It’s More Than a Process

The Office of the Inspector General (OIG) of the U.S. Environmental Protection Agency (EPA) recently concluded that the agency failed to follow prescribed policies in its peer review of the technical support document that provided the justification for its 2009 “endangerment finding” on greenhouse gases. The OIG report is timely, but in an unexpected way.

On December 15, 2009, the EPA released its Endangerment Finding for Greenhouse Gases under Section 202(a) of the Clean Air Act (CAA). The science that underpins the finding is found in the Technical Support Document (TSD). Uniquely, the primary scientific basis upon which this TSD was prepared was assessments conducted by outside organizations, particularly the United Nations Intergovernmental Panel on Climate Change.

Flawed Review Process Revealed

The most significant issue raised by the OIG report of Sept. 26 was whether preparation of the TSD met Office of Management and Budget (OMB) requirements for a very rigorous peer review. The standard for the more than high level of peer review is if the TSD is a “highly influential scientific assessment.” The OIG report notes that EPA officials stated that the agency does not consider the TSD to be a highly influential scientific assessment, but merely “influential scientific information,” a “reader-friendly” version of the underlying peer-reviewed science—a process the agency “deemed adequate.” The EPA acknowledged to the OIG that “No weighing of information, data and studies occurred in the TSD. That had already occurred in the underlying assessments, where the scientific synthesis occurred and where the state of the science was assessed” (emphasis is the OIG report’s). The OIG report strongly disagreed with that assessment.

The OMB definition of a “highly influential scientific assessment” is one in which the impact to the economy is more than $500 million in one year or one that is “novel, controversial, or precedent setting.” The OIG rightly found that the TSD was, in fact, a highly influential scientific assessment, because it clearly met the criteria and because the EPA “had to weigh the conclusions and information in those assessments in deciding which information to present.” In other words, it decided which reports were included or not in the TSD. Based on that selection standard, the EPA’s TSD peer review panel of 12 federal climate scientists (one was an EPA employee) did not meet the OMB requirements for neutrality in the peer review process.

The EPA quickly issued a press release that stated that it “disagree[d] strongly with the Inspector General’s findings” and that it had followed all the appropriate guidelines. The press release went on to say that the OIG report was just about process, not about science. The EPA’s attempt at redirecting attention is so transparent. If the process is corrupt, so are rules produced by using that process.

Federal Courts Take Notice

Elsewhere in the nation’s capital, three separate lawsuits are pending before the U.S. Court of Appeals for the District of Columbia Circuit. The suits (now combined) contend that the EPA overstepped its authority under the CAA to regulate greenhouse gases (specifically, the Endangerment Rule, the Auto Rule, and the Tailoring/Triggering Rule). The combined request for judicial notice states: “In its submissions to this Court, EPA argues that the Administrator probed and weighed the science set forth in the record before exercising her own independent ‘judgment’ in determining whether emissions of greenhouse gases from new motor vehicles ‘cause, or contribute to air pollution … reasonably anticipated to endanger public health or welfare.’ ” That description of the internal process Jackson used to vet the science supporting the TSD is much different than the description of the process provided to the OIG.

It seems the EPA has maneuvered itself into a classic Catch-22. On one hand, the EPA acknowledged to the OIG that it had not weighed or sifted the science, but simply assembled a literature review compiled by others who had evaluated the science. Therefore, the OIG concluded that the EPA failed to conduct the rigorous peer review required by federal and EPA rules. The OIG also highlighted that the EPA failed to make its own independent judgment of the science, as required by the CAA, so it follows that the subsequent endangerment finding is fatally flawed.

On the other hand, if Jackson actually “probed and weighed” the science, as she said she did in her response to the lawsuits, then she (or at least the EPA lawyers) clearly understood that a completely outside, neutral “rigorous review” was legally required, but was ignored. If that were the case, the EPA failed to comply with established federal and EPA regulations and policies for reviewing technical data, and, again, the subsequent endangerment finding is fatally flawed.

Uncertain Response

We don’t know how the Court of Appeals will weigh the EPA’s convoluted logic in its decision. The good news is that the EPA can’t keep its story straight, and this is the same court that has remanded EPA rules many times in the past (including the Clean Air Mercury Rule, Clean Air Interstate Rule, and Clean Water Act 316(b)).

Wouldn’t it be ironic if the EPA’s statements to the OIG were the final bits of evidence that convinced the court to roll back the Endangerment Finding and the pending Greenhouse Gas Rule?

Dr. Robert Peltier, PE is POWER’s editor-in-chief.

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