BEFORETHEUNITED STATES ENVIRONMENTALPROTEC [ION AGFNCY
Inre: 

### ) ) EPADocketNo. flangerh1ttandCauseor Contribute 

### ) jndiflgs for Greenhouse GasesUnder 

### ) EPAHQ02009 7 ’ Section202(a) oftheClean AirAct 

### )
PETITION FORRECONSIDERATION OFENDANGEENT AND CAUSE OR CONTRIBUE FINDINGS FORGREENHOUSEGASES

1. INTRODUCTION pursuantto Section307 ofthe CleanAirAct(CAA”) the State ofTexas “Texa5” orthe “State”). through its AttorneY General and on behalfofits Governor, ommi50r of AgricUlture Comnhiss1ofl ofthe General Land Office. omniSsi0fl on Environmental Quality, and the Chairman of the public Utility CorntfljSsiOfl, files this Petition for RecOflsjdatbon requesting that the Administrator ofthe U.S. EnvirOfln ntal Protection Agency (the “EPA”) reconsiderher flangert and Cause or Contributejnding5 for Greenhouse Gases under Section 202ca) of the Clean Air Act flangermt Finding”). 1 In suppo ofthis Petition,the State ofTexas showsthefolloWiflg

11. OVERnIE
Texas has an acclaimed record of working with EPA to enforce environmental laws. Texas is also a recognized leader Ifl using renewable energy sources. But. Texas IS compelled to take action againstEPA’S flgermentFinding issued on December 15, 2009 because itwill leadto unprecedentedbureaucratic licensing and regulat0 burdens on farmers. ranchers, small businesses, hospitals, and even schools. 2 Any location that

See fldaflgerflnt and Cause orContributeFindings for Greenhouse Gases underSectiOn202(a) ofthe Clear AirAct. 74 Fed. Reg. 66,496 (Dec. 15. 2009) (dcSCribmprocedures forrequestingthatthe Administrator COnvene aproceeding forrecon5ideratbo 2 AstheTexas cornrnissbohl on EnvirOfl1t Quality observed inits June23, 2009 Comment onthe mobile source fldaflgermtFinding. “Thepositive dange1mentfinding and cause or contributefindings under Section202a)willtriggera similarfindingunderprovisions ofCleanAir Actregulatingpoint sources.” LetterfromMarkVickerY. Executive Director, Texas Commissionon Envirofl1nt QualitYto Hon. LisaJackson, Administrator, U.S. Environi ental Protection Agency (3une23, 2009), available at Docket: EPAHQ0A20090l 7 l. Thatis, as theTexas Commission on Enironment Quality noted, by findingthat mobile source GHG emissions_which are regulated exclusivelyby EPA and notby the states_constitute adangerto thepublic’shealth and safety ithin the meaningofSection202(a) ofthe Clean AirAct, the Administratorhas essentially requiredthatstationary source GHGs_hich arc regulatedbythe states__shall alsobe regulated. The Executive Directorofthe Texas Commission on Enviroflme1tatQuality putit succinctlY. “the findingsthatthe four specific GHG[s emitted from motor vehicles cause or contributeto airpollutionthat is reasonablY anticipatedto endangerpublichealth andwelfare necessarily triggers regulationof [stateregulate point sources of GHG ‘pollutants underTitleI andTitleV ofthe CAA.” ThispositiOfl is sharedbytheNational Association ofclean Air Agencies. which represent 5 state and local regulat0 agencies thatarehas a natural gas powered heater necessarily emits greenhouse gasses to warm the air. Texas farmers rely on diesel-powered tractors to plow fields and operate cotton gins. Most public universities have boilers and some even have small power plants. Virtually every sector ofthe Texas economy will be affectedby EPA’s EndangermentFinding. Despite the Endangerment Finding’s remarkably broad impact, EPA’s Administrator relied on a fundamentally flawed and legally unsupported methodology to reach her decision. And although the Administrator is legally required to undertake a scientific assessment before reaching a decision that is supposed to be based on scientific conclusions, the Administrator outsourced the actual scientific study, as well as her required review ofthe scientific literature necessary to make that assessment. In doing so, EPA relied primarily on the conclusions of outside organizations, particularly the UnitedNations International Panel on Climate Change (“IPCC”).
EPA’s reliance on the IPCC’s assessment to make a decision ofthis magnitude is not legally supported. Since the Endangerment Finding’s public comment period ended in June, 2009, troubling revelations about the conduct, objectivity, reliability, and propriety ofthe IPCC’s processes, assessments, and contributors have become public. Previously private email exchanges among top IPCC climatologists reveal an entrenched group of activists focused less on reaching an objective scientific conclusion than on achieving their desired outcome. These scientists worked to prevent contravening studies from being published, colludedto hide research flaws, and collaboratedto obstructthe public’s legalrightto public information under open records laws.

In addition to the improper collusion and cover-ups revealed by the release of these emails, since the public comment period ended, some ofthe IPCC’s methodologies and conclusions have been discredited. Not surprisingly, respected scientists and climatologists from around the globe have roundly criticized and correctly questioned the IPCC’s process, while calling forprogrammatic reforms. Indeed, there has been worldwide fallout from scandals enveloping the IPCC. In Britain, four separate investigations have been launched, and the British Broadcasting Corporation has convened an inquiry into the journalistic appropriateness of its IPCC coverage. India has announced that it will create its own climate change institute rather than rely exclusively on the IPCC. And the United States Department ofCommerce has created a new Climate Science Institute—though it has remained noticeably silent on the scandals plaguing the IPCC.

responsible for Clean Air Act enforcement, “Once EPA has issued an endangerment and cause or contribute finding with respectto apollutant and class ofmotorvehicles, section 202(a) requires itto promulgate emissions standards forthatpollutant and class ofmotorvehicles., .Mostwould concede that, if adopted, these proposed limitations would clearly subjectthe affectedpollutants to ‘regulation’ and trigger the applicability ofthe PSD and Title V programs underthe Actto GHG emissions.” Letterfrom G. Vinson Heliwig, NACAA Co-President, Larry Greene, NACAA Co-President, Robert Hodanbosi, Co ChairNACAA Permitting Committee, and Ursula Kramer, Co-ChairNACAA Permitting Committee, to U.S. Environmental Protection Agency (December28, 2009), available atwww.regulations.gov, Docket: EPA-HQ—OAR—2009—05 17.As a result, bipartisan legislation has been introduced in both chambers ofCongress to prevent implementation of the Endangerment Finding and the related regulation of greenhouse gas emissions. Notwithstanding the multitude and scope ofthese responsive measures, EPA has not indicated a willingness to review allegations that have shocked and appalled policy makers, regulators, scientists, and concerned citizens worldwide. Thus, while the State ofTexas remains committed to working cooperatively with EPA to protect the environment, this State must exercise its legal right to challenge a fundamentally flawed and legally unjustifiable process that will have a tremendously harmful impact onthe lives ofTexans andthe Texas economy.
In light ofthe disturbing revelations detailed inthe State’s Petition—which strike directly at the heart of the objectivity, procedural legitimacy, and scientific validity of the assessments relied on by the Administrator—EPA should grant the State of Texas’ Petition for Reconsideration, conduct the rigorous, agency-led assessment that fully complies with Office of Management and Budget (“0MB”) rules governing federal agency processes, and then rely on that scientifically—and legally—sound mechanism before reaching apotentially trillion-dollardecision as to whether greenhouse gases from mobile sources constitute a dangerto the public health and welfare. Thus, on behalfofthe farmers and ranchers who use fossil fuels to cultivate their land and fertilize their crops; the 3,800 farms and 28,000 cattle operations that will have to undergo the costly, complicated Title V Airpermitting processjust to continue operating as they always have; 3 the 375,000 hard-working Texans who rely on the energy sector for employment; 4 the estimated 30,000 Texas businesses that face new regulations and increased costs because they emit greenhouse gases; 5 the already financially strapped Texas families who face $1,200 in increased annual living costs; 6 and the public school systems across the State that depend on the Permanent School Fund—which earned more than $2 billion in revenue from oil and gas leases over the last five years—for the more than $700 million itprovided for public education last year, 7 Texas, through its Attorney General and by its Governor, Agriculture Commissioner, Land Commissioner, Commission on Environmental Quality, and the Chairman of the Public Utility Commission, hereby requests that the Administrator reconsider the Endangerment Finding.

Texas Advisory Panel on Federal Environmental Regulations, Comments on the Environmental Protection Agency’s Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(A) ofthe Clean AirAct, at 16 (June 23, 2009).

Texas Advisory Panel on Federal Environmental Regulations, Comments on the Environmental Protection Agency’s Proposed Endangerment and Cause orContribute Findings for Greenhouse Gases Under Section 202(A) ofthe Clean AirAct, at 14 (June 23, 2009) 5 Rick Perry, Governor ofTexas, Speech Urging EPA to Withdraw Ruling on Danger ofCarbon Dioxide (Dec. 9, 2009), available athttix//povernor.state.tx.us/news/speech/14021/ (last visitedFeb. 15, 2010).

Texas Education Agency, Texas Permanent School Fund Annual Report, December, 2009 at4, available athttp://ritter.tea.state.tx.us/psf/PSFARO9pdf.

3III. STANDARD OFREVIEW
Section 307 of the Clean Air Act directs that the Administrator “shall convene a proceeding forreconsideration” iftwo things are shown: First, it was either “impracticable” to raise the objection during the public comment period, or the grounds for such objection arose after the period ofpublic comment (but within the time specified forjudicial review).

. Second, the objection is ofcentral relevance to the outcome ofthe rule—in this case the Endangerment Finding. 9 The State’s Petition meets bothrequirements.
The information on which this Petition is based came to light after the June 23, 2009 deadline for public comment ended. The deadline for seeking judicial review ofthe Endangerment Finding is February 16, 2010.’° Therefore, the grounds for the objections presented in this Petition arose after the period ofpublic comment but within the time specifiedfor seekingjudicial review)’
The Endangerment Finding stipulates that “the Administrator [relied] on the major assessments ofthe USGCRP, IPCC, and NRC as the primary scientific and technical bases of her endangerment decision.” 2 The appropriateness of the Administrator’s misplaced reliance on those assessments is ofcentral relevance to the Endangerment Finding. ‘

IV. THE STATE OF TEXAS’ COMMITMENT TO THE ENVIRONMENT
A. TEXAS’ RECORD OF ENVIRONMENTALENFORCEMENT
This Petition should not be misconstrued as a waning commitment by Texas to protect the environment. Rather, Texas asserts that environmental protection is best achieved whenbased on sound legal and scientific principles. Texas has aggressively protected air quality. The State hasjoined with EPA in record-setting enforcement actions and has become a national leader in renewable energy sources that have reduced greenhouse gas emissions.

Last December, the State ofTexas teamed with EPA and the U.S. Department ofJustice in a successful enforcement effort againstthe mining and refining company Asarco, LLC. As a result, Asarco will spend $1.8 billion remediating 80 hazardous waste sites in 19

See42 U.S.C. § 7607(d)(7)(B). 9 1d, 10 Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) ofthe Clear AirAct, 74 Fed. Reg. 66,496.

See42 U.S.C. § 7607(d)(7)(B) (providing that an objection to an agency rule underthe CAA may be filed before the end ofthe period ofjudicial review ifthe grounds forthe objection arose afterthe period forpublic comment). 12 Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) ofthe Clear Air Act,74 Fed. Reg. at 66,510. 13 See42 U.S.C. § 7607(d)(7)(B) (an objection mustbe of“central relevance to the outcome ofthe rule”)

4states across the country. Ofthat amount, $52 millionwas allocatedto Texas to fund the environmental remediation of a lead smelter in El Paso.’ 4 In August, 2008, Texas obtained $6.5 million in penalties in an enforcement action against two Lyondell Chemical Company subsidiaries that operated seven petrochemical plants along the Gulf Coast. The State’s action stemmed from an EPA-led initiative that encouraged states to resolve long-standing disputes withpolluters innon-attainment areas. 15
And, ajoint enforcement effortby Texas, EPA, and six other states ledto the largest-ever federal environmental air quality settlement involving a refining company. Under its agreement with these state and federal authorities, Valero Refining, Inc., was ordered to spend $700 million installing emission-reduction technologies at multiple refining facilities in Texas, Louisiana, Oklahoma, Colorado, NewJersey, and California.’ 6 Currently, the Attorney General’s Office is pursuing an enforcement action against BP Products North America, Inc., which was cited for 53 separate unlawful pollutant emissions at its Texas City facility.’ 7 The State’s action is built on separate criminal and civil enforcement actions brought by EPA and the Department ofJustice—enforcement actions thatled BP to plead guiltyto felony Clean Air Actviolations.’ 8

B. TEXAS’ RECORD OF REDUCING GREENHOUSE GAS EMISSIONS

Texas is successfully fostering the use ofrenewable energy sources. Since 2004, no other state in the nation has reduced power-sector CO 2 emissions more than Texas.’ 9 Further, Texas has already installed more wind power than any other state—and all but four

14 Press Release, Office ofthe Attorney General, Asarco Pays $52 Millionto Fund Cleanup at Former El Paso Smelter (December 10, 2009), available atwww.oag.state.tx.us (lastvisited Feb. 15, 2010). See also id. (noting that a separate state enforcement action from the same bankruptcy case yielded another $29 million forremediation at an Asarco-owned state-superfund facility in southeast Texas). See also, Bob Christie, Asarco Paying $1.8B to Clean Up More Than 80Sites, ASSOCIATED PRESS, December 10, 2009. 15 Press Release, Office ofthe Attorney General, Attorney General AbbottResolves Environmental Case Against Seven GulfCoast Petrochemical Plants (August 25, 2008), available atyy g.statetx.us (last visited Feb. 15, 2010). 16 Press Release, Office ofthe Attorney General, Attorney General Wins forTexas in Largest Environmental Settlement with a Refiner (June 16, 2005) available at www.oa.state.tx.us (lastvisited Feb. 15, 2010). Additionally, Texas achieved anotherrecord-breaking enforcement action involving Huntsman Petrochemical Corp., which paidthe largestpenalty every levied for a Texas Clean AirActViolation. Press Release, Office ofthe Attorney General, Attorney General AbbottLands Record Environmental Penalty From Huntsman (May 13,2003), available at: www.oag.state.tx.us (lastvisited Feb. 15, 2010). 17 Press Release, Office ofthe Attorney General, BP Products North AmericaAgrees to Temporary Injunction Ensuring Compliance withthe Texas Clean Air Act (June 29, 2009), available at www.oag.state.tx.us (last visited Feb. 15, 2010).

Press Release, Environmental Protection Agency, BP Products to PayNearly $180 Millionto Settle Clean Air Violations at Texas City Refinery (February 19, 2009), available at www.epa.gov (lastvisited Feb. 15, 2010). 19 Texas is building on thatby developing new transmission lines that will move more than 18,000 megawatts across the State—almost as much as other states’ current capacity combined. See Press Release, Office ofthe Governor, GovernorPerry Urges EPA to Withdraw Ruling on Danger ofCarbon Dioxide (December9, 2009), available atwww.governor.state.tx.us (lastvisited Feb. 15, 2010).

5countries—and the State’s leadership is working to ensure adequate infrastructure to continue growthinthe wind generation sector. 20
The Texas Public Utility Commission created Competitive Renewable Energy Zones (CREZ) and has developed a plan to construct the electricity transmission capacity necessaryto deliver renewable energy to Texas consumers. 21 As aresult, the transmission infrastructure necessary to triple renewable energy capacity is expected to be in place by 2013.22

The State’s renewable energy efforts are already yielding results for the environment. Texas saw one ofthe two largest “absolute declines” in greenhouse gas emissions ofany state in the nation. 23 “Many northeastern states have reduced carbon dioxide emissions from electric power plants by switching from polluting (and expensive) oil to cleaner natural gas. Texas, meanwhile, has ledthe nation in wind energy installations, helping to stabilize emissions from its power sector.” 24 “On a per capita basis, emissions from electric generators in Texas fell by 4% between 2004 and 2007—the result ofreduced reliance on coal 

### and an increased share ofpower produced by natural gas and wind.” 25 These statistics—as well as others that show that industrial-source nitrogen oxide fell by 46% between 2000 

### and 2006, and the 22% decline in major metropolitan areas’ ozone levels between 2000 and 2008—demonstrate Texas’s commitmentto the environment. Significantly, during the same four-year period when CO 2 emissions from electric generators decreased in Texas by 4%, such emissions in the rest ofthe nation increased by an average of 7%26 Further, U.S. Department of Energy statistics indicate that Texas’s greenhouse gas emissions first began dropping in 2002--and that the period between 2002 and 2007 showed an even larger, 5% decline. 27

Texas continues to expand its commitmentto renewable energy sources. Inthe firstthree months of2009, non-hydro renewables accounted for nearly 6% ofelectricity produced in Texas. 28 One of the nation’s largest biomass power plants is currently being constructed in Nacogdoches. And in Freeport, Texas, a new high-tech facility is slated to use algae to convert CO 2 andwastewaterinto energy. 29

201d 21 Texas Advisory Panel on Federal Environmental Regulations, Comments on the Environmental Protection Agency’s Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(A) ofthe Clean AirAct, at 24 (June 23, 2009). 22 Id. 23 Tony Dutzik, et. a!., Too MuchPollution ENVIRONMENT TEXAS RESEARCH AND POLICY CENTER, at ES-3 (Fall 2009), available at www.environmenttexas.org (last visited Feb. 15, 2010). 24 Id. 251d at23. 26 John McFarland, Report: Texas Greenhouse Gas Emissions Down, ASSOCIATED PRESS, Nov. 12, 2009, available atyyv.a1 neso.cm/uiess/wirestory?id=9073610 (last visited Feb. 15, 2010). 27 Id. 28 Tony Dutzik, et. a!., Too Much Pollution ENVIRONMENT TEXAS RESEARCH AND POLICY CENTER, Fall 2009, at 24, available at www.environnienttexas.org (lastvisited Feb. 15, 2010). 29 RickPerry, Governor ofTexas, Speech atthe Texas Renewable Energy Industries Association Conference (Nov. 9, 2009), available atwww.governor.state.tx.us (last visited Feb. 15, 2010).

6Texas has a demonstrated record ofworking with EPA to enforce environmental laws. Equally important, the State has a demonstrated record ofsuccessfully encouraging and implementing clean, renewable energy technologies that have fostered a cleaner environment.

V. THE ENDANGERMENTFINDING
The Administrator takes the position—and the State does not disagree—that the United States Supreme Court decision in Massachusetts v. EPA required the Administrator to: “determine whether or not emissions ofgreenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health orwelfare, orwhetherthe science is too uncertainto make areasoned decision.” 3 °
EPA’s Endangerment Finding explicitly acknowledges that its decision must be exclusively governed by science: “the [Supreme] [C]ourt clearly indicated that the Administrator’s decision must be a ‘scientific judgment.’ She must base her decision about endangerment on the science, and not on policy considerations about the repercussions or impact ofsuch a finding.” 3

’ Further, a federal law requires that she not base her decision on just any science, but rather “on the best reasonably obtainable science.” 2 Also, the plain language ofSection 202(a) requires that the Administrator’s decision be “in [her] judgment.

. . (emphasis added). Thus, in reaching her Endangerment Finding, the Administrator is obligated to make her own, independent, ‘reasoneddecision’ that is based exclusively on thebest available science.
Evidence is mounting that the Administrator’s decision was (1) not well-reasoned, (2) based on faulty scientific analysis, and (3) not truly her own but instead a blind-faith acceptance offlawed scientific conclusions by thirdparties.

VI. THEIPCC REPORT’S CENTRAL RELEVANCE TO THE ENDANGERMENT FINDING
A. THE RELATIONSHIP BETWEEN THE ENDANGERMENT FINDING, THE IPCC AND THE CLIMATE RESEARCH UNIT AT EAST ANGElA UNIVERSITY’S HADLEY CENTER
Established by the United Nations and the World Meteorological Organization, the IPCC is the self-proclaimed “leading body for the assessment ofclimate change.” 34 Among

30 U.S. Environmental Protection Agency, Climate Change

—Regulatory Initiatives, Endangerment and Cause or Contribute Findings for Greenhouse Gases underthe CleanAirAct, available at http://www.epa.gov/cIimatechange!endanerment.htmI (last visited Feb. 13, 2010).

Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) ofthe Clear Air Act, 74 Fed. Reg. at 66515. 32 Exec. Order. No. 12,866,58 Fed. Reg. 51,735 (Sept. 30, 1993). 42 U.S.C. § 7521.

‘ International Panel on Climate Change, Organization, available at http://www.ipcc.ch/organization!organization.htm (last visited February 14, 2010).

7the IPCC’s primary functions is the preparation and publication ofassessment reports. 35 The reports, which are issued every six years, are divided into three separate books called Working Groups and a fourth calledthe Synthesis Report. The IPCC relies on anetwork of“[t]housands ofscientists all over the world [who] contribute to the work ofthe IPCC on a voluntary basis as authors, contributors and reviewers” to draft the assessment reports. 36

The IPCC’s primary governing principles are: “Comprehensiveness, objectivity, openness and transparency.” 37 The EPA, citing principles issued by the IPCC in 2006, explainedthatthe “role ofthe IPCC is to assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic information relevant to understanding the scientific basis ofrisk ofhuman-induced climate change, its potential impacts and options for adaptation and mitigation. IPCC reports should be neutral with respect to policy.” 38 Notwithstanding those principles, key contributors to the IPCC reportwere anything but comprehensive, objective, open, andtransparent. According to EPA, “the IPCC features the HadCRUT global surface temperature record.” 39 That refers to temperature data collected and maintained by the Hadley Center’s Climate Research Unit (“CRU”) at Great Britain’s East Anglia University. 40 The IPCC’s primary temperature data source is the CRU. The CRU and its scientists are virtually ubiquitous withinthe climateresearch community.
Until recently, the CRU’s Directorwas Dr. Phil Jones, one ofthe world’s mostprominent climate scientists. Dr. Jones played a substantial role in the development ofthe IPCC’s Fourth Assessment Report (“AR4” or the “Fourth Assessment”). In addition to serving
as the lead author ofAR4’s high-profile Summaryfor Policy Makers, Dr. Jones was a contributing author of the Technical Summary and the lead author of The Physical

International Panel on Climate Change, Procedures, available at http://www.ipcc.ch!oranization/organization procedures.htm (last visited Feb. 16, 2010). 36 International Panel on Climate Change, Structure, available at http://www.ipcc.ch/organization/organization structure.htrn (last visited February 14, 2010). r Id,

Endangermentand Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe Clean AirAct: EPA’s Response to Public Comments Volume 1: General Approach to the Science and Other Technical Issues, at 13 (Dec. 7, 2009), available at http://www.epa.gov!climatechange/endangerment.htniI. See also International Panel on Climate Change, Structure (explaining that the IPCC’s primary governing principles are: “Comprehensiveness, objectivity, openness andtransparency.”), available athttp:/!www.ipcc.ch!organization/organization.htm (lastvisited February 14, 2010).

‘ Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe Clean AirAct: EPA’s Response to Public Comments Volume II: Volume 2: Validity ofObserved and Measured Data, at 27, (Dec. 7, 2009), available athttp://www.epa.gov’climatechange/endangerment.html. 40 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe CleanAirAct: EPA’s Response to Public Comments Volume II: Volume 2: Validity ofObserved and MeasuredData, at 19 (Dec. 7, 2009), available athttp://www,eoa.gov/climatechange/endangerrnent.htrnl.

8Science Basis, Chapter 3: Observations: Atmospheric, Surface, and Climate Changes (Chapter 3)41

But limiting a description ofDr. Jones’s involvementto simply the portions ofthe Fourth Assessmentthathe personally authored does not adequately describe his influence on the report. Dr. Jones’s research is cited 39 times in AR4. 42 His work is referenced by all three of AR4’s Working Groups and appears in 21 separate chapters of the report. 43 Further, Dr. Jones’s influence within the tight-knit community of climate scientists is rooted not only in his role as lead IPCC contributor, but also in the significant influence that the Hadley Center’s climate data has on the IPCC reports, which rely on CRU data. As was noted above, “IPCC features the HadCRUT global surface temperature record.” 44 Further, “EPA displays Hadley global surface temperature data (i.e., the HadCRUT dataset) in Figure 4.2 inthe TSD, andthis figure is from IPCC.” 45 Significantly, EPA also directlyrelied onthe CRU’s data. That is, although EPA did not conduct its own scientific assessment—instead allowing IPCC and others to serve as the “the primary scientific and technical basis for her endangerment finding” 46 —the Technical SupportDocument (“TSD”) thatpurports to provide the scientific bases forthe Administrator’s Endangerment Finding “refers to trends in three global surface temperature records.” 47 The three temperature data sources cited in the TSD are: the CRU

... NOAA’s global land-ocean surface temperature dataset... [and] NASA’s global surfacetemperature analysis.” 48

But according to the TSD, the CRU’s temperature data “applies an urbanization adjustment”—scientific vernacular for applying a mathematical calculation to the raw temperature data which is intended to account for variables, such as the location of a particular weather station. 49 Thus, the CRU temperatures cited by both the JPCC and EPA do not reflect temperatures that were actually captured by weather station

41 IPCC Fourth Assessment Report: Climate Change 2007: Working Group 1, Chapter 3, Observations: Atmospheric, Surface, andClimate Changes, available at http://www.ipcc.ch/publications and data/ar4/wgi/en/contents,html 42 IPCC Fourth Assessment Report: Climate Change 2007, available at http://www.ipcc.ch/publications and data/publications and data reports.htrn.

Id. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe Clean AirAct: EPA’s Response to Public Comments Volume II: Volume 2: Validity ofObserved and Measured Data, at27 (Dec. 7, 2009). available athttp://www.epa.gov/clirnatechange/endangerment.htrn1. u Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe Clean AirAct: EPA’s Response to Public Comments Volume 11: Volume 2: Validity ofObserved and MeasuredData, at 26 (Dec. 7, 2009), available athttp://www.epa.gov/climatechange/endanerrnent.html. 46 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe Clean AirAct, 74 Fed. Reg. at 66,511, htp//www.epa.gov/climatechange/endangerment.html (lastvisited Feb. 16, 2010).

‘ Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe Clean AirAct: EPA’s Response to Public Comments Volume 11: Validity ofObserved and Measured Data (U.S. Environmental Protection Agency Dec. 7, 2009) at 19, available at http://www.ea.gov/climatechange/endangerment.htmI (last visited Feb. 16, 2010). 48 Id.

Id. at 20.

9thermometers, but rather temperatures that have been recalculated by the CRU for one purported scientific reason or another. According to the TSD, EPA’s other two temperature sources—the United States Commerce Department’s National Oceanographic and Atmospheric Administration (“NOAA”) and the National Aeronautics and Space Administration (“NASA)

— also manipulate their raw temperature data using computer models. But importantly, the significance ofCRU’s modeling methodology is amplified by the fact that data from the NOAA has also been subjected to the CRU’s data modeling calculations: “The NOAA global surface temperature dataset (Smith et al., 2008) employs the same methodology for addressing urbanization as is used in the HadCRUT.” 5

° Thus, two of the three temperature sets that EPA relied on to reach its Endangerment Finding were homogenizedbased on CRU mathematical models.

Because the IPCC relied on the CRU data and modeling methodologies, the CRU’s scientists mustbe shownto be objective and impartial arbiters ofthe science—ormuch of the world’s climate data is necessarily flawed by the modelers’ lack ofobjectivity. But Dr. Jones and his colleagues were far from objective. To the contrary, there is overwhelming evidence of outcome-oriented conduct that severely undermines the objectivity oftheir scientific research.
That lack ofobjectivity was made abundantly clear on November 13, 2009, when files from the CRU’s backup server were anonymously copied and posted on the Internet. 51 Those copied files contained years’ worth ofemails between Dr. Jones and his scientific allies from CRU and around the world. The emails do not reflect the work ofobjective scientists dispassionately conducting their work and zealously pursuing the truth. Rather they reveal a cadre ofactivist scientists colluding and scheming to advance what they wantthe science to be—even where the empirical data suggest a different outcome. The emails also reveal some ofthe world’s most well-known climatologists demonizing those who question their climate change research. Such behavior directly contravenes the objectivity and skepticism fundamentalto the scientific method.

In addition to Dr. Jones, otherkey figures inthe emails—andtherefore key figures in this Petition—are CRU climatologist Dr. Keith Briffa, former CRU Director Tom Wigley, Pennsylvania State University professor Dr. Michael Mann, Dr. Ben Santer of the Lawrence Livermore National Laboratory, NASA Climatologist Dr. Gavin Schmidt, Dr. Kevin Trenberth of the National Center of Atmospheric Research (“NCAR”), the University of Arizona’s Dr. Jonathan Overpeck, NCAR’s Dr. Caspar Ammann, and others. Importantly, these scientists not only surface in the CRU emails—they are also significant contributors to the Fourth Assessment. For example, Dr. Trenberth co

° Id.

Fred Pearce, SearchforHackerMay LeadPolice Backto EastAnglia‘s Climate Research Unit, THE GUARDIAN, Feb. 9, 2010, available at http://www.guardian.co.uklenvironment/20 I0/feb/09/hacked-ernailspolice-investigation (last visited Feb. 14, 2010).

10authoredthe Working Group I’s Chapter 3 withDr. Jones, 52 the CRU’s Dr. Briffaand Dr. Overpeck were lead contributors to Chapter and Dr. Wigley also contributed to the report. 54
Moreover, research by the scientists named above is specifically referenced as authority in the AR4. For example, AR4 cites Dr. Jones’s work 38 times in 21 chapters oftwo Working Groups, Mann is cited 27 times in 7 chapters oftwo Working Groups, Briffa is cited 23 times in 9 chapters oftwo Working Groups, Wigley is cited 66 times in 18 chapters ofall three Working Groups, Overpeck is cited 15 times in 5 chapters oftwo Working Groups, Osborn is cited 30 times in 10 chapters of two Working Groups, Trenberth is cited 58 times in 18 chapters oftwo Working Grou,s, and Santer is cited 26 times in 8 chapters oftwo Working Groups,justto name afew. 5 Clearly the CRU, its scientists, and their colleagues wielded tremendous authority over the IPCC. Thus, to the extent their objectivity, impartiality, truthfulness, and scientific integrity are compromised or in doubt, so too is the objectivity, impartiality, truthfulness, and scientific integrity of the IPCC report, the CRU temperature data, the NOAA temperature data, and other scientific research that is shown to have relied on their compromisedresearch.

B. THE IPCC’S—AND THE CRU’S—EXPANDED FOOTPRINT
Under Section 202(a) ofthe Clean Air Act, the Administrator is to evaluate whether “in [her]judgment...” a pollutant presents a risk to the health or safety of the public. 56 Notwithstanding Section 202’s requirements, the Endangerment Finding and the TSD acknowledge that the Administrator effectively outsourced the scientific assessment process to the IPCC, the U.S. Global Climate Research Program (the “USGCRP”), and the National Research Council (“NRC”). 57 That is, EPA’s conclusion depended on summaries of existing reports that were provided by third parties rather than on an analysis thatwas within EPA’s own quality control. 58

52 See IPCC Fourth Assessment: Climate Change 2007: Working Group I: The Physical Science Basis, Chapter3, SupplementaryMaterials, Observations: Surface andAtmospheric Climate Change (listing Kevin Trenberth and Phil Jones as “Coordinating Lead Authors” ofchapter 3) (lastvisited Feb. 16,2010).

See IPCC Fourth Assessment: Climate Change 2007: Working Group I: The Physical Science Basis, Chapter 6, Supplementary Materials, Paleoclimate (listingJonathan Overpeck as a “Coordinating Lead Author” and Keith Briffa as a “Lead Author” ofChapter6).

See IPCC Fourth Assessment: Climate Change 2007: Working Group I: The Physical Science Basis, Annex 2 at 967 (listing Tom Wigley as a “Contributor” to the Working Group I report).

See generally IPCC Fourth AssessmentReport: Climate Change 2007. 5642 U.S.C. § 7521 (emphasis added).

See Endangermentand Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe CleanAirAct, 74 Fed. Reg. at 66,511 (listingthe reports onwhichthe EPArelied in drafting the Endangerment Finding). 58 See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe Clean AirAct, EPA Response to Public Comments Volume 1 at 7 (concedingthat “EPA didnotdevelop new science as part ofthis action and instead summarized the existing peer-reviewed assessment literature.”).

11In addition to acknowledging the Administrator’s decision to outsource her scientific assessment, the Endangerment Finding hints at a second deficiency—the appearance that multiple organizations are the source ofinformation when in fact the data in question is ultimately sourced back to a single organization. This is significant because the Administrator attempts tojustify outsourcing her scientific assessment by purporting to rely on three outside organizations—which creates the appearance ofa more thorough review.

The Endangerment Finding notes that it relies on the USGCRP’s relatively recent June 2009 assessment. 59 However, the Endangerment Finding also acknowledges that the 2009 USGCRP assessment simply “incorporates a numberofkey findings fromthe 2007 IPCC FourthAssessmentReport.” 6 °
Attempting to further justify the Administrator’s use of these outside groups, the Endangerment Finding explicitly—and for the reasons explained below, misleadingly— states that “[t]he review processes ofthe IPCC, USGRCP, and NRC

. . . provide EPA with strong assurance that this material has been well vetted by both the climate change research community and by the U.S. Government.” 6 ’ Despite EPA’s assertion to the contrary, not only were the review processes decidedly not “well vetted,” they were fundamentally flawed and legallyunsupported.
Thus, to the extent any scientists who played a significant role in the IPCC report are discredited by improper conduct, lack of objectivity, collusive efforts to stymie alternative views, or conflicts ofinterest—that taint extends beyond the IPCC report and into any research or studies that cite the IPCC report.
C. THE CENTRAL RELEVANCE OF THEIPCC, USGCRP, AND THENRC

Because “the Administrator is relying on the major assessments ofthe USGCRP, IPCC, andNRC as the primary scientific andtechnical bases ofher endangerment decision[,]” 62 the reasonableness ofher reliance on those assessments is of central relevance to the Endangerment Finding. 63 Indeed, so important was the Administrator’s decision to rely
on the IPCC, NRC, and USGCRP that she repeats her description ofthe Endangerment Finding’s dependence on them: “The major assessments by the U.S. Global Climate Research Program (USGCRP), the Intergovernmental Panel on Climate Change (IPCC), and the National Research Council (NRC) serve as the primary scientific basis supporting the Administrator’s endangermentfinding.” 64

Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe Clean AirAct, 74 Fed. Reg. at 66,511. 60 Id. 61 Id. at 66,510. 63 See42 U.S.C. § 7607(d)(7)(B) (an objection mustbe of“central relevance to the outcome ofthe rule”) 64 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe Clean Air Act, 74 Fed. Reg. 66,510.

12In an attempt to justify—and legally support—its heavy reliance on the IPCC, EPA affirmed that the IPCC’s findings and conclusions had been subjected to stringent third party review: “The review processes of the IPCC, USGCRP, and NRC (explained in fuller detail in the TSD and Response to Comments document, Volume 1) provide EPA with strong assurance that this material has been well vetted by both the climate change research community and by the U.S. government.” 65
Thus, EPA states that it “has no reason to believe that the assessment reports do not represent the best source material to determine the state of science and the consensus view ofthe world’s scientific experts on the issues central to making an endangerment decision with respect to greenhouse gases.” 66 “In summary, EPA concludes that its reliance on existing and recent [IPCC] synthesis and assessment reports is entirely reasonable and allows EPA to rely on the best available science.” 67 Thus, the Endangerment Finding not only cites the IPCC, USGCRP and NRC, but it repeatedly states that those assessments form its very basis and explains why they do so. 68

65 1d. at 66,511. 66 Id.

Id. (emphasis added). 68 See, e.g., id. at 66,497 n.1 (notingthat the TSD accompanying the Endangerment Finding summarizes the major assessment fromthe IPCC, interalia); Ed. at66,499 (“Theunits forgreenhouse gas emissions in these findings areprovided in carbon dioxide equivalentunits, where carbon dioxide is the reference gas and every othergreenhouse gas is converted into its carbon dioxide equivalentby usingthe 100-yearglobal warmingpotential (as estimatedby the IntergovernmentalPanel on Climate Change (IPCC) assignedto each gas.

. . . In accordance withUNFCCC reportingprocedures, the United States quantifies greenhouse gas emissions usingthe 100-yeartime frame values for GWPs [i.e., the global warming potentials] established in the IPCC Second AssessmentReport.”); id. At 66,512 (“EPA was also involved inreview of the IPCC Fourth Assessment Report, andinparticulartookpart inthe approval ofthe summary forpolicy makers forthe Working Group II Volume, Impacts, Adaptation and Vulnerability..

. .“) (emphasis supplied); Ed. n. 15 (noting thatEPA relies on IPCC’s definitions of“adaptation” and “autonomous adaptation”); Ed. at 66,517 (noting IPCC’s description ofgreenhouse gases); id. at 66,518 (“The IPCC conclusionfrom 2007 has beenre-confirmed bythe June 2009 USGCRP assessmentthat mostofthe observed increase in global average temperatures sincethe mid-2Oth century is very likely due to the observed increase in anthropogenic greenhouse gas concentrations.”); Ed. (relying on IPCC conclusions regarding external climate forcing); Ed. at66,519 (relying on IPCC climate model summaries); id. at 66,520 (citing IPCC’s acceptance ofthe concept ofwell-mixedgreenhouse gases); Ed. (relying on IPCC’s conclusion aboutthe importance ofclimate-forcing); Ed. at 66,525 (citing IPCC’s conclusion aboutreduced humanmortality from cold); Ed. (citing IPCC conclusion about extreme events andhumanhealth); Ed. (citing IPCC’s conclusionthatpollen would likely increase with warmertemperatures); Ed. at66,530 (Noting that, “[t]he IPCC (Field et al., 2007) reported withvery high confidencethat inNorthAmerica, disturbances like wildfires are increasing and are likely to intensify in awarmerfuture with drier soils and longergrowing seasons.”); Ed. at 66,532 (providing that, “The IPCC concluded withhigh confidencethat higher watertemperatures, increasedprecipitation intensity, and longerperiods oflow flows exacerbate many forms ofwaterpollution and can impact ecosystems, human health, and water system reliability and operating costs.”); Ed. at 66,535 n. 32 (relying on the IPCC’s analysis ofthe national security problems posedby climate change); id. at 66,536 (noting that, “Vulnerabilityto extendeddrought, according to IPCC, has been documented as already increasing across NorthAmerica.”); Ed. (concludingthat, “Based on the mostrecent IPCC assessmentofthe scientific literature, severalrecent studies confirm previous findings thattemperature and precipitationchanges in future decades will modify, and often limit, direct carbon dioxide effects onplants.”).

13EPA misleads the public into believing that EPA has relied upon three separate and independent assessments in making its Endangerment Finding. That simplistic picture is inaccurate for two primary reasons. First, it fails to disclose that the Endangerment Finding cites and discusses the IPCC assessments far more frequently and in much greater depththanthose ofthe USGCRP andNRC. 69 Second, the USGRP and the NRC’s scientific assessments regularly cite and rely on data, resources and conclusions in IPCC reports. Therefore, the source diversity suggested by naming three organizations is misleading because any time USGCRP orNRC is cited for aproposition that, inturn, eitherhas cited to the IPCC, the actual source ofthe information is the IPCC. For example, a 2006 NRC report cited in the TSD, 7 ° relies heavily on several IPCC reports for its proposition regarding temperature over the past thousand years. 71 Similarly, the Endangerment Finding cites a 2009 USGCRP report claiming that “[r]ecent scientific assessments find that most ofthe warming ofthe Earth’s surface overthepast 50 years has been caused by human activities.” 72 However, a review of the USGCRP’s assessment cited in the Endangerment Finding reveals that the USGRCP did not independently reach that conclusion, butratherofferedthe 2007 IPCC Fourth AssessmentReport as its source. 73
Both of the aforementioned scenarios reflect a unique way in which cross-sourcing among the groups creates the misimpression that the Administrator relied on three separate and independent assessments. But the first example reveals how flawed analysis—or outright misconduct—at IPCC can impact the value ofNRC’s conclusions. NRC’s 2006 report uses IPCC’s data to reach its own separate or unique conclusion. Thus, ifIPCC’s conclusion is flawed, not objective, or improperly peer-reviewed, that malady infects NRC’s work—even if NRC otherwise followed proper scientific procedure.

69 The Endangerment Finding andthe accompanying responses to public comments contain hundreds more citations to and discussions ofIPCC findings than those ofthe USGCRP and NRC. Seegenerally Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) ofthe Clean AirAct, 74 Fed. Reg. 66,496 et seq. 70 See Technical SupportDocumentfor Endangermentand Cause or Contribute Findings ofGreenhouse Gases under Section 202(a) ofthe Clean AirAct at 5, (citing Surface TemperatureReconstructionsforthe Last2,000 Years, National Research Council ofthe National Academies (2006) at 14 (relying on the 2001 IPCC reportto reach aconclusion regarding temperatures overthe pastthousandyears)). 71 SeeSurfaceReconstructionsfor the Last2,000 Years at 14 (basing its conclusions about long-term temperature variation on a 2001 IPCC report), id. at27-28 (relying on a 2001 IPCC report’s conclusion aboutthe climate-forcing effect ofhuman-produce greenhouse gases), Id. at 30-34 (relying on CRU temperature-anomaly data); id. at 111 (noting thatits discussion of 1,000 yeartemperature trends is based on IPCC report), id. at 126 (relying on Hadley Center assessments onregarding the impact ofclimate change on agriculture). 72 See Endangermentand Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe Clean AirAct, 74 Fed. Reg. at 66,535 (citingthe USGCRP report ofJune 2009”). See also GlobalClimate ChangeImpacts in the UnitedStates at 13 (noting that IPCC assessments were synthesized and integrated into the report), id. at23 (using three IPCC scenarios offuture carbon dioxide emissions and concentrations), Id. at 32 (basing precipitations models on the models inthe IPCC 2007 Fourth Assessment Report), id. at 53 (using 100-year global warmingpotentials from IPCC to adapt an EPA chart into anew chart showing sources ofgreenhouse gas emissions in 2003).

‘ Id. at 19, n. 45.

14Therefore, while the Administrator attempted to justify outsourcing her scientific assessment by citing three independent organizations’ assessments, the analysis above reveals that (1) both NRC and USGRP citations in the Endangerment Finding can be readily traced back—and therefore attributed to—IPCC, which undermines the claims of diversity and independence intimated by the Administrator; and worse, (2) a mistake, cover-up, or flaw within widely-cited IPCC assessments can have cascading effects that necessarily—but perhaps inconspicuously—taint other assessments. These points demonstrate the unreasonableness—andlegal invalidity—ofthe Administrator’s decision to outsource the risk assessment to three seemingly independent, but verifiably interwoven, organizations.

VII. IMPROPERCONDUCT REVEALED BY DISCLOSURE OFCRU EMAILS

A. THE LACK OF INTEGRITY OF THEIPCC’s DATA
1. THEIPCC’s MANIPULATION OF ITS CLIMATE CHANGE DATA
Since the close ofthe public comment period, it has come to light that much of the data that the IPCC relied upon in making its findings has been manipulated. This manipulation is evidenced in certain emails between CRU staffmembers. In one notable email, a CRU staffmember discuss a “trick” to “hide the decline” in CRU temperature data sets from 1981-2OOO:

Dear Ray, Mike and Malcolm, Once Tim’s got a diagram here we’ll send that either later today or first thing tomorrow. I’vejust completed Mike’s nature trick ofadding the real temps to each series for the last 20 years (ie from 1981 onwards) and from 1961 for Keith’s to hide the decline.” 75
Such emails show that the CRU did not simply gather raw temperature data, enter it into computer programs, and produce conclusions based on collated raw data. Instead, the CRU gathered temperature data and manipulated it to produce a result that was sometimes different from the result that the raw data would have produced. 76
Temperatures determined from proxy reconstructions

— i.e., temperaturerecords derived from conjectural reconstructions ofhistorical temperature data for one site that is meantto represent many sites

— started falling in 1960. That drop differed from the temperature trend indicated by the instrumental temperature records, which showed arise in temperatures after 1960, The “trick” to “hide the decline” was to add the raw temperaturerecords to the proxy records starting in 1960 instead ofcontinuingthe proxy reconstruction forthe entire period. Ifthe proxyrecords had been used overthe entire period, there would have been a decline in temperatures. However, because differentkinds ofdata were used, there was no decline; there was a“trick” thatmanaged, at least for a little while, to “hide” the decline. See Marc Sheppard Understanding Climategate‘s HiddenDecline. AMERICAN THINKER, Dec. 6, 2009, available at http://www.arnericanthinker.com/2009/12/understandingclimategates hid.htinl (last visited Feb 16, 2010).

Email from P. Jones to R. Bradley, “Diagram for WMO Statement” (Nov 16, 1999), available at http://www.eastangliaemails.com/emails.php?eid=154&filename942777075 .txt (lastvisited February 11, 2010). 76 And sometimes, as previously discussed, the CRU addedraw datato manipulated datato produce a desiredresult. See Marc Sheppard Understanding Climategate‘s HiddenDecline. AMERICAN THINKER

15Consequently, the British Meteorological Office (the “MET”) 77 has announcedthat itwill reexamine 160 years ofclimate data, attributing the needto reexamine the datato a “lack ofpublic confidence basedon the leakede-mails.” 78 Although the CRU scientists appear to have manipulated data in several parts ofthe world, a few instances are especially egregious. The Moscow-based Institute of Economic Analysis (lEA) issued a report discussing the possibility that the CRU has altered climate data from Russian weather stations. 79 According to a Russian newspaper, “Analysts say Russian meteorological stations cover most ofthe countrys territory, and that the Hadley Center had used data submitted by only 25% of such stations in its reports.”

8 ° The stations not included in the CRU data set tended to show less warming than those that were included. 8

’ As a result, the data showed more warming than they wouldhave shownhad the data setincludedmore Russianweather stations. 82 Similarly, the CRU adjusted 20 th century rawtemperature data forNew Zealand in a way that showed greater warming than the raw data would have shown. 83 The CRU manipulated the raw data to show lower temperatures for New Zealand in the early 20 th century. 84 Because the data set started with temperatures that were very low, the CRU was able to show that a relatively greater amount ofwarming had occurred by the end of

(Dec. 6, 2009), available athttp://www.americanthinker.com/2009/12/understanding climategates hid.html lastvisited Feb 11, 2010). The MET is roughly equivalentto the U.S. National Weather Service. It is a “Trading Fund within the Ministry ofDefence, operating on a commercialbasis under settargets.” See Met Office: Who we are, available athttp://www.rnetoffice.gov.uk/corporate/(last visited February 14, 2010). 78 Ben Webster, Met Office tore-examine 160years ofclimate data, THE TIMES (Dec. 5, 2009), available athttp://www.timesonline.co.uk/tol/news/environmentlarticle694544s.ece (last visited Feb. 10, 2010).

‘ N.A. Pivavorova, How Climate is Made. The case ofRussia. Institute ofEconomic Analysis. (2009), available athltp://climateaudi/./iles.wordpress.com/2009/12/ieal.pdf’(last visited Feb. 15, 2010). 80N.A. Pivavorova, How Climate is Made. The case ofRussia. Institute ofEconomic Analysis. (2009) (last visited Feb. 15, 2010), available athttp://climateaudit.files.wordpress.com/2009/l2/ieal.pdf(last visited Feb. 15, 2010). 81 See Whatthe Russian Papers say, RIANOVOSTI, (citing KOMMERSANT), available at http://en.rian.ru/papers/20091216/1 57260660.html (last visited Feb. 15, 2010).

82 See RIANOVOSTI, Whatthe Russian Papers Say (citing KOMMERSANT), available at http://en.rian.ru/papers/20091216/l57260660.html (reporting that “Over40% ofRussianterritory was not included in global-temperature calculations for some other reasons, ratherthan the lack ofmeteorological stations and observations.”). See also Andrei Illarianov, New StudyHadley Center andCRUApparently Cherry-PickedRussia’s ClimateData. CATO AT LIBERTY, available athttp://www.cato.at liberty.org/20O9/l2/1 (lastvisited Feb. 15, 2010).

83 Richard Treadgold. Are wefeelingwarmeryet? NEw ZEALAND CLIMATE SCIENCE COALITION (Nov. 25, 2009) available athttp://climatescience.org.nz/images/PDFs/global_warmingnz2.pdf. (last visited Feb. 10 2010). 84 D(fferenceBetween Raw and Final USHCNData Sets, available at http://www.ncdc.noaa.gov/img/climate/researchluschn/ts.ushcn anom25 diffs urb-raw pg.gif(last visited Feb. 10, 2010).

16the century. 85 The raw data showed much less warming because it started with actual (i.e., non-manipulated) temperatures that were warmer than the manipulated temperatures. 86 Thus, the CRU created an exaggerated appearance of 20 th century warming inNew Zealand.

2. Loss OR DESTRUCTION OF CRITICALIPCC RECORDS
The CRU’s data integrity problems consisted of more than data manipulation. CRU admitted in late November 2009 that much oftheir original data had been destroyed due to lack ofstorage space. 87 CRU claims thatthey retained only the “value added” data 88

— i.e., “quality controlled and homogenized” data or, put differently, data that has been manipulatedandthat is therefore no longerraw. Consequently, itis no longerpossible to checkthe accuracy ofwhether CRU’s “homogenization”

— i.e., the synthesis ofone set of data that appears to lead to a conclusion that would conflict with the conclusion suggestedby otherdata ofdata

—was appropriate. 89 However, even ifCRU still has some data, it is sometimes unwilling to produce it, regardless ofwhether it is required to do so by law. 9 °
Ofcourse, emails indicating that CRU scientists and programmers were unable to follow data does not absolve CRU: on the contrary, it is damning evidence thatthe IPCC and, in turn, EPA cannot rely on CRU data and analysis. As noted above, some CRU scientists manipulateddatato produce their desired conclusions aboutthe severity ofanthropogenic global warming. However, revelations that CRU data was destroyed, lost, or simply withheld indicate a different, but equally serious, problem: that the data can neither confirm nor deny how quickly, how far, for how long, or even, in some cases, whether, temperatures have risen. As such, CRU data that might not be purposefully misleading could still be scientifically worthless and, therefore, ofno legitimate use to EPA.

B. IPCC’s ROUTINE RELIANCE ON QUESTIONABLE SOURCE MATERIALS
1. CONCLUSIONS ON GLACIERS ADMITTEDLY WRONG
In its Fourth Assessment, the IPCC concluded that “[g]laciers in the Himalaya are receding faster than in any other part ofthe world.

. . and, ifthe present rate continues, the likelihood ofthem disappearing by the year 2035 and perhaps sooner is very high if

85 Richard Treadgold. Are wefeelingwarmeryet? NEW ZEALAND CLIMATE SCIENCE COALITION at 5 (Nov. 25, 2009) available athttp://climatescience.org.nz/images/PDFs/global warming nz2.pdf, (last visited Feb. 102010). 86Id. 87 Jonathan Leake. Climate change data dumped. THE TIMES (Nov. 29, 2009). Found at: http://www.timesonline.co.uk/tol/news/environment/artic1e6936328.ece (last visited Feb. 10, 2010). 88 CRU DataAvailability,available athttp://www.cru.uea,ac.uk!cru/data/availability/. 89Id. 90 See, e.g., Steve Mcintyre. Willis Eschenbach‘s FOlRequest. CLIMATE AUDIT (Nov. 25, 2009) available athttp://www.timesonline.co.ukltol/news/environment/artic1e6936328.ece (lastvisited Feb. 10, 2010) (discussing the experience ofa scientistnamed Willis Eschenbach who attemptedto obtain station data for average global temperature from CRU but endured ayearofCRU’s excuses and explanations forits failure to producethe requested information).

17the Earth keeps warming at the currentrate.” 9

’ However, on January 20, 2010, the IPCC issued a statement reversing that conclusion: “[The paragraph containing the Himalayan glacier claim] refers to poorly substantiated estimates ofrate ofrecession and date forthe disappearance ofHimalayan glaciers. In drafting the paragraph in question, the clear and well-established standards of evidence, required by the IPCC procedures, were not applied properly.” 92 The story of how the Fourth Assessment came to include the disappearing-glacier claim

—as well as howthe IPCC came to issue aretracting statement

—illustrates the degree to whichthe IPCC failedto follow adequateprocedures.
The JPCC conclusion in 2007 that Himalayan glaciers would vanish by 2035 was ultimately based on a short telephone interview

-- conducted almost 10 years before the IPCC report was released

-- with Dr. Syed Hasnain, a scientist in Delhi, India. 93 The telephone interview was the source ofa 1999 story in the popular-science magazine The New Scientist. 94 In turn, a 2005 World Wildlife Fund (“WWF”) report

— which was not subjected to any formal scientific review 95

-- cited the New Scientist report for the claim that Himalayan glaciers would vanishby 2035 96 Finally, the Fourth Assessment citedthe WWF report as its source forthe disappearing-glacierclaim eventhoughthe WWF report did not suggestthat the likelihood ofthe glaciers melting was “very high”. 97 Dr. Hasnain has since admitted that his claim

— on which other reports, including the Fourth Assessment, were based

— was merely “speculation” and was not supported by any formal research. 98

Dr. Murari Lal, who wrote the IPCC Fourth Assessment Report Working Group II chapter on Asia, 99 has admittedthat he is “not an expert on glaciers and I have not visited

‘ IPCC Fourth Assessment Report: Climate Change 2007: Working Group II, Section 10.6.2. The Himalayan Glaciers. 92 IPCCstatement on the melting ofHimalayanglaciers. IPCC Secretariat. Jan. 20, 2010, available athttp://www.ipcc.ch/pdf/presentations!himalaya-statement-2oianuary2OI0.pdf(last visited Feb. 15, 2010).

Jonathan Leake and Chris Hasting, WorldmisledoverHimalayanglaciermeltdown, THE TIMES, Jan. 17, 2010, available athttp://www.timesonline.co.uk/tol/news/environment/article6991 177.ece (last visited Feb. 15, 2010).

Id. See also Fred Pearce, FloodedOut, THENEW SCIENTIST, June 5, 1999, available at http://www.newscientist.com/article/mg16221893 .000-flooded-out.html (lastvisited Feb. 15, 2010).

Jonathan Leake and Chris Hasting, WorldmisledoverHimalayanglaciermeltdown., THE TIMES, Jan. 17, 2010, available athttp://www.timesonline.co.uk/tol/news/environment/article699 II 77.ece (last visited Feb. 15, 2010). 96 Sandeep Chamling Rai, An Overview ofGlaciers, GlacierRetreat, andSubsequentImpacts inNepal, India, andChina, WWF Nepal Program (March 2005), available at http://assets.panda.orgJdownloads/himalayaglaciersreport200s.pdf(last visited Feb 14, 2010).

See IPCC Fourth Assessment Report: Climate Change 2007: Working Group II, Section 10.6.2. The Himalayan Glaciers (citing “WWF 2005’). See alsoAn Overview ofGlaciers, GlacierRetreat, and SubsequentImpacts inNepal, India, andChina. WWFNepal Program, March 2005, 2 (quoting Dr. Hasnain without describing his claims as “very likely” to be correct). 98 Jonathan Leake and Chris Hasting, WorldmisledoverHimalayanglacier meltdown, THE TIMES, Jan. 17, 2010, available athttp://www.timesonline.co.uk/tol/news/environment/artic1e6991177.ece (last visited Feb. 15, 2010).

See IPCC Fourth AssessmentReport: Climate Change 2007: Working Group II: Technical Summary. (listing Dr. Lal as one ofthe “Lead Authors”). Available at http:I/www.ipcc.ch/publications_and_data/ar4/wg2/en/ts.html.

18the region so I have to rely on credible published research. The comments in the WWF reportwere made by arespected Indian scientist and itwas reasonable to assume he knew whathe was talking about.”°°

Dr. Lal has admitted that the chapter on Asia

— the one that contained the disappearingglacier conclusion

— “related to several countries in this region and their water sources. We thought that ifwe can highlight it, it will impact policy-makers and politicians and encourage them to take some concrete action.” 101 Lal stated that, “It had importance for the region, so we thought we should put it in.” 102 Dr Rajendra K. Pachauri, Chairman of the IPCC Bureau, has blamed Dr. Lal for the error, alleging that he did not follow IPCC procedures in compiling his report. Dr. Lal has defended himselffrom that allegation: “We as authors followed them to the letter

. . . . Had we received information that underminedthe claim, we wouldhave included it.” 103

Dr. Pauchari has since acknowledged that the IPCC claim was an error, 104 but he had previously criticized a report issued by the Indian Minister ofState for the Environment and Forests, Jairam Ramesh, which concluded that IPCC’s disappearing-glacier claim
was incorrect, as “voodoo science.”

Dr. Pauchari has also claimed that, “I became aware of [accusations challenging the disappearing-glacierclaim] when it was reported in the media aboutten days ago [i.e. 10 days before January 22, 2010, the day Dr. Pauchari was quoted in a January 30, 2010
news article]. Before that, it was really not made known. Nobody brought it to my attention. There were statements, but we never looked at this 2035 number.” 105 In response to allegations that he knew about the errorbut did nothing to correct it because he wanted to avoidunfavorable publicity during the Copenhagen climate change summit, Dr. Pauchari said that the allegations were “ridiculous.

. . . It never came to my attention before the Copenhagen summit. It wasn’t in the public sphere.” 106 Nevertheless, Pallava Bagla, who writes for thejournal Science, said he had asked Dr Pachauri aboutthe nowdiscredited claim about glaciers in November of 2008 and that Dr Pachauri had answered: “I don’thave anything to add on glaciers.”° 7

o° Jonathan Leake and Chris Hasting, WorldmisledoverHimalayanglaciermeltdown, THE TIMES, Jan. 17, 2010, available athttp://www.timesonline.co.ukltol/news/environment/artiele699I I 77.ece (lastvisited Feb. 15, 2010). 101 David Rose, Glacierscientist: Iknew data hadn’tbeenver(fied, DAILY MAlL, Jan. 24, 2010, available at http://www.dailymail.co.uk/news/article-I245636/Glacier-scientists-says-knew-data-verified.html. 102 Id I03 Id 104 Aarti Dhar, GovernmentContention Vindicated: JairamRamesh, THE HINDU, Jan. 18, 2010, available athttp://beta.thehindu.com/news/national/article82160.ece(last visited Feb. 15, 2010). 105 Ben Webster, Climate chiefwas toldoffalseglacier claims before Copenhagen, THE TIMES, Jan. 30, 2010, available athttp://www.timesonline.co.uk/tol/news/environment/article7009O8l.ece, (last visited Feb. 15, 2010). 106 Id.

‘° 7 1d.

192. FINDINGS ON CHINESE WEATHERTAINTED BY ALLEGATIONS
The discredited glacier-claim is not the only error in the IPCC report that demonstrates the IPCC’s failure to follow adequate scientific procedures. Newspaper reports indicate that temperature data produced at Chinese weather stations were “seriously flawed” and that the CRU could not produce documents relating to them. 108 Even so, the Fourth Assessment Report cited a 1990 paper in Nature which discussed the warming supposedly measured atthe Chinese stations. 109 The history ofwhere the weather stations were sited was central to the 1990 paper because it concluded that the warmer temperatures in Chinawere caused by climate change ratherthan the heat-island effect of growing cities. 110 The authors ofthat 1990 paperwere Phil Jones and Wei-Chyung Wang ofthe State University ofNew York at Albany.” The Fourth Assessment relied on the Jones-Wang study to support the conclusion that “any urban-related trend” in global temperatures was “an orderofmagnitude smaller” than othertrends.” 2
However, an amateur climate analyst, Doug Keenan, has been able to show that 49 ofthe Chinese meteorological stations had no histories oftheir location or other details.” 3 The 49 stations included 40 ofthe 42 rural stations cited in the study.” 4 Keenan demanded that Dr. Jones retract his claims about the Chinese data: “I ask you to retract your GRL paper, in full, and to retractthe claims made in Nature about the Chinese data, Ifyou do not do so, I intend to ublicly submit an allegation of research misconduct to your university at Albany.” In August 2007, Keenan submitted a formal complaint about Wang to the State University ofNew York at Albany after Wang refused to retract the claim.” 6 Althoughthe university found “evidence ofthe alleged fabrication ofresults,” it exonerated Wang. Ironically, Phil Jones submitted a report to the Journal ofGeophysical Research re-examining temperatures in eastern China. His report concluded that not oniy was the urban heat effect not “negligible” it could account for 40% of the warming showninthe study.

l08 Fred Pearce, Leakedclimate change emails scientist ‘hid’ dataflaws, THE GUARDIAN, Feb. 1,2010, available athttp://www.guardian.co.uk/environment/2010/feb/01/leaked-emails-climate-jones-chinese, (last visited Feb. 15, 2010). 109 d. 110Id. Id. 112 IPCC Fourth AssessmentReport: Climate Change 2007: Working Group 1: The Physical Science Basis. 3.2.2.2 UrbanHeatIslands andLand UseEffects. 113 Fred Pearce, Strange case ofmoving weatherposts anda scientistundersiege, THE GUARDiAN, Feb. 1, 2010, available athttp://www.guardian.co.uk/environment/2010/feb/01/dispute-weather-fraud (last visisted Feb. 10, 2010). 114 115 Email ofDoug Keenanto Dr. Wei-Chyung Wang and Phil Jones, April 20, 2007, available at http://www.guardian.co.uk/environment/2010/feb/01/dispute-weather-fraud (last visited Feb. 15, 2010). 116 Fred Pearce, Strange case ofmovingweatherposts andascientistundersiege. THE GUARDIAN, (Feb. 1, 2010) available athttp://www.guardian.co.uk/environment/2010/feb/01/dispute-weather-fraud. (last visisted Feb. 10, 2010).

20Similarly, the Fourth Assessment erroneously claimed that “[t]he Netherlands is an example ofa country highly susceptible to both sea-level rise and river flooding because 55% ofits territory is below sea level where 60% ofits population lives and 65% ofits Gross National Product (GNP) is produced.” 7 The Dutch government has asked for a correction to that claim, noting that only 26 percent ofthe country is below sea 18 Trimo Vallaart, the Dutch environment ministry spokesman, said he regretted the fact thatproperprocedure was not followed, and addedthat it should notbe leftto politicians to check the IPCC’s numbers.” 9 He also said that the Dutch government “will order a review ofthe reportto see ifit contains any more errors.” 120

3. RAIN FOREST CONCLUSIONS BASED ON NON-PEER REVIEWED SOURCES
As with the errors regarding Himalayan glaciers, rural Chinese weather stations, and Dutch land, the Fourth Assessment contains an improperly sourced and unverifiable claim about the Amazon rainforest. In the Fourth Assessment, the IPCC cited a WWF report’ 2

’ claiming that, due to climate change, “[u]p to 40% ofthe Amazonian forests could react drastically to even a slight reduction in precipitation The WWF report’s authors claimed their findings were based on an article in Nature,’ 23 but the sentence in the Nature piece that the WWF report relied on was about how logging, rather than climate change, affected the forest.’ 24 Similarly, the IPCC’s Fourth Assessment cited an article published in a popular magazine for climbers which was based on anecdotal evidence from mountaineers about the changes they saw while climbing) 2 ’ The Fourth Assessment also cited’ 26 a geography student’s master’s

“ IPCC Fourth Assessment: Climate Change 2007: Working Group II: Impacts, Adaption and Vulnerability, Section 12.2.3, Current adaptation andadaptive capacity. 118 Alister Doyle, UN. Climatepanelreviews Dutch sea levelglitch, REUTERS, Feb. 5, 2010, available at http://www.reuters.com/article/idUSTRE6141 VU2O 100205 (last visited Feb. 15, 2010). 119 Dutch Point OutNew Mistakes in U.N. Climate Report, Feb. 5, 2010, available at http://www.foxnews.com/scitech/2010/02/05/dutch-point-new-mistakes-climate-report! (last visited Feb. 15, 2010).

‘ 201d 121 Andy Rowell and PeterMoore, GlobalReview ofForestFires: A WWF/IUCNReport, July 27, 2000, available at http://www.panda.org/what_we do/how we_work/conservationlforests/publications/?3596/GlobalReview-of-Forest-Fires-A-WWFIUCN-Report(last visited Feb. 15, 2010). 122 IPCC Fourth AssessmentReport: Climate Change 2007: Working Group II: Impacts, Adaption and Vulnerability, Summary ofExpected Key Future Impacts and Vulnerabilities, Section 13.4.1, Natural ecosystems. Daniel C. Nepstadtet al., Large-scale impoverishment ofAmazonianforests by logging andjlre. NATURE vol. 398 at 505 et seq., April 8, 1999, available at lrnp://www.whrc.or’resources/pub1ishedliterature/pdfThepstadNature.99.pdf(last visited Feb. 1 5, 2010) (noting that, “[l]ogging companies in Amazoniakill or damage 10±40% ofthe living biomass offorests throughthe harvestprocess.”). 124 ChristopherBooker, Amazongate: new evidence oftheJPCC ‘Sfailures, DAILY TELEGRAPH, Jan. 30, 2010, available at http://www.telegraph. co.uk/comment/columnists/christopherbooker/7113582/Amazongate-new-evidence of-the-IPCCs-failures.html, (lastvisited Feb. 15, 2010). 125 IPCC Fourth Assessment: Climate Change 2007: Working Group II: Impacts, Adaption and Vulnerability, Section 1.3.1.1 Observedeffects due to changes in the cryosphere.

21dissertationthat quoted interviews with mountain guides in the Alps.’ 27 Butperhaps most egregious was the Fourth Assessment’s citation’ 28 to a boot cleaning manual.’ 29 Citations to these non-peer reviewed sources 130 and others like them refute EPA’s claim that it could rely on the IPCC assessment reports because they contained peer reviewed scientific studies.

126 IPCC Fourth Assessment: Climate Change 2007: Working Group II: Impacts, Adaption and Vulnerability, Section 1.3.1.1 Observedeffects due to changes in the cryosphere. Table 1.2 (identifying “Loss ofice climbs” as one ofseveral “Selected observed effects due to changes in the cryosphere producedby warming”). 127 Richard Grey and Rebecca Lefort, UNclimate changepanel basedclaims on student dissertation andmagazine article, THE DAILY TELEGRAPH. Jan. 30, 2010, available at http://www.te1egraph.co.uk/earth1environment/climatechange/7 111525/UN-climate-change-panelbasedclaims-on-student-dissertation-and-magazine-article.html (last visitedFeb. 10, 2010). 128 IPCC Fourth Assessment: Climate Change 2007: Working Group II: Impacts, Adaption and Vulnerability, Section 15.7.2., Economic impactandsustainability inAntartica (citingto “IAATO, 2005”). 129 International Association ofAntarctic TourOperators, Boot, Clothing, andEquipment Decontamination GuidelinesforSmallBoat Operators, available athttp://www.iaato.org/docs/Boot_Washing07.pdf(last visited Feb. 15, 2010). lO Othernon-peerreviewed sources thatthe Fourth Assessmentcites include the following: Marris, E., 2005: Firsttests showfloodwaters high in bacteria andlead. NEWS@NATURe, 437, 301-3011; Dey, P., 2006: Climate change devastatingLatinAmericafrogs. University ofAlberta; Butler, A., 2002: Tourism burned.’ visits toparks down drastically, even awayfromflames. ROCKY MOUNTAINNEws. July 15, 2002; Kesmodel, D., 2002: Low andthy: Droughtchokes offDurangoraftingbusiness. ROCKY MOUNTAIN NEwS, 25 June 2002; Wilgoren, J. and K.R. Roane, 1999: ColdShowers, RottingFood, the Lights, Then Dancing. NEW YORK TIMES, Al. July 8, 1999; Welch, C., 2006: Sweeping changereshapes Arctic. THE SEATTLETIMES. Jan. 1 2006; Stiger, R.W., 2001: Alaska DOTdeais withpermafrost thaws. Better Roads. June, 30-31. [Accessed 12.02.07; Business Week, 2005: A SecondLook atKatrinas Cost. BUSINESS WEEK; September 13, 2005. [Accessed 09.02.07; Associated Press, 2002: Roughyearforrafters. September 3, 2002; COLOMBIATRADENEwS, 2006: illegal crops damage Colombia’s environmentalresources. Colombian Government Trade Bureau; FAO, 2004b: LaparticipaciOn de las comunidades en Ia gestiOn forestal es decisivaparareducir los incendios (Involving local communities to prevent and control forest fires). FAO Newsroom FAO, 2005: Cattleranching is encroaching onforests inLatinAmerica. FAO NEWSROOM ENVIRONMENTNEWS SERVICE, 2002: Hungry Cambodians atthe mercy ofclimate change. Phnom Penh, 26 November 2002. Accessed 16.05.07: http://www.ens-newswire.comlens/nov2002/2002- 1 1-26-02.asp; Balint-Kurti, D., 2005: Tin trade fuels Congo War, NEwS24, 07/03/2005.FAO, 2004: Locust crisis to hitnorthwestAfrica again: situation deteriorating in the Sahel. FAO News Release, 17 September 2004; Sparks, T.H., H. Heyen, 0. Braslavska andE. Lehikoinen, 1999: Are European birds migrating earlier?\pard csl2BTO NEWS, 223, 8; Benedick, R., 2001: Striking anew deal on climate change. Science and Technology Online, Fall 2001; Schelling, T.C., 2002: What makes greenhouse sense? FOREIGN AFFAIRS, May/June COM/ENV/EPOC/IEA/SLT(2005)6 32; Schelling, T.C., 1997: The cost ofcombating global warming, facing the tradeoffs. Foreign Affairs, November/DecemberCowan, J., E. Eidinow, Laura Likely, 2000: A scenario-planning process forthe new millennium. DeeperNews, 9(1); THE ECONOMIST, 2000: Sins ofthe secularmissionaries. January 29, 2000; Speth, J.G., 2002: RecyclingEnvironmentalis,n. Foreign Policy, July/August, pp. 74-76. Shashank, J., 2004: Energy conservation in the industrialsector: A specialreporton energy conservation day. New Delhi, ECONOMIC TIMES; Nippon Steel, 2002: Advanced technology ofNippon Steel contributes to ULSAB-AVC Program. NIPPON STEELNEWS, 295, September 2002; Shorrock, T., 2002: Enron’sAsia misadventure. Asia Times 29 January, accessed 02/07/07; ISNA, 2004: From woodto coal in an effortto stop deforestation. Inter Services news agency (IPS), Rome; IRIN, 2004: Angola:frustration as oilwindfallspending neglects the poor. UnitedNations Integrated Regional InformationNetworks; WNA reportforecasts three scenariosfornuclear’s growth. NUCLEARNEWS, November2005: pp. 60-62, 69.

22C. THE LACK OF OBJECTIVITY & THE SUPPRESSION OF DISSENT
1. THE ABUSE OF THE PEERREVIEW PROCESS
In response to public concerns that the IPCC’s authors “all share the same views.

. . and that alternative perspectives were not incorporated into the process,” 13

’ EPA claimed that “there is no evidence provided that supports the claim that collaboration among a small number ofauthors prevented the incorporation ofa range ofperspectives and alternative views or biased the conclusions.” 32 Since the comment period for the Endangerment Finding concluded,’ 33 it has been revealed that the tight-knit group of scientists who
oversaw and authored the IPCC’s climate-related work were involved in a calculated effort to undermine core tenants ofscientific objectivity, impartiality, transparency, and accuracy. Theserevelations disprove EPA’s previous claimthatthere was no evidence of bias among IPCC contributors.

One particularly striking email exchange revealed how Dr. Jones used the peer review process to prevent a manuscript from being published that questioned the CRU’s research. In an email to Michael Mann, Dr. Jones wrote: 11 recently rejected two papers [one for the Journal ofGeophysical Research and one for Geophysical Research Letters] from people saying CRU has it wrong over Siberia. Went to town in both reviews, hopefully successfully. Ifeither appears I will be very surprised The rejected paper analyzed temperature readings from Siberian whether stations and concluded that there was much less warming than Dr. Jones predicted—even though both researchers analyzedmuch ofthe same data.’ 35

2. SUPPRESSING DISSENT

An email exchange between Professor Mann and Dr. Jones illustrates attempts to suppress any dissenting opinion regarding climate change. First, Dr. Jones indicates that he will no longer be associated with a particular scientific research journal, Climate Research, unless an editor, who Dr. Jones believed was responsible for allowing contravening research to be printed, was removed: “I will be emailing thejournal to tell them I’m having nothing more to do with it until they rid themselves ofthis troublesome editor.” 36

131 (Vol 1, Comment 1-20) 132 (Vol I, Response 1-20) 74 Fed. Reg. 66,500 (Dec. 15, 2009) Email from Phil Jones to Michael F. Mann, March 31, 2004, available at http://www.eastangliaemails.corn/emails.php?eid=407&filenarne= 1080742144.txt (lastvisited Feb. 16, 2010). 135 Fred Pearce, Climate ChangeEmails Between Scientists RevealFlaws inPeerReviews, THE GUARDIAN (February 2, 2010), available at http://www.guardian.co.uklenvironment/20I0/feb!02/hacked-climateemails-flaws-peer-review (last visited Feb. 16, 2010). 136 Email from Phil Jones to Michael Mann, March 11, 2004 available at http://www.eastangliaemails.com/emails.php?eid295&fi1ename1047388489.txt(last visited Feb. 16, 2010).

23The root ofthe climate scientists’ concern with Climate Research’s decision to publish contravening research was two-fold. First, they opposed any research that did not comport with their views and were concerned that publishing alternative views would only give global warming skeptics greatertraction. Dr. Jones wrote: “I thinkthe skeptics will use this paper to their own ends and it will setpaleo [climate science] back anumber of years if it goes unchallenged.” 37 Second, they had long maligned their skeptical opponents’ positions by arguing thatthe opposition’s researchhad not been publishedby
apeer-reviewedjournal—andcould therefore notbe trusted.
Thus, when the group learned that Climate Research planned to publish so-called skeptical literature, the climatologists responded less like objective scientists eager to let the science determine the answer, and more like activists working to advance their preferred result. In response to Dr. Jones’s email, Professor Mann not only attacked the scientists with whom he disagreed—he attacked thejournal’s itself: “The skeptics appear to have staged a ‘coup’ at ‘Climate Research’ (itwas amediocrejournal to begin with, but
now its amediocrejournal with adefinite ‘purpose’).” 38
Then, in an email to Dr. Jones, Professor Keith I3riffa, and others, Professor Mann proposed a more aggressive stance—a plan to have his fellow scientists harm Climate Research by refusing to submit their articles to thejournal: “I think we have to stop considering ‘Climate Research’ as a legitimate peer-reviewedjournal. Perhaps we should encourage our colleagues in the climate research community to no longer submit to, or cite papers in, thisjournal. We would also need to consider what we tell or request ofour
more reasonable colleagues who currently sit on the editorial board.” 39 Importantly, because ofDr. Jones’s and Mann’s influence and renown in their field, they had the influence to orchestrate the desired boycott. According to a former University of Virginia environmental scientist, professor Patrick J. Michaels, “After Messrs. Jones and Mann threatened a boycott of publications and reviews, half the editorial board of Climate Researchresigned.” 4

°

The aforementioned exchange and others like it reflect a concerted effort to advance a specific scientific theory—or perhaps more appropriately a scientific cause—rather than to reach the objective truth. That is, the emails that have been released indicate that the

‘ Email from Phil Jones to Michael Mann, Keith Briffa, et. al., March ii, 2004, available at http://www.eastanliaemails.com/ernails.php?eid295&fl1enarne1047388489.1xt (last visited Feb. 16, 2010). 138 Email from Michael Mann to Phil Jones, Keith Briffaet. a!., March 11, 2004, available at http:/!www.eastangliaemails.com/emails.php?eid295&t11ename1047388489.txt (last visited Feb. 16, 2010).

‘ Email from Michael E. Mann to Phil Jones, March 11, 2003, available at http://www.eastangliaemails.corn/emails.php?eid-295&tilename I047388489.txt (last visited Feb. 16, 2010). 140 PatrickJ. Micaels, How to Manufacture Climate Consensus, WALL STREET JOURNAL December 17, 2009.

24scientists were more concerned with advancing their agenda than with obtaining the objective results required by the 0MB and EPA guidelines.

The scientists’ language reflects an ‘us versus them’ attitude more commonly associated with legal advocacy or team sports than the scientific method. For example, waxing adversarial in a manner more commonplace in courtroom or in a sports arena, Professor Mann suggested that his team was losing ajournal called Global Research Letters to the so-called ‘skeptics’ whom he opposed: “What a shame that would be. It’s one thing to lose ‘Climate Research’. [sic] We can’tafford to lose GRL.” 4

’

Earlier in the same email exchange, Professors Mann and Wigley explain the circumstances that led Mann to posit that they were “losing” GRL. Steve McIntyre, a prominent climate change skeptic and author ofthe blog ClimateAudit.org, had submitted
a manuscript to GRL—and thejournal agreed to publish McIntyre’s work, which was largely critical ofMann’s research.

In response, Mann contacted GRL’s editorial staff in an effort to prevent McIntyre’s submission from getting published. However, Mann’s efforts to exert pressure were rejected by GRL’s Editor-in-Chief, who explained that McIntyre’s submission would be published because it had been subjected to an “extensive and thorough review.

. .from 3 knowledgeable scientists [and] [ajil threereviews recommendedpublication.” 42

After learning that GRL nonetheless planned to publish McIntyre’s manuscript over his objections, Mann emailed several colleagues informing them about the upcoming publication and, citing the editor who initially approved McIntyre’s piece forpublication, proclaimedthat “the contrarians nowhave an ‘in’ with GRL.” 43

But perhaps the most troubling—and enlightening comment—was one from Professor Tom Wigley. In an email to his colleagues on January 20, 2005, Professor Wigley suggested they contact the GRL’s publisher, the American Geophysical Union (“AGU”) in an effort to have an editor fired: “This is truly awful. GRL has gone downhill rapidly in recent years. .Proving bad behavior here is very difficult. If you think that [the objectionable editor] is in the greenhouse skeptics camp, then, if we can find documentary evidence ofthis, we could go through official AGU channels to get him ousted.” 44
Within a year it appears that Professor Wigley’s goal ofremoving the editor who agreed to publish so-called skeptics’ research was successful. On November 15, 2005, Michael Mann sent an email to Dr. Jones and Tim Osborn boasting that: “the GRL leakmay have

141 Email from Michael Mann to Tom Wigley, January 20, 2005, available at http:!/www.eastangliaemails.com/ernails.php?eid=484 (last visited Feb. 16, 2010). 142 Email from Steve Mackwell, Editor-in-Chief, Global Research Letters, to Michael E. Mann, January 20, 2005, available at http://www.eastangliaemails.com/emails.php?eid484 (last visited Feb. 16, 2010) 143 Email from Michael E. Mann to Tom Wigley, Phil Jones, Keith Briffa, et. al., January 20, 2005, available athttp:/!www.eastangliaemails.com!emails.php?eid484 (last visited Feb. 16, 2010). 144 Email from Tom Wigley to Michael E. Mann, Tom Wigley, Phil Jones, Keith Briffa, et. al., January 20, 2005, available athttp://www.eastangliaemails.com/emails.nhp?eid484 (last visited Feb. 16, 2010).

25been plugged up now w/ new editorial leadership there. ‘‘ According to Professor Michaels, the offending editor was Yale University’s James Saiers, whose departure from thejournal coincided withMann, Wigley, andDr. Jones’s planto ‘gethim ousted.” 46 Clearly, these scientists’ efforts to exclude so-called skeptics’ studies from journal publication are indicative ofa serious breach ofobjectivity and scientific propriety. And an email from Dr. Jones to Michael Mann unquestionably reveals that their improper conduct spilled over into their involvementwiththe IPCC and unquestionablytainted the IPCC report. Shortly after Dr. Jones and Kevin Trenberth ofthe National Center for Atmospheric Research were named joint lead author’s of IPCC’s Working Group I, Chapter 3, Dr. Jones emailed Mann about two Canadian researchers who questioned the veracity ofman-made global warming. Inthat email, Dr. Jones wrote: “I can’t see either ofthese papers being in the next IPCC report.” Further, he said: “Kevin and I will keep them out somehow—even ifwe have to redefine whatthe peer-review literature is!” 47

D. CONFLICTS OF INTEREST BETWEEN THE IPCC AND SOME WHO PROFIT FROM ITS CLIMATE CHANGE CONCLUSIONS

In response to public comments suggesting that the Administrator should have included studies that disagreed with the Endangerment Finding, EPA notes that “IPCC, USGCRP/CCSP, and NRC make considerable effort to ensure that their assessment reports reflect abalance ofperspectives regarding the state ofthe science.” 148 To support that response, EPA quotes a National Academies report noting that the NRC screens all “provisional committee members

. . . in writing and in a confidential group discussion about possible conflicts of interest.

. . .[N]o individual can be appointed to serve (or continue to serve) on a committee ofthe institution used in the development ofreports if the individual has a conflict of interest that is relevant to the functions to be performed.” 49 Thus, EPA identifies the National Academies’ prohibition on conflicts of interest as ameans ofensuring thatthe EndangermentFinding is balanced andunbiased.

The Chair ofthe IPCC probably has, and certainly appears to have, several conflicts of interest.’ 50 For example, Dr. Pachauri is the director of The Energy and Resources

145 Email from Michael Mann to Phil Jones and Phil Osborn, November 15, 2005, available at: http://www.eastangliaemails.comlemails.php?eid591&filename 1132094873.txt (last visited Feb. 16, 2010). See PatrickJ. Micaels, How to Manufacture Climate Consensus, WALL STREET JOURNAL (December 17, 2009). 147 Email from Phil Jones to MichaelE. Mann, July 8, 2004, available at: http://www.eastangliaemaiIs.corn/emai1s.php?eid419&filename=10893 1861 6.txt (lastvisited Feb. 16, 2010). 148 EndangermentandCause or Contribute Findingsfor Greenhouse Gases underSection 202(a) ofthe CleanAirAct: EPA’s Response to Public Comments, Volume I at 3. 149 Id. (quoting OurStudyProcess: Ensuring an Objective Voice, National Academies, 2006 at 3). In a2009 meeting ofthe IPCC Bureau (the governing body ofthe IPCC thatprovides guidance during the preparation ofthe IPCC assessment reports), the Chair ofthe IPCC, Dr. Rajendra Pachauri, “recalled the role ofIPCC procedures in guaranteeing aproper code ofconduct in IPCC activities. Any possible conflict ofinterest shouldbe made clear atthe outset ofthe process.” Report ofthe 39 th Session ofthe

26Institute (“TERI”), an organization that was a awarded over $4 million in grants for research on the melting ofglaciers; that research was premised on an inaccurate claim thatthe Endangerment Finding cited and endorsed, and which was made by TERI’s head ofglaciology) Furthermore, Dr. Pachauri serves on anumber ofboards and maintains business interests in industries that are or will be affected by policies that are based on IPCC conclusions about climate change. TERI gained a financial interest in GloriOil, a Texas firm specializing in oil extraction technology that extends the useful life ofan oil field, by granting GloriOil permission to use an oil-extraction method developed at TERI) 52 Perhaps even more egregious is Dr. Pachauri’s employment as President of TERI-NA, a non-profit firm funded by the UN, Amoco, American defense contractors, Monsanto, and carbon traders to lobby “sensitive decision-makers in North America to developing countries’ concerns about energy and the environment.” 153 Dr. Pachauri is also on the board ofSiderian, aventure capital firm investing in sustainable technologies. He is also an adviser on renewable and sustainable energy to Credit Suisse bank and the RockefellerFoundation.’ 54 Among his otherprivate activities relatedto his work as IPCC chair, Dr. Pachauri has earnedhundreds ofthousands ofdollars in consulting fees (paidto TERI) from Deutche Bank, Credit Suisse, and Yale University.’ 55

These conflicts ofinterest violate the standards ofconduct that the Dr. Pachauri himself has prescribed for the IPCC. In so doing, Dr. Pachauri’s conflicts ofinterest weaken the Endangerment Finding. Dr. Pachauri’s conflicts of interest indicate that the IPCC is being led toward a conclusion that climate change is a dire threat to the planet that must be reversed; a conclusion that would enrich Dr. Pachauri and the entities that employ him. Consequently, EPA has relied on an assessment that ensures bias and imbalance, a result thatEPA claims to wantto avoid.

IPCC Bureau (2009) at 10, available athttp://www.ipcc.chlmeetings/bureau-sessions/bureau39rep.pdf(last visitedFebruary 16, 2010). 151 Christopher Bookerand Dean Nelson UNclimate chief’s research institute wongrants afterflawed predictions on glaciers, DAILYTELEGRAPH, Jan, 25, 2010, available at http://www.telegraph.co.uk/earth/environment/climatechange/7O78565/UNclimate-chiefs-researchinstiiute-wongrantsa/ier-flawed-yredictions-on-glaciers,html. (last visited February 16, 2010). 152 Elisabeth Rosenthal, Skeptics FindFaultwith UN. Climate Pane,. NEWYORKTIMES, February 8, 2010, available at http://www.nytimes.com/2010/02/09/science/earth/09ciimate.htmI. (last visited February 16, 2010). 153 ChristopherBooker and RichardNorthwhite. Questions overbusiness deals ofUNclimate changeguru Dr. Rajendra Pachauri, DAILYTELEGRAPH, Dec. 20, 2009, available athttD://www.telegraph.co.uklnews/6847227/Ouestions-over-business-deals-of-UN-climate-change-guru-DrRajendra-Pachauri.html (last visited February 16, 2010). IStBradleyFike, RajendraKumarPachauri is MoreEqualthan You, NC TIMEs.coMBLOGS, December 14, 2009, available at htto://www.nctimes.com/ap,Jfblogs/wp/?,3=5870 (lastvisited Feb. 15, 2010).

155 Elisabeth Rosenthal, Skeptics FindFaultwith UN. Climate Pane,. NEW YORK TIMES, February 8, 2010, available at http://www.nytimes.com/20i 0/02/09/science/earthl09climate.html. (last visited February 16, 2010).

27E. LACK OF TRANSPARENCY AT IPCC POINTS TO A RESULT-ORIENTED PROCESS Despite the broad and sweeping implications of the Administrator’s Endangerment Finding, EPA has shown little regard for more than a perfunctory level oftransparency and public disclosure. By electing to outsource the agency’s scientific assessment into the causal relationship between greenhouse gases and the earth’s temperature, the Administrator also dramatically limited the public’s access to information about her decision-making process andthe information supporting herdecision.

Forexample, Volume I ofEPA’s Response to Public Comments aboutthe Endangerment Finding contains aresponse to a commenter who complained about the unavailability of
raw data, computer models, and other information thatwas presumably used to reachthe conclusion that man-made greenhouse gases affectthe Earth’s temperature. In response, EPA simply claimed that core scientific information need not be included in the record because “the Administrator is reasonably relying on major assessments by the USGCRP, IPCC, and NRC as the primary scientific and technical basis for her endangerment decision.” 56

IfEPA’s ability to be fully transparent about the information that forms the basis ofits Endangerment Finding rests on its own lack of access to that information, then little confidence can be had (1) that EPA was truly grounded in its decision and (2) that the Administrator’s decision was trulyherown.
EPA gains nothing by passing the transparency buck to the entities upon which it relied for scientific information because those entities have been the antithesis oftransparent. Even a cursory review ofthe IPCC contributors’ record on this front quickly reveals not only a total disregard for open government—but worse, affirmative disdain for transparency and utter contempt for citizens who exercise their right to obtain public information.
Emails disclosed since the conclusion ofthe comment period reveal that contributors actually cited their IPCC involvement as a purported method ofcircumventing freedom ofinformation laws—including the United States Freedom ofInformation Act (“FOIA”). In an email to NASA Climatologist Gavin Schmidt, Dr. Jones explained that he and others had agreed on a plan that they believed would render the open records laws inapplicable to their information: “The FOI line we’re all using is this. IPCC is exempt from any countries FOI

— the skeptics have been told this. Even though we.. .possibly hold relevant info, the IPCC is not part of our remit (mission statement, aims etc) thereforewe don’thave an obligationto pass iton.”

‘ 56 Endangerment andCause or Contribute Findingsfor Greenhouse Gases underSection 202(a) ofthe CleanAirAct: EPA ‘s Response to Public Comments, Volume I, Response 1-62.

157 Email from Phil Jones to Gavin Schmidt, August20, 2008, available at http://www.eastangliaemails.com/ernails.php?eid=914&filename 1219239172.txt (last visited Feb. 16, 2010).

28Unlike the United States, where the Freedom ofInformation Act was enacted in 1966158, Britain did not enact its Act until 2000. Notwithstanding the fact that CRU is publicly funded by the British taxpayers, the emails reveal a certain amount ofsurprise—which
was quickly overtaken by disdain—thatthe lawwould apply to CRU scientists.

An email to former CRU Chief Tom Wigley indicates Dr. Jones initially hoped that university officials and potential requestors might be unaware of his country’s open records law: “I wouldn’t tell anybody about the FOI Act in Britain. I don’t think [the university] really knows what’s involved.

. .1 think it is supposed to mainly apply to issues ofpersonal information

- references forjobs etc.” 59 The following month, in an email to Pennsylvania State University’s Michael Mann, Dr. Jones expressed a willingness to simply—and illegally—delete informationratherthan comply withthe law and disclose it: “Ifthey everhear there is aFreedom ofInformationActnow in the UK, I thinkI’ll delete thefileratherthan sendto anyone.” 6 °
Later, as Dr. Jones explained in an email to Ben Santer of the Lawrence Livermore National Library in California, university officials initially attempted to enforce the law but Dr. Jones convinced them otherwise: “When the FOT requests began here, the FOl person said we hadto abide bythe requests. Ittook acouple ofhalfhour sessions

- one at
a screen, to convince them otherwise showing them what [Steve McIntyre’s ClimateAudit] was all about. Once they became aware ofthe types ofpeople we were dealing with, everyone at UEA (in the registry and in the Environmental Sciences school—the head of school and a few others) became very supportive.” 6 ’ In other words, because Dr. Jones did not like the individual requesting public information, he simply workedto thwartthatrequestor’s access to it. But, merely denying access was not enough—in the same email Dr. Jones laterboasted that he destroyed information in order to avoid the possibility ofhaving to produce it: “Ifhe pays 10 pounds (which he hasn’t yet) I am supposed to go through my emails and he can get anything I’ve written about him. About 2 months ago I deleted loads ofemails, so have very little

- ifanything at all.” 62
The following email exchange between Dr. Jones, CRU colleague Tim Osborn, CRU Deputy ChiefKeith Briffa, and Caspar Amman ofthe National Center for Atmospheric Research in Colorado is illustrative ofthe scientists’ general (dis)regard fortransparency. In the first exchange, Ammanreceives a forwarded email from an individual complaining abouthis inabilityto obtain information aboutthe scientists’ work on the IPCC report:

‘ 58 Freedom ofInformationAct (1966), Public Law 89-554, 80 Stat. 383 Email from Phil Jones to Tom Wigley, January 21, 2005, available at http:r’/www.eastangliaemails.com/emails.php?page=I&pp=25&kw=foi (last visited Feb. 16, 2010). 160 Email from Phil Jones to Michael E. Mann, February 2, 2005 (emphasis added), available at http://www.eastanliaemails.com!emails.php?eid=490&filenarne=lI07454306.txt (lastvisited Feb. 16, 2010). 161 Email from Phil Jones to Ben Santer and Tom Wigley, December 3, 2008, available at http://www.eastangliaemails.com/emails.php?eid=940&filename I228330629.txt (lastvisited Feb. 16, 2010). 162 Id.

29“I have read correspondence on web about your letterto the in relation [sic] to expert comments on IPCC chapter 6 sent directly by you to Keith Briffa, sent outside the formal review process. The refusal to give these documents tends to discredit you and the IPCC in the eyes of the public.” 63

Next, Ammann sends the complaint email to Dr. Jones, Briffa, and Osborn. Dr. Jones is the firstto respond with a short email that says:

“It doesn’t discredit IPCC!” 64

Osborn responds by recommending that Ammann simply ignore the email.
“I’d ignore this guy’s request anyway. If we aren’t consistent in keeping our discussions out of the public domain, then it might be argued that none ofthem can be kept private. Apparently, consistency ofour actions is 165

At no time in the exchange did any ofthem suggest what state or federal laws might have governed how the request needed to be treated. Professor Briffa weighed in last with a response thatundoubtedly conveyed the group’s respect for transparency in government:

“I have been ofthe opinion right from the start ofthese FOl requests, that ourprivate, inter-collegial discussion isjust that—PRIVATE. Your communication with individual colleagues was on the same basis as that for any otherperson and it discredits the IPCC process not one iota not to reveal the details. On the contrary, submitting to these “demands” undermines the wider scientific expectation of personal confidentiality. It is for this reason

, and not because we have or have not got anything to hide, that I believe none ofus should submit to these ‘requests’.” 66

In another exchange, Dr. Jones again responded with flippant disregard for open government:

“You can delete this attachment ifyou want, Keep this quiet also, but this is the person who is putting in FOl requests for all emails Keith and Tim have written and received re Ch 6 ofAR4. We think we’ve

163 Email from Bryan Lynch to CasparAmman, June 21, 2008, available at http:’/www.eastangliaemails.coni/emails.php?eid=906&filename 1214228874.txt (last visited Feb. 16, 2010). 164 Email from Phil Jones to Caspar Amman, June 23, 2008, available at http://www.eastangliaemails.corn!emails.php?eid=906&tilename=1214228874.txt (last visited Feb. 16, 2010). 165 Email from Osborn to Keith Briffa, Phil Jones, and Caspare Amman, June 23, 2008, available at http://www.eastangliaemails.com/emails.php?eid=906&tilenaine=l214228874.txt (last visited Feb. 16, 2010). 166 Email from Keith Briffato Tim Osborn, Phil Jones, and Caspare Amman, June 23, 2008, available a: http://www.eastangliaemails.com/emails.php?eid=906&uilenarne=1214228874.txt (last visited Feb. 16, 2010).

30found a way around this...This message will self destruct in 10 seconds!” 167
And just as Briffa and Osbom recommended that Ammann ignore the open records request again without contemplating what the law might have been in Colorado or the greater United States—Dr. Jones similarly urged a colleague in Australia to disregard requests for information: “Had an email from David Jones ofBMRC, Melbourne. He said they are ignoring anybody who has dealings with [ClimateAudit], as there are threads on it aboutAustralian sites.” 168

NASA’s Gavin Schmidt took the climate scientists’ disdain for citizens who file open records requests to a whole new level. In an email to the Lawrence Livermore Laboratory’s Ben Santer, Schmidt complains that global warming skeptics who use open records laws to obtain climatologists data are “like Somali pirates.” 169 It is ironic that Schmidt compared the records requestors to law-breaking pirates—because it was actually those who were depriving others oftheir right to access public information who may havebeen violating the law.

On January 22, 2010, the British Information Office revealed that the CRU scientists’ criminally violated Freedom of Information Act. Britain’s Deputy Commissioner of Information indicated that the CRU scientists violated the nation’s open government laws: “requests under the Freedoms of Information Act were not dealt with as they should have been under the legislation. Section 77 ofthe Freedom ofInformation Act makes it an offence for public authorities to act so as to prevent intentionally the disclosure ofrequested 70

Professor John Beddington, ChiefScientific Advisor to the British Government said, “I don’t think it’s healthy to dismiss proper scepticism. Science grows and improves in the light ofcriticism. There is a fundamental uncertainty aboutclimate change predictionthat can’tbe changed.” 7 ’

167 Emailfrom PhilJonesto Michael Mann and Raymond S. Bradley, May 9, 2008, available at httx//www.eastangIiaemais.com/emails.phø?eid877&fflename= 1210341221 .txt (last visited Feb. 16, 2010). 168 Email from Phil Jones to Tom Wigley and Wei-Chyung Wang, June 19, 2007, available at http://www.eastangliaemails.com/emails.php?page=I&pp=25&kw=foi (last visited Feb. 16, 2010).
169 Email from Gavin Schmidtto Ben Santer, December2, 2008, available at hnp://www.eastanliaernails.com/ernails.php?eid939&filenarne=1228258714.txt (lastvisited Feb. 16, 2010). 170 Email from the Information Commissioner’s Office Press Office to Jonathan Leake, The Times of London, January 22, 2010, available athttp://www.docstoc.corn/docs/23993708/Climate-Email (last visited Feb. 16, 2010). 171 Ben Webster, Science ChiefJohn Beddington Calls forHonesty on Climate Change, THE TIMES OF LONDON, January 27, 2010, available at httrj://www.timesonline.co.uk/tolfnews/environment/articIe7003622.ece?&EMC-BItn99KCH2F (lastvisited Feb. 16, 2010).

31VIII. HARM TO TEXAS

A. FARMING AND RANCHING
With exports totaling $5 billion, Texas ranks third in the nation in total agriculture exports.’ 72 In 2007, cashreceipts from the agriculture sectorexceeded $19 billion, which in turn had a $100 billion impact on the Texas economy.’ 73 More than 1.7 million Texans work for farms and farm-related employers—which means 16.6 percent of Texans rely on farming andranching fortheirlivelihood.’ 74

Texas is a state where land is primarily owned by private citizens—which means stewardship and conservation of precious natural resources is necessarily the responsibility ofthose who own the land. And with 250,000 farms and ranches covering
more than 129 million acres, Texas depends on farmers and ranchers to help preserve the land, protect habitat, and conserve natural resources. As Texas’ Agriculture Commissioner noted in his June 23, 2009 comment on the Endangerment Finding, “Farmers andranchers prioritize conservationofour naturalresources.” 175
Thus, Texas relies on its farmers and ranchers both to preserve the land and to contribute meaningfully to the State’s economy. The Endangerment Finding would negatively impact Texas farmers and ranchers in several ways, all of which were mentioned in formal comments last summer. 176 Therefore, here we highlight only two ofthe myriad ways Texas farmers and ranchers wouldbe harmedby the EndangermentFinding—and if farmers andranchers are hurting, Texas is hurting.

As the National Association ofState Departments ofAgriculture (“NASDA”) explained in its June 23, 2009, comment on the Endangerment Finding: “Hydrocarbons and greenhouse gases are intimately connected to agricultural production from methane gas expelled by livestock, diesel-powered farm machinery, and the petroleum byproducts in fertilizer. NASDA is concerned that EPA’s endangerment finding could leave agricultural producers vulnerableto litigation overthe greenhouse gas emissions resulting from traditional agricultural production practices.” Thus, the Endangerment Finding will increase agriculture production costs directly—through increased fuel and fertilizer costs—and indirectly—throughregulation and litigation.

From the regulatory perspective, the Secretary ofAgriculture captured the Endangerment Finding’s potential impact onboth large and small farm operations:

172 Texas Advisory Panel onFederal Environmental Regulations, Comments on the Environmental Protection Agency’s Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(A) of the Clean AirAct, at 16 (June 23, 2009). 173 d. 174 d. 175 Letter from Hon. Todd Staples to Hon. Lisa Jackson (June 23, 2009), available at www.regulation.gov, DocketNo. EPA-HQ-OAR-2009-0171 -3530.1. 176 Id

32“If GHG emissions from agricultural sources are regulated under the CAA, numerous farming operations that currently are not subject to the costly and time-consuming Title V permitting process would, for the first time, become covered entities. Even very small agricultural operations would meet [the CAA’s] 100-tons-per-year emissions threshold. For example, dairy facilities with over 25 cows, beefcattle operations ofover 50 cattle, swine operations with over 200 hogs, and farms with over 500 acres ofcorn may needto get a Title V permit. It is neither efficient nor practical to require permitting and reporting of GHG emissions from farms ofthis size. Excluding only the 200,000 largest commercial farms, our agricultural landscape is comprised of 1.9 million farms with an average value ofproduction of $25,589 on 271 acres. These operations simply could not bear the regulatory compliance costs that would be involved.” 77
B. REVENUE FROM MINERAL INTERESTS
Since the Constitution of 1876’s enactment over one-hundred and thirty years ago, the Permanent School Fund (“PSF”) has been a significant source of funding for public schools in the State ofTexas. 178 Today, the PSF relies upon royalty revenue from its significant oil and gas holdings to help fund education. According to financial information provided by the Governor’s Budget, Policy and Planning Office, the PSF earned more than $380 million in royalty and bonus payments from its mineral interests last year, alone. During the same period, the PSF provided more than $700 million in funding to Texas public schools.’ 79
The State also relies on mineral interests to fund higher education. The Permanent University Fund (“PUF”), which exclusively benefits the University ofTexas System and Texas A&M University System schools, earned more than $300 million from its oil and gas holdings last year. In the previous five years, earnings exceed $1.4 billion. Texas A&M is also the beneficiary ofits own Special Mineral Fund—which earned more than $15.5 million inthe lastfive years.
There are multiple other ways that the State ofTexas benefits from oil and gas royalties. The Parks & Wildlife Department’s State Parks fund earned more than $24 million from oil and gas-related revenues in the last five years. During the same period, the Texas Department of Transportation’s State Highway Fund earned over $20 million. Altogether, the State ofTexas has earned over $3.6 billion from its mineral interests in the lastfive years.

‘“Letterfrom Hon. Ed Schafer, Secretaryofthe U.S. DepartmentofAgriculture, Hon. Carlos Gutierrez, Secretary ofthe U.S. Department ofCommerce, Hon. Mary E. Peters, U.S. Secretary ofTransportation, and Hon. Samuel W. Bodman, to Hon. Susan Dudley, Administrator, Office ofInformation & Regulatory Affairs, Office ofManagement & Budget (July 9, 2008), available at (last visited Feb. 16, 2010). 17 HandbookofTexas Online, Permanent SchoolFund available at (last visited Feb. 16, 2010). Agency, Texas Permanent School FundAnnual Report, December, 2009 at4, available athttp:/!ritter.tea.state.tx.us/psf/PSFARO9.pdf(lastvisited Feb. 16, 2010).

33C. OIL& GAS SECTOR
More than 30,000 Texas businesses are in industries that are identified as greenhouse gas emitting.’

8 ° In 2006, the energy sector employed nearly 375,000 Texans who earned
more than $35 billion in wages.’ Ofthose, 312,000—3.1% ofthe State’s work force—
were employed directly in the oil and gas business.’ 82 According the Comptroller of Public Accounts, the oil and gas sector contributed $159 billion to—nearly 15% of—the State’s Gross Domestic Product.’ 83

More than 17% of the State’s revenue is derived from oil and gas taxes, income on mineral interests, and relatedpayments.’ 84 In 2006, the State’s annual oil productiontax revenue was $444,124,979 and its natural gas tax revenue was $160,024,732, which combined for atotal ofmore than $604 million.’ 85 That directpositive fiscal impact is in addition to the more than $6 billion in annual indirect economic benefit that the State enjoys from severance, ad valorem, and indirect taxes that are levied on oil and gas production.

The refining side of the energy sector also contributes significantly to the Texas economy. In 2008, the petroleum refining sector produced shipments worth over $62 billion.’ 86 Texas-based chemical refiners produced shipments that exceeded $70 billion invalue.’ 87

IX. FALLOUT
Since the Administrator’s Endangerment Finding was made final on December 15, 2009, both chambers ofCongress have responded with bipartisan efforts to prevent EPA from regulating greenhouse gasses. In the House of Representatives, House Agriculture Committee Chairman Collin Peterson (D-Minnesota) and Armed Services Committee Chairman Ike Skelton (D-Missouri)—both appointed to their chairmanships by House SpeakerNancy Pelosi—along with Congresswoman J 0 Ann Emerson (R-Missouri), have authored a bill that would statutorily prevent EPA from regulating greenhouse gas emissions. That is, House Resolution 4572 would amend the Clean Air Act to include the following: “The term ‘airpollutant’ shall not include any ofthe following solely on the basis ofits effect on global climate change: (1) Carbon dioxide, (2) Methane, (3)

180 Texas Advisory Panel on Federal Environmental Regulations, Comments on the Environmental Protection Agency’s Proposed Endangerment and Cause orContribute Findings for Greenhouse Gases Under Section 202(A) ofthe Clean AirAct, at 14 (June 23, 2009). 181 Id.

‘ 82 1d. at 18. 183 Hon. Susan Combs, American Clean Energy and Security Act, available at http://www.window.state.tx.us/finances/captTade!perspective.html (last visited Feb. 16, 2010). 184 Texas Advisory Panel on Federal Environmental Regulations, Comments on the Environmental Protection Agency’s Proposed Endangerment and Cause orContribute Findings for Greenhouse Gases Under Section 202(A) of the Clean AirAct, at 19 (June 23, 2009). 185 Id. 186 Id. at 27. 187 Id.

34Nitrous oxide, (4) Hydrofluorocarbons, (5) Perfluorocarbons, “(6) Sulfur hexafluoride.”

88

A separate, bipartisan effort is underway in the United States Senate, where Senator Lisa Murkowski (R-Alaska) has authored legislation with Sen. Mary Landrieu (D-Louisiana), Sen. Ben Nelson (D-Nebraska), Sen. Blanche Lincoln (D-Arkansas), andthirty-five other senators finding that “Congress disapproves the rule submitted by the Environmental Protection Agency relating to the endangerment finding.” 89 This bipartisan action in both chambers of Congress reflects broad concern over EPA’s handing of the EndangermentFinding.
Further, the Small Business Administration’s Office of Advocacy has also expressed
concern over the Endangerment Finding. In a December 23 letter to EPA, the Office of Advocacy wrote: “it is clear that EPA’s Clean Air Act greenhouse gas rules will significantly affect a large number of small entities.

. . . These small entities are concerned that EPA has not adequately considered regulatory alternatives that could achieve greenhouse gas emission reductions without imposing heavy new compliance burdens on largenumbers ofsmall entities.” 9

°

In light ofthese federal officials’ concerns with the implementation and impact ofthe Endangerment Finding—which the State ofTexas shares—the Administrator’s improper handling ofthe scientific assessmentprocess takes on even greatermeaning. Withoutthe IPCC’s flawed scientific assessmentrelied upon by the Administrator, there could be no Endangerment Finding because, as the Administrator acknowledged: “The major assessments by the U.S. Global Climate Research Program (USGCRP), the Intergovernmental Panel on Climate Change (IPCC), and the National Research Council (NRC) serve as the primary scientific basis supporting the Administrator’s endangerment finding.” 9

’

This Petition has shown multiple examples ofimproper conduct by key scientists who coordinated, drafted, and contributed to the IPCC—and for the reasons explained above, therefore also to the NRC and USGRP—assessments. Importantly, the State ofTexas is not alone in expressing concern about the practices and conduct that have been revealed since the CRU emails were released lastNovember. Many well-respected scientists who have said that human activity is to blame for global warming have nonetheless been highly critical ofthe conduct revealed in the CRU. For example, ProfessorJohn Beddington, ChiefScientific Advisorto the British Government, said: “I don’tthinkit’s healthy to dismiss proper skepticism. Science grows and improves

188 H.R. 4572, 111th Cong. (2010). S.J.R. 26, 111th Cong. (2010). 190 Letter from Susan M. Waithall, Acting ChiefCounsel ofAdvocacy, to Hon. Lisa Jackson, Administrator, U.S. Environmental Protection Agency (December23, 2009), available at www.regulations.ov, docket#: EPA-HQ-OAR-2009-0171. 191 F.R. 66497.

35in the light of criticism.” 192 Sir David King, former chief scientist to the British Government, said ofthe CRU: “The emails from scientists at the University ofEast Anglia suggest that certain members ofthe IPCC feltthat consensus was so precious that some external challenges had to be kept outside the discussion. That is clearly not acceptable.” 93

Dr. William Sprigg, who oversaw the IPCC’s first assessment report, recently commented at a climate change conference: “The IPCC is biased, conflicted, [and] pushing political agendas. We need to stick to our scientific principles. We need to improve our peer review process, and expand the stakeholders’ role to keep us all honest.” 94

Even a CRU scientist, Professor Mike Hulme, has criticized the IPCC: “Many ofits pronouncements have been used by political advocates to justify their political prescriptions.. .not everything written by the IPCC—or declared by its senior spokesperson—is true... [TJhe rules must be revised, especially regarding the use ofnonpeer-reviewed sources andthe way reviewers comments are handled.” 95
The President ofthe National Academy of Scientists also commented on the negative impact of the CRU emails, saying that they “raised concern about the standards of science.” 196 And the Director ofGreenpeace’s British operation has called for the IPCC Chairman’s replacement in light ofthe organization’s lost credibility: “The IPCC needs to regain credibility. Is that going to happen with Pachuari? I don’t think so.

. . . Ifwe get a new person in with an open mind, prepared to fundamentally review how the IPCC works, we would regain the confidence ofthe organization.” 97
And the British newspaper, The Guardian, which favors greenhouse gas emissions regulations, has opined: “[W]e have uncovered an abject failure to ensure essential records were kept on Chinese weather stations, determined maneuvering to exclude critics from leading journals and international reports, and suggestions of deleting

192 Ben Webster, Science Chief John Beddington CallsforHonesty on Climate Change, THE TIMES OF LONDON, January 27, 2010 available at http:/!www.timesonline.co.ukitol!news/environment/article7003622.ece?&EMC-Bitn=99KCH2F (last visited on Feb. 16, 2010). David King, IPCCruns againstthe spiritofscience, THE TELEGRAPH, February 6,2010, available at http:L’www.telegraph.co.uk!earthienvironment!climatechange/7170299/Sir-David-King-IPCC-runs-ai2ainstthe-spirit-of-science.htrni (last visited on Feb. 16, 2010). Insert cite and confirm Sprigg’s exacttitle from IPCC Vol. I (Source #138) 195 Mike Hulme, The IPCC’sproblems have been compoundedby its imperious attitude, THE GUARDIAN, Feb. 5, 2010, available athttp://www.guardian.co.uk/environment/2010/feb/05/rajendra-pachauri-hackedciirnate-science-ernalis 196 Andrew C. Revkin, Signs ofDamage to Public Trustin ClimateFindings, NYT’S DOT EARTH BLOG, Feb. 5, 2010, available at http:!!wwv’.cuardian.co.uklenvironmenti20 I0/feb/05/rajendra-pachauri-hackedclimate-science-emails (last visited on Feb. 16, 2010). 197 Ben Webster, IPCC ChiefRajendraPachuari UnderPressure OverGlacier Claim, THE TIMES, February 4, 2010, available at htt,x//www.timesonhine.co.uk!tol/news/environment/articie7Ol42O3.ece (last visited on Feb. 16, 2010).

36potentially embarrassing correspondence with a view to evading the Freedom of Information Act.” 98

Governments around the world are also reacting to the release ofthe CRU emails andthe multitude oferrors in the IPCC report. LU Xuedu, Deputy Director General ofChina’s National Climate Center and a Chinese delegate to the IPCC has called forreforms within the organization and has been quoted saying: “Some scientists take apolitical stance and
wear colored glasses, which means they do not look at issues in a comprehensive way. The managing institute, authors, and contributors ofthe assessment reports should be more objective in orderto be more convmcing.” 99

Britain’s MET Office—an agency ofthe Defense Ministry that serves as the country’s official weather service—has opened a formal inquiry and plans to reexamine 160 years oftemperature data. 20 ° The MET’s review ofthe climate data is expected to take three years to complete. 20 ’

The British House ofCommons is also investigating the matter. On December 2, 2009, Science and Technology Committee Chairman Phil Willis wrote to the Vice Chancellor ofEast Anglia University asking for an explanation ofCRU’s conduct and expressing
concern about allegations that CRU “datamay have been manipulated or deleted in order to produce evidence on global warming.” 202 Similarly, Dutch Environment Minister Jacqueline Cramer has ordered a thorough investigation into the quality ofclimate reports that she relies upon to develop public policy. ° This decision was made shortly after it was learned that the IPCC had incorrectly reported that 55% ofthe Netherlands is under sea level; a claim which is simply nottrue. Finally, a separate inquiry by East Anglia University will investigate multiple items, including “CRU’s policies and practices for acquiring, assembling, subjecting to peer review, and disseminating data and research findings.” 204 All of the aforementioned

198 Editorial, Climate science: Truth andtribalism, THE GUARDIAN, February 6, 2010, available at http://www.guardian.co.uk/commentisfree/201 0/feb/06/climate-science-truth-and-tribalism (last visited on Feb. 16, 2010). 199 Jonathan Watts, Senior Chinese ClimatologistCallsfor Reform ofIPCC, THE GUARDIAN, February 9, 2010, available athtto://www.guardian.co.uklenvironment/2010/feb/09/chinese-climatologist-iocc-reform (last visited on Feb. 16, 2010). 200 Ben Webster, Met Of/Ice to Re-Examine 160 Years ofClimate Data, THE TIMES, December 5, 2009, available at http://www.timesonline.co.ukJtol/news/environment/artic1e6945445.ece (last visited on Feb. 16, 2010). 201 Id. 202 Letter from Hon. Phil Willis, Chairman, Science & Technology Committee, House ofCommons, to Edward Acton, Vice-Chancellor, EastAngliaUniversity (December7, 2009), available at: http://www.parliament.uklparliamentary comrnittees!science_technologv!s_t pnO4 091 207.cfm 203 Rob Kievit, Sea levelblunder enrages Dutch minister, Radio NETHERLANDS WORLDWIDE, February4, 2010, available at http://www.rnw.nl!english/article/error-dutch-polder-data-undermines-trust-ipcc (last visited Feb. 16, 2010). 204 Mark Kinver, CliinategateE-Mails Inquiry Under Way, BRITISH BROADCASTTNG CORPORATION (February Il, 2010).

37investigations are in addition to what the British Information Commissioner’s Office (ICO) has already publicly said: “requests under the Freedom ofInformation Act were not dealt with as they should have been underthe legislation. Section 77 ofthe Freedom of Information Act makes it an offence for public authorities to act so as to prevent intentionally the disclosure ofrequested information.” 20 Butthe ICO’s inquiry continues because the commissioner is reviewing whether the British Freedom ofInformation Act needs to be revised in lightofthe CRU’s refusalto disclosepublic information. 206
X. CONCLUSION Since the CRU emails first appeared on the Internet inNovember, 2009, there has been a parade ofcontroversies as new examples ofimproprieties and erroneous information are revealed to the public. Because the Administrator chose to rely on assessments by the IPCC, USGCRP, and the NRC—the latter two ofwhich this petition has shown relied on the IPCC—as the primary scientific and technical basis for her Endangerment Finding, the Administrator’s decision is ofcentral relevance to the Endangerment Finding within the meaning of Chapter 307 of the Clean Air Act. Thus, in light of the serious misconduct the State has demonstrated—data manipulation, loss or destruction of information, reliance on questionable source materials, abuse ofthe peer review process, suppression of dissent, conflicts of interest, and failure to comply with freedom of information laws—the EPA should grant this petition and reconsider the Endangerment Finding. Granting this petition would be consistent with actions taken by governments worldwide to assess problems afflicting the IPCC and it would further allow the agency to conduct its own scientific assessment, independently consider the available scientific information, and then, intheAdministrator’s ownjudgment, make a determination that is supportedby the law and facts. Respectfully submitted,
GREG ABBOTT Attorney General ofTexas

C. ANDREW WEBER FirstAssistantAttorney General Post Office Box 12548 Austin, Texas 78711-2548 (512) 463-2191 (Telephone) (512) 936-0545 (Facsimile) Andrew.Weberoag.state.tx.us ATTORNEYS FOR PETITIONERS

205 Email from the Information Commissioner’s Office Press Office to Jonathan Leake. The Times of London, January 22, 2010, available at http://www.docstoc.com/docs/23993708/Climate-Email (last visited Feb. 16, 2010). 206 Id.

38