EPA Endangerment Finding (EF)

February 24, 2013 | By More

The basic driver of EPA efforts to control CO2 emissions is their proposed Endangerment
Finding (EF). It was issued on Dec 7, 2009 (another “day that shall live in infamy”) in response
to the 2007 decision of the US Supreme Court, declaring CO2 a pollutant subject to regulation
under the 1970 Clean Air Act (CAA)—provided EPA can demonstrate by independent analysis
that it has a harmful impact on human health and welfare.

EPA Endangerment FindingThe EF was challenged immediately since it used flawed IPCC science to claim a deleterious
impact on climate. Unfortunately, we lost our lawsuit in the Court of Appeals of the District of
Columbia. In June 2012, the Court’s 3-judge panel ruled in favor of the EPA; it said in essence
“we’re not scientists, we cannot decide between EPA’s scientific claims and those of the
plaintiff, and therefore we give deference to the administrative agency.” In Dec. 2012, the
same Court rejected our request for an en banc hearing—but with two important dissents.

Fortunately, we have resourceful lawyers. They have pointed out that EPA did not do the “independent analysis” required by the Supreme Court; they should be required to go back to the drawing board and then submit their findings to their Scientific Advisory Board.

I think this will simply delay another challengeable EF, but such a delay might be useful in educating the media and the public, particularly once EPA regulations start to raise energy prices.

Another promising approach to fighting the EPA on this issue is to go back to the 1970 Clean
Air Act, the basic law. After all, the purpose of emission controls is to achieve an ambient air
quality that will not harm human health and welfare. The CAA (Section 108) therefore requires
the EPA to set National Ambient Air Quality Standards (NAAQS) for “criteria pollutants.”
We need to challenge the EPA to set such a standard for CO2, to justify it by “independent
analysis,” and to demonstrate how their proposed CO2-control regulations will achieve such a
NAAQS standard. I would imagine that this would be an impossible task for the EPA; bearing in
mind that they have no control over China or other rapidly developing countries.

As Marlo Lewis (Competitive Enterprise Institute) has reminded us, the activist Center for
Biological Diversity and 350.Org petitioned the EPA more than two years ago to establish
a NAAQS for CO2 at 350 parts per million (roughly 50 parts per million below current
concentrations)—and for other GH gases at pre-industrial levels. Yet the EPA has not

Finally, there is the remedy of last resort. Congress can simply amend the Clean Air Act and
forbid the EPA from regulating CO2. The next election is in November 2014, and there is a
possibility that both House and Senate would vote for such an amendment in 2015.

Whatever the outcome of this legal maneuvering, the science says fairly clearly that CO2 is not
a significant climate driver but a boon to global agriculture. It is hoped that this message can be
spread in the media and to the public—and produce a desirable political impact.

Category: Environment

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