Ragging on Climate Change

An White House  document surfaced today relating to EPA’s proposed finding of endangerment.  The document is unremittingly critical of EPA.  Some of the criticisms relate to fairly narrow points such as whether EPA should have addressed six greenhouse gases or only four. Other issues are more basic.

The  document displays stunning ignorance of or disdain for law.  It suggests that the EPA should hold back from making an endangerment finding on the ground that  “an endangerment finding under section 202 may not be not the most appropriate approach to regulating CO2.”  The Supreme Court’s decision in Massachusetts v. EPA makes it clear that the EPA’s decision is supposed to be controlled by the science, not by its policy preferences.  Didn’t OMB get the memo?

In terms of the science, the document seems skeptical of the idea that climate change is harmful. For example, the memo says,

For example, the NPRM and TSD outline the following 5 human health effects from climate change: temperature effects, air quality changes, extreme events, climate sensitive diseases and aeroallergens. It is unclear whether temperature effects will resultin net mortality increases or decreases and the scientific literature does not provide definitive data or conclusions about aeroallergen impacts. Further, the impact of climate sensitive diseases may be minimal in a rich country like the US.

The document then suggests that a finding of endangerment might imply an exceptionally broad use of the precautionary principle:

In the absence of a strong statement of the standards being applied in this decision, there is a concern that EPA is making a finding based on (1) “harm” from substances that have no demonstrated direct health effects, such as respiratory or toxic effects, (2) available scientific data that purports to conclusively establish the nature and extent of the adverse public health and welfare impacts are almost exclusively from non-EPA sources, and (3) applying a dramatically expanded precautionary principle. If EPA goes forward with a finding of endangerment for all 6 GHGs, it could be establishing a relaxed and expansive new standard for endangerment. Subsequently, EPA would be petitioned to find endangerment and regulate many other “pollutants” for the sake of the precautionary principle (e.g., electromagnetic fields, perchlorates, endocrine disruptors, and noise).

ADDENDUM There are some reports that this document was actually written by a Bush holdover from the Small Business Administration. To be on the safe side, I’ve scrubbed references to OMB from an earlier version of this posting.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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