EPA May Use 5-Member Hackfest's "Science" To Justify Abandoning GHG Action - Risking Judicial Rejection
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The draft rule to undo the endangerment finding leaned heavily on a new legal reading of the Clean Air Act asserting that EPA has no authority to regulate greenhouse gases for their effect on climate change. But EPA also floated an “alternative” rationale — one focused on science and drawn almost exclusively from a Department of Energy report that downplayed the risks and severity of climate change. That report is now in limbo after DOE disbanded the so-called Climate Working Group that wrote it. The agency has come under fire — and a lawsuit — for the process that led to the establishment of the working group, which was staffed with five climate contrarians hand-picked by Energy Secretary Chris Wright.
The legal uncertainty — and last week’s report by the National Academies of Sciences, Engineering and Medicine calling climate change “beyond scientific dispute” — may be enough to convince EPA to drop its scientific argument altogether, some experts said. EPA gains little and risks much by wading into the choppy waters of climate science in its bid to overturn the 2009 finding that greenhouse gases harm human health. “I wouldn’t be surprised if it doesn’t play much of a role at all in the final rule,” said Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. “That would be smart. If they’re not smart and they leave it in there, they’re just inviting a court to say, ‘You ignored the overwhelming science, and under arbitrary and capricious review, you can’t.’”
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EPA proposed the endangerment repeal in July and plans to finalize it in December. In the rush to get it across the finish line, even some conservative activists seem willing to scrap efforts to question scientific consensus as part of the rulemaking.
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Scientists have widely criticized the DOE report, which relies on cherry-picked data and misleading climate claims. Former Biden officials and environmental groups also say DOE violated laws governing how agencies seek advice and recommendations from outside experts, as well as skirted requirements to vet research used in policy decisions. EPA’s proposed endangerment repeal states that the agency “reviewed and relied upon” a draft version of the DOE report dated May 27 — two months before it was issued publicly. Rachel Cleetus, policy director for Union of Concerned Scientists, said that indicates both agencies violated the Federal Advisory Committee Act. UCS and the Environmental Defense Fund have sued DOE and EPA, asserting that DOE violated the act in setting up the working group and EPA in using it as the basis of a policy decision.
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https://www.eenews.net/articles/doe-climate-report-could-create-problems-for-epa/