU produced, and the datasets on which
they were based, meet basic scientific standards for reliability, and therefore the IPCC analyses
and projections cannot be said to be reliable, and therefore EPA’s incorporation of IPCC’s 11 ReadMe.txt, p.269. 12 ReadMe.txt, p.50. 13 ReadMe.txt, p.249 14 ReadMe.txt, p.60
11
findings and conclusions must be reconsidered. Put differently, there is zero chance that CRU’s
work could survive a Daubert challenge15 that was armed with the Climategate documents. Since
CRU’s work would be inadmissible in federal court as junk science, it should not be relied upon
by the EPA as the foundation of the most far-reaching and consequential action in its history.
2. CLIMATEGATE REVEALS THE SYSTEMATIC MANIPULATION OF DATA AS NECESSARY TO PRODUCE A PRE-DETERMINED RESULT.
a. “Hide the Decline”
A very disturbing revelation in the Climategate scandal is the degree to which
participants were willing to manipulate data so as to exaggerate or create an impression of global
warming. Consider, for example, the infamous “hide the decline” e-mail from Phil Jones:
Dear Ray, Mike and Malcolm, Once Tim's got a diagram here we'll send that either later today or first thing tomorrow. I've just completed Mike's Nature trick of adding in the real temps to each series for the last 20 years (ie from 1981 onwards) and (sic) from 1961 for Keith's to hide the decline...16 Responses to this startling text have varied from claims that the text is being
misinterpreted, to it reflects ordinary scientific “tricks of the trade” to supplement data, to the
disturbing conclusion that the e-mail means what it says: an attempt to cook the books to conceal
the fact that the famous “hockey stick” drawing is a manipulated, misleading barrel of scientific
nonsense. What seems to be undeniable, however, is that proxy temperature reconstructions
began to decline in approximately 1960, and thus diverged from the instrumental temperature
record, which showed increases after 1960. The “trick” to “hide the decline” was grafting the
15 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). 16 E-mail from P. Jones to R. Bradley, “Diagram for WMO Statement” (Nov 16, 1999). Found at: http://www.eastangliaemails.com/emails.php?eid=154&filename=942777075.txt (last visited: Dec 23, 2009).
12
instrumental record onto the proxy record commencing in about 1960 instead of continuing the
proxy reconstruction to the present with its full divergence.
The post-1960 decline in the proxy reconstructions while instrumental records showed an
increase fatally impeached the validity and reliability of proxy reconstructions over all time
periods.17 By “hiding the decline” the CRU scientists made their proxy reconstruction seem
“more skilful than it really is.” The importance of these proxy reconstructions to the AGW
conjecture can hardly be overstated. Since the Climategate documents gravely impeach the
validity and reliability of these reconstructions, they are obviously of central relevance to the
Endangerment Finding. The documents compel EPA to convene a proceeding and take public
comment on the crucial significance of Climategate.
b. Smoking Gun At Darwin, Australia
A similar instance of chicanery arose with the manipulation of the Australian climate
data. The HARRY_READ_ME.txt file makes numerous references to manipulating the
Australian data, but one must examine the data itself to fully understand what the Climategate
crew was doing. While it concerns a single location, the adjustments to data from Darwin,
Australia, admit no legitimate explanation. The raw, unadjusted records showed a slight cooling
trend, as shown below:18
17 Sheppard, Marc. “Understanding Climategate’s Hidden Decline.” American Thinker (Dec. 6, 2009). Found at: http://www.americanthinker.com/2009/12/understanding climategates hid html (last visited Dec. 23, 2009). 18 Eschenbach, Willis. “The Smoking Gun at Darwin Zero.” American Thinker (Dec. 8, 2009). Found at: http://wattsupwiththat.com/2009/12/08/the-smoking-gun-at-darwin-zero/ (last visited Dec. 23, 2009).
13
Admittedly, there are processes employed to “homogenize” the data to account for
anomalies, and those are sometimes legitimate. But what we have learned from the Climategate
materials is that CRU “homogenized” the data to make it look like this:19
19 Id.
14
As Mr. Eschenbach said of this “homogenization”:
Those, dear friends, are the clumsy fingerprints of someone messing with the data Egyptian style … they are indisputable evidence that the “homogenized” data has been changed to fit someone’s preconceptions about whether the earth is warming. One thing is clear from this. People who say that “Climategate was only about scientists behaving badly, but the data [are] OK” are wrong. At least one part of the data is bad, too. The Smoking Gun for that statement is at Darwin Zero.20
c. Data Manipulation in Russia
Analysts in other countries have already reached the same conclusion. For example, this
report came from a Russian source:
Climategate has already affected Russia. On Tuesday, the Moscow-based Institute of Economic Analysis (IEA) issued a report claiming that the Hadley Center for Climate Change based at the headquarters of the British Meteorological Office in Exeter (Devon, England) had probably tampered with Russian-climate data. The IEA believes that Russian meteorological-station data did not substantiate the anthropogenic global-warming theory. Analysts say Russian meteorological stations cover most of the country’s territory, and that the Hadley Center had used data submitted by only 25% of such stations in its reports. Over 40% of Russian territory was not included in global-temperature calculations for some other reasons, rather than the lack of meteorological stations and observations. The data of stations located in areas not listed in the Hadley Climate Research Unit Temperature UK (HadCRUT) survey often does not show any substantial warming in the late 20th century and the early 21st century.21
Likewise, based on the Climategate scandal, MET has announced that it will reexamine 160
years of climate data, attributing the need to reexamine the data to a “lack of public confidence”
based on the leaked e-mails.22
20 Id. 21 McIntyre, Steve. “IEA: Hadley Center probably tampered with Russian climate data.” Found at: http://climateaudit.org/2009/12/16/iearussia-hadley-center-probably-tampered-with-russian-climate-data/ (last visited Dec. 23, 2009) 22 Webster, Ben. “Met Office to re-examine 160 years of climate data.” TimesOnline (Dec. 5, 2009). Found at: http://www.timesonline.co.uk/tol/news/environment/article6945445.ece (last visited Dec. 23, 2009).
15
d. Other manipulations of climate data.
Other instances of such data manipulation are also beginning to surface. For example,
new information published November 25, 2009 also shows an eerily similar pattern of
“adjustments” was made to raw temperature data in New Zealand – downward adjustments in the
early 20th century and upward adjustments from the middle of the 20th century onward.23 While
the information on the New Zealand temperature adjustments was not part of Climategate, it is
new, and it adds to the pattern of similar manipulations - downward adjustments in the first part
of the 20th century and upward adjustments in the latter half - yielding a warming trend over the
last century that is almost entirely fictitious. EPA should evaluate this controversy to determine
whether these recently revealed “adjustments,” like those of Climategate, indicate more of the
same collusion, manipulations, and chicanery.24
3. THE CLIMATEGATE CABAL TRIED TO CONCEAL THEIR DATA FROM RESEARCHERS, ESPECIALLY THOSE LIKELY TO REACH CONTRARY CONCLUSIONS.
Phil Jones, the Director of the CRU, orchestrated a years’ long effort to conceal CRU data
from scientists they feared might be critical of their work. In an e-mail sharing strategies for
obstructing responses to FOIA requests, he said:
When the FOI requests began here, the FOI person said we had to abide by the requests. It took a couple of half hour sessions - one at a screen, to convince them otherwise showing them what CA was all about. Once they became aware of the types of people we were dealing with, everyone at UEA (in the registry and in the
23 Treadgold, Richard (New Zealand Climate Science Coalition). “Are we feeling warmer yet?” (Nov. 25, 2009). Found at: http://www.climatescience.org.nz/images/PDFs/global warming nz2.pdf (last visited Dec. 23, 2009) 24 Without belaboring the point, yet another curious manipulation occurs in the context of the USHCN data set. See “Difference Between Raw and Final USHCN Data Sets,” found at: http://www ncdc noaa.gov/img/climate/research/ushcn/ts.ushcn anom25 diffs urb-raw pg.gif (last visited December 23, 2009). Absent Climategate, one might assume the adjustments were legitimate. In light of the extensive (and ever expanding) evidence of improper manipulations, however, one must wonder.
16
Environmental Sciences school - the head of school and a few others) became very supportive.25
Again, from Phil Jones:
Yes, we've learned [our] lesson about FTP. We're going to be very careful in the future what gets put there. Scott really screwed up big time when he established that directory so that Tim could access the data. Yeah, there is a freedom of information act in the U.S., and the contrarians are going to try to use it for all its worth. But there are also intellectual property rights issues, so it isn't clear how these sorts of things will play out ultimately in the U.S. … The two MMs have been after the CRU data for years. If they ever hear there is a Freedom of Information Act now in the U.K., I think I’ll delete the file rather than send to anyone. … We also have a data protection act, which I will hide behind.26
(The “two MMs” are probably Stephen McIntyre and Ross McKitrick, two Canadians who have
spent years fact-checking the published data and conclusions.)27 Shortly after the Climategate
documents became public, CRU was forced to admit on or about November 29, 2009 that much
of their original data has been destroyed, allegedly because they did not have room to store it
all.28 This means that other scientists will not be able to check the accuracy of CRU’s
“homogenization” of data. Oblivious to the irony, CRU said in a statement on its website that
25 E-mail from P. Jones to “santer1” and T. Wigley (Dec. 3, 2008). Found at: http://www.eastangliaemails.com/emails.php?eid=940&filename=1228330629.txt (last visited Dec. 23, 2009). 26 E-mail from P. Jones to M. Mann (Feb. 3, 2005) (and related e-mail string). Found at: http://www.eastangliaemails.com/emails.php?eid=490&filename=1107454306.txt (last visited Dec. 23, 2009). 27 The reference to “deleting” the data, although such deletion may not have occurred, does raise a legal consideration: We request that EPA request that the Department of Justice to send a “litigation hold” letter to all agencies and personnel involved in U.S. sponsored climate research that have or are relying upon the CRU dataset. See Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) and subsequent proceedings. 28 Leake, Jonathan. “Climate change data dumped.” TimesOnline (Nov. 29, 2009). Found at: http://www.timesonline.co.uk/tol/news/environment/article6936328.ece (last visited Dec. 23, 2009)
17
“We do not hold the original raw data but only the value-added (quality controlled and
homogenised) data.”29 (Emphasis added).
A scientist named Willis Eschenbach attempted to obtain station data for the HadCRUt3
global temperature average from CRU, and was met with a years’ long pattern of stonewalling
and obstruction. The Climategate documents prove that the conspiracy to obstruct his requests
went to the highest levels of climate science.30
4. E-MAILS WERE APPARENTLY ALTERED OR DELETED TO COVER UP WRONGDOING.
Phil Jones, in an e-mail to Eugene Wahl of NOAA and Caspar Amman of the National
Center for Atmospheric Research urged them to alter their e-mail records:
[T]ry and change the Received date. Don’t give those skeptics something to amuse themselves with.31
In another now infamous e-mail, Phil Jones urged Michael E. Mann to delete e-mails that
were subject to a pending FOIA request:
From: Phil Jones To: “Michael E. Mann” Subject: IPCC & FOI Date: Thu May 29 11:04:11 2008 Mike, 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. I see that CA claim they discovered the 1945 problem in the Nature paper!! Cheers Phil Prof. Phil Jones Climatic Research Unit Telephone +44 (0) **** 59209032
29 Id. 30 McIntyre, Steve. “Willis Eschenbach’s FOI Request.” ClimateAudit (Nov. 25, 2009). Found at: http://climateaudit.org/2009/11/25/willis-eschenbachs-foi-request/ (last visited Dec. 23, 2009). 31 Quoted in “Global Warming With the Lid Off.” Wall Street Journal / Opinion Journal (Nov. 24, 2009). Found at: http://online.wsj.com/article/SB10001424052748704888404574547730924988354 html (last visited Dec. 23, 2009).
18
Michael Mann, the recipient of this e-mail, wrote an op-ed that was published in the Washington
Post on December 19, 2009 in which he claimed there was “no evidence” that e-mails were
deleted in response to this request.33 Whether he deleted the e-mails or not, he did respond: “I'll
contact Gene about this ASAP. His new email is: [email protected]”34 And, in any
event, the apparent willingness of these parties to destroy evidence35 speaks volumes about their
work should be relied upon by EPA.
5. SUMMARY.
Data integrity is the cornerstone of scientific method. As a result, evidence of sloppiness,
ad hoc “adjustments,” concealment, and outright manipulation demand an immediate and
complete reexamination of the CRU processes and all of the “scientific” analyses that depend
thereon.
B. CLIMATEGATE SHOWS THAT THE PROCESSES OF PEER REVIEW, CONSENSUS BUILDING, AND SCIENTIFIC EVALUATION WERE FUNDAMENTALLY CORRUPTED TO THE POINT THAT EPA SHOULD RECONSIDER ITS RELIANCE ON THE REPORTS AND ANALYSES THAT LED TO THE ENDANGERMENT FINDING.
EPA relies heavily on its assumption that there exists a legitimate, objective “consensus”
regarding Anthropogenic Global Warming. For example, in the Endangerment Finding, EPA
states, “The USGCRP, IPCC, and NRC assessments synthesize literally thousands of individual
studies and convey the consensus conclusions on what the body of scientific literature tells us
32 Responding to P. Jones e-mail, found in E-mail from M. Mann to P. Jones. “Re: IPCC and FOI.” Found at: http://www.eastangliaemails.com/emails.php?eid=891&filename=1212063122.txt (last visited Dec. 23, 2009). 33 Mann, Michael E. “E-mail furor doesn’t alter evidence for climate change.” Washington Post (Dec. 18, 2009). Found at: http://www.washingtonpost.com/wp-dyn/content/article/2009/12/17/AR2009121703682.html (last visited Dec. 23, 2009). 34 E-mail from M. Mann to P. Jones. ““Re: IPCC and FOI.” Found at: http://www.eastangliaemails.com/emails.php?eid=891&filename=1212063122.txt (last visited Dec. 23, 2009) 35 See Note 29, supra, regarding the need for an immediate “litigation hold” directive to prevent destruction of files.
19
[emphasis added].”36 Likewise, in the TSD, EPA states that the IPCC, CCSP, GCRP, and NRC
reports, “reflect and convey the consensus conclusions of expert authors [emphasis added].”37
In fact, Climategate makes it clear that no such consensus exists. The normal processes of
peer review and objective scientific evaluation that might ordinarily lead to “consensus” have
been shown to be so fundamentally degraded by collusion, intimidation, and deception that no
one can seriously contend that any consensus exists at this time. To this point, SLF directs the
Agency’s attention to the following specific items.
1. SUPPRESSION OF DISSENTING VIEWS.
The Climategate participants established a concerted effort to purge dissenting views
from the scientific literature:
I think we have to stop considering ‘Climate Research’ as a legitimate peer-reviewed journal. We would also need to consider what we tell or request of our more reasonable colleagues who currently sit on the editorial board. Perhaps we should encourage our colleagues in the climate research community to no longer submit to, or cite papers in, this journal.38 2. PERSECUTION AND BLACK-BALLING OF JOURNALS, EDITORS, AND
REVIEWERS.
The Climategate cabal manipulated the scientific literature to purge any and all contrary
opinions. For example, this group orchestrated the ousting of a journal editor who sought to
present a viewpoint that would have deviated from the “consensus” mantra. From Tom Wigley in
2003:
PS Re CR, I do not know the best way to handle the specifics of the editoring. Hans von Storch is partly to blame—he encourages the publication of crap science ‘in order to
36 Endangerment Finding, 74 FR at 66511. 37 TSD at p. 5. 38 E-mail from M. Mann to P. Jones. “Re: Fwd: Soon & Baliunas” (Mar 11, 2003). Found at: http://www.eastangliaemails.com/emails.php?eid=295&filename=1047388489.txt (last visited Dec. 23, 2009).
20
stimulate debate’. One approach is to go direct to the publishers and point out the fact that their journal is perceived as being a medium for disseminating misinformation under the guise of refereed work. I use the word ‘perceived’ here, since whether it is true or not is not what the publishers care about—it is how the journal is seen by the community that counts. I think we could get a large group of highly credentialed scientists to sign such a letter—50+ people.Note that I am copying this view only to Mike Hulme and Phil Jones. Mike’s idea to get editorial board members to resign will probably not work—must get rid of von Storch too, otherwise holes will eventually fill up with people like Legates, Balling, Lindzen, Michaels, Singer, etc. I have heard that the publishers are not happy with von Storch, so the above approach might remove that hurdle too.39
A similar approach was taken to oust Yale’s James Saiers, causing Jones to remark: “The GRL
leak may have been plugged up now w/ new editorial leadership there.” 40
As Dr. John Christy has phrased it: “The CRU emails have revealed how the normal
conventions of the peer review process appear to have been compromised by a team of global
warming scientists, with the willing cooperation of the editor of the International Journal of
Climatology (IJC), Glenn McGregor.”41
Note, this suppression of dissenting views affects not only the publications of the those
orchestrating the ouster, it affects the totality of scientific literature for two reasons: there is no
reason to believe that other editors would not likewise quickly apprehend the risk to their careers
from being too “fair minded” in the presentation of the debate,42 and the “peer reviewed”
literature was obviously manipulated to keep dissenting peers out of the literature. As
39 E-mail from T. Wigley to T. Carter. “Re: Java Climate Model” (Apr. 24, 2003). Found at: http://www.eastangliaemails.com/emails.php?eid=307&filename=1051190249.txt (last visited Dec. 23, 2009). 40 Quoted in Michaels, Patrick J.: “How to Manufacture a Climate Consensus.” Wall Street Journal / Opinion Journal ( Dec. 17, 2009). Found at: http://online.wsj.com/article/SB10001424052748704398304574598230426037244 html (last visited Dec. 23, 2009). 41 Douglass, David H. and John R. Christy. “A Climatology Conspiracy?” American Thinker (Dec. 20, 2009). Found at: http://www.americanthinker.com/2009/12/a climatology conspiracy.html (last visited Dec. 23, 2009). 42 After Mr. Messrs. Jones and Mann threatened a boycott of publications and reviews, half of the editorial board of Climate Research resigned. Michaels, Patrick J. “How to Manufacture a Climate Consensus,” Wall Street Journal (December 17, 2009).
21
Dr. Michaels noted, “Mr. Wigley repeatedly tells news reporters not to listen to ‘skeptics’ (or
even nonskeptics like me), because they didn’t publish enough in the peer-reviewed literature—
even as he and his friends sought to make it difficult or impossible to do so.”43
Dr. Michaels elsewhere makes a similar point in even more compelling terms:
When scientists make putative compendia of that literature, such as is done by the U.N. climate change panel every six years, the writers assume that the peer-reviewed literature is a true and unbiased sample of the state of climate science. That can no longer be the case. The alliance of scientists at East Anglia, Penn State, and the University Corporation for Atmospheric Research (in Boulder, Colo.) has done its best to bias it.44
Or, even more pointedly, “EPA claimed to rely solely upon compendia of the refereed literature
such as the IPCC reports, in order to make its finding of endangerment from carbon dioxide.
Now that we know that literature was biased by the heavy-handed tactics of the East Anglia mob,
the EPA has lost the basis for its finding.”45 (Emphasis added).
3. THE CONTENTS OF REPORTS, INCLUDING THE IPCC REPORTS, WERE ALTERED TO ELIMINATE ANY SUGGESTION OF ANY NON-CONSENSUS ON KEY POINTS.
For example, consider the following from Phil Jones, head of the University of East
Anglia Climate Research Unit:
The other paper by MM is just garbage – as you knew. De Freitas again. Pielke is also losing all credibility as well by replying to the mad Finn as well – frequently as I see it. I can’t see either of these papers being in the next IPCC report. K and I will keep them out somehow – even if we have to redefine what the peer-review literature is!46
43 Michaels, Patrick J.: “How to Manufacture a Climate Consensus.” Wall Street Journal / Opinion Journal ( Dec. 17, 2009). Found at: http://online.wsj.com/article/SB10001424052748704398304574598230426037244 html (last visited Dec. 23, 2009). 44 Ibid. 45 Ibid. 46 E-mail from P. Jones to M. Mann. “HIGHLY CONFIDENTIAL” (July 8, 2004). Found at: http://www.eastangliaemails.com/emails.php?eid=419&filename=1089318616.txt (last visited Dec. 23, 2009).
22
(”K” is probably Kevin Trenberth, one of Jones’s fellow IPCC authors.) This is a very serious
allegation. Dr. Peter Kelemen, professor of geochemistry at Columbia University, has said that
“If scientists attempted to exclude critics’ peer-reviewed papers from IPCC reports, this was
unethical in my view.”47
Similarly, one of the most baffling aspects of the IPCC reports, until now, was how
seemingly reliable reports by well-respected scientists were systematically excluded without
persuasive explanation. The Climategate revelations explain exactly why that was happening,
and why EPA should now reexamine the underlying reports and documentation free from IPCC’s
corrupting bias.48 As Dr. Pielke says, “The challenge to the IPCC community, now that their
duplicity has been exposed, is to communicate to all of us why the peer-reviewed papers that we
documented, and that were available in time for the IPCC review process, were considered “bad
papers” and thus ignored in the IPCC report.”49 We doubt that IPCC will take Dr. Pielke up on
his suggestion, which is all the more reason why EPA should.
4. SUMMARY.
What these aspects of Climategate reveal is that the so-called “science” of global
warming has been conducted in an ideologically charged environment, such that any possibility
of giving due regard to dissenting views was foreclosed at the outset. Thus, the conclusions of
organizing bodies, especially IPCC, cannot be said to reflect scientific “consensus” in any
47 Keleman, Peter. “What East Anglia's E-mails Really Tell Us About Climate Change.” Popular Mechanics (Dec. 1, 2009). Found at: http://www.webcitation.org/5m33oK4QO (last visited Dec. 23, 2009). 48 SLF maintains that EPA’s process of relying on syntheses of scientific reports (such as the IPCC reports), rather than the underlying reports themselves, is a violation of the Administrator’s duty to exercise “judgment” under Section 202. That is all the more true where, as here, the syntheses reflect a political agenda and, as we now know, deliberate bias in the selection and evaluation of the science. 49 Pielke Sr., Roger. “Comment On The Hacking Of The CRU Website.” Found at: http://pielkeclimatesci.wordpress.com/2009/11/20/comment-on-the-hacking-of-the-cru-website/ (last visited Dec. 23, 2009)
23
meaningful sense of that word. Instead, they reflect a political movement that has commandeered
science to the service of its agenda. This is “post-normal science”: the long-dreaded arrival of
deconstructionism to the natural sciences, according to which scientific quality is determined not
by its fidelity to truth, but by its fidelity to the political agenda.50 A leading climate scientists and
contributor to the IPCC, Mike Hulme,51 has called the IPCC “a classic example” of “post normal
science”
Philosophers and practitioners of science have identified this particular mode of scientific activity as one that occurs … where values are embedded in the way science is done and spoken. It has been labelled “post-normal” science. Climate change seems to fall in this category. Disputes in post-normal science focus … on the process of science – who gets funded, who evaluates quality, who has the ear of policy. … The IPCC is a classic example of a post-normal scientific activity.52
The law of the United States requires that the EPA’s endangerment findings be based on real
science, not the “post-normal science” laid bare by Climategate.
C. THE CLIMATEGATE E-MAILS REVEAL A SYSTEMATIC EFFORT BY SELF-
PROCLAIMED “GATEKEEPERS” TO ENFORCE SCIENTIFIC ORTHODOXY.
One of the reasons EPA should convene a proceeding to sort through all of this is that it
can be difficult to distinguish “consensus” from enforced doctrinal orthodoxy. The Climategate
50 Post-normal science was defined by Eva Kunseler, in her paper “Towards a new paradigm of Science” as follows:
A new concept of science was introduced by Funtowicz and Ravetz during the 1990s…The concept of post-normal science goes beyond the traditional assumptions that science is both certain and value-free…The exercise of scholarly activities is defined by the dominance of goal orientation where scientific goals are controlled by political or societal actors…Scientists’ integrity lies not in disinterestedness but in their behaviour as stakeholders.
Found at: http://www.nusap net/downloads/KunselerEssay2007.pdf (last visited Dec. 23, 2009) 51 Mike Hulme, founding director of the Tyndall Centre, and Professor of Climate Change at the University of East Anglia (UEA), prepared climate scenarios and reports for the UK Government (including the UKCIP98 and UKCIP02 scenarios, and reviewer for UKCP09), the European Commission, UNEP, UNDP, WWF-International and the IPCC, and was co-ordinating Lead Author for the chapter on ‘Climate scenario development’ for the Third Assessment Report of the IPCC, as well as a contributing author for several other chapters 52 Hulme, Mike. “The Appliance of Science.” The Guardian (Mar. 14, 2007). Found at: http://www.guardian.co.uk/society/2007/mar/14/scienceofclimatechange.climatechange (last visited Dec. 23, 2009).
24
scandal reveals an approach among the priesthood of AGW proponents toward dissenters not
unlike that of the guardians of religious orthodoxy towards heresy.
As Dr. Christy says,
These people act in concert to diminish, reject, and otherwise denigrate findings with which they do not agree -- and they are able to do so because of their "establishment" positions. This is the preservation of "group think" at its most serious level.... The group represented by the bulk of these emails does indeed have a message to defend. Those of us who see problems with that message are aware of how the data are manufactured and interpreted to support that message -- and worse, how these establishment scientists act as gatekeepers for the "consensus" reports to suppress alternative findings.”53
IV. THE NEED FOR RECONSIDERATION.
Given the substantial, credible evidence that at least some of the data, publications, and
reports relied upon by EPA were the subject of systematic manipulations to create a false sense
of consensus, stifle scientific debate, and alter the content of the published literature, EPA really
has only two options: ignore the controversy and proceed with the Endangerment Finding as if
nothing happened, or convene a proceeding to allow the public to comment on the situation.
It is an undeniable fact that many prominent accomplished, published and well-respected
scientists have spoken out loud and clear to say that the Climategate has exposed the greatest
scientific fraud in history.54 Such is the condition of the explicit premise of the EPA’s
Endangerment Finding.
53 Hake, Tony. The Columbia Examiner: “Climategate email scientists feeling the heat” (Dec. 13, 2009). Found at: http://www.examiner.com/x-25061-Climate-Change-Examiner~y2009m12d13-Climategate-email-scandal-scientists-feeling-the-heat (last visited Dec. 23, 2009). 54 It is worth noting some of the reactions of prominent scientists to the Climategate scandal:
Princeton University's Robert Austin: “I view it as science fraud, pure and simple.” Quoted in: McCullagh, Declan. “Physicists Stick to Warming Claim Post-Climategate,” CBS News (Dec, 8, 2009). Found at: http://www.cbsnews.com/blogs/2009/12/08/taking liberties/entry5933353.shtml (last visited Dec. 23, 2009).
Robert Austin (Princeton), Will Happer (Princeton) and Hal Lewis (UC Santa Barbara) “ClimateGate, which was and is an international scientific fraud, the worst any of us have seen.” Ibid.
Don Easterbrook: “Legitimate scientists do not doctor data, delete data they don't like, hide data they don't want seen, hijack the peer review process, personally attack other scientists whose views differ from theirs,
25
Petitioners respectfully suggest that whether these scientists are right or not is not the
question before EPA. EPA may well decide that the science, taken as a whole, survives the
Climategate scandal.55 But the public, and other members of the scientific community who have
a contrary view, have a right to weigh in on that issue. This is not an issue on which the public
previously commented, and therefore it is not one that EPA has responded to, and, were EPA’s
evaluation to conclude that some or all of the data and reports are not reliable, the outcome of the
Finding could very well be different. Accordingly, in all fairness EPA must convene a proceeding
to allow public comment on these issues.
V. CONCLUSION
For all of the foregoing reasons, EPA should convene a proceeding to reconsider the
Endangerment Finding.
Respectfully submitted this 23rd day of December 2009.
Attorneys for Petitioners Shannon L. Goessling Executive Director & Chief Legal Counsel Southeastern Legal Foundation Inc.
send fraudulent data to the IPCC that is used to perpetuate the greatest hoax in the history of science, provide false data to further legislation on climate change that will result in huge profits for corrupt lobbyists and politicians, and tell outright lies about scientific data." Found at: http://www.climatedepot.com/a/4140/Geologist-appalled-at-NYTs-Krugman-Legitimate-scientists-do-not-doctor-datahijack-peerreviewsend-fraudulent-data-to-UN-that-is-used-to-perpetuate-greatest-hoax-in-the-history-of-science (Nov. 29, 2009) (last visited Dec. 23, 2009).
Ian Plimer “If you have to argue your science by using fraud, your science is not valid.” Quoted in “Climate Change Fraud.” Daily Express (Dec. 2, 2009). Found at: http://www.express.co.uk/posts/view/143573/Climate-change-rocked- (last visited Dec. 23, 2009).
55 SLF has already taken the position that EPA’s Endangerment Finding is fundamentally flawed based on the pre-Climategate science. Indeed, SLF has already commented that EPA was relying too heavily on a manufactured “consensus” and altered data. While SLF has tried to resist the urge to say, “I told you so,” the Climategate scandal lends considerable support to SLF’s prior statements.
26
Southeastern Legal Foundation Inc. 6100 Lake Forrest Drive, Suite 520 Atlanta, Georgia 30328 (404) 257-9667 Fax: (404) 257-0049
Edward A. Kazmarek
Kazmarek Geiger & Laseter LLP 3490 Piedmont Road NE, Suite 201 Atlanta, GA 30305 (404) 812-0840 Fax: (404) 812-0845 E-mail: [email protected]
Harry W. MacDougald
Caldwell & Watson LLP 5825 Glenridge Dr., N.E. Building Two, Suite 200 Atlanta, GA 30328-5579 (404) 843-1956 Fax: (404) 843-2737 E-mail: [email protected]
BEFORE THE UNITED STATES ENVIRONMENTAL PROTEC [ION AGFNCY
In re: )) EPA DocketNo.flangerh1tt and Cause or Contribute )
jndiflgs for Greenhouse Gases Under ) EPAHQ020097’
Section 202(a) of the Clean Air Act )
PETITION FOR RECONSIDERATION OF ENDANGEENT ANDCAUSE OR CONTRIBU E FINDINGS FOR GREENHOUSE GASES
1. INTRODUCTION
pursuant to Section 307 of the Clean Air Act (CAA”) the State of Texas “Texa5” or the“State”). through its AttorneY General and on behalf of its Governor, ommi50r ofAgricUlture Comnhiss1ofl of the General Land Office. omniSsi0fl on EnvironmentalQuality, and the Chairman of the public Utility CorntfljSsiOfl, files this Petition forRecOflsjdatbon requesting that the Administrator of the U.S. EnvirOfln ntal ProtectionAgency (the “EPA”) reconsider her flangert and Cause or Contribute jnding5 forGreenhouse Gases under Section 202ca) of the Clean Air Act flangermtFinding”).1 In suppo of this Petition, the State of Texas shows the folloWiflg
11. OVERnIE
Texas has an acclaimed record of working with EPA to enforce environmental laws.Texas is also a recognized leader Ifl using renewable energy sources. But. Texas IS
compelled to take action against EPA’S flgerment Finding issued on December 15,2009 because it will lead to unprecedented bureaucratic licensing and regulat0 burdenson farmers. ranchers, small businesses, hospitals, and even schools.2 Any location that
See fldaflgerflnt and Cause or Contribute Findings for Greenhouse Gases under SectiOn 202(a) of theClear Air Act. 74 Fed. Reg. 66,496 (Dec. 15. 2009) (dcSCribm procedures for requesting that theAdministrator COnvene a proceeding for recon5ideratbo2 As the Texas cornrnissbohl on EnvirOfl1t Quality observed in its June 23, 2009 Comment on themobile source fldaflgermt Finding. “The positive dange1ment finding and cause or contribute findingsunder Section 202a) will trigger a similar finding under provisions of Clean Air Act regulating pointsources.” Letter from Mark VickerY. Executive Director, Texas Commission on Envirofl1nt QualitY toHon. Lisa Jackson, Administrator, U.S. Environi ental Protection Agency (3une 23, 2009), available at
Docket: EPAHQ0A20090l7l.That is, as the Texas Commission on
Enironment Quality noted, by finding that mobile source GHG emissions_which are regulatedexclusively by EPA and not by the states_constitute a danger to the public’s health and safety ithin themeaning of Section 202(a) of the Clean Air Act, the Administrator has essentially required that stationarysource GHGs_hich arc regulated by the states__shall also be regulated. The Executive Director of theTexas Commission on Enviroflme1tat Quality put it succinctlY. “the findings that the four specificGHG[s emitted from motor vehicles cause or contribute to air pollution that is reasonablY anticipated toendanger public health and welfare necessarily triggers regulation of [stateregulate point sources ofGHG ‘pollutants under Title I and Title V of the CAA.” This positiOfl is shared by the NationalAssociation of clean Air Agencies. which represent5state and local regulat0 agencies that are
has a natural gas powered heater necessarily emits greenhouse gasses to warm the air.Texas farmers rely on diesel-powered tractors to plow fields and operate cotton gins.Most public universities have boilers and some even have small power plants. Virtuallyevery sector of the Texas economy will be affected by EPA’s Endangerment Finding.
Despite the Endangerment Finding’s remarkably broad impact, EPA’s Administratorrelied on a fundamentally flawed and legally unsupported methodology to reach herdecision. And although the Administrator is legally required to undertake a scientificassessment before reaching a decision that is supposed to be based on scientificconclusions, the Administrator outsourced the actual scientific study, as well as herrequired review of the scientific literature necessary to make that assessment. In doingso, EPA relied primarily on the conclusions of outside organizations, particularly theUnited Nations International Panel on Climate Change (“IPCC”).
EPA’s reliance on the IPCC’s assessment to make a decision of this magnitude is notlegally supported. Since the Endangerment Finding’s public comment period ended inJune, 2009, troubling revelations about the conduct, objectivity, reliability, and proprietyof the IPCC’s processes, assessments, and contributors have become public. Previouslyprivate email exchanges among top IPCC climatologists reveal an entrenched group ofactivists focused less on reaching an objective scientific conclusion than on achievingtheir desired outcome. These scientists worked to prevent contravening studies frombeing published, colluded to hide research flaws, and collaborated to obstruct the public’slegal right to public information under open records laws.
In addition to the improper collusion and cover-ups revealed by the release of theseemails, since the public comment period ended, some of the IPCC’s methodologies andconclusions have been discredited. Not surprisingly, respected scientists andclimatologists from around the globe have roundly criticized and correctly questioned theIPCC’s process, while calling for programmatic reforms.
Indeed, there has been worldwide fallout from scandals enveloping the IPCC. In Britain,four separate investigations have been launched, and the British BroadcastingCorporation has convened an inquiry into the journalistic appropriateness of its IPCCcoverage. India has announced that it will create its own climate change institute ratherthan rely exclusively on the IPCC. And the United States Department of Commerce hascreated a new Climate Science Institute—though it has remained noticeably silent on thescandals plaguing the IPCC.
responsible for Clean Air Act enforcement, “Once EPA has issued an endangerment and cause orcontribute finding with respect to a pollutant and class of motor vehicles, section 202(a) requires it topromulgate emissions standards for that pollutant and class of motor vehicles., .Most would concede that, ifadopted, these proposed limitations would clearly subject the affected pollutants to ‘regulation’ and triggerthe applicability of the PSD and Title V programs under the Act to GHG emissions.” Letter from G.Vinson Heliwig, NACAA Co-President, Larry Greene, NACAA Co-President, Robert Hodanbosi, CoChair NACAA Permitting Committee, and Ursula Kramer, Co-Chair NACAA Permitting Committee, toU.S. Environmental Protection Agency (December 28, 2009), available at www.regulations.gov, Docket:EPA-HQ—OAR—2009—05 17.
As a result, bipartisan legislation has been introduced in both chambers of Congress toprevent implementation of the Endangerment Finding and the related regulation ofgreenhouse gas emissions. Notwithstanding the multitude and scope of these responsivemeasures, EPA has not indicated a willingness to review allegations that have shockedand appalled policy makers, regulators, scientists, and concerned citizens worldwide.Thus, while the State of Texas remains committed to working cooperatively with EPA toprotect the environment, this State must exercise its legal right to challenge afundamentally flawed and legally unjustifiable process that will have a tremendouslyharmful impact on the lives of Texans and the Texas economy.
In light of the disturbing revelations detailed in the State’s Petition—which strike directlyat the heart of the objectivity, procedural legitimacy, and scientific validity of theassessments relied on by the Administrator—EPA should grant the State of Texas’Petition for Reconsideration, conduct the rigorous, agency-led assessment that fullycomplies with Office of Management and Budget (“0MB”) rules governing federalagency processes, and then rely on that scientifically—and legally—sound mechanismbefore reaching a potentially trillion-dollar decision as to whether greenhouse gases frommobile sources constitute a danger to the public health and welfare.
Thus, on behalf of the farmers and ranchers who use fossil fuels to cultivate their landand fertilize their crops; the 3,800 farms and 28,000 cattle operations that will have toundergo the costly, complicated Title V Air permitting process just to continue operatingas they always have;3 the 375,000 hard-working Texans who rely on the energy sector foremployment;4 the estimated 30,000 Texas businesses that face new regulations andincreased costs because they emit greenhouse gases;5 the already financially strappedTexas families who face $1,200 in increased annual living costs;6 and the public schoolsystems across the State that depend on the Permanent School Fund—which earned morethan $2 billion in revenue from oil and gas leases over the last five years—for the morethan $700 million it provided for public education last year,7 Texas, through its AttorneyGeneral and by its Governor, Agriculture Commissioner, Land Commissioner,Commission on Environmental Quality, and the Chairman of the Public UtilityCommission, hereby requests that the Administrator reconsider the EndangermentFinding.
Texas Advisory Panel on Federal Environmental Regulations, Comments on the Environmental Protection Agency’sProposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(A) of the CleanAir Act, at 16 (June 23, 2009).
Texas Advisory Panel on Federal Environmental Regulations, Comments on the Environmental Protection Agency’sProposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(A) of the CleanAir Act, at 14 (June 23, 2009)5
Rick Perry, Governor of Texas, Speech Urging EPA to Withdraw Ruling on Danger of Carbon Dioxide(Dec. 9, 2009), available at httix//povernor.state.tx.us/news/speech/14021/ (last visited Feb. 15, 2010).
Texas Education Agency, Texas Permanent School Fund Annual Report, December, 2009 at 4, availableat http://ritter.tea.state.tx.us/psf/PSFARO9pdf.
3
III. STANDARD OF REVIEW
Section 307 of the Clean Air Act directs that the Administrator “shall convene aproceeding for reconsideration” if two things are shown:
First, it was either “impracticable” to raise the objection during the public commentperiod, or the grounds for such objection arose after the period of public comment (butwithin the time specified for judicial review). . Second, the objection is of centralrelevance to the outcome of the rule—in this case the Endangerment Finding.9 TheState’s Petition meets both requirements.
The information on which this Petition is based came to light after the June 23, 2009deadline for public comment ended. The deadline for seeking judicial review of theEndangerment Finding is February 16, 2010.’° Therefore, the grounds for the objectionspresented in this Petition arose after the period of public comment but within the timespecified for seeking judicial review)’
The Endangerment Finding stipulates that “the Administrator [relied] on the majorassessments of the USGCRP, IPCC, and NRC as the primary scientific and technicalbases of her endangerment decision.”2 The appropriateness of the Administrator’smisplaced reliance on those assessments is of central relevance to the EndangermentFinding. ‘
IV. THE STATE OF TEXAS’ COMMITMENT TO THE ENVIRONMENT
A. TEXAS’ RECORD OF ENVIRONMENTAL ENFORCEMENT
This Petition should not be misconstrued as a waning commitment by Texas to protectthe environment. Rather, Texas asserts that environmental protection is best achievedwhen based on sound legal and scientific principles. Texas has aggressively protected airquality. The State has joined with EPA in record-setting enforcement actions and hasbecome a national leader in renewable energy sources that have reduced greenhouse gasemissions.
Last December, the State of Texas teamed with EPA and the U.S. Department of Justicein a successful enforcement effort against the mining and refining company Asarco, LLC.As a result, Asarco will spend $1.8 billion remediating 80 hazardous waste sites in 19
See 42 U.S.C. § 7607(d)(7)(B).91d,10 Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the ClearAir Act, 74 Fed. Reg. 66,496.
See 42 U.S.C. § 7607(d)(7)(B) (providing that an objection to an agency rule under the CAA may befiled before the end of the period ofjudicial review if the grounds for the objection arose after the periodfor public comment).12 Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the ClearAir Act,74 Fed. Reg. at 66,510.13 See 42 U.S.C. § 7607(d)(7)(B) (an objection must be of “central relevance to the outcome of the rule”)
4
states across the country. Of that amount, $52 million was allocated to Texas to fund theenvironmental remediation of a lead smelter in El Paso.’4 In August, 2008, Texasobtained $6.5 million in penalties in an enforcement action against two LyondellChemical Company subsidiaries that operated seven petrochemical plants along the GulfCoast. The State’s action stemmed from an EPA-led initiative that encouraged states toresolve long-standing disputes with polluters in non-attainment areas.15
And, a joint enforcement effort by Texas, EPA, and six other states led to the largest-everfederal environmental air quality settlement involving a refining company. Under itsagreement with these state and federal authorities, Valero Refining, Inc., was ordered tospend $700 million installing emission-reduction technologies at multiple refiningfacilities in Texas, Louisiana, Oklahoma, Colorado, New Jersey, and California.’6
Currently, the Attorney General’s Office is pursuing an enforcement action against BPProducts North America, Inc., which was cited for 53 separate unlawful pollutantemissions at its Texas City facility.’7 The State’s action is built on separate criminal andcivil enforcement actions brought by EPA and the Department of Justice—enforcementactions that led BP to plead guilty to felony Clean Air Act violations.’8
B. TEXAS’ RECORD OF REDUCING GREENHOUSE GAS EMISSIONS
Texas is successfully fostering the use of renewable energy sources. Since 2004, no otherstate in the nation has reduced power-sector CO2 emissions more than Texas.’9 Further,Texas has already installed more wind power than any other state—and all but four
14 Press Release, Office of the Attorney General, Asarco Pays $52 Million to Fund Cleanup at Former ElPaso Smelter (December 10, 2009), available at www.oag.state.tx.us (last visited Feb. 15, 2010). See alsoid. (noting that a separate state enforcement action from the same bankruptcy case yielded another $29million for remediation at an Asarco-owned state-superfund facility in southeast Texas). See also, BobChristie, Asarco Paying $1.8B to Clean Up More Than 80 Sites, ASSOCIATED PRESS, December 10, 2009.15 Press Release, Office of the Attorney General, Attorney General Abbott Resolves Environmental CaseAgainst Seven Gulf Coast Petrochemical Plants (August 25, 2008), available at yy g.statetx.us (lastvisited Feb. 15, 2010).16 Press Release, Office of the Attorney General, Attorney General Wins for Texas in LargestEnvironmental Settlement with a Refiner (June 16, 2005) available at www.oa.state.tx.us (last visited Feb.15, 2010). Additionally, Texas achieved another record-breaking enforcement action involving HuntsmanPetrochemical Corp., which paid the largest penalty every levied for a Texas Clean Air Act Violation.Press Release, Office of the Attorney General, Attorney General Abbott Lands Record EnvironmentalPenalty From Huntsman (May 13,2003), available at: www.oag.state.tx.us (last visited Feb. 15, 2010).17 Press Release, Office of the Attorney General, BP Products North America Agrees to TemporaryInjunction Ensuring Compliance with the Texas Clean Air Act (June 29, 2009), available atwww.oag.state.tx.us (last visited Feb. 15, 2010).
Press Release, Environmental Protection Agency, BP Products to Pay Nearly $180 Million to SettleClean Air Violations at Texas City Refinery (February 19, 2009), available at www.epa.gov (last visitedFeb. 15, 2010).19 Texas is building on that by developing new transmission lines that will move more than 18,000megawatts across the State—almost as much as other states’ current capacity combined. See Press Release,Office of the Governor, Governor Perry Urges EPA to Withdraw Ruling on Danger of Carbon Dioxide(December 9, 2009), available at www.governor.state.tx.us (last visited Feb. 15, 2010).
5
countries—and the State’s leadership is working to ensure adequate infrastructure tocontinue growth in the wind generation sector.20
The Texas Public Utility Commission created Competitive Renewable Energy Zones(CREZ) and has developed a plan to construct the electricity transmission capacitynecessary to deliver renewable energy to Texas consumers.21 As a result, the transmissioninfrastructure necessary to triple renewable energy capacity is expected to be in place by2013.22
The State’s renewable energy efforts are already yielding results for the environment.Texas saw one of the two largest “absolute declines” in greenhouse gas emissions of anystate in the nation.23 “Many northeastern states have reduced carbon dioxide emissionsfrom electric power plants by switching from polluting (and expensive) oil to cleanernatural gas. Texas, meanwhile, has led the nation in wind energy installations, helping tostabilize emissions from its power sector.”24 “On a per capita basis, emissions fromelectric generators in Texas fell by 4% between 2004 and 2007—the result of reducedreliance on coal and an increased share of power produced by natural gas and wind.”25These statistics—as well as others that show that industrial-source nitrogen oxide fell by46% between 2000 and 2006, and the 22% decline in major metropolitan areas’ ozonelevels between 2000 and 2008—demonstrate Texas’s commitment to the environment.
Significantly, during the same four-year period when CO2 emissions from electricgenerators decreased in Texas by 4%, such emissions in the rest of the nation increasedby an average of 7%26 Further, U.S. Department of Energy statistics indicate thatTexas’s greenhouse gas emissions first began dropping in 2002--and that the periodbetween 2002 and 2007 showed an even larger, 5% decline.27
Texas continues to expand its commitment to renewable energy sources. In the first threemonths of 2009, non-hydro renewables accounted for nearly 6% of electricity producedin Texas.28 One of the nation’s largest biomass power plants is currently beingconstructed in Nacogdoches. And in Freeport, Texas, a new high-tech facility is slated touse algae to convert CO2 and wastewater into energy.29
201d21 Texas Advisory Panel on Federal Environmental Regulations, Comments on the Environmental Protection Agency’sProposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(A) of the CleanAir Act, at 24 (June 23, 2009).22 Id.23 Tony Dutzik, et. a!., Too Much Pollution ENVIRONMENT TEXAS RESEARCH AND POLICY CENTER, at ES-3(Fall 2009), available at www.environmenttexas.org (last visited Feb. 15, 2010).24 Id.251d at23.26 John McFarland, Report: Texas Greenhouse Gas Emissions Down, ASSOCIATED PRESS, Nov. 12, 2009,available at yyv.a1 neso.cm/uiess/wirestory?id=9073610 (last visited Feb. 15, 2010).27 Id.28 Tony Dutzik, et. a!., Too Much Pollution ENVIRONMENT TEXAS RESEARCH AND POLICY CENTER, Fall
2009, at 24, available at www.environnienttexas.org (last visited Feb. 15, 2010).29 Rick Perry, Governor of Texas, Speech at the Texas Renewable Energy Industries AssociationConference (Nov. 9, 2009), available at www.governor.state.tx.us (last visited Feb. 15, 2010).
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Texas has a demonstrated record of working with EPA to enforce environmental laws.Equally important, the State has a demonstrated record of successfully encouraging andimplementing clean, renewable energy technologies that have fostered a cleanerenvironment.
V. THE ENDANGERMENT FINDING
The Administrator takes the position—and the State does not disagree—that the UnitedStates Supreme Court decision in Massachusetts v. EPA required the Administrator to:“determine whether or not emissions of greenhouse gases from new motor vehicles causeor contribute to air pollution which may reasonably be anticipated to endanger publichealth or welfare, or whether the science is too uncertain to make a reasoned decision.”3°
EPA’s Endangerment Finding explicitly acknowledges that its decision must beexclusively governed by science: “the [Supreme] [C]ourt clearly indicated that theAdministrator’s decision must be a ‘scientific judgment.’ She must base her decisionabout endangerment on the science, and not on policy considerations about therepercussions or impact of such a finding.”3’ Further, a federal law requires that she notbase her decision on just any science, but rather “on the best reasonably obtainablescience.”2 Also, the plain language of Section 202(a) requires that the Administrator’sdecision be “in [her] judgment. .
. (emphasis added). Thus, in reaching herEndangerment Finding, the Administrator is obligated to make her own, independent,‘reasoned decision’ that is based exclusively on the best available science.
Evidence is mounting that the Administrator’s decision was (1) not well-reasoned, (2)based on faulty scientific analysis, and (3) not truly her own but instead a blind-faithacceptance of flawed scientific conclusions by third parties.
VI. THE IPCC REPORT’S CENTRAL RELEVANCE TO THE ENDANGERMENT FINDING
A. THE RELATIONSHIP BETWEEN THE ENDANGERMENT FINDING, THE
IPCC AND THE CLIMATE RESEARCH UNIT AT EAST ANGElAUNIVERSITY’S HADLEY CENTER
Established by the United Nations and the World Meteorological Organization, the IPCCis the self-proclaimed “leading body for the assessment of climate change.”34 Among
30 U.S. Environmental Protection Agency, Climate Change — Regulatory Initiatives, Endangerment andCause or Contribute Findings for Greenhouse Gases under the Clean Air Act, available athttp://www.epa.gov/cI imatechange!endanerment.htm I (last visited Feb. 13, 2010).
Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the ClearAir Act, 74 Fed. Reg. at 66515.32 Exec. Order. No. 12,866,58 Fed. Reg. 51,735 (Sept. 30, 1993).42 U.S.C. § 7521.‘ International Panel on Climate Change, Organization, available athttp://www. ipcc.ch/organization!organization .htm (last visited February 14, 2010).
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the IPCC’s primary functions is the preparation and publication of assessment reports.35The reports, which are issued every six years, are divided into three separate books calledWorking Groups and a fourth called the Synthesis Report. The IPCC relies on a networkof “[t]housands of scientists all over the world [who] contribute to the work of the IPCCon a voluntary basis as authors, contributors and reviewers” to draft the assessmentreports.36
The IPCC’s primary governing principles are: “Comprehensiveness, objectivity,openness and transparency.”37 The EPA, citing principles issued by the IPCC in 2006,explained that the “role of the IPCC is to assess on a comprehensive, objective, open andtransparent basis the scientific, technical and socio-economic information relevant tounderstanding the scientific basis of risk of human-induced climate change, its potentialimpacts and options for adaptation and mitigation. IPCC reports should be neutral withrespect to policy.”38 Notwithstanding those principles, key contributors to the IPCCreport were anything but comprehensive, objective, open, and transparent.
According to EPA, “the IPCC features the HadCRUT global surface temperaturerecord.”39 That refers to temperature data collected and maintained by the HadleyCenter’s Climate Research Unit (“CRU”) at Great Britain’s East Anglia University.40The IPCC’s primary temperature data source is the CRU. The CRU and its scientists arevirtually ubiquitous within the climate research community.
Until recently, the CRU’s Director was Dr. Phil Jones, one of the world’s most prominentclimate scientists. Dr. Jones played a substantial role in the development of the IPCC’sFourth Assessment Report (“AR4” or the “Fourth Assessment”). In addition to servingas the lead author of AR4’s high-profile Summary for Policy Makers, Dr. Jones was acontributing author of the Technical Summary and the lead author of The Physical
International Panel on Climate Change, Procedures, available athttp://www. ipcc.ch!oran ization/organization procedures.htm (last visited Feb. 16, 2010).36 International Panel on Climate Change, Structure, available athttp://www. ipcc.ch/organization/organization structure.htrn (last visited February 14, 2010).r Id,
Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of theClean Air Act: EPA’s Response to Public Comments Volume 1: General Approach to the Science andOther Technical Issues, at 13 (Dec. 7, 2009), available athttp://www.epa.gov!climatechange/endangerment.htni I. See also International Panel on Climate Change,Structure (explaining that the IPCC’s primary governing principles are: “Comprehensiveness, objectivity,openness and transparency.”), available at http:/!www.ipcc.ch!organization/organization.htm (last visitedFebruary 14, 2010).‘ Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of theClean Air Act: EPA’s Response to Public Comments Volume II: Volume 2: Validity of Observed andMeasured Data, at 27, (Dec. 7, 2009), available at http://www .epa.gov’climatechange/endangerment.html.40 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of theClean Air Act: EPA’s Response to Public Comments Volume II: Volume 2: Validity of Observed andMeasured Data, at 19 (Dec. 7, 2009), available at http://www,eoa.gov/climatechange/endangerrnent.htrnl.
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Science Basis, Chapter 3: Observations: Atmospheric, Surface, and Climate Changes(Chapter 3)41
But limiting a description of Dr. Jones’s involvement to simply the portions of the FourthAssessment that he personally authored does not adequately describe his influence on thereport. Dr. Jones’s research is cited 39 times in AR4.42 His work is referenced by allthree of AR4’s Working Groups and appears in 21 separate chapters of the report.43Further, Dr. Jones’s influence within the tight-knit community of climate scientists isrooted not only in his role as lead IPCC contributor, but also in the significant influencethat the Hadley Center’s climate data has on the IPCC reports, which rely on CRU data.As was noted above, “IPCC features the HadCRUT global surface temperature record.”44Further, “EPA displays Hadley global surface temperature data (i.e., the HadCRUTdataset) in Figure 4.2 in the TSD, and this figure is from IPCC.”45
Significantly, EPA also directly relied on the CRU’s data. That is, although EPA did notconduct its own scientific assessment—instead allowing IPCC and others to serve as the“the primary scientific and technical basis for her endangerment finding”46—theTechnical Support Document (“TSD”) that purports to provide the scientific bases for theAdministrator’s Endangerment Finding “refers to trends in three global surfacetemperature records.”47 The three temperature data sources cited in the TSD are: theCRU ... NOAA’s global land-ocean surface temperature dataset... [and] NASA’s globalsurface temperature analysis.”48
But according to the TSD, the CRU’s temperature data “applies an urbanizationadjustment”—scientific vernacular for applying a mathematical calculation to the rawtemperature data which is intended to account for variables, such as the location of aparticular weather station.49 Thus, the CRU temperatures cited by both the JPCC andEPA do not reflect temperatures that were actually captured by weather station
41 IPCC Fourth Assessment Report: Climate Change 2007: Working Group 1, Chapter 3, Observations:Atmospheric, Surface, and Climate Changes, available athttp://www. ipcc.ch/publications and data/ar4/wgi /en/contents,html42 IPCC Fourth Assessment Report: Climate Change 2007, available athttp: //www. ipcc.ch/publications and data/publications and data reports.htrn.
Id.Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the
Clean Air Act: EPA’s Response to Public Comments Volume II: Volume 2: Validity of Observed andMeasured Data, at 27 (Dec. 7, 2009). available at http://www.epa.gov/clirnatechange/endangerment.htrn 1.u Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of theClean Air Act: EPA’s Response to Public Comments Volume 11: Volume 2: Validity of Observed andMeasured Data, at 26 (Dec. 7, 2009), available at http://www.epa.gov/climatechange/endanerrnent.html.46 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of theClean Air Act, 74 Fed. Reg. at 66,511, htp//www.epa.gov/climatechange/endangerment.html (last visitedFeb. 16, 2010).‘ Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of theClean Air Act: EPA’s Response to Public Comments Volume 11: Validity of Observed and Measured Data(U.S. Environmental Protection Agency Dec. 7, 2009) at 19, available athttp://www.ea. gov/climatechange/endangerment.htm I (last visited Feb. 16, 2010).48 Id.
Id. at 20.
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thermometers, but rather temperatures that have been recalculated by the CRU for onepurported scientific reason or another.
According to the TSD, EPA’s other two temperature sources—the United StatesCommerce Department’s National Oceanographic and Atmospheric Administration(“NOAA”) and the National Aeronautics and Space Administration (“NASA) — alsomanipulate their raw temperature data using computer models. But importantly, thesignificance of CRU’s modeling methodology is amplified by the fact that data from theNOAA has also been subjected to the CRU’s data modeling calculations: “The NOAAglobal surface temperature dataset (Smith et al., 2008) employs the same methodologyfor addressing urbanization as is used in the HadCRUT.”5° Thus, two of the threetemperature sets that EPA relied on to reach its Endangerment Finding werehomogenized based on CRU mathematical models.
Because the IPCC relied on the CRU data and modeling methodologies, the CRU’sscientists must be shown to be objective and impartial arbiters of the science—or much ofthe world’s climate data is necessarily flawed by the modelers’ lack of objectivity. ButDr. Jones and his colleagues were far from objective. To the contrary, there isoverwhelming evidence of outcome-oriented conduct that severely undermines theobjectivity of their scientific research.
That lack of objectivity was made abundantly clear on November 13, 2009, when filesfrom the CRU’s backup server were anonymously copied and posted on the Internet.51Those copied files contained years’ worth of emails between Dr. Jones and his scientificallies from CRU and around the world. The emails do not reflect the work of objectivescientists dispassionately conducting their work and zealously pursuing the truth. Ratherthey reveal a cadre of activist scientists colluding and scheming to advance what theywant the science to be—even where the empirical data suggest a different outcome. Theemails also reveal some of the world’s most well-known climatologists demonizing thosewho question their climate change research. Such behavior directly contravenes theobjectivity and skepticism fundamental to the scientific method.
In addition to Dr. Jones, other key figures in the emails—and therefore key figures in thisPetition—are CRU climatologist Dr. Keith Briffa, former CRU Director Tom Wigley,Pennsylvania State University professor Dr. Michael Mann, Dr. Ben Santer of theLawrence Livermore National Laboratory, NASA Climatologist Dr. Gavin Schmidt, Dr.Kevin Trenberth of the National Center of Atmospheric Research (“NCAR”), theUniversity of Arizona’s Dr. Jonathan Overpeck, NCAR’s Dr. Caspar Ammann, andothers. Importantly, these scientists not only surface in the CRU emails—they are alsosignificant contributors to the Fourth Assessment. For example, Dr. Trenberth co
° Id.Fred Pearce, Searchfor Hacker May Lead Police Back to East Anglia ‘s Climate Research Unit, THE
GUARDIAN, Feb. 9, 2010, available at http://www.guardian.co.uklenvironment/20 I 0/feb/09/hacked-ernails-police-investigation (last visited Feb. 14, 2010).
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authored the Working Group I’s Chapter 3 with Dr. Jones,52 the CRU’s Dr. Briffa and Dr.Overpeck were lead contributors to Chapter and Dr. Wigley also contributed to thereport.54
Moreover, research by the scientists named above is specifically referenced as authorityin the AR4. For example, AR4 cites Dr. Jones’s work 38 times in 21 chapters of twoWorking Groups, Mann is cited 27 times in 7 chapters of two Working Groups, Briffa iscited 23 times in 9 chapters of two Working Groups, Wigley is cited 66 times in 18chapters of all three Working Groups, Overpeck is cited 15 times in 5 chapters of twoWorking Groups, Osborn is cited 30 times in 10 chapters of two Working Groups,Trenberth is cited 58 times in 18 chapters of two Working Grou,s, and Santer is cited 26times in 8 chapters of two Working Groups, just to name a few.5
Clearly the CRU, its scientists, and their colleagues wielded tremendous authority overthe IPCC. Thus, to the extent their objectivity, impartiality, truthfulness, and scientificintegrity are compromised or in doubt, so too is the objectivity, impartiality, truthfulness,and scientific integrity of the IPCC report, the CRU temperature data, the NOAAtemperature data, and other scientific research that is shown to have relied on theircompromised research.
B. THE IPCC’S—AND THE CRU’S—EXPANDED FOOTPRINT
Under Section 202(a) of the Clean Air Act, the Administrator is to evaluate whether “in[her] judgment...” a pollutant presents a risk to the health or safety of the public.56Notwithstanding Section 202’s requirements, the Endangerment Finding and the TSDacknowledge that the Administrator effectively outsourced the scientific assessmentprocess to the IPCC, the U.S. Global Climate Research Program (the “USGCRP”), andthe National Research Council (“NRC”).57 That is, EPA’s conclusion depended onsummaries of existing reports that were provided by third parties rather than on ananalysis that was within EPA’s own quality control.58
52See IPCC Fourth Assessment: Climate Change 2007: Working Group I: The Physical Science Basis,
Chapter 3, Supplementary Materials, Observations: Surface and Atmospheric Climate Change (listingKevin Trenberth and Phil Jones as “Coordinating Lead Authors” of chapter 3) (last visited Feb. 16,2010).
See IPCC Fourth Assessment: Climate Change 2007: Working Group I: The Physical Science Basis,Chapter 6, Supplementary Materials, Paleoclimate (listing Jonathan Overpeck as a “Coordinating LeadAuthor” and Keith Briffa as a “Lead Author” of Chapter 6).
See IPCC Fourth Assessment: Climate Change 2007: Working Group I: The Physical Science Basis,Annex 2 at 967 (listing Tom Wigley as a “Contributor” to the Working Group I report).
See generally IPCC Fourth Assessment Report: Climate Change 2007.5642 U.S.C. § 7521 (emphasis added).
See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of theClean Air Act, 74 Fed. Reg. at 66,511 (listing the reports on which the EPA relied in drafting theEndangerment Finding).58 See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of theClean Air Act, EPA Response to Public Comments Volume 1 at 7 (conceding that “EPA did not developnew science as part of this action and instead summarized the existing peer-reviewed assessmentliterature.”).
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In addition to acknowledging the Administrator’s decision to outsource her scientificassessment, the Endangerment Finding hints at a second deficiency—the appearance thatmultiple organizations are the source of information when in fact the data in question isultimately sourced back to a single organization. This is significant because theAdministrator attempts to justify outsourcing her scientific assessment by purporting torely on three outside organizations—which creates the appearance of a more thoroughreview.
The Endangerment Finding notes that it relies on the USGCRP’s relatively recent June2009 assessment.59 However, the Endangerment Finding also acknowledges that the2009 USGCRP assessment simply “incorporates a number of key findings from the 2007IPCC Fourth Assessment Report.”6°
Attempting to further justify the Administrator’s use of these outside groups, theEndangerment Finding explicitly—and for the reasons explained below, misleadingly—states that “[t]he review processes of the IPCC, USGRCP, and NRC . . . provide EPAwith strong assurance that this material has been well vetted by both the climate changeresearch community and by the U.S. Government.”6’ Despite EPA’s assertion to thecontrary, not only were the review processes decidedly not “well vetted,” they werefundamentally flawed and legally unsupported.
Thus, to the extent any scientists who played a significant role in the IPCC report arediscredited by improper conduct, lack of objectivity, collusive efforts to stymiealternative views, or conflicts of interest—that taint extends beyond the IPCC report andinto any research or studies that cite the IPCC report.
C. THE CENTRAL RELEVANCE OF THE IPCC, USGCRP, AND THE NRC
Because “the Administrator is relying on the major assessments of the USGCRP, IPCC,and NRC as the primary scientific and technical bases of her endangerment decision[,]”62the reasonableness of her reliance on those assessments is of central relevance to theEndangerment Finding.63 Indeed, so important was the Administrator’s decision to relyon the IPCC, NRC, and USGCRP that she repeats her description of the EndangermentFinding’s dependence on them: “The major assessments by the U.S. Global ClimateResearch Program (USGCRP), the Intergovernmental Panel on Climate Change (IPCC),and the National Research Council (NRC) serve as the primary scientific basis supportingthe Administrator’s endangerment finding.”64
Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of theClean Air Act, 74 Fed. Reg. at 66,511.60 Id.61 Id.
at 66,510.63 See 42 U.S.C. § 7607(d)(7)(B) (an objection must be of “central relevance to the outcome of the rule”)64 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of theClean Air Act, 74 Fed. Reg. 66,510.
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In an attempt to justify—and legally support—its heavy reliance on the IPCC, EPAaffirmed that the IPCC’s findings and conclusions had been subjected to stringent thirdparty review: “The review processes of the IPCC, USGCRP, and NRC (explained infuller detail in the TSD and Response to Comments document, Volume 1) provide EPAwith strong assurance that this material has been well vetted by both the climate changeresearch community and by the U.S. government.”65
Thus, EPA states that it “has no reason to believe that the assessment reports do notrepresent the best source material to determine the state of science and the consensusview of the world’s scientific experts on the issues central to making an endangermentdecision with respect to greenhouse gases.”66 “In summary, EPA concludes that itsreliance on existing and recent [IPCC] synthesis and assessment reports is entirelyreasonable and allows EPA to rely on the best available science.”67 Thus, theEndangerment Finding not only cites the IPCC, USGCRP and NRC, but it repeatedlystates that those assessments form its very basis and explains why they do so.68
651d. at 66,511.66 Id.
Id. (emphasis added).68 See, e.g., id. at 66,497 n.1 (noting that the TSD accompanying the Endangerment Finding summarizesthe major assessment from the IPCC, inter alia); Ed. at 66,499 (“The units for greenhouse gas emissions inthese findings are provided in carbon dioxide equivalent units, where carbon dioxide is the reference gasand every other greenhouse gas is converted into its carbon dioxide equivalent by using the 100-year globalwarming potential (as estimated by the Intergovernmental Panel on Climate Change (IPCC) assigned toeach gas. . . . In accordance with UNFCCC reporting procedures, the United States quantifies greenhousegas emissions using the 100-year time frame values for GWPs [i.e., the global warming potentials]established in the IPCC Second Assessment Report.”); id. At 66,512 (“EPA was also involved in review ofthe IPCC Fourth Assessment Report, and in particular took part in the approval of the summary for policymakers for the Working Group II Volume, Impacts, Adaptation and Vulnerability.. . .“) (emphasissupplied); Ed. n. 15 (noting that EPA relies on IPCC’s definitions of “adaptation” and “autonomousadaptation”); Ed. at 66,517 (noting IPCC’s description of greenhouse gases); id. at 66,518 (“The IPCCconclusion from 2007 has been re-confirmed by the June 2009 USGCRP assessment that most of theobserved increase in global average temperatures since the mid-2Oth century is very likely due to theobserved increase in anthropogenic greenhouse gas concentrations.”); Ed. (relying on IPCC conclusionsregarding external climate forcing); Ed. at 66,519 (relying on IPCC climate model summaries); id. at 66,520(citing IPCC’s acceptance of the concept of well-mixed greenhouse gases); Ed. (relying on IPCC’sconclusion about the importance of climate-forcing); Ed. at 66,525 (citing IPCC’s conclusion about reducedhuman mortality from cold); Ed. (citing IPCC conclusion about extreme events and human health); Ed.(citing IPCC’s conclusion that pollen would likely increase with warmer temperatures); Ed. at 66,530(Noting that, “[t]he IPCC (Field et al., 2007) reported with very high confidence that in North America,disturbances like wildfires are increasing and are likely to intensify in a warmer future with drier soils andlonger growing seasons.”); Ed. at 66,532 (providing that, “The IPCC concluded with high confidence thathigher water temperatures, increased precipitation intensity, and longer periods of low flows exacerbatemany forms of water pollution and can impact ecosystems, human health, and water system reliability andoperating costs.”); Ed. at 66,535 n. 32 (relying on the IPCC’s analysis of the national security problemsposed by climate change); id. at 66,536 (noting that, “Vulnerability to extended drought, according toIPCC, has been documented as already increasing across North America.”); Ed. (concluding that, “Based onthe most recent IPCC assessment of the scientific literature, several recent studies confirm previousfindings that temperature and precipitation changes in future decades will modify, and often limit, directcarbon dioxide effects on plants.”).
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EPA misleads the public into believing that EPA has relied upon three separate andindependent assessments in making its Endangerment Finding. That simplistic picture isinaccurate for two primary reasons. First, it fails to disclose that the EndangermentFinding cites and discusses the IPCC assessments far more frequently and in muchgreater depth than those of the USGCRP and NRC.69 Second, the USGRP and the NRC’sscientific assessments regularly cite and rely on data, resources and conclusions in IPCCreports.
Therefore, the source diversity suggested by naming three organizations is misleadingbecause any time USGCRP or NRC is cited for a proposition that, in turn, either has citedto the IPCC, the actual source of the information is the IPCC. For example, a 2006 NRCreport cited in the TSD,7° relies heavily on several IPCC reports for its propositionregarding temperature over the past thousand years.71 Similarly, the EndangermentFinding cites a 2009 USGCRP report claiming that “[r]ecent scientific assessments findthat most of the warming of the Earth’s surface over the past 50 years has been caused byhuman activities.”72 However, a review of the USGCRP’s assessment cited in theEndangerment Finding reveals that the USGRCP did not independently reach thatconclusion, but rather offered the 2007 IPCC Fourth Assessment Report as its source.73
Both of the aforementioned scenarios reflect a unique way in which cross-sourcingamong the groups creates the misimpression that the Administrator relied on threeseparate and independent assessments. But the first example reveals how flawedanalysis—or outright misconduct—at IPCC can impact the value of NRC’s conclusions.NRC’s 2006 report uses IPCC’s data to reach its own separate or unique conclusion.Thus, if IPCC’s conclusion is flawed, not objective, or improperly peer-reviewed, thatmalady infects NRC’s work—even if NRC otherwise followed proper scientificprocedure.
69 The Endangerment Finding and the accompanying responses to public comments contain hundreds morecitations to and discussions of IPCC findings than those of the USGCRP and NRC. See generallyEndangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the CleanAir Act, 74 Fed. Reg. 66,496 et seq.70See Technical Support Document for Endangerment and Cause or Contribute Findings of GreenhouseGases under Section 202(a) of the Clean Air Act at 5, (citing Surface Temperature Reconstructionsfor theLast 2,000 Years, National Research Council of the National Academies (2006) at 14 (relying on the 2001IPCC report to reach a conclusion regarding temperatures over the past thousand years)).71 See Surface Reconstructionsfor the Last 2,000 Years at 14 (basing its conclusions about long-termtemperature variation on a 2001 IPCC report), id. at 27-28 (relying on a 2001 IPCC report’s conclusionabout the climate-forcing effect of human-produce greenhouse gases), Id. at 30-34 (relying on CRUtemperature-anomaly data); id. at 111 (noting that its discussion of 1,000 year temperature trends is basedon IPCC report), id. at 126 (relying on Hadley Center assessments on regarding the impact of climatechange on agriculture).72 See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of theClean Air Act, 74 Fed. Reg. at 66,535 (citing the USGCRP report of June 2009”). See also Global ClimateChange Impacts in the United States at 13 (noting that IPCC assessments were synthesized and integratedinto the report), id. at 23 (using three IPCC scenarios of future carbon dioxide emissions andconcentrations), Id. at 32 (basing precipitations models on the models in the IPCC 2007 Fourth AssessmentReport), id. at 53 (using 100-year global warming potentials from IPCC to adapt an EPA chart into a newchart showing sources of greenhouse gas emissions in 2003).‘ Id. at 19, n. 45.
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Therefore, while the Administrator attempted to justify outsourcing her scientificassessment by citing three independent organizations’ assessments, the analysis abovereveals that (1) both NRC and USGRP citations in the Endangerment Finding can bereadily traced back—and therefore attributed to—IPCC, which undermines the claims ofdiversity and independence intimated by the Administrator; and worse, (2) a mistake,cover-up, or flaw within widely-cited IPCC assessments can have cascading effects thatnecessarily—but perhaps inconspicuously—taint other assessments. These pointsdemonstrate the unreasonableness—and legal invalidity—of the Administrator’s decisionto outsource the risk assessment to three seemingly independent, but verifiablyinterwoven, organizations.
VII. IMPROPER CONDUCT REVEALED BY DISCLOSURE OF CRU EMAILS
A. THE LACK OF INTEGRITY OF THE IPCC’s DATA
1. THE IPCC’s MANIPULATION OF ITS CLIMATE CHANGE DATA
Since the close of the public comment period, it has come to light that much ofthe data that the IPCC relied upon in making its findings has been manipulated. Thismanipulation is evidenced in certain emails between CRU staff members. In one notableemail, a CRU staff member discuss a “trick” to “hide the decline” in CRU temperaturedata sets from 198 1-2OOO:
Dear Ray, Mike and Malcolm, Once Tim’s got a diagram here we’llsend that either later today or first thing tomorrow. I’ve just completedMike’s nature trick of adding the real temps to each series for the last20 years (ie from 1981 onwards) and from 1961 for Keith’s to hide thedecline.”75
Such emails show that the CRU did not simply gather raw temperature data, enter it intocomputer programs, and produce conclusions based on collated raw data. Instead, theCRU gathered temperature data and manipulated it to produce a result that wassometimes different from the result that the raw data would have produced.76
Temperatures determined from proxy reconstructions — i.e., temperature records derived from conjecturalreconstructions of historical temperature data for one site that is meant to represent many sites — startedfalling in 1960. That drop differed from the temperature trend indicated by the instrumental temperaturerecords, which showed a rise in temperatures after 1960, The “trick” to “hide the decline” was to add theraw temperature records to the proxy records starting in 1960 instead of continuing the proxyreconstruction for the entire period. If the proxy records had been used over the entire period, there wouldhave been a decline in temperatures. However, because different kinds of data were used, there was nodecline; there was a “trick” that managed, at least for a little while, to “hide” the decline. See MarcSheppard Understanding Climategate ‘s Hidden Decline. AMERICAN THINKER, Dec. 6, 2009, available athttp://www.arnericanthinker.com/2009/12/understanding climategates hid.htinl (last visited Feb 16, 2010).
Email from P. Jones to R. Bradley, “Diagram for WMO Statement” (Nov 16, 1999), available athttp://www.eastangliaemails.com/emails.php?eid= 1 54&filename942777075 .txt (last visited February 11,2010).76 And sometimes, as previously discussed, the CRU added raw data to manipulated data to produce adesired result. See Marc Sheppard Understanding Climategate ‘s Hidden Decline. AMERICAN THINKER
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Consequently, the British Meteorological Office (the “MET”)77 has announced that it willreexamine 160 years of climate data, attributing the need to reexamine the data to a “lackofpublic confidence based on the leaked e-mails.”78
Although the CRU scientists appear to have manipulated data in several parts of theworld, a few instances are especially egregious. The Moscow-based Institute ofEconomic Analysis (lEA) issued a report discussing the possibility that the CRU hasaltered climate data from Russian weather stations.79 According to a Russian newspaper,“Analysts say Russian meteorological stations cover most of the countrys territory, andthat the Hadley Center had used data submitted by only 25% of such stations in itsreports.”8°The stations not included in the CRU data set tended to show less warmingthan those that were included.8’As a result, the data showed more warming than theywould have shown had the data set included more Russian weather stations.82
Similarly, the CRU adjusted 20th century raw temperature data for New Zealand in a waythat showed greater warming than the raw data would have shown.83 The CRUmanipulated the raw data to show lower temperatures for New Zealand in the early 20th
century.84 Because the data set started with temperatures that were very low, the CRUwas able to show that a relatively greater amount of warming had occurred by the end of
(Dec. 6, 2009), available at http://www.americanthinker.com/2009/1 2/understanding climategates hid.htmllast visited Feb 11, 2010).
The MET is roughly equivalent to the U.S. National Weather Service. It is a “Trading Fund within theMinistry of Defence, operating on a commercial basis under set targets.” See Met Office: Who we are,available at http://www.rnetoffice.gov.uk/corporate/ (last visited February 14, 2010).78 Ben Webster, Met Office to re-examine 160 years ofclimate data, THE TIMES (Dec. 5, 2009), availableat http://www.timesonline.co.uk/tol/news/environmentlarticle694544s.ece (last visited Feb. 10, 2010).‘ N.A. Pivavorova, How Climate is Made. The case ofRussia. Institute of Economic Analysis. (2009),available at hltp://climateaudi/./iles.wordpress. com/2009/12/ieal.pdf’(last visited Feb. 15, 2010).80 N .A. Pivavorova, How Climate is Made. The case ofRussia. Institute of Economic Analysis. (2009) (lastvisited Feb. 15, 2010), available at http://climateaudit.files.wordpress.com/2009/l2/ieal.pdf (last visitedFeb. 15, 2010).81
See What the Russian Papers say, RIANOVOSTI, (citing KOMMERSANT), available athttp://en.rian.ru/papers/2009 1216/1 57260660.html (last visited Feb. 15, 2010).
82 See RIANOVOSTI, What the Russian Papers Say (citing KOMMERSANT), available athttp://en.rian.ru/papers/20091216/l57260660.html (reporting that “Over 40% of Russian territory was notincluded in global-temperature calculations for some other reasons, rather than the lack of meteorologicalstations and observations.”). See also Andrei Illarianov, New Study Hadley Center and CRU ApparentlyCherry-Picked Russia’s Climate Data. CATO AT LIBERTY, available at http://www.cato.atliberty.org/20O9/l 2/1(last visited Feb. 15, 2010).83 Richard Treadgold. Are wefeeling warmer yet? NEw ZEALAND CLIMATE SCIENCE COALITION (Nov. 25,2009) available at http://climatescience.org.nz/images/PDFs/global_warmingnz2.pdf. (last visited Feb. 102010).84 D(fference Between Raw and Final USHCN Data Sets, available athttp://www.ncdc.noaa.gov/img/climate/researchluschn/ts.ushcn anom25 diffs urb-raw pg.gif (last visitedFeb. 10, 2010).
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the century.85 The raw data showed much less warming because it started with actual(i.e., non-manipulated) temperatures that were warmer than the manipulatedtemperatures.86 Thus, the CRU created an exaggerated appearance of 20th centurywarming in New Zealand.
2. Loss OR DESTRUCTION OF CRITICAL IPCC RECORDS
The CRU’s data integrity problems consisted of more than data manipulation. CRUadmitted in late November 2009 that much of their original data had been destroyed dueto lack of storage space.87 CRU claims that they retained only the “value added” data88 —
i.e., “quality controlled and homogenized” data or, put differently, data that has beenmanipulated and that is therefore no longer raw. Consequently, it is no longer possible tocheck the accuracy of whether CRU’s “homogenization” — i.e., the synthesis of one set ofdata that appears to lead to a conclusion that would conflict with the conclusionsuggested by other data of data — was appropriate.89However, even if CRU still has somedata, it is sometimes unwilling to produce it, regardless of whether it is required to do soby law.9°
Of course, emails indicating that CRU scientists and programmers were unable to followdata does not absolve CRU: on the contrary, it is damning evidence that the IPCC and, inturn, EPA cannot rely on CRU data and analysis. As noted above, some CRU scientistsmanipulated data to produce their desired conclusions about the severity of anthropogenicglobal warming. However, revelations that CRU data was destroyed, lost, or simplywithheld indicate a different, but equally serious, problem: that the data can neitherconfirm nor deny how quickly, how far, for how long, or even, in some cases, whether,temperatures have risen. As such, CRU data that might not be purposefully misleadingcould still be scientifically worthless and, therefore, of no legitimate use to EPA.
B. IPCC’s ROUTINE RELIANCE ON QUESTIONABLE SOURCE MATERIALS
1. CONCLUSIONS ON GLACIERS ADMITTEDLY WRONG
In its Fourth Assessment, the IPCC concluded that “[g]laciers in the Himalaya arereceding faster than in any other part of the world. . . and, if the present rate continues,the likelihood of them disappearing by the year 2035 and perhaps sooner is very high if
85 Richard Treadgold. Are wefeeling warmer yet? NEW ZEALAND CLIMATE SCIENCE COALITION at 5 (Nov.25, 2009) available at http://climatescience.org.nz/images/PDFs/global warming nz2.pdf, (last visitedFeb. 102010).86 Id.87 Jonathan Leake. Climate change data dumped. THE TIMES (Nov. 29, 2009). Found at:http://www.timesonline.co.uk/tol/news/environment/artic1e6936328 .ece (last visited Feb. 10, 2010).88 CRU Data Availability, available at http://www.cru.uea,ac.uk!cru/data/availability/.89 Id.90See, e.g., Steve Mcintyre. Willis Eschenbach ‘s FOl Request. CLIMATE AUDIT (Nov. 25, 2009) availableat http://www.timesonline.co.ukltol/news/environment/artic1e6936328.ece (last visited Feb. 10, 2010)(discussing the experience of a scientist named Willis Eschenbach who attempted to obtain station data foraverage global temperature from CRU but endured a year of CRU’s excuses and explanations for its failureto produce the requested information).
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the Earth keeps warming at the current rate.”9’ However, on January 20, 2010, the IPCCissued a statement reversing that conclusion: “[The paragraph containing the Himalayanglacier claim] refers to poorly substantiated estimates of rate of recession and date for thedisappearance of Himalayan glaciers. In drafting the paragraph in question, the clear andwell-established standards of evidence, required by the IPCC procedures, were notapplied properly.”92 The story of how the Fourth Assessment came to include thedisappearing-glacier claim — as well as how the IPCC came to issue a retracting statement— illustrates the degree to which the IPCC failed to follow adequate procedures.
The JPCC conclusion in 2007 that Himalayan glaciers would vanish by 2035 wasultimately based on a short telephone interview -- conducted almost 10 years before theIPCC report was released -- with Dr. Syed Hasnain, a scientist in Delhi, India.93 Thetelephone interview was the source of a 1999 story in the popular-science magazine TheNew Scientist.94 In turn, a 2005 World Wildlife Fund (“WWF”) report — which was notsubjected to any formal scientific review95 -- cited the New Scientist report for the claimthat Himalayan glaciers would vanish by 2035 96 Finally, the Fourth Assessment cited theWWF report as its source for the disappearing-glacier claim even though the WWF reportdid not suggest that the likelihood of the glaciers melting was “very high”.97 Dr. Hasnainhas since admitted that his claim — on which other reports, including the FourthAssessment, were based — was merely “speculation” and was not supported by anyformal research.98
Dr. Murari Lal, who wrote the IPCC Fourth Assessment Report Working Group IIchapter on Asia,99 has admitted that he is “not an expert on glaciers and I have not visited
‘ IPCC Fourth Assessment Report: Climate Change 2007: Working Group II, Section 10.6.2. TheHimalayan Glaciers.92 IPCC statement on the melting ofHimalayan glaciers. IPCC Secretariat. Jan. 20, 2010, availableat http://www.ipcc.ch/pdf/presentations!himalaya-statement-2oianuary2O I 0.pdf (last visited Feb. 15, 2010).
Jonathan Leake and Chris Hasting, World misled over Himalayan glacier meltdown, THE TIMES, Jan. 17,2010, available at http://www.timesonline.co.uk/tol/news/environment/article6991 177.ece (last visited Feb.15, 2010).
Id. See also Fred Pearce, Flooded Out, THE NEW SCIENTIST, June 5, 1999, available athttp://www.newscientist.com/article/mg 16221893 .000-flooded-out.html (last visited Feb. 15, 2010).
Jonathan Leake and Chris Hasting, World misled over Himalayan glacier meltdown., THE TIMES, Jan. 17,2010, available at http://www.timesonline.co.uk/tol/news/environment/article699 II 77.ece (last visitedFeb. 15, 2010).96
Sandeep Chamling Rai, An Overview ofGlaciers, Glacier Retreat, and Subsequent Impacts in Nepal,India, and China, WWF Nepal Program (March 2005), available athttp://assets.panda.orgJdownloads/himalayaglaciersreport200s .pdf (last visited Feb 14, 2010).
See IPCC Fourth Assessment Report: Climate Change 2007: Working Group II, Section 10.6.2. TheHimalayan Glaciers (citing “WWF 2005’). See also An Overview ofGlaciers, Glacier Retreat, andSubsequent Impacts in Nepal, India, and China. WWF Nepal Program, March 2005, 2 (quoting Dr.Hasnain without describing his claims as “very likely” to be correct).98 Jonathan Leake and Chris Hasting, World misled over Himalayan glacier meltdown, THE TIMES, Jan. 17,2010, available at http://www.timesonline.co.uk/tol/news/environment/artic1e6991177.ece (last visited Feb.15, 2010).
See IPCC Fourth Assessment Report: Climate Change 2007: Working Group II: Technical Summary.(listing Dr. Lal as one of the “Lead Authors”). Available athttp:I/www. ipcc.ch/publications_and_data/ar4/wg2/en/ts.html.
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the region so I have to rely on credible published research. The comments in the WWFreport were made by a respected Indian scientist and it was reasonable to assume he knewwhat he was talking about.”°°
Dr. Lal has admitted that the chapter on Asia — the one that contained the disappearing-glacier conclusion — “related to several countries in this region and their water sources.We thought that if we can highlight it, it will impact policy-makers and politicians andencourage them to take some concrete action.”101 Lal stated that, “It had importance forthe region, so we thought we should put it in.”102 Dr Rajendra K. Pachauri, Chairman ofthe IPCC Bureau, has blamed Dr. Lal for the error, alleging that he did not follow IPCCprocedures in compiling his report. Dr. Lal has defended himself from that allegation:“We as authors followed them to the letter . . . . Had we received information thatundermined the claim, we would have included it.”103
Dr. Pauchari has since acknowledged that the IPCC claim was an error,104 but he hadpreviously criticized a report issued by the Indian Minister of State for the Environmentand Forests, Jairam Ramesh, which concluded that IPCC’s disappearing-glacier claimwas incorrect, as “voodoo science.”
Dr. Pauchari has also claimed that, “I became aware of [accusations challenging thedisappearing-glacier claim] when it was reported in the media about ten days ago [i.e. 10days before January 22, 2010, the day Dr. Pauchari was quoted in a January 30, 2010news article]. Before that, it was really not made known. Nobody brought it to myattention. There were statements, but we never looked at this 2035 number.”105 Inresponse to allegations that he knew about the error but did nothing to correct it becausehe wanted to avoid unfavorable publicity during the Copenhagen climate change summit,Dr. Pauchari said that the allegations were “ridiculous. . . . It never came to my attentionbefore the Copenhagen summit. It wasn’t in the public sphere.”106 Nevertheless, PallavaBagla, who writes for the journal Science, said he had asked Dr Pachauri about the now-discredited claim about glaciers in November of 2008 and that Dr Pachauri hadanswered: “I don’t have anything to add on glaciers.”°7
o° Jonathan Leake and Chris Hasting, World misled over Himalayan glacier meltdown, THE TIMES, Jan.17, 2010, available at http://www.timesonline.co.ukltol/news/environment/artiele699 I I 77.ece (last visitedFeb. 15, 2010).101 David Rose, Glacier scientist: I knew data hadn’t been ver(fied, DAILY MAlL, Jan. 24, 2010, available athttp://www.dailymail.co.uk/news/article- I 245636/Glacier-scientists-says-knew-data-verified.html.102 IdI03 Id104 Aarti Dhar, Government Contention Vindicated: Jairam Ramesh, THE HINDU, Jan. 18, 2010, availableat http://beta.thehindu.com/news/national/article82160.ece (last visited Feb. 15, 2010).105 Ben Webster, Climate chiefwas told offalse glacier claims before Copenhagen, THE TIMES, Jan. 30,2010, available at http://www.timesonline.co.uk/tol/news/environment/article7009O8l.ece, (last visitedFeb. 15, 2010).106 Id.‘°71d.
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2. FINDINGS ON CHINESE WEATHER TAINTED BY ALLEGATIONS
The discredited glacier-claim is not the only error in the IPCC report that demonstratesthe IPCC’s failure to follow adequate scientific procedures. Newspaper reports indicatethat temperature data produced at Chinese weather stations were “seriously flawed” andthat the CRU could not produce documents relating to them.108 Even so, the FourthAssessment Report cited a 1990 paper in Nature which discussed the warmingsupposedly measured at the Chinese stations.109 The history of where the weather stationswere sited was central to the 1990 paper because it concluded that the warmertemperatures in China were caused by climate change rather than the heat-island effect ofgrowing cities.110 The authors of that 1990 paper were Phil Jones and Wei-Chyung Wangof the State University of New York at Albany.” The Fourth Assessment relied on theJones-Wang study to support the conclusion that “any urban-related trend” in globaltemperatures was “an order of magnitude smaller” than other trends.”2
However, an amateur climate analyst, Doug Keenan, has been able to show that 49 of theChinese meteorological stations had no histories of their location or other details.”3 The49 stations included 40 of the 42 rural stations cited in the study.”4 Keenan demandedthat Dr. Jones retract his claims about the Chinese data: “I ask you to retract your GRLpaper, in full, and to retract the claims made in Nature about the Chinese data, If you donot do so, I intend to ublicly submit an allegation of research misconduct to youruniversity at Albany.” In August 2007, Keenan submitted a formal complaint aboutWang to the State University of New York at Albany after Wang refused to retract theclaim.”6Although the university found “evidence of the alleged fabrication of results,” itexonerated Wang. Ironically, Phil Jones submitted a report to the Journal of GeophysicalResearch re-examining temperatures in eastern China. His report concluded that not oniywas the urban heat effect not “negligible” it could account for 40% of the warmingshown in the study.
l08 Fred Pearce, Leaked climate change emails scientist ‘hid’ dataflaws, THE GUARDIAN, Feb. 1,2010,available at http://www.guardian.co.uk/environment/2010/feb/01 /leaked-emails-climate-jones-chinese,(last visited Feb. 15, 2010).1091d.110 Id.
Id.112 IPCC Fourth Assessment Report: Climate Change 2007: Working Group 1: The Physical Science Basis.3.2.2.2 Urban Heat Islands and Land Use Effects.113 Fred Pearce, Strange case ofmoving weather posts and a scientist under siege, THE GUARDiAN, Feb. 1,2010, available at http://www.guardian.co.uk/environment/20 10/feb/01 /dispute-weather-fraud (last visistedFeb. 10, 2010).114
115 Email of Doug Keenan to Dr. Wei-Chyung Wang and Phil Jones, April 20, 2007, available athttp://www.guardian.co.uk/environment/20 10/feb/01 /dispute-weather-fraud (last visited Feb. 15, 2010).116 Fred Pearce, Strange case ofmoving weather posts and a scientist under siege. THE GUARDIAN, (Feb. 1,2010) available at http://www.guardian.co.uk/environment/2010/feb/0 1/dispute-weather-fraud. (lastvisisted Feb. 10, 2010).
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Similarly, the Fourth Assessment erroneously claimed that “[t]he Netherlands is anexample of a country highly susceptible to both sea-level rise and river flooding because55% of its territory is below sea level where 60% of its population lives and 65% of itsGross National Product (GNP) is produced.”7The Dutch government has asked for acorrection to that claim, noting that only 26 percent of the country is below sea 18
Trimo Vallaart, the Dutch environment ministry spokesman, said he regretted the factthat proper procedure was not followed, and added that it should not be left to politiciansto check the IPCC’s numbers.”9He also said that the Dutch government “will order areview of the report to see if it contains any more errors.”120
3. RAIN FOREST CONCLUSIONS BASED ON NON-PEER REVIEWEDSOURCES
As with the errors regarding Himalayan glaciers, rural Chinese weather stations, andDutch land, the Fourth Assessment contains an improperly sourced and unverifiableclaim about the Amazon rainforest. In the Fourth Assessment, the IPCC cited a WWFreport’2’ claiming that, due to climate change, “[u]p to 40% of the Amazonian forestscould react drastically to even a slight reduction in precipitation The WWFreport’s authors claimed their findings were based on an article in Nature,’23 but thesentence in the Nature piece that the WWF report relied on was about how logging,rather than climate change, affected the forest.’24 Similarly, the IPCC’s FourthAssessment cited an article published in a popular magazine for climbers which wasbased on anecdotal evidence from mountaineers about the changes they saw whileclimbing)2’ The Fourth Assessment also cited’26 a geography student’s master’s
“ IPCC Fourth Assessment: Climate Change 2007: Working Group II: Impacts, Adaption andVulnerability, Section 12.2.3, Current adaptation and adaptive capacity.118 Alister Doyle, UN. Climate panel reviews Dutch sea level glitch, REUTERS, Feb. 5, 2010, available athttp://www.reuters.com/article/idUSTRE6 141 VU2O 100205 (last visited Feb. 15, 2010).119 Dutch Point Out New Mistakes in U.N. Climate Report, Feb. 5, 2010, available athttp://www.foxnews.com/scitech/201 0/02/05/dutch-point-new-mistakes-climate-report! (last visited Feb.15, 2010).‘201d121 Andy Rowell and Peter Moore, Global Review ofForest Fires: A WWF/IUCN Report, July 27, 2000,available athttp://www.panda.org/what_we do/how we_work/conservationlforests/publications/?3596/Global-Review-of-Forest-Fires-A-WWFIUCN-Report (last visited Feb. 15, 2010).122 IPCC Fourth Assessment Report: Climate Change 2007: Working Group II: Impacts, Adaption andVulnerability, Summary of Expected Key Future Impacts and Vulnerabilities, Section 13.4.1, Naturalecosystems.
Daniel C. Nepstadt et al., Large-scale impoverishment ofAmazonian forests by logging andjlre.NATURE vol. 398 at 505 et seq., April 8, 1999, available atlrnp://www.whrc.or’resources/pub1ishedl iterature/pdfThepstadNature.99.pdf (last visited Feb. 1 5, 2010)(noting that, “[l]ogging companies in Amazonia kill or damage 10±40% of the living biomass of foreststhrough the harvest process.”).124 Christopher Booker, Amazongate: new evidence ofthe JPCC ‘S failures, DAILY TELEGRAPH, Jan. 30,2010, available athttp://www. telegraph. co. uk/comm ent/columnists/christopherbooker/7 113582/A mazongate-new-evidence
of-the-IPCCs-failures.html, (last visited Feb. 15, 2010).125 IPCC Fourth Assessment: Climate Change 2007: Working Group II: Impacts, Adaption andVulnerability, Section 1.3.1.1 Observed effects due to changes in the cryosphere.
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dissertation that quoted interviews with mountain guides in the Alps.’27 But perhaps mostegregious was the Fourth Assessment’s citation’28 to a boot cleaning manual.’29 Citationsto these non-peer reviewed sources130 and others like them refute EPA’s claim that itcould rely on the IPCC assessment reports because they contained peer reviewedscientific studies.
126 IPCC Fourth Assessment: Climate Change 2007: Working Group II: Impacts, Adaption andVulnerability, Section 1.3.1.1 Observed effects due to changes in the cryosphere. Table 1.2 (identifying“Loss of ice climbs” as one of several “Selected observed effects due to changes in the cryosphereproduced by warming”).127 Richard Grey and Rebecca Lefort, UN climate change panel based claims on studentdissertation and magazine article, THE DAILY TELEGRAPH. Jan. 30, 2010, available athttp://www.te1egraph.co.uk/earth1environment/climatechange/7 111 525/UN-climate-change-panel-basedclaims-on-student-dissertation-and-magazine-article.html (last visited Feb. 10, 2010).128 IPCC Fourth Assessment: Climate Change 2007: Working Group II: Impacts, Adaption andVulnerability, Section 15.7.2., Economic impact and sustainability in Antartica (citing to “IAATO, 2005”).129 International Association of Antarctic Tour Operators, Boot, Clothing, and Equipment DecontaminationGuidelinesfor Small Boat Operators, available at http://www.iaato.org/docs/Boot_Washing07.pdf(lastvisited Feb. 15, 2010).lO Other non-peer reviewed sources that the Fourth Assessment cites include the following: Marris, E.,2005: First tests showflood waters high in bacteria and lead. NEWS@NATURe, 437, 301-3011; Dey, P.,2006: Climate change devastating Latin America frogs. University of Alberta; Butler, A., 2002: Tourismburned.’ visits to parks down drastically, even awayfrom flames. ROCKY MOUNTAIN NEws. July 15, 2002;Kesmodel, D., 2002: Low and thy: Drought chokes offDurango rafting business. ROCKY MOUNTAIN
NEwS, 25 June 2002; Wilgoren, J. and K.R. Roane, 1999: Cold Showers, Rotting Food, the Lights, ThenDancing. NEW YORK TIMES, Al. July 8, 1999; Welch, C., 2006: Sweeping change reshapes Arctic. THE
SEATTLE TIMES. Jan. 1 2006; Stiger, R.W., 2001: Alaska DOTdeais with permafrost thaws. Better Roads.June, 30-31. [Accessed 12.02.07; Business Week, 2005: A Second Look at Katrinas Cost. BUSINESS WEEK;
September 13, 2005. [Accessed 09.02.07; Associated Press, 2002: Rough yearfor rafters. September 3,2002; COLOMBIA TRADE NEwS, 2006: illegal crops damage Colombia’s environmental resources.Colombian Government Trade Bureau; FAO, 2004b: La participaciOn de las comunidades en Ia gestiOnforestal es decisiva para reducir los incendios (Involving local communities to prevent and control forestfires). FAO Newsroom FAO, 2005: Cattle ranching is encroaching on forests in Latin America. FAONEWSROOM ENVIRONMENT NEWS SERVICE, 2002: Hungry Cambodians at the mercy ofclimate change.Phnom Penh, 26 November 2002. Accessed 16.05.07: http://www.ens-newswire.comlens/nov2002/2002-1 1-26-02.asp; Balint-Kurti, D., 2005: Tin trade fuels Congo War, NEwS24, 07/03/2005.FAO, 2004: Locustcrisis to hit northwest Africa again: situation deteriorating in the Sahel. FAO News Release, 17 September2004; Sparks, T.H., H. Heyen, 0. Braslavska and E. Lehikoinen, 1999: Are European birds migratingearlier? \pard csl2BTO NEWS, 223, 8; Benedick, R., 2001: Striking a new deal on climate change. Scienceand Technology Online, Fall 2001; Schelling, T.C., 2002: What makes greenhouse sense? FOREIGN
AFFAIRS, May/June COM/ENV/EPOC/IEA/SLT(2005)6 32; Schelling, T.C., 1997: The cost of combatingglobal warming, facing the tradeoffs. Foreign Affairs, November/December Cowan, J., E. Eidinow, LauraLikely, 2000: A scenario-planning process for the new millennium. Deeper News, 9(1); THE ECONOMIST,
2000: Sins of the secular missionaries. January 29, 2000; Speth, J.G., 2002: Recycling Environmentalis,n.Foreign Policy, July/August, pp. 74-76. Shashank, J., 2004: Energy conservation in the industrial sector: Aspecial report on energy conservation day. New Delhi, ECONOMIC TIMES; Nippon Steel, 2002: Advancedtechnology of Nippon Steel contributes to ULSAB-AVC Program. NIPPON STEEL NEWS, 295, September
2002; Shorrock, T., 2002: Enron’s Asia misadventure. Asia Times 29 January, accessed 02/07/07; ISNA,2004: From wood to coal in an effort to stop deforestation. Inter Services news agency (IPS), Rome; IRIN,2004: Angola: frustration as oil windfall spending neglects the poor. United Nations Integrated RegionalInformation Networks; WNA report forecasts three scenarios for nuclear’s growth. NUCLEAR NEWS,
November 2005: pp. 60-62, 69.
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C. THE LACK OF OBJECTIVITY & THE SUPPRESSION OF DISSENT
1. THE ABUSE OF THE PEER REVIEW PROCESS
In response to public concerns that the IPCC’s authors “all share the same views. . . andthat alternative perspectives were not incorporated into the process,”13’EPA claimed that“there is no evidence provided that supports the claim that collaboration among a smallnumber of authors prevented the incorporation of a range of perspectives and alternativeviews or biased the conclusions.”32 Since the comment period for the EndangermentFinding concluded,’33 it has been revealed that the tight-knit group of scientists whooversaw and authored the IPCC’s climate-related work were involved in a calculatedeffort to undermine core tenants of scientific objectivity, impartiality, transparency, andaccuracy. These revelations disprove EPA’s previous claim that there was no evidence ofbias among IPCC contributors.
One particularly striking email exchange revealed how Dr. Jones used the peer reviewprocess to prevent a manuscript from being published that questioned the CRU’sresearch. In an email to Michael Mann, Dr. Jones wrote: 11recently rejected two papers[one for the Journal of Geophysical Research and one for Geophysical Research Letters]from people saying CRU has it wrong over Siberia. Went to town in both reviews,hopefully successfully. If either appears I will be very surprised The rejectedpaper analyzed temperature readings from Siberian whether stations and concluded thatthere was much less warming than Dr. Jones predicted—even though both researchersanalyzed much of the same data.’35
2. SUPPRESSING DISSENT
An email exchange between Professor Mann and Dr. Jones illustrates attempts tosuppress any dissenting opinion regarding climate change. First, Dr. Jones indicates thathe will no longer be associated with a particular scientific research journal, ClimateResearch, unless an editor, who Dr. Jones believed was responsible for allowingcontravening research to be printed, was removed: “I will be emailing the journal to tellthem I’m having nothing more to do with it until they rid themselves of this troublesomeeditor.”36
131 (Vol 1, Comment 1-20)132 (Vol I, Response 1-20)
74 Fed. Reg. 66,500 (Dec. 15, 2009)Email from Phil Jones to Michael F. Mann, March 31, 2004, available at
http://www.eastangliaemails.corn/emails.php?eid=407&filenarne= 10807421 44.txt (last visited Feb. 16,2010).135 Fred Pearce, Climate Change Emails Between Scientists Reveal Flaws in Peer Reviews, THE GUARDIAN
(February 2, 2010), available at http://www. guardian.co.uklenvironment/20 I 0/feb!02/hacked-climate-emails-flaws-peer-review (last visited Feb. 16, 2010).136 Email from Phil Jones to Michael Mann, March 11, 2004 available athttp://www.eastangliaemails.com/emails.php?eid295&fi1ename1047388489.txt (last visited Feb. 16,2010).
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The root of the climate scientists’ concern with Climate Research’s decision to publishcontravening research was two-fold. First, they opposed any research that did notcomport with their views and were concerned that publishing alternative views wouldonly give global warming skeptics greater traction. Dr. Jones wrote: “I think the skepticswill use this paper to their own ends and it will set paleo [climate science] back a numberof years if it goes unchallenged.”37 Second, they had long maligned their skepticalopponents’ positions by arguing that the opposition’s research had not been published bya peer-reviewed journal—and could therefore not be trusted.
Thus, when the group learned that Climate Research planned to publish so-calledskeptical literature, the climatologists responded less like objective scientists eager to letthe science determine the answer, and more like activists working to advance theirpreferred result. In response to Dr. Jones’s email, Professor Mann not only attacked thescientists with whom he disagreed—he attacked the journal’s itself: “The skeptics appearto have staged a ‘coup’ at ‘Climate Research’ (it was a mediocre journal to begin with, butnow its a mediocre journal with a definite ‘purpose’).”38
Then, in an email to Dr. Jones, Professor Keith I3riffa, and others, Professor Mannproposed a more aggressive stance—a plan to have his fellow scientists harm ClimateResearch by refusing to submit their articles to the journal: “I think we have to stopconsidering ‘Climate Research’ as a legitimate peer-reviewed journal. Perhaps we shouldencourage our colleagues in the climate research community to no longer submit to, orcite papers in, this journal. We would also need to consider what we tell or request of ourmore reasonable colleagues who currently sit on the editorial board.”39
Importantly, because of Dr. Jones’s and Mann’s influence and renown in their field, theyhad the influence to orchestrate the desired boycott. According to a former University ofVirginia environmental scientist, professor Patrick J. Michaels, “After Messrs. Jones andMann threatened a boycott of publications and reviews, half the editorial board ofClimate Research resigned.”4°
The aforementioned exchange and others like it reflect a concerted effort to advance aspecific scientific theory—or perhaps more appropriately a scientific cause—rather thanto reach the objective truth. That is, the emails that have been released indicate that the
‘ Email from Phil Jones to Michael Mann, Keith Briffa, et. al., March ii, 2004, available athttp://www.eastanliaemails.com/ernails.php?eid295&fl1enarne1047388489.1xt (last visited Feb. 16,2010).138 Email from Michael Mann to Phil Jones, Keith Briffa et. a!., March 11, 2004, available athttp:/!www.eastangliaemails.com/emails.php?eid295&t11ename1047388489.txt (last visited Feb. 16,2010).‘ Email from Michael E. Mann to Phil Jones, March 11, 2003, available athttp://www.eastangliaemails.corn/emails.php?eid-295&tilename I 047388489.txt (last visited Feb. 16,2010).140 Patrick J. Micaels, How to Manufacture Climate Consensus, WALL STREET JOURNAL December 17,2009.
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scientists were more concerned with advancing their agenda than with obtaining theobjective results required by the 0MB and EPA guidelines.
The scientists’ language reflects an ‘us versus them’ attitude more commonly associatedwith legal advocacy or team sports than the scientific method. For example, waxingadversarial in a manner more commonplace in courtroom or in a sports arena, ProfessorMann suggested that his team was losing a journal called Global Research Letters to theso-called ‘skeptics’ whom he opposed: “What a shame that would be. It’s one thing tolose ‘Climate Research’. [sic] We can’t afford to lose GRL.”4’
Earlier in the same email exchange, Professors Mann and Wigley explain thecircumstances that led Mann to posit that they were “losing” GRL. Steve McIntyre, aprominent climate change skeptic and author of the blog ClimateAudit.org, had submitteda manuscript to GRL—and the journal agreed to publish McIntyre’s work, which waslargely critical of Mann’s research.
In response, Mann contacted GRL’ s editorial staff in an effort to prevent McIntyre’ssubmission from getting published. However, Mann’s efforts to exert pressure wererejected by GRL’s Editor-in-Chief, who explained that McIntyre’s submission would bepublished because it had been subjected to an “extensive and thorough review. . . from 3knowledgeable scientists [and] [ajil three reviews recommended publication.”42
After learning that GRL nonetheless planned to publish McIntyre’s manuscript over hisobjections, Mann emailed several colleagues informing them about the upcomingpublication and, citing the editor who initially approved McIntyre’s piece for publication,proclaimed that “the contrarians now have an ‘in’ with GRL.”43
But perhaps the most troubling—and enlightening comment—was one from ProfessorTom Wigley. In an email to his colleagues on January 20, 2005, Professor Wigleysuggested they contact the GRL’s publisher, the American Geophysical Union (“AGU”)in an effort to have an editor fired: “This is truly awful. GRL has gone downhill rapidlyin recent years. .Proving bad behavior here is very difficult. If you think that [theobjectionable editor] is in the greenhouse skeptics camp, then, if we can finddocumentary evidence of this, we could go through official AGU channels to get himousted.”44
Within a year it appears that Professor Wigley’s goal of removing the editor who agreedto publish so-called skeptics’ research was successful. On November 15, 2005, MichaelMann sent an email to Dr. Jones and Tim Osborn boasting that: “the GRL leak may have
141 Email from Michael Mann to Tom Wigley, January 20, 2005, available athttp:!/www.eastangliaemails.com/ernails.php?eid=484 (last visited Feb. 16, 2010).142 Email from Steve Mackwell, Editor-in-Chief, Global Research Letters, to Michael E. Mann, January 20,2005, available at http://www.eastangliaemails.com/emai ls.php?eid484 (last visited Feb. 16, 2010)143 Email from Michael E. Mann to Tom Wigley, Phil Jones, Keith Briffa, et. al., January 20, 2005,available at http:/!www.eastangliaemails.com!emails.php?eid484 (last visited Feb. 16, 2010).144 Email from Tom Wigley to Michael E. Mann, Tom Wigley, Phil Jones, Keith Briffa, et. al., January 20,2005, available at http://www.eastangliaemails.com/emails.nhp?eid484 (last visited Feb. 16, 2010).
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been plugged up now w/ new editorial leadership there. ‘‘ According to ProfessorMichaels, the offending editor was Yale University’s James Saiers, whose departure fromthe journal coincided with Mann, Wigley, and Dr. Jones’s plan to ‘get him ousted.”46
Clearly, these scientists’ efforts to exclude so-called skeptics’ studies from journalpublication are indicative of a serious breach of objectivity and scientific propriety. Andan email from Dr. Jones to Michael Mann unquestionably reveals that their improperconduct spilled over into their involvement with the IPCC and unquestionably tainted theIPCC report. Shortly after Dr. Jones and Kevin Trenberth of the National Center forAtmospheric Research were named joint lead author’s of IPCC’s Working Group I,Chapter 3, Dr. Jones emailed Mann about two Canadian researchers who questioned theveracity of man-made global warming. In that email, Dr. Jones wrote: “I can’t see eitherof these papers being in the next IPCC report.” Further, he said: “Kevin and I will keepthem out somehow—even if we have to redefine what the peer-review literature is!”47
D. CONFLICTS OF INTEREST BETWEEN THE IPCC AND SOME WHO PROFIT
FROM ITS CLIMATE CHANGE CONCLUSIONS
In response to public comments suggesting that the Administrator should have includedstudies that disagreed with the Endangerment Finding, EPA notes that “IPCC,USGCRP/CCSP, and NRC make considerable effort to ensure that their assessmentreports reflect a balance of perspectives regarding the state of the science.”148 To supportthat response, EPA quotes a National Academies report noting that the NRC screens all“provisional committee members . . . in writing and in a confidential group discussionabout possible conflicts of interest. . . . [N]o individual can be appointed to serve (orcontinue to serve) on a committee of the institution used in the development of reports ifthe individual has a conflict of interest that is relevant to the functions to beperformed.”49Thus, EPA identifies the National Academies’ prohibition on conflicts ofinterest as a means of ensuring that the Endangerment Finding is balanced and unbiased.
The Chair of the IPCC probably has, and certainly appears to have, several conflicts ofinterest.’50 For example, Dr. Pachauri is the director of The Energy and Resources
145 Email from Michael Mann to Phil Jones and Phil Osborn, November 15, 2005, available at:http://www.eastangliaemails.comlemails.php?eid591 &filename 1132094873 .txt (last visited Feb. 16,2010).
See Patrick J. Micaels, How to Manufacture Climate Consensus, WALL STREET JOURNAL (December 17,2009).147 Email from Phil Jones to Michael E. Mann, July 8, 2004, available at:http://www.eastangliaemaiIs.corn/emai1s.php?eid4 1 9&filename= 10893 1861 6.txt (last visited Feb. 16,2010).148 Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) oftheClean Air Act: EPA’s Response to Public Comments, Volume I at 3.149 Id. (quoting Our Study Process: Ensuring an Objective Voice, National Academies, 2006 at 3).
In a 2009 meeting of the IPCC Bureau (the governing body of the IPCC that provides guidance duringthe preparation of the IPCC assessment reports), the Chair of the IPCC, Dr. Rajendra Pachauri, “recalledthe role of IPCC procedures in guaranteeing a proper code of conduct in IPCC activities. Any possibleconflict of interest should be made clear at the outset of the process.” Report of the 39th Session of the
26
Institute (“TERI”), an organization that was a awarded over $4 million in grants forresearch on the melting of glaciers; that research was premised on an inaccurate claimthat the Endangerment Finding cited and endorsed, and which was made by TERI’s headof glaciology) Furthermore, Dr. Pachauri serves on a number of boards and maintainsbusiness interests in industries that are or will be affected by policies that are based onIPCC conclusions about climate change. TERI gained a financial interest in GloriOil, aTexas firm specializing in oil extraction technology that extends the useful life of an oilfield, by granting GloriOil permission to use an oil-extraction method developed atTERI)52 Perhaps even more egregious is Dr. Pachauri’s employment as President ofTERI-NA, a non-profit firm funded by the UN, Amoco, American defense contractors,Monsanto, and carbon traders to lobby “sensitive decision-makers in North America todeveloping countries’ concerns about energy and the environment.”153 Dr. Pachauri isalso on the board of Siderian, a venture capital firm investing in sustainable technologies.He is also an adviser on renewable and sustainable energy to Credit Suisse bank and theRockefeller Foundation.’54Among his other private activities related to his work as IPCCchair, Dr. Pachauri has earned hundreds of thousands of dollars in consulting fees (paid toTERI) from Deutche Bank, Credit Suisse, and Yale University.’55
These conflicts of interest violate the standards of conduct that the Dr. Pachauri himselfhas prescribed for the IPCC. In so doing, Dr. Pachauri’s conflicts of interest weaken theEndangerment Finding. Dr. Pachauri’s conflicts of interest indicate that the IPCC isbeing led toward a conclusion that climate change is a dire threat to the planet that mustbe reversed; a conclusion that would enrich Dr. Pachauri and the entities that employhim. Consequently, EPA has relied on an assessment that ensures bias and imbalance, aresult that EPA claims to want to avoid.
IPCC Bureau (2009) at 10, available at http://www.ipcc.chlmeetings/bureau-sessions/bureau39rep.pdf(lastvisited February 16, 2010).151 Christopher Booker and Dean Nelson UN climate chief’s research institute won grants afterflawedpredictions on glaciers, DAILY TELEGRAPH, Jan, 25, 2010, available athttp://www.telegraph.co. uk/earth/environment/climatechange/7O78565/UNclimate-chiefs-research-instiiute-wongrantsa/ier-flawed-yredictions-on-glaciers, html. (last visited February 16, 2010).152 Elisabeth Rosenthal, Skeptics Find Fault with UN. Climate Pane,. NEW YORK TIMES, February 8, 2010,available at http://www.nytimes.com/2010/02/09/science/earth/09ciimate.htmI. (last visited February 16,2010).153 Christopher Booker and Richard Northwhite. Questions over business deals of UN climate change guruDr. Rajendra Pachauri, DAILY TELEGRAPH, Dec. 20, 2009, available athttD://www.telegraph.co.uklnews/6847227/Ouestions-over-business-deals-of-UN-climate-change-guru-Dr-Rajendra-Pachauri.html (last visited February 16, 2010).IStBradley Fike, Rajendra Kumar Pachauri is More Equal than You, NC TIMEs.coM BLOGS, December 14, 2009,available at htto://www.nctimes.com/ap,Jfblogs/wp/?,3=5870 (last visited Feb. 15, 2010).
155Elisabeth Rosenthal, Skeptics Find Fault with UN. Climate Pane,. NEW YORK TIMES, February 8, 2010,available at http://www.nytimes.com/20i 0/02/09/science/earthl09climate.html. (last visited February 16,
2010).
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E. LACK OF TRANSPARENCY AT IPCC POINTS TO A RESULT-ORIENTED
PROCESS
Despite the broad and sweeping implications of the Administrator’s EndangermentFinding, EPA has shown little regard for more than a perfunctory level of transparencyand public disclosure. By electing to outsource the agency’s scientific assessment intothe causal relationship between greenhouse gases and the earth’s temperature, theAdministrator also dramatically limited the public’s access to information about herdecision-making process and the information supporting her decision.
For example, Volume I of EPA’s Response to Public Comments about the EndangermentFinding contains a response to a commenter who complained about the unavailability ofraw data, computer models, and other information that was presumably used to reach theconclusion that man-made greenhouse gases affect the Earth’s temperature. In response,EPA simply claimed that core scientific information need not be included in the recordbecause “the Administrator is reasonably relying on major assessments by the USGCRP,IPCC, and NRC as the primary scientific and technical basis for her endangermentdecision.”56
If EPA’s ability to be fully transparent about the information that forms the basis of itsEndangerment Finding rests on its own lack of access to that information, then littleconfidence can be had (1) that EPA was truly grounded in its decision and (2) that theAdministrator’s decision was truly her own.
EPA gains nothing by passing the transparency buck to the entities upon which it reliedfor scientific information because those entities have been the antithesis of transparent.Even a cursory review of the IPCC contributors’ record on this front quickly reveals notonly a total disregard for open government—but worse, affirmative disdain fortransparency and utter contempt for citizens who exercise their right to obtain publicinformation.
Emails disclosed since the conclusion of the comment period reveal that contributorsactually cited their IPCC involvement as a purported method of circumventing freedomof information laws—including the United States Freedom of Information Act (“FOIA”).In an email to NASA Climatologist Gavin Schmidt, Dr. Jones explained that he andothers had agreed on a plan that they believed would render the open records lawsinapplicable to their information: “The FOI line we’re all using is this. IPCC is exemptfrom any countries FOI — the skeptics have been told this. Even though we.. .possiblyhold relevant info, the IPCC is not part of our remit (mission statement, aims etc)therefore we don’t have an obligation to pass it on.”
‘56Endangerment and Cause or Contribute Findingsfor Greenhouse Gases under Section 202(a) oftheClean Air Act: EPA ‘s Response to Public Comments, Volume I, Response 1-62.
157Email from Phil Jones to Gavin Schmidt, August 20, 2008, available athttp://www.eastangliaemails.com/ernails. php?eid=9 1 4&filename 12192391 72.txt (last visited Feb. 16,2010).
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Unlike the United States, where the Freedom of Information Act was enacted in 1966158,
Britain did not enact its Act until 2000. Notwithstanding the fact that CRU is publiclyfunded by the British taxpayers, the emails reveal a certain amount of surprise—whichwas quickly overtaken by disdain—that the law would apply to CRU scientists.
An email to former CRU Chief Tom Wigley indicates Dr. Jones initially hoped thatuniversity officials and potential requestors might be unaware of his country’s openrecords law: “I wouldn’t tell anybody about the FOI Act in Britain. I don’t think [theuniversity] really knows what’s involved. . .1 think it is supposed to mainly apply toissues of personal information - references for jobs etc.”59 The following month, in anemail to Pennsylvania State University’s Michael Mann, Dr. Jones expressed awillingness to simply—and illegally—delete information rather than comply with the lawand disclose it: “If they ever hear there is a Freedom ofInformation Act now in the UK, Ithink I’ll delete the file rather than send to anyone.”6°
Later, as Dr. Jones explained in an email to Ben Santer of the Lawrence LivermoreNational Library in California, university officials initially attempted to enforce the lawbut Dr. Jones convinced them otherwise: “When the FOT requests began here, the FOlperson said we had to abide by the requests. It took a couple of half hour sessions - one ata screen, to convince them otherwise showing them what [Steve McIntyre’sClimateAudit] was all about. Once they became aware of the types of people we weredealing with, everyone at UEA (in the registry and in the Environmental Sciencesschool—the head of school and a few others) became very supportive.”6’ In otherwords, because Dr. Jones did not like the individual requesting public information, hesimply worked to thwart that requestor’s access to it. But, merely denying access was notenough—in the same email Dr. Jones later boasted that he destroyed information in orderto avoid the possibility of having to produce it: “If he pays 10 pounds (which he hasn’tyet) I am supposed to go through my emails and he can get anything I’ve written abouthim. About 2 months ago I deleted loads of emails, so have very little - if anything atall.”62
The following email exchange between Dr. Jones, CRU colleague Tim Osborn, CRUDeputy Chief Keith Briffa, and Caspar Amman of the National Center for AtmosphericResearch in Colorado is illustrative of the scientists’ general (dis)regard for transparency.In the first exchange, Amman receives a forwarded email from an individual complainingabout his inability to obtain information about the scientists’ work on the IPCC report:
‘58Freedom of Information Act (1966), Public Law 89-554, 80 Stat. 383Email from Phil Jones to Tom Wigley, January 21, 2005, available at
http:r’/www.eastangliaemails.com/emails.php?page= I &pp=25&kw=foi (last visited Feb. 16, 2010).160 Email from Phil Jones to Michael E. Mann, February 2, 2005 (emphasis added), available athttp://www.eastanliaemails.com!emails.php?eid=490&filenarne=l I 07454306.txt (last visited Feb. 16,2010).161 Email from Phil Jones to Ben Santer and Tom Wigley, December 3, 2008, available athttp://www.eastangliaemails.com/emails.php?eid=940&filename I 228330629.txt (last visited Feb. 16,2010).162 Id.
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“I have read correspondence on web about your letter to the in relation[sic] to expert comments on IPCC chapter 6 sent directly by you toKeith Briffa, sent outside the formal review process. The refusal togive these documents tends to discredit you and the IPCC in the eyes ofthe public.”63
Next, Ammann sends the complaint email to Dr. Jones, Briffa, and Osborn. Dr. Jones is
the first to respond with a short email that says:
“It doesn’t discredit IPCC!”64
Osborn responds by recommending that Ammann simply ignore the email.
“I’d ignore this guy’s request anyway. If we aren’t consistent inkeeping our discussions out of the public domain, then it might beargued that none of them can be kept private. Apparently, consistencyof our actions is 165
At no time in the exchange did any of them suggest what state or federal laws might have
governed how the request needed to be treated. Professor Briffa weighed in last with a
response that undoubtedly conveyed the group’s respect for transparency in government:
“I have been of the opinion right from the start of these FOl requests,that our private, inter-collegial discussion is just that—PRIVATE. Yourcommunication with individual colleagues was on the same basis asthat for any other person and it discredits the IPCC process not one iotanot to reveal the details. On the contrary, submitting to these“demands” undermines the wider scientific expectation of personalconfidentiality. It is for this reason , and not because we have or havenot got anything to hide, that I believe none of us should submit tothese ‘requests’.”66
In another exchange, Dr. Jones again responded with flippant disregard for open
government:
“You can delete this attachment if you want, Keep this quiet also, butthis is the person who is putting in FOl requests for all emails Keithand Tim have written and received re Ch 6 of AR4. We think we’ve
163 Email from Bryan Lynch to Caspar Amman, June 21, 2008, available athttp:’/www.eastangliaemails.coni/emails.php?eid=906&filename 121 4228874.txt (last visited Feb. 16,2010).164 Email from Phil Jones to Caspar Amman, June 23, 2008, available athttp://www.eastangliaemails.corn!emails.php?eid=906&tilename=121 4228874.txt (last visited Feb. 16,2010).165 Email from Osborn to Keith Briffa, Phil Jones, and Caspare Amman, June 23, 2008, available athttp://www.eastangliaemails.com/emails.php?eid=906&tilenaine=l2 14228874.txt (last visited Feb. 16,2010).166 Email from Keith Briffa to Tim Osborn, Phil Jones, and Caspare Amman, June 23, 2008, available a:http://www.eastangliaemails.com/emails.php?eid=906&uilenarne=1214228874.txt (last visited Feb. 16,2010).
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found a way around this... This message will self destruct in 10seconds!”167
And just as Briffa and Osbom recommended that Ammann ignore the open recordsrequest again without contemplating what the law might have been in Colorado or thegreater United States—Dr. Jones similarly urged a colleague in Australia to disregardrequests for information: “Had an email from David Jones of BMRC, Melbourne. Hesaid they are ignoring anybody who has dealings with [ClimateAudit], as there arethreads on it about Australian sites.”168
NASA’s Gavin Schmidt took the climate scientists’ disdain for citizens who file openrecords requests to a whole new level. In an email to the Lawrence LivermoreLaboratory’s Ben Santer, Schmidt complains that global warming skeptics who use openrecords laws to obtain climatologists data are “like Somali pirates.”169 It is ironic thatSchmidt compared the records requestors to law-breaking pirates—because it wasactually those who were depriving others of their right to access public information whomay have been violating the law.
On January 22, 2010, the British Information Office revealed that the CRU scientists’criminally violated Freedom of Information Act. Britain’s Deputy Commissioner ofInformation indicated that the CRU scientists violated the nation’s open governmentlaws: “requests under the Freedoms of Information Act were not dealt with as theyshould have been under the legislation. Section 77 of the Freedom of Information Actmakes it an offence for public authorities to act so as to prevent intentionally thedisclosure of requested 70
Professor John Beddington, Chief Scientific Advisor to the British Government said, “I
don’t think it’s healthy to dismiss proper scepticism. Science grows and improves in thelight of criticism. There is a fundamental uncertainty about climate change prediction thatcan’t be changed.”7’
167 Email from Phil Jones to Michael Mann and Raymond S. Bradley, May 9, 2008, available athttx//www.eastangIiaemais.com/emails.phø?eid877&fflename= 1210341221 .txt (last visited Feb. 16, 2010).168 Email from Phil Jones to Tom Wigley and Wei-Chyung Wang, June 19, 2007, available athttp://www.eastangliaemails.com/emails.php?page= I &pp=25&kw=foi (last visited Feb. 16, 2010).169 Email from Gavin Schmidt to Ben Santer, December 2, 2008, available athnp://www.eastanliaernails.com/ernails.php?eid939&filenarne=122825871 4.txt (last visited Feb. 16,
2010).170 Email from the Information Commissioner’s Office Press Office to Jonathan Leake, The Times ofLondon, January 22, 2010, available at http://www.docstoc.corn/docs/23993708/Climate-Email (lastvisited Feb. 16, 2010).171 Ben Webster, Science Chief John Beddington Calls for Honesty on Climate Change, THE TIMES OF
LONDON, January 27, 2010, available athttrj://www.timesonline.co.uk/tolfnews/environment/articIe7003622.ece?&EMC-BItn99KCH2F (last visited Feb. 16,2010).
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VIII. HARM TO TEXAS
A. FARMING AND RANCHING
With exports totaling $5 billion, Texas ranks third in the nation in total agricultureexports.’72 In 2007, cash receipts from the agriculture sector exceeded $19 billion, whichin turn had a $100 billion impact on the Texas economy.’73 More than 1.7 millionTexans work for farms and farm-related employers—which means 16.6 percent ofTexans rely on farming and ranching for their livelihood.’74
Texas is a state where land is primarily owned by private citizens—which meansstewardship and conservation of precious natural resources is necessarily theresponsibility of those who own the land. And with 250,000 farms and ranches coveringmore than 129 million acres, Texas depends on farmers and ranchers to help preserve theland, protect habitat, and conserve natural resources. As Texas’ AgricultureCommissioner noted in his June 23, 2009 comment on the Endangerment Finding,“Farmers and ranchers prioritize conservation of our natural resources.”175
Thus, Texas relies on its farmers and ranchers both to preserve the land and to contributemeaningfully to the State’s economy. The Endangerment Finding would negativelyimpact Texas farmers and ranchers in several ways, all of which were mentioned informal comments last summer.176 Therefore, here we highlight only two of the myriadways Texas farmers and ranchers would be harmed by the Endangerment Finding—and iffarmers and ranchers are hurting, Texas is hurting.
As the National Association of State Departments of Agriculture (“NASDA”) explainedin its June 23, 2009, comment on the Endangerment Finding: “Hydrocarbons andgreenhouse gases are intimately connected to agricultural production from methane gasexpelled by livestock, diesel-powered farm machinery, and the petroleum byproducts infertilizer. NASDA is concerned that EPA’s endangerment finding could leaveagricultural producers vulnerable to litigation over the greenhouse gas emissions resultingfrom traditional agricultural production practices.” Thus, the Endangerment Finding willincrease agriculture production costs directly—through increased fuel and fertilizercosts—and indirectly—through regulation and litigation.
From the regulatory perspective, the Secretary of Agriculture captured the EndangermentFinding’s potential impact on both large and small farm operations:
172 Texas Advisory Panel on Federal Environmental Regulations, Comments on the Environmental ProtectionAgency’s Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(A) ofthe Clean Air Act, at 16 (June 23, 2009).1731d.1741d.175 Letter from Hon. Todd Staples to Hon. Lisa Jackson (June 23, 2009), available at www.regulation.gov,
Docket No. EPA-HQ-OAR-2009-0171 -3530.1.176 Id
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“If GHG emissions from agricultural sources are regulated under theCAA, numerous farming operations that currently are not subject to thecostly and time-consuming Title V permitting process would, for thefirst time, become covered entities. Even very small agriculturaloperations would meet [the CAA’s] 100-tons-per-year emissionsthreshold. For example, dairy facilities with over 25 cows, beef cattleoperations of over 50 cattle, swine operations with over 200 hogs, andfarms with over 500 acres of corn may need to get a Title V permit. It isneither efficient nor practical to require permitting and reporting ofGHG emissions from farms of this size. Excluding only the 200,000largest commercial farms, our agricultural landscape is comprised of1.9 million farms with an average value of production of $25,589 on271 acres. These operations simply could not bear the regulatorycompliance costs that would be involved.”77
B. REVENUE FROM MINERAL INTERESTS
Since the Constitution of 1876’s enactment over one-hundred and thirty years ago, thePermanent School Fund (“PSF”) has been a significant source of funding for publicschools in the State of Texas.178 Today, the PSF relies upon royalty revenue from itssignificant oil and gas holdings to help fund education. According to financialinformation provided by the Governor’s Budget, Policy and Planning Office, the PSFearned more than $380 million in royalty and bonus payments from its mineral interestslast year, alone. During the same period, the PSF provided more than $700 million infunding to Texas public schools.’79
The State also relies on mineral interests to fund higher education. The PermanentUniversity Fund (“PUF”), which exclusively benefits the University of Texas System andTexas A&M University System schools, earned more than $300 million from its oil andgas holdings last year. In the previous five years, earnings exceed $1.4 billion. TexasA&M is also the beneficiary of its own Special Mineral Fund—which earned more than$15.5 million in the last five years.
There are multiple other ways that the State of Texas benefits from oil and gas royalties.The Parks & Wildlife Department’s State Parks fund earned more than $24 million fromoil and gas-related revenues in the last five years. During the same period, the TexasDepartment of Transportation’s State Highway Fund earned over $20 million.Altogether, the State of Texas has earned over $3.6 billion from its mineral interests inthe last five years.
‘“Letter from Hon. Ed Schafer, Secretary of the U.S. Department of Agriculture, Hon. Carlos Gutierrez,Secretary of the U.S. Department of Commerce, Hon. Mary E. Peters, U.S. Secretary of Transportation,and Hon. Samuel W. Bodman, to Hon. Susan Dudley, Administrator, Office of Information & RegulatoryAffairs, Office of Management & Budget (July 9, 2008), available at
(last visited Feb. 16, 2010).17 Handbook of Texas Online, Permanent School Fund available at (last visited Feb. 16,2010).
Agency, Texas Permanent School Fund Annual Report, December, 2009 at 4, availableat http:/!ritter.tea.state.tx.us/psf/PSFARO9.pdf (last visited Feb. 16, 2010).
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C. OIL & GAS SECTOR
More than 30,000 Texas businesses are in industries that are identified as greenhouse gasemitting.’8° In 2006, the energy sector employed nearly 375,000 Texans who earnedmore than $35 billion in wages.’ Of those, 312,000—3.1% of the State’s work force—were employed directly in the oil and gas business.’82 According the Comptroller ofPublic Accounts, the oil and gas sector contributed $159 billion to—nearly 15% of—theState’s Gross Domestic Product.’83
More than 17% of the State’s revenue is derived from oil and gas taxes, income onmineral interests, and related payments.’84 In 2006, the State’s annual oil production taxrevenue was $444,124,979 and its natural gas tax revenue was $160,024,732, whichcombined for a total of more than $604 million.’85 That direct positive fiscal impact is inaddition to the more than $6 billion in annual indirect economic benefit that the Stateenjoys from severance, ad valorem, and indirect taxes that are levied on oil and gasproduction.
The refining side of the energy sector also contributes significantly to the Texaseconomy. In 2008, the petroleum refining sector produced shipments worth over $62billion.’86 Texas-based chemical refiners produced shipments that exceeded $70 billionin value.’87
IX. FALLOUT
Since the Administrator’s Endangerment Finding was made final on December 15, 2009,both chambers of Congress have responded with bipartisan efforts to prevent EPA fromregulating greenhouse gasses. In the House of Representatives, House AgricultureCommittee Chairman Collin Peterson (D-Minnesota) and Armed Services CommitteeChairman Ike Skelton (D-Missouri)—both appointed to their chairmanships by HouseSpeaker Nancy Pelosi—along with Congresswoman J0 Ann Emerson (R-Missouri), haveauthored a bill that would statutorily prevent EPA from regulating greenhouse gasemissions. That is, House Resolution 4572 would amend the Clean Air Act to includethe following: “The term ‘air pollutant’ shall not include any of the following solely onthe basis of its effect on global climate change: (1) Carbon dioxide, (2) Methane, (3)
180Texas Advisory Panel on Federal Environmental Regulations, Comments on the Environmental Protection Agency’sProposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(A) of the CleanAir Act, at 14 (June 23, 2009).181 Id.‘821d. at 18.183 Hon. Susan Combs, American Clean Energy and Security Act, available athttp://www.window.state.tx.us/fi nances/captTade!perspective.html (last visited Feb. 16, 2010).184 Texas Advisory Panel on Federal Environmental Regulations, Comments on the Environmental ProtectionAgency’s Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(A) ofthe Clean Air Act, at 19 (June 23, 2009).185
Id.186 Id. at 27.187 Id.
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Nitrous oxide, (4) Hydrofluorocarbons, (5) Perfluorocarbons, “(6) Sulfurhexafluoride.”88
A separate, bipartisan effort is underway in the United States Senate, where Senator LisaMurkowski (R-Alaska) has authored legislation with Sen. Mary Landrieu (D-Louisiana),Sen. Ben Nelson (D-Nebraska), Sen. Blanche Lincoln (D-Arkansas), and thirty-five othersenators finding that “Congress disapproves the rule submitted by the EnvironmentalProtection Agency relating to the endangerment finding.”89 This bipartisan action inboth chambers of Congress reflects broad concern over EPA’s handing of theEndangerment Finding.
Further, the Small Business Administration’s Office of Advocacy has also expressedconcern over the Endangerment Finding. In a December 23 letter to EPA, the Office ofAdvocacy wrote: “it is clear that EPA’s Clean Air Act greenhouse gas rules willsignificantly affect a large number of small entities. . . . These small entities areconcerned that EPA has not adequately considered regulatory alternatives that couldachieve greenhouse gas emission reductions without imposing heavy new complianceburdens on large numbers of small entities.”9°
In light of these federal officials’ concerns with the implementation and impact of theEndangerment Finding—which the State of Texas shares—the Administrator’s improperhandling of the scientific assessment process takes on even greater meaning. Without theIPCC’s flawed scientific assessment relied upon by the Administrator, there could be noEndangerment Finding because, as the Administrator acknowledged: “The majorassessments by the U.S. Global Climate Research Program (USGCRP), theIntergovernmental Panel on Climate Change (IPCC), and the National Research Council(NRC) serve as the primary scientific basis supporting the Administrator’s endangermentfinding.”9’
This Petition has shown multiple examples of improper conduct by key scientists whocoordinated, drafted, and contributed to the IPCC—and for the reasons explained above,therefore also to the NRC and USGRP—assessments. Importantly, the State of Texas isnot alone in expressing concern about the practices and conduct that have been revealedsince the CRU emails were released last November.
Many well-respected scientists who have said that human activity is to blame for globalwarming have nonetheless been highly critical of the conduct revealed in the CRU. Forexample, Professor John Beddington, Chief Scientific Advisor to the British Government,said: “I don’t think it’s healthy to dismiss proper skepticism. Science grows and improves
188 H.R. 4572, 111th Cong. (2010).S.J.R. 26, 111th Cong. (2010).
190 Letter from Susan M. Waithall, Acting Chief Counsel of Advocacy, to Hon. Lisa Jackson,Administrator, U.S. Environmental Protection Agency (December 23, 2009), available atwww.regu lations.ov, docket #: EPA-HQ-OAR-2009-0 17 1.191 F.R. 66497.
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in the light of criticism.”192 Sir David King, former chief scientist to the BritishGovernment, said of the CRU: “The emails from scientists at the University of EastAnglia suggest that certain members of the IPCC felt that consensus was so precious thatsome external challenges had to be kept outside the discussion. That is clearly notacceptable.”93
Dr. William Sprigg, who oversaw the IPCC’s first assessment report, recentlycommented at a climate change conference: “The IPCC is biased, conflicted, [and]pushing political agendas. We need to stick to our scientific principles. We need toimprove our peer review process, and expand the stakeholders’ role to keep us allhonest.”94
Even a CRU scientist, Professor Mike Hulme, has criticized the IPCC: “Many of itspronouncements have been used by political advocates to justify their politicalprescriptions.. .not everything written by the IPCC—or declared by its seniorspokesperson—is true... [TJhe rules must be revised, especially regarding the use of non-peer-reviewed sources and the way reviewers comments are handled.”95
The President of the National Academy of Scientists also commented on the negativeimpact of the CRU emails, saying that they “raised concern about the standards ofscience.”196 And the Director of Greenpeace’s British operation has called for the IPCCChairman’s replacement in light of the organization’s lost credibility: “The IPCC needsto regain credibility. Is that going to happen with Pachuari? I don’t think so. . . . If weget a new person in with an open mind, prepared to fundamentally review how the IPCCworks, we would regain the confidence of the organization.”97
And the British newspaper, The Guardian, which favors greenhouse gas emissionsregulations, has opined: “[W]e have uncovered an abject failure to ensure essentialrecords were kept on Chinese weather stations, determined maneuvering to excludecritics from leading journals and international reports, and suggestions of deleting
192 Ben Webster, Science ChiefJohn Beddington Calls for Honesty on Climate Change, THE TIMES OFLONDON, January 27, 2010 available athttp:/!www.timesonline.co.ukitol!news/environment/article7003622.ece?&EMC-Bitn=99KCH2F (lastvisited on Feb. 16, 2010).
David King, IPCC runs against the spirit ofscience, THE TELEGRAPH, February 6,2010, available athttp:L’www.telegraph.co.uk!earthienvironment!climatechange/7 1 70299/Sir-David-King-IPCC-runs-ai2ainst-the-spirit-of-science.htrni (last visited on Feb. 16, 2010).
Insert cite and confirm Sprigg’s exact title from IPCC Vol. I (Source #138)195 Mike Hulme, The IPCC’s problems have been compounded by its imperious attitude, THE GUARDIAN,Feb. 5, 2010, available at http://www.guardian.co.uk/environment/201 0/feb/05/rajendra-pachauri-hacked-ci irnate-science-ernal is196 Andrew C. Revkin, Signs ofDamage to Public Trust in Climate Findings, NYT’S DOT EARTH BLOG,Feb. 5, 2010, available at http:!!wwv’.cuardian.co.uklenvironmenti20 I 0/feb/05/rajendra-pachauri-hacked-climate-science-emails (last visited on Feb. 16, 2010).197 Ben Webster, IPCC ChiefRajendra Pachuari Under Pressure Over Glacier Claim, THETIMES, February 4, 2010, available at htt,x//www.timesonhine.co.uk!tol/news/environment/articie7Ol42O3.ece (lastvisited on Feb. 16, 2010).
36
potentially embarrassing correspondence with a view to evading the Freedom ofInformation Act.”98
Governments around the world are also reacting to the release of the CRU emails and themultitude of errors in the IPCC report. LU Xuedu, Deputy Director General of China’sNational Climate Center and a Chinese delegate to the IPCC has called for reforms withinthe organization and has been quoted saying: “Some scientists take a political stance andwear colored glasses, which means they do not look at issues in a comprehensive way.The managing institute, authors, and contributors of the assessment reports should bemore objective in order to be more convmcing.”99
Britain’s MET Office—an agency of the Defense Ministry that serves as the country’sofficial weather service—has opened a formal inquiry and plans to reexamine 160 yearsof temperature data.20° The MET’s review of the climate data is expected to take threeyears to complete.20’
The British House of Commons is also investigating the matter. On December 2, 2009,Science and Technology Committee Chairman Phil Willis wrote to the Vice Chancellorof East Anglia University asking for an explanation of CRU’s conduct and expressingconcern about allegations that CRU “data may have been manipulated or deleted in orderto produce evidence on global warming.”202
Similarly, Dutch Environment Minister Jacqueline Cramer has ordered a thoroughinvestigation into the quality of climate reports that she relies upon to develop publicpolicy. ° This decision was made shortly after it was learned that the IPCC hadincorrectly reported that 55% of the Netherlands is under sea level; a claim which issimply not true.
Finally, a separate inquiry by East Anglia University will investigate multiple items,including “CRU’s policies and practices for acquiring, assembling, subjecting to peerreview, and disseminating data and research findings.”204 All of the aforementioned
198 Editorial, Climate science: Truth and tribalism, THE GUARDIAN, February 6, 2010, available athttp://www.guardian.co.uk/commentisfree/201 0/feb/06/climate-science-truth-and-tribalism (last visited onFeb. 16, 2010).199 Jonathan Watts, Senior Chinese Climatologist Calls for Reform ofIPCC, THE GUARDIAN, February 9,2010, available at htto://www.guardian.co.uklenvironment/20 10/feb/09/chinese-climatologist-iocc-reform (lastvisited on Feb. 16, 2010).200 Ben Webster, Met Of/Ice to Re-Examine 160 Years ofClimate Data, THE TIMES, December 5, 2009,available at http://www.timesonline.co. ukJtol/news/environment/artic1e6945445.ece (last visited on Feb. 16, 2010).201 Id.202 Letter from Hon. Phil Willis, Chairman, Science & Technology Committee, House of Commons, toEdward Acton, Vice-Chancellor, East Anglia University (December 7, 2009), available at:http://www.parliament.uklparliamentary comrnittees!science_technologv!s_t pnO4 091 207.cfm203 Rob Kievit, Sea level blunder enrages Dutch minister, Radio NETHERLANDS WORLDWIDE, February 4,2010, available at http://www.rnw.n l!engl ish/article/error-dutch-polder-data-undermines-trust-ipcc (lastvisited Feb. 16, 2010).204 Mark Kinver, Cliinategate E-Mails Inquiry Under Way, BRITISH BROADCASTTNG CORPORATION
(February Il, 2010).
37
investigations are in addition to what the British Information Commissioner’s Office(ICO) has already publicly said: “requests under the Freedom of Information Act werenot dealt with as they should have been under the legislation. Section 77 of the Freedomof Information Act makes it an offence for public authorities to act so as to preventintentionally the disclosure of requested information.”20 But the ICO’s inquiry continuesbecause the commissioner is reviewing whether the British Freedom of Information Actneeds to be revised in light of the CRU’s refusal to disclose public information.206
X. CONCLUSION
Since the CRU emails first appeared on the Internet in November, 2009, there has been aparade of controversies as new examples of improprieties and erroneous information arerevealed to the public. Because the Administrator chose to rely on assessments by theIPCC, USGCRP, and the NRC—the latter two of which this petition has shown relied onthe IPCC—as the primary scientific and technical basis for her Endangerment Finding,the Administrator’s decision is of central relevance to the Endangerment Finding withinthe meaning of Chapter 307 of the Clean Air Act. Thus, in light of the seriousmisconduct the State has demonstrated—data manipulation, loss or destruction ofinformation, reliance on questionable source materials, abuse of the peer review process,suppression of dissent, conflicts of interest, and failure to comply with freedom ofinformation laws—the EPA should grant this petition and reconsider the EndangermentFinding. Granting this petition would be consistent with actions taken by governmentsworldwide to assess problems afflicting the IPCC and it would further allow the agencyto conduct its own scientific assessment, independently consider the available scientificinformation, and then, in the Administrator’s own judgment, make a determination that issupported by the law and facts.
Respectfully submitted,
GREG ABBOTTAttorney General of Texas
C. ANDREW WEBERFirst Assistant Attorney GeneralPost Office Box 12548Austin, Texas 78711-2548(512) 463-2191 (Telephone)(512) 936-0545 (Facsimile)Andrew.Weberoag.state.tx.usATTORNEYS FOR PETITIONERS
205 Email from the Information Commissioner’s Office Press Office to Jonathan Leake. The Times ofLondon, January 22, 2010, available at http://www.docstoc.com/docs/23993 708/Climate-Email (lastvisited Feb. 16, 2010).206 Id.
38
COMMON TALTH ®f VIRG11NLI Office o f the Attorney General
Kenneth T. Cuccinelli, 11 900 East Main Street
Attorney General Richmond, Virginia 23219
804-786-2071 February 12, 2010 FAX 804-786-1991
Virginia Relay Services 800-828-1120
By Hand 7-1-1
The Honorable Lisa Jackson Administrator United States Environmental Protection Agency Ariel Rios Building (Mail Code 1101) 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460
FEB 16 201
Re: Petition for Reconsideration of Endangerment and Cause or Contribute Finding for Greenhouse Gases Under Section 202(a)
of the Clean Air Act by the Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II, Attorney General of Virginia
Dear Administrator Jackson:
Please find enclosed the Petition for Reconsideration of Endangerment and Cause or
Contribute Finding for Greenhouse Gases under Section 202(a) of the Clean Air Act by the
Commonwealth of Virginia, Ex Rel . Kenneth T. Cuccinelli, II, Attorney General of Virginia .
Please contact me at (804) 786-7240 if you have any questions .
Sincerely,
c. n~... G~,cp~ 4 E. Duncan Getchell, Jr . State Solicitor General
Enclosure
BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Endangerment and Cause or Contribute ) Finding For Greenhouse Gases Under ) Section 202(a) of the Clean Air Act, ) Docket No. EPA-HQ-OAR 2009-0171 74 Fed. Reg. 66496 (December 15, 2009) )
PETITION FOR RECONSIDERATION OF ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDING FOR GREENHOUSE GASES UNDER SECTION 202(A) OF THE CLEAN AIR ACT BY THE
COMMONWEALTH OF VIRGINIA, EX REL. KENNETH T. CUCCINELLI, II, ATTORNEY GENERAL OF VIRGINIA
Pursuant to Section 307(d) of the Clean Air Act, 42 U.S.C . § 7607(d), and based
upon new information of central relevance not available during the public comment
period, the Commonwealth of Virginia ex rel. Kenneth T. Cuccinelli, II, hereby petitions
the United States Environmental Protection Agency (EPA) to convene a proceeding for
the reconsideration of the "Endangerment and Cause or Contribute Finding for
Greenhouse Gases Under Section 202(a) of the Clean Air Act" (Endangerment Finding)
published by EPA on December 15, 2009, 74 Fed. Reg. 66,496 (Dec . 15, 2009). The new
information raises questions with respect to the validity and integrity of a substantial
segment of the data upon which the Endangerment Finding rests, a matter which is of
central relevance to the Endangerment Finding. Consequently, in response to this
petition under 307(d), EPA must: (1) reconvene the regulatory proceeding, (2) provide
the public with the opportunity to comment on the newly available information, and (3)
provide such information to the Science Advisory Board (SAB) for its review and
comment.
Bases of this Petition
On November 17, 2009, well after the close of the public comment period on the
proposed Endangerment Finding, internal e-mails and documents from the Climate
Research Unit (CRU) at the University of East Anglia were released to the public . The
e-mails and documents, many of which were apparently authored by the CRU scientists
working at CRU on the project (CRU scientists), discuss the manner in which CRU's
global warming data (CRU Data) were developed, analyzed, and handled. Specifically,
the e-mails and documents suggest that the CRU scientists questioned the reliability of
their own data, the methodologies used in developing and analyzing such data, and the
conclusions based thereon.
CRU and other organizations studying global climate change and its causes all use
the same raw data, and scientists from the National Oceanic and Atmospheric
Administration (NOAA) have acknowledged that the three surface temperature data sets
from NOAA, the National Aeronautics and Space Administration (NASA), and CRU are
not independent but are based on a common set of underlying raw data.
If NASA and NOAA used the same raw data as CRU, and if they have reached
conclusions similar to those of CRU, then a finding of data unreliability with regard to
the CRU Data may indicate systemic problems with all three of the data sets upon which
EPA relied in promulgating its Endangerment Finding. Because these issues are of
central relevance to the Endangerment Finding, they must be addressed by EPA, the
public, and SAB in a proceeding for the reconsideration of the finding.
In addition to the probable invalidity of the underlying data, 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 reports of the IPCC in
attributing climate change to anthropogenic greenhouse gas ("GHG") emissions .
Contrary to the CAA and the Information Quality Act ("IQA")1, EPA substantially ceded
its obligation to make a judgment 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 total disregard to those
standards . Therefore, EPA is about to begin regulating GHG emissions based on a
scientific process that was conducted without those procedural safeguards contained in
American law. These safeguards are what 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 the citizens of Virginia and the nation, EPA must abide by U.S .
standards and not the standards of international bodies whose actions are governed by
different standards and requirements .
Finally, EPA's remote findings of endangerment of health and welfare fail to
consider and properly weigh the offsetting harms to health and welfare necessarily
flowing from economically destructive regulation .
Standard for Granting the Petition
The CAA provides that EPA's Administrator shall convene a proceeding for
reconsideration of the Endangerment Finding where a person : (1) objects, (2) within the
1 The IQA was enacted as the Treasury and General Government Appropriations Act for Fiscal Year 2001 § 515, 44 U.S.C . 3504(d)(1) and 3516 (2000) .
3
time specified for judicial review, (3) based upon a matter of central relevance to the
outcome of the Endangerment Finding proceedings, (4) on grounds arising after the
comment period has expired. 42 U.S .C . § 7607(d)(7)(B).
Reasons for Granting the Petition
Virginia is a person within the meaning of the Clean Air Act, 42 U.S.C . §
7602(e), and its Petition is timely as falling within the sixty day period for judicial
review . EPA's improper delegation, its failure to follow American law regarding the
method and quality of analysis, its reliance upon invalid data of now widely questioned
integrity, and its failure to properly weigh remote and speculative harm from GHGs
against the virtual certainty of damage to health and welfare from the Endangerment
Finding itself are of central relevance. Furthermore, the massive and disturbing evidence
giving rise to the Petition became known only after the time for public comment had
expired . Because that evidence is in the public domain and has been exhaustively
discussed in other Petitions, including those of the Pacific Legal Foundation and Peabody
Energy Company, it is not set forth here again in detail . Instead, it should be the subject
of further evidentiary proceedings. The methodological and substantive errors of EPA
became apparent only on December 15, 2009 with the promulgation of the Endangerment
Finding.
Conclusion
Wherefore, the EPA should reconvene regulatory proceedings, provide for public
notice and comment, conduct evidentiary proceedings, and provide all information to the
SAB for review and comment.
Respectfully submitted,
COMMONWEALTH OF VIRGINIA EX REL. KENNETH T. CUCCINELLI, II ATTORNEY GENERAL OF VIRGINIA
Kenneth T. Cuccinelli, 11 Charles E. James, Jr . Attorney General of Virginia Chief Deputy Attorney General
E. Duncan Getchell, Jr . (14156) Office of the Attorney General State Solicitor General 900 East Main Street d etg chell(~a,oag .state.va.us Richmond, Virginia 23219
Telephone : (804) 786-2436 Stephen R. McCullough (41699) Facsimile : (804) 786-1991 Senior Appellate Counsel smcculloug-ha,oag.state.va.us Counsel for the Commonwealth
Ex Rel. Kenneth T. Cuccinelli, II
February 12, 2010