Massachusetts v. EPA: After 13 years, it’s time for climate policy review

Today marks 13 years since the U.S. Supreme Court issued its landmark decision in Massachusetts v. EPA upholding the power of the Environmental Protection Agency (EPA) to regulate greenhouse gases, the gases attributed to the warming of the planet. The ruling touched off a fierce debate over the science underlining climate change and the policies needed to address it.

In 2009, using legal authorities recognized by the Supreme Court, EPA issued its Endangerment Finding (“EF”), which is the factual and scientific underpinning that justified numerous regulations covering automobiles, oil and gas, manufacturing and power plants.

While the regulations were litigated, the EF was not directly litigated.

The policy debate over climate change may be fiercer today than ever. The Democratic presidential candidates claim “scientists are telling us” we have about a decade to act before “irreparable damage” is done to the planet. Democrats propose spending trillions of dollars to save the planet through, among other measures, the Green New Deal and the elimination of fossil fuels. 

President Trump and other skeptics question the underlying science. They assert that the cost and the regulations will destroy the economy. Moreover, the president has acted aggressively to withdraw from the Paris Climate Agreement, an international accord addressing global warning. The Trump administration is also repealing many Obama-era climate regulations.

While the fight plays out on the political stage, the real fight is over the validity of the models predicting harm to the planet. Both sides believe their positions are absolutely right. So far, both sides have embellished their bluster but have avoided having their conclusions directly tested through independent analysis or cross-examination.

This stalemate may change. On March 9, the Center for the Study of Carbon Dioxide and Global Change (“the Center”) filed a petition asking EPA to repeal its 2009 Endangerment Finding. This petition provides EPA with an opportunity to reevaluate its models after 13 years of real-world experience.

The Center’s petition concedes:

1. There is no debate that atmospheric carbon dioxide (“CO2”) is a greenhouse gas;
2. There is also no debate that the concentration of atmospheric CO2 has risen over the past two centuries; and
3. There is no debate that global temperatures are warmer today than they were 50, 100 or even 200 years ago.

The Center states that the real question is whether the increases in atmospheric CO2 are causing dangerous global warming, warming so severe that it is threatening life all across the planet.

The Center also asserts that EPA’s model-based temperature projections artificially inflate warming by a factor of three; that observations reveal that claimed adverse effects of greenhouse gases are not occurring; and the models are invalid as to claims associated with greenhouse gas-induced warming.

The most unfortunate part of the climate change debate is that while the evidentiary basis for the EF was subject to informal public comment, EPA’s models and science have not been subjected to independent, expert analysis or tested by the rigors of cross-examination in a trial-like setting.

Granting the Center’s petition would give EPA a chance to confirm its initial determinations or change course if the science does not support its EF.

EPA has several options. It can reject the petition, in which case the Center will likely sue. If EPA cannot persuade the court to dismiss the lawsuit, there will likely be a trial on the science of climate change.

EPA could grant the petition and take public comment in another informal hearing; again, without any direct evidentiary challenge to the models. Whatever the outcome, the reasonableness of EPA’s decision will be subject to court review and likely upheld.

A final, but rarely used option would be for EPA to conduct a “formal rule-making” in which the agency appoints an administrative law judge to hear evidence, take witness testimony and allow cross-examination to test the evidence.

Such a process would allow the parties to test the scientific validity of the models used to make climate policy. For the first time the assumptions and predictions of its models would be tested against real-world facts by probing the soundness of the assumptions, reproducibility of the models and accuracy of the predictions.

With 13 years of additional data, EPA has a chance to either affirm, modify or repeal its endangerment findings based on real-world data. Before this nation spends trillions of dollars it does not have to radically change life in the U.S., responsible decision-making requires EPA to use the highest quality data available. It owes that to the nation.

William L. Kovacs, author of “Reform the Kakistocracy: Rule by the Least Able or Least Principled Citizens” and former senior vice president for the U.S. Chamber of Commerce. The author does not have any lobbying or financial interest in the issue discussed.