The road to implementation of the US Environmental Protection Agency’s (EPA’s) final Clean Power Plan rules continues to be bumpy; both legal challenges and hostile legislators could impede an early and successful end game.
A recent and notable example of a possible impediment was the December 23 petition (No. 15-1363) to the US Court of Appeals for the District of Columbia Circuit, calling for a “Stay of EPA’s Final [Clean Power Plan] Rule.” The petition was filed on behalf of a number of litigants—among them, the State of West Virginia, Peabody Energy Corporation, and Professor Lawrence H. Tribe of the Harvard Law School. The basis for opposition to the proposed EPA rulemaking is not trivial. Collapsed into a three-fold argument, the filing asserts that:
- “The Rule Raises Fifth Amendment Concerns”
- “The Rule Raises Separation of Powers and Federalism Concerns”
- “EPA’s Claims of Climate Harms [sic] Are Unsubstantiated”
In an elaboration of the third of these assertions, the petition contends that “EPA’s projections of potential harm . . . go well beyond the latest report of the Intergovernmental Panel on Climate Change (IPCC).” In this commentary, I limit myself to, and question, that contention—in essence, the claim that EPA’s presumption of serious global damage from unconstrained greenhouse gas emissions is contradicted by the latest IPCC report.
There seems to be only one conceivable explanation for that ostensible conflict between the thrust of the EPA and IPCC positions. Whether by design or inadvertence, the petition’s reference to the IPCC cites solely the report of Working Group I, which addresses “The Physical Science Basis” and within that essential, but limited, physical framework, takes up—in a probabilistic fashion—the certainties and uncertainties to which we must pay heed in dealing with the global warming threat. The court petition looks at neither the analysis of Working Group II (“Impacts, Adaptation, and Vulnerability”) nor that of Working Group III (“Mitigation of Climate Change”). A level playing field between the IPCC and EPA perspectives would limit the comparison of the latter’s part to underlying physical parameters as well (e.g., Is the Clean Power Plan predicated on, say, an unsupported, more severe sea-level scenario than that of the IPCC?).
As it is, the petition seems to reflect an apples-to-oranges approach. It faults EPA, even though the agency, by the very nature of an integrated assessment, is obliged to consider and estimate the monetized damages from climatic impacts and, thereby, the design of an offsetting, damage-avoiding mitigation policy (such as the Clean Power Plan). (A central underlying conceptual construct in EPA’s approach to estimating such an offsetting mitigation cost—the “social cost of carbon”—needn’t detain us here; but, for a useful discussion, see The Social Cost of Carbon appendix to the publication linked.) Since the court petition elected to bypass that needed multi-stage analysis—spanning conceptual, methodological, and empirical elements—it leaves its assault on EPA, at the very least, tenuous—or, writing as a non-lawyer, a matter of “case unproven.”
