The Environmental Protection Agency’s December greenhouse gas endangerment finding has rapidly become the bête noire of opponents of federal action on climate change. The prospect of such a finding has been controversial in some circles since its genesis in the Massachusetts v. EPA Supreme Court decision. Since being finalized, it has come under threat from Senator Murkowski and others in Congress who want to block it with new legislation. Now the endangerment finding is facing another challenge: lawsuits from industry, political groups, and even the state of Texas asking courts to block it. Is this a real danger for the EPA?
My short answer is no. I don’t think there is any real chance of a court cancelling the endangerment finding based on one of these suits.
The argument presented in the petitions is basically that the “Climategate” emails and errors subsequently discovered in the Intergovernmental Panel on Climate Change (IPCC) climate change report undermine the science on which the EPA based the endangerment finding. Since this information came to light only recently (and not during the notice-and-comment period), the petitioners argue the EPA should reconsider the finding. Texas (the party whose petitions I’m most familiar with) has, in fact, asked the EPA itself to reopen the finding and only petitioned the D.C. circuit court to review the issue by essentially cc:ing the EPA petition to the court. This raises the first roadblock the petitioners will face: they need to exhaust remedies with the agency before the court will act. I greatly doubt the EPA will reopen the finding, but it could in principle do so. Assuming it does not, would the D.C. Circuit then entertain the prospect of forcing the EPA to reconsider the finding?
Again, I don’t think so. The court would review the agency’s action under the Administrative Procedure Act’s “arbitrary and capricious” standard. In practice, this is similar to rational basis review. Agencies win unless they fail to provide any basis for their action or that basis is extraordinarily flawed.
In the context of the endangerment finding and the science behind it, this is the right approach. The IPCC report and mainstream climate science in general are widely but not universally accepted. This is normal. Science is never perfect and even when there is “consensus” in a field it is not universal. This is true of all of the science on which regulatory agencies rely to support their regulation, not just climate science. Regulatory agencies are designed to be able to deal with this uncertainty and however imperfectly they may do so, there is no reason to think that a court would do any better and every reason to think that a court would probably do worse. The D.C. circuit simply isn’t equipped, either in terms of expertise or procedure, to pick winners in climate science debates. The arbitrary/capricious standard of review – which is specified by statute but in reality defined by courts themselves – reflects this. The result, in this and many similar cases in the past, is substantial deference to the agency.
Unless the petitioners can show the EPA failed to support its conclusions at all, failed to consider some body of evidence, or engaged in some misconduct, the court will rule in the EPA’s favor. The petitioners have not alleged anything close to this.
I suspect the petitioners know this and that therefore the petitions are more of a political move than a legal one.
Nathan Richardson is a Visiting Scholar at RFF.
