BEFORE THE UNITED STATES ENVIRONMENTAL PROTEC [ION AGFNCY

In re:

)

) EPA DocketNo.

flangerh1tt and Cause or Contribute )

jndiflgs for Greenhouse Gases Under )

Section 202(a) of the Clean Air Act )

EPAHQ02009 7’

PETITION FOR RECONSIDERATION OF ENDANGEENT AND

CAUSE OR CONTRIBU E FINDINGS FOR GREENHOUSE GASES

1. INTRODUCTION

pursuant to Section 307 of the Clean Air Act (CAA”) the State of Texas “Texa5” or the

“State”). through its AttorneY General and on behalf of its Governor, ommi50r of

AgricUlture Comnhiss1ofl of the General Land Office. omniSsi0fl on Environmental

Quality, and the Chairman of the public Utility CorntfljSsiOfl, files this Petition for

RecOflsjdatbon requesting that the Administrator of the U.S. EnvirOfln ntal Protection

Agency (the “EPA”) reconsider her flangert and Cause or Contribute jnding5 for

Greenhouse Gases under Section 202ca) of the Clean Air Act flangermt

Finding”). 1In suppo of this Petition, the State of Texas shows the folloWiflg

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 against EPA’S flgerment Finding issued on December 15,

2009 because it will lead to unprecedented bureaucratic licensing and regulat0 burdens

on farmers. ranchers, small businesses, hospitals, and even schools. 2 Any location that

See fldaflgerflnt and Cause or Contribute Findings for Greenhouse Gases under SectiOn 202(a) ofthe

Clear Air Act. 74 Fed. Reg. 66,496 (Dec. 15. 2009) (dcSCribm procedures for requesting that the

Administrator COnvene a proceeding for recon5ideratbo

2 As the Texas cornrnissbohl on EnvirOfl1t Quality observed in its June 23, 2009 Comment on the

mobile source fldaflgermt Finding. “The positive dange1ment finding and cause or contribute findings

under Section 202a) will trigger a similar finding under provisions of Clean Air Act regulating point

sources.” Letter from Mark VickerY. Executive Director, Texas Commission on Envirofl1nt QualitY to

Hon. Lisa Jackson, Administrator, U.S. Environi ental Protection Agency (3une 23, 2009), available at

Docket: EPAHQ0A20090l 7l.

That is, as the Texas Commission on

Enironment Quality noted, by finding that mobile source GHG emissions_which are regulated

exclusively by EPA and not by the states_constitute a danger to the public’s health and safety ithin the

meaning of Section 202(a) of the Clean Air Act, the Administrator has essentially required that stationary

source GHGs_hich arc regulated by the states__shall also be regulated. The Executive Director of the

Texas Commission on Enviroflme1tat Quality put it succinctlY. “the findings that the four specific

GHG[s emitted from motor vehicles cause or contribute to air pollution that is reasonablY anticipated to

endanger public health and welfare necessarily triggers regulation of [stateregulate point sources of

GHG ‘pollutants under Title I and Title V of the CAA.” This positiOfl is shared by the National

Association of clean Air Agencies. which represent 5state and local regulat0 agencies that are
has 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 of the Texas economy will be affected by EPA’s Endangerment Finding.

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 of the scientific literature necessary to make that assessment. In doing

so, EPA relied primarily on the conclusions of outside organizations, particularly the

United Nations International Panel on Climate Change (“IPCC”).

EPA’s reliance on the IPCC’s assessment to make a decision of this 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

of the 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, colluded to hide research flaws, and collaborated to obstruct the public’s

legal right to 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 of the 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 for programmatic 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 of Commerce 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 respect to a pollutant and class of motor vehicles, section 202(a) requires it to

promulgate emissions standards for that pollutant and class of motor vehicles., .Most would concede that, if

adopted, these proposed limitations would clearly subject the affected pollutants to ‘regulation’ and trigger

the applicability of the PSD and Title V programs under the Act to GHG emissions.” Letter from G.

Vinson Heliwig, NACAA Co-President, Larry Greene, NACAA Co-President, Robert Hodanbosi, Co

Chair NACAA Permitting Committee, and Ursula Kramer, Co-Chair NACAA Permitting Committee, to

U.S. Environmental Protection Agency (December 28, 2009), available at www.regulations.gov, Docket:

EPA-HQ—OAR—2009—05 17.
As a result, bipartisan legislation has been introduced in both chambers of Congress to

prevent implementation of the Endangerment Finding and the related regulation of

greenhouse gas emissions. Notwithstanding the multitude and scope of these 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 of Texas 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 on the lives of Texans and the Texas economy.

In light of the disturbing revelations detailed in the 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 a potentially trillion-dollar decision as to whether greenhouse gases from

mobile sources constitute a danger to the public health and welfare.

Thus, on behalf of the 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 Air permitting process just to continue operating

as they always have; 3the 375,000 hard-working Texans who rely on the energy sector for

employment; 4the estimated 30,000 Texas businesses that face new regulations and

increased costs because they emit greenhouse gases; 5the already financially strapped

Texas families who face $1,200 in increased annual living costs; 6and 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 it provided for public education last year, 7Texas, 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) of the Clean

Air Act, at 16 (June 23, 2009).

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) of the Clean

Air Act, at 14 (June 23, 2009) 5

Rick Perry, Governor of Texas, Speech Urging EPA to Withdraw Ruling on Danger of Carbon Dioxide

(Dec. 9, 2009), available at httix//povernor.state.tx.us/news/speech/14021/ (last visited Feb. 15, 2010).

Texas Education Agency, Texas Permanent School Fund Annual Report, December, 2009 at 4, available

at http://ritter.tea.state.tx.us/psf/PSFARO9pdf.

3
III. STANDARD OF REVIEW

Section 307 of the Clean Air Act directs that the Administrator “shall convene a

proceeding for reconsideration” if two 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 of public comment (but

within the time specified for judicial review). .

Second, the objection is of central

relevance to the outcome of the rule—in this case the Endangerment Finding. 9 The

State’s Petition meets both requirements.

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 of the

Endangerment Finding is February 16, 2010.’° Therefore, the grounds for the objections

presented in this Petition arose after the period of public comment but within the time

specified for seeking judicial review)’

The Endangerment Finding stipulates that “the Administrator [relied] on the major

assessments of the 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 of central relevance to the Endangerment

Finding. ‘

IV. THE STATE OF TEXAS’ COMMITMENT TO THE ENVIRONMENT

A. TEXAS’ RECORD OF ENVIRONMENTAL ENFORCEMENT

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

when based on sound legal and scientific principles. Texas has aggressively protected air

quality. The State has joined 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 of Texas teamed with EPA and the U.S. Department of Justice

in a successful enforcement effort against the mining and refining company Asarco, LLC.

As a result, Asarco will spend $1.8 billion remediating 80 hazardous waste sites in 19

See 42 U.S.C. § 7607(d)(7)(B).

91d,

10 Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) ofthe Clear

Air Act, 74 Fed. Reg. 66,496.

See 42 U.S.C. § 7607(d)(7)(B) (providing that an objection to an agency rule under the CAA may be

filed before the end ofthe period ofjudicial review ifthe grounds for the objection arose after the period

for public comment). 12 Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clear

Air Act,74 Fed. Reg. at 66,510. 13 See 42 U.S.C. § 7607(d)(7)(B) (an objection must be of “central relevance to the outcome ofthe rule”)

4
states across the country. Of that amount, $52 million was allocated to 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 with polluters in non-attainment areas. 15

And, a joint enforcement effort by Texas, EPA, and six other states led to 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, New Jersey, 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 of Justice—enforcement

actions that led BP to plead guilty to felony Clean Air Act violations.’ 8

B. TEXAS’ RECORD OF REDUCING GREENHOUSE GAS EMISSIONS

Texas is successfully fostering the use of renewable energy sources. Since 2004, no other

state in the nation has reduced power-sector CO2emissions 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 Million to Fund Cleanup at Former El

Paso Smelter (December 10, 2009), available at www.oag.state.tx.us (last visited Feb. 15, 2010). See also

id. (noting that a separate state enforcement action from the same bankruptcy case yielded another $29

million for remediation at an Asarco-owned state-superfund facility in southeast Texas). See also, Bob

Christie, Asarco Paying $1.8B to Clean Up More Than 80 Sites, ASSOCIATED PRESS, December 10, 2009. 15 Press Release, Office ofthe Attorney General, Attorney General Abbott Resolves Environmental Case

Against Seven Gulf Coast Petrochemical Plants (August 25, 2008), available at yy g.statetx.us (last

visited Feb. 15, 2010). 16 Press Release, Office ofthe Attorney General, Attorney General Wins for Texas in Largest

Environmental Settlement with a Refiner (June 16, 2005) available at www.oa.state.tx.us (last visited Feb.

15, 2010). Additionally, Texas achieved another record-breaking enforcement action involving Huntsman

Petrochemical Corp., which paid the largest penalty every levied for a Texas Clean Air Act Violation.

Press Release, Office of the Attorney General, Attorney General Abbott Lands Record Environmental

Penalty From Huntsman (May 13,2003), available at: www.oag.state.tx.us (last visited Feb. 15, 2010). 17 Press Release, Office ofthe Attorney General, BP Products North America Agrees to Temporary

Injunction Ensuring Compliance with the 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 Pay Nearly $180 Million to Settle

Clean Air Violations at Texas City Refinery (February 19, 2009), available at www.epa.gov (last visited

Feb. 15, 2010). 19 Texas is building on that by 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, Governor Perry Urges EPA to Withdraw Ruling on Danger of Carbon Dioxide

(December 9, 2009), available at www.governor.state.tx.us (last visited Feb. 15, 2010).

5
countries—and the State’s leadership is working to ensure adequate infrastructure to

continue growth in the 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

necessary to deliver renewable energy to Texas consumers. 21As a result, 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 of the two largest “absolute declines” in greenhouse gas emissions of any

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 led the 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 of reduced

reliance on coal and an increased share of power 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 commitment to the environment.

Significantly, during the same four-year period when CO2 emissions from electric

generators decreased in Texas by 4%, such emissions in the rest of the 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 commitment to renewable energy sources. In the first three

months of 2009, non-hydro renewables accounted for nearly 6% of electricity 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 CO2and wastewater into 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) of the Clean

Air Act, at 24 (June 23, 2009). 22 Id. 23 Tony Dutzik, et. a!., Too Much Pollution 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 at yyv.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 (last visited Feb. 15, 2010). 29 Rick Perry, Governor of Texas, Speech at the Texas Renewable Energy Industries Association

Conference (Nov. 9, 2009), available at www.governor.state.tx.us (last visited Feb. 15, 2010).

6
Texas has a demonstrated record of working with EPA to enforce environmental laws.

Equally important, the State has a demonstrated record of successfully encouraging and

implementing clean, renewable energy technologies that have fostered a cleaner

environment.

V. THE ENDANGERMENT FINDING

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 of greenhouse gases from new motor vehicles cause

or contribute to air pollution which may reasonably be anticipated to endanger public

health or welfare, or whether the science is too uncertain to make a reasoned 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 of such 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 of Section 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,

‘reasoned decision’ that is based exclusively on the best 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 of flawed scientific conclusions by third parties.

VI. THE IPCC 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 of climate change.” 34 Among

30 U.S. Environmental Protection Agency, Climate Change — Regulatory Initiatives, Endangerment and

Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act, available at

http://www.epa.gov/cI imatechange!endanerment.htm I (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).

7
the IPCC’s primary functions is the preparation and publication of assessment reports. 35

The reports, which are issued every six years, are divided into three separate books called

Working Groups and a fourth called the Synthesis Report. The IPCC relies on a network

of “[t]housands of scientists all over the world [who] contribute to the work of the 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,

explained that the “role of the 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 of risk of human-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

report were anything but comprehensive, objective, open, and transparent.

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 within the climate research community.

Until recently, the CRU’s Director was Dr. Phil Jones, one of the world’s most prominent

climate scientists. Dr. Jones played a substantial role in the development of the IPCC’s

Fourth Assessment Report (“AR4” or the “Fourth Assessment”). In addition to serving

as the lead author of AR4’s high-profile Summary for 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!oran ization/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,

Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the

Clean Air Act: 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.htni I. See also International Panel on Climate Change,

Structure (explaining that the IPCC’s primary governing principles are: “Comprehensiveness, objectivity,

openness and transparency.”), available at http:/!www.ipcc.ch!organization/organization.htm (last visited

February 14, 2010). ‘

Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe

Clean Air Act: EPA’s Response to Public Comments Volume II: Volume 2: Validity of Observed and

Measured Data, at 27, (Dec. 7, 2009), available at http://www .epa.gov’climatechange/endangerment.html. 40 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the

Clean Air Act: EPA’s Response to Public Comments Volume II: Volume 2: Validity of Observed and

Measured Data, at 19 (Dec. 7, 2009), available at http://www,eoa.gov/climatechange/endangerrnent.htrnl.

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

(Chapter 3)41

But limiting a description of Dr. Jones’s involvement to simply the portions of the Fourth

Assessment that he 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 in the TSD, and this figure is from IPCC.” 45

Significantly, EPA also directly relied on the 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 Support Document (“TSD”) that purports to provide the scientific bases for the

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

surface temperature 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, and Climate 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 Air Act: EPA’s Response to Public Comments Volume II: Volume 2: Validity of Observed and

Measured Data, at 27 (Dec. 7, 2009). available at http://www.epa.gov/clirnatechange/endangerment.htrn 1. u Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the

Clean Air Act: EPA’s Response to Public Comments Volume 11: Volume 2: Validity of Observed and

Measured Data, at 26 (Dec. 7, 2009), available at http://www.epa.gov/climatechange/endanerrnent.html. 46 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe

Clean Air Act, 74 Fed. Reg. at 66,511, htp//www.epa.gov/climatechange/endangerment.html (last visited

Feb. 16, 2010). ‘

Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the

Clean Air Act: EPA’s Response to Public Comments Volume 11: Validity of Observed and Measured Data

(U.S. Environmental Protection Agency Dec. 7, 2009) at 19, available at

http://www.ea. gov/climatechange/endangerment.htm I (last visited Feb. 16, 2010). 48 Id.

Id. at 20.

9
thermometers, 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 of CRU’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

homogenized based on CRU mathematical models.

Because the IPCC relied on the CRU data and modeling methodologies, the CRU’s

scientists must be shown to be objective and impartial arbiters of the science—or much of

the world’s climate data is necessarily flawed by the modelers’ lack of objectivity. 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 of their scientific research.

That lack of objectivity 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 of emails between Dr. Jones and his scientific

allies from CRU and around the world. The emails do not reflect the work of objective

scientists dispassionately conducting their work and zealously pursuing the truth. Rather

they reveal a cadre of activist scientists colluding and scheming to advance what they

want the science to be—even where the empirical data suggest a different outcome. The

emails also reveal some of the world’s most well-known climatologists demonizing those

who question their climate change research. Such behavior directly contravenes the

objectivity and skepticism fundamental to the scientific method.

In addition to Dr. Jones, other key figures in the emails—and therefore 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, Searchfor Hacker May Lead Police Back to East Anglia ‘s Climate Research Unit, THE

GUARDIAN, Feb. 9, 2010, available at http://www.guardian.co.uklenvironment/20 I 0/feb/09/hacked-ernailspolice-investigation (last visited Feb. 14, 2010).

10
authored the Working Group I’s Chapter 3 with Dr. Jones, 52the CRU’s Dr. Briffa and 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 of two

Working Groups, Mann is cited 27 times in 7 chapters of two Working Groups, Briffa is

cited 23 times in 9 chapters of two Working Groups, Wigley is cited 66 times in 18

chapters of all three Working Groups, Overpeck is cited 15 times in 5 chapters of two

Working Groups, Osborn is cited 30 times in 10 chapters of two Working Groups,

Trenberth is cited 58 times in 18 chapters of two Working Grou,s, and Santer is cited 26

times in 8 chapters oftwo Working Groups, just to name a few. 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

compromised research.

B. THE IPCC’S—AND THE CRU’S—EXPANDED FOOTPRINT

Under Section 202(a) of the 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 that was within EPA’s own quality control. 58

52 See IPCC Fourth Assessment: Climate Change 2007: Working Group I: The Physical Science Basis,

Chapter 3, Supplementary Materials, Observations: Surface and Atmospheric Climate Change (listing

Kevin Trenberth and Phil Jones as “Coordinating Lead Authors” of chapter 3) (last visited Feb. 16,2010).

See IPCC Fourth Assessment: Climate Change 2007: Working Group I: The Physical Science Basis,

Chapter 6, Supplementary Materials, Paleoclimate (listing Jonathan Overpeck as a “Coordinating Lead

Author” and Keith Briffa as a “Lead Author” of Chapter 6).

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 Assessment Report: Climate Change 2007.

5642 U.S.C. § 7521 (emphasis added).

See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe

Clean Air Act, 74 Fed. Reg. at 66,511 (listing the reports on which the EPA relied in drafting the

Endangerment Finding). 58 See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe

Clean Air Act, EPA Response to Public Comments Volume 1 at 7 (conceding that “EPA did not develop

new science as part ofthis action and instead summarized the existing peer-reviewed assessment

literature.”).

11
In 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 of information when in fact the data in question is

ultimately sourced back to a single organization. This is significant because the

Administrator attempts to justify outsourcing her scientific assessment by purporting to

rely on three outside organizations—which creates the appearance of a 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 number of key findings from the 2007

IPCC Fourth Assessment Report.” 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 of the 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 legally unsupported.

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 of interest—that taint extends beyond the IPCC report and

into any research or studies that cite the IPCC report.

C. THE CENTRAL RELEVANCE OF THE IPCC, USGCRP, AND THE NRC

Because “the Administrator is relying on the major assessments of the USGCRP, IPCC,

and NRC as the primary scientific and technical bases of her endangerment decision[,]” 62

the reasonableness of her 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 of the 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 endangerment finding.” 64

Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe

Clean Air Act, 74 Fed. Reg. at 66,511. 60 Id. 61 Id.

at 66,510. 63 See 42 U.S.C. § 7607(d)(7)(B) (an objection must be of “central relevance to the outcome ofthe rule”) 64 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the

Clean Air Act, 74 Fed. Reg. 66,510.

12
In 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 of the 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

651d. at 66,511. 66 Id.

Id. (emphasis added). 68 See, e.g., id. at 66,497 n.1 (noting that the TSD accompanying the Endangerment Finding summarizes

the major assessment from the IPCC, inter alia); Ed. at 66,499 (“The units for greenhouse gas emissions in

these findings are provided in carbon dioxide equivalent units, where carbon dioxide is the reference gas

and every other greenhouse gas is converted into its carbon dioxide equivalent by using the 100-year global

warming potential (as estimated by the Intergovernmental Panel on Climate Change (IPCC) assigned to

each gas. . . . In accordance with UNFCCC reporting procedures, the United States quantifies greenhouse

gas emissions using the 100-year time frame values for GWPs [i.e., the global warming potentials]

established in the IPCC Second Assessment Report.”); id. At 66,512 (“EPA was also involved in review of

the IPCC Fourth Assessment Report, and in particular took part in the approval of the summary for policy

makers for the Working Group II Volume, Impacts, Adaptation and Vulnerability.. . .“) (emphasis

supplied); Ed. n. 15 (noting that EPA relies on IPCC’s definitions of “adaptation” and “autonomous

adaptation”); Ed. at 66,517 (noting IPCC’s description of greenhouse gases); id. at 66,518 (“The IPCC

conclusion from 2007 has been re-confirmed by the June 2009 USGCRP assessment that most of the

observed increase in global average temperatures since the 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. at 66,519 (relying on IPCC climate model summaries); id. at 66,520

(citing IPCC’s acceptance ofthe concept of well-mixed greenhouse gases); Ed. (relying on IPCC’s

conclusion about the importance of climate-forcing); Ed. at 66,525 (citing IPCC’s conclusion about reduced

human mortality from cold); Ed. (citing IPCC conclusion about extreme events and human health); Ed.

(citing IPCC’s conclusion that pollen would likely increase with warmer temperatures); Ed. at 66,530

(Noting that, “[t]he IPCC (Field et al., 2007) reported with very high confidence that in North America,

disturbances like wildfires are increasing and are likely to intensify in a warmer future with drier soils and

longer growing seasons.”); Ed. at 66,532 (providing that, “The IPCC concluded with high confidence that

higher water temperatures, increased precipitation intensity, and longer periods of low flows exacerbate

many forms of water pollution 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

posed by climate change); id. at 66,536 (noting that, “Vulnerability to extended drought, according to

IPCC, has been documented as already increasing across North America.”); Ed. (concluding that, “Based on

the most recent IPCC assessment of the scientific literature, several recent studies confirm previous

findings that temperature and precipitation changes in future decades will modify, and often limit, direct

carbon dioxide effects on plants.”).

13
EPA 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 depth than those of the USGCRP and NRC. 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 or NRC is cited for a proposition that, in turn, either has 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 of the Earth’s surface over the past 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, but rather offered the 2007 IPCC Fourth Assessment Report 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 of NRC’s conclusions.

NRC’s 2006 report uses IPCC’s data to reach its own separate or unique conclusion.

Thus, if IPCC’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 and the accompanying responses to public comments contain hundreds more

citations to and discussions of IPCC findings than those ofthe USGCRP and NRC. See generally

Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) ofthe Clean

Air Act, 74 Fed. Reg. 66,496 et seq.

70See Technical Support Document for Endangerment and Cause or Contribute Findings of Greenhouse

Gases under Section 202(a) ofthe Clean Air Act at 5, (citing Surface Temperature Reconstructionsfor the

Last 2,000 Years, National Research Council ofthe National Academies (2006) at 14 (relying on the 2001

IPCC report to reach a conclusion regarding temperatures over the past thousand years)). 71 See Surface Reconstructionsfor the Last 2,000 Years at 14 (basing its conclusions about long-term

temperature variation on a 2001 IPCC report), id. at 27-28 (relying on a 2001 IPCC report’s conclusion

about the climate-forcing effect of human-produce greenhouse gases), Id. at 30-34 (relying on CRU

temperature-anomaly data); id. at 111 (noting that its discussion of 1,000 year temperature trends is based

on IPCC report), id. at 126 (relying on Hadley Center assessments on regarding the impact of climate

change on agriculture). 72 See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe

Clean Air Act, 74 Fed. Reg. at 66,535 (citing the USGCRP report ofJune 2009”). See also Global Climate

Change Impacts in the United States at 13 (noting that IPCC assessments were synthesized and integrated

into the report), id. at 23 (using three IPCC scenarios of future carbon dioxide emissions and

concentrations), Id. at 32 (basing precipitations models on the models in the IPCC 2007 Fourth Assessment

Report), id. at 53 (using 100-year global warming potentials from IPCC to adapt an EPA chart into a new

chart showing sources of greenhouse gas emissions in 2003). ‘

Id. at 19, n. 45.

14
Therefore, 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—and legal invalidity—of the Administrator’s decision

to outsource the risk assessment to three seemingly independent, but verifiably

interwoven, organizations.

VII. IMPROPER CONDUCT REVEALED BY DISCLOSURE OF CRU EMAILS

A. THE LACK OF INTEGRITY OF THE IPCC’s DATA

1. THE IPCC’s MANIPULATION OF ITS CLIMATE CHANGE DATA

Since the close of the 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 staff members. In one notable

email, a CRU staff member discuss a “trick” to “hide the decline” in CRU temperature

data sets from 198 1-2OOO:

Dear Ray, Mike and Malcolm, Once Tim’s got a diagram here we’ll

send that either later today or first thing tomorrow. I’ve just completed

Mike’s nature trick of adding 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., temperature records derived from conjectural

reconstructions of historical temperature data for one site that is meant to represent many sites — started

falling in 1960. That drop differed from the temperature trend indicated by the instrumental temperature

records, which showed a rise in temperatures after 1960, The “trick” to “hide the decline” was to add the

raw temperature records to the proxy records starting in 1960 instead of continuing the proxy

reconstruction for the entire period. If the proxy records had been used over the entire period, there would

have been a decline in temperatures. However, because different kinds of data were used, there was no

decline; there was a “trick” that managed, at least for a little while, to “hide” the decline. See Marc

Sheppard Understanding Climategate ‘s Hidden Decline. AMERICAN THINKER, Dec. 6, 2009, available at

http://www.arnericanthinker.com/2009/12/understanding climategates 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= 1 54&filename942777075 .txt (last visited February 11,

2010).

76 And sometimes, as previously discussed, the CRU added raw data to manipulated data to produce a

desired result. See Marc Sheppard Understanding Climategate ‘s Hidden Decline. AMERICAN THINKER

15
Consequently, the British Meteorological Office (the “MET”) 77has announced that it will

reexamine 160 years of climate data, attributing the need to reexamine the data to a “lack

ofpublic confidence based on the leaked e-mails.” 78

Although the CRU scientists appear to have manipulated data in several parts of the

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 of the 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

would have shown had the data set included more Russian weather stations. 82

Similarly, the CRU adjusted 20th century raw temperature data for New 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 20th

century. 84 Because the data set started with temperatures that were very low, the CRU

was able to show that a relatively greater amount of warming had occurred by the end of

(Dec. 6, 2009), available at http://www.americanthinker.com/2009/1 2/understanding climategates hid.html

last visited Feb 11, 2010).

The MET is roughly equivalent to the U.S. National Weather Service. It is a “Trading Fund within the

Ministry of Defence, operating on a commercial basis under set targets.” See Met Office: Who we are,

available at http://www.rnetoffice.gov.uk/corporate/ (last visited February 14, 2010). 78 Ben Webster, Met Office to re-examine 160 years ofclimate data, THE TIMES (Dec. 5, 2009), available

at http://www.timesonline.co.uk/tol/news/environmentlarticle694544s.ece (last visited Feb. 10, 2010). ‘

N.A. Pivavorova, How Climate is Made. The case ofRussia. Institute of Economic Analysis. (2009),

available at hltp://climateaudi/./iles.wordpress. com/2009/12/ieal.pdf’(last visited Feb. 15, 2010). 80 N .A. Pivavorova, How Climate is Made. The case ofRussia. Institute of Economic Analysis. (2009) (last

visited Feb. 15, 2010), available at http://climateaudit.files.wordpress.com/2009/l2/ieal.pdf (last visited

Feb. 15, 2010).

81 See What the Russian Papers say, RIANOVOSTI, (citing KOMMERSANT), available at

http://en.rian.ru/papers/2009 1216/1 57260660.html (last visited Feb. 15, 2010).

82 See RIANOVOSTI, What the Russian Papers Say (citing KOMMERSANT), available at

http://en.rian.ru/papers/20091216/l57260660.html (reporting that “Over 40% of Russian territory was not

included in global-temperature calculations for some other reasons, rather than the lack of meteorological

stations and observations.”). See also Andrei Illarianov, New Study Hadley Center and CRU Apparently

Cherry-Picked Russia’s Climate Data. CATO AT LIBERTY, available at http://www.cato.at

liberty.org/20O9/l 2/1

(last visited Feb. 15, 2010).

83 Richard Treadgold. Are we feeling warmer yet? NEw ZEALAND CLIMATE SCIENCE COALITION (Nov. 25,

2009) available at http://climatescience.org.nz/images/PDFs/global_warmingnz2.pdf. (last visited Feb. 10

2010).

84 D(fference Between Raw and Final USHCN Data Sets, available at

http://www.ncdc.noaa.gov/img/climate/researchluschn/ts.ushcn anom25 diffs urb-raw pg.gif (last visited

Feb. 10, 2010).

16
the 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 20th century

warming in New Zealand.

2. Loss OR DESTRUCTION OF CRITICAL IPCC RECORDS

The CRU’s data integrity problems consisted of more than data manipulation. CRU

admitted in late November 2009 that much of their original data had been destroyed due

to lack of storage space. 87 CRU claims that they retained only the “value added” data 88 —

i.e., “quality controlled and homogenized” data or, put differently, data that has been

manipulated and that is therefore no longer raw. Consequently, it is no longer possible to

check the accuracy of whether CRU’s “homogenization” — i.e., the synthesis of one set of

data that appears to lead to a conclusion that would conflict with the conclusion

suggested by other data of data — was appropriate. 89However, even if CRU still has some

data, it is sometimes unwilling to produce it, regardless of whether it is required to do so

by law. 9°

Of course, emails indicating that CRU scientists and programmers were unable to follow

data does not absolve CRU: on the contrary, it is damning evidence that the IPCC and, in

turn, EPA cannot rely on CRU data and analysis. As noted above, some CRU scientists

manipulated data to produce their desired conclusions about the severity of anthropogenic

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, of no 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 of the world. . . and, if the present rate continues,

the likelihood of them disappearing by the year 2035 and perhaps sooner is very high if

85 Richard Treadgold. Are we feeling warmer yet? NEW ZEALAND CLIMATE SCIENCE COALITION at 5 (Nov.

25, 2009) available at http://climatescience.org.nz/images/PDFs/global warming nz2.pdf, (last visited

Feb. 102010).

86 Id. 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 Data Availability, available at http://www.cru.uea,ac.uk!cru/data/availability/. 89 Id.

90See, e.g., Steve Mcintyre. Willis Eschenbach ‘s FOl Request. CLIMATE AUDIT (Nov. 25, 2009) available

at http://www.timesonline.co.ukltol/news/environment/artic1e6936328.ece (last visited Feb. 10, 2010)

(discussing the experience of a scientist named Willis Eschenbach who attempted to obtain station data for

average global temperature from CRU but endured a year ofCRU’s excuses and explanations for its failure

to produce the requested information).

17
the Earth keeps warming at the current rate.” 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 of rate of recession and date for the

disappearance of Himalayan 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 how the IPCC came to issue a retracting statement

— illustrates the degree to which the IPCC failed to follow adequate procedures.

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 of a 1999 story in the popular-science magazine The

New Scientist. 94In 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 vanish by 2035 96 Finally, the Fourth Assessment cited the

WWF report as its source for the disappearing-glacier claim even though the WWF report

did not suggest that the likelihood of the 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, 99has admitted that 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 IPCC statement on the melting ofHimalayan glaciers. IPCC Secretariat. Jan. 20, 2010, available

at http://www.ipcc.ch/pdf/presentations!himalaya-statement-2oianuary2OI 0.pdf (last visited Feb. 15, 2010).

Jonathan Leake and Chris Hasting, World misled over Himalayan glacier meltdown, THE TIMES, Jan. 17,

2010, available at http://www.timesonline.co.uk/tol/news/environment/article6991 177.ece (last visited Feb.

15, 2010).

Id. See also Fred Pearce, Flooded Out, THE NEW SCIENTIST, June 5, 1999, available at

http://www.newscientist.com/article/mg 16221893 .000-flooded-out.html (last visited Feb. 15, 2010).

Jonathan Leake and Chris Hasting, World misled over Himalayan glacier meltdown., THE TIMES, Jan. 17,

2010, available at http://www.timesonline.co.uk/tol/news/environment/article699 II 77.ece (last visited

Feb. 15, 2010).

96 Sandeep Chamling Rai, An Overview ofGlaciers, Glacier Retreat, and Subsequent Impacts in Nepal,

India, and China, 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 also An Overview ofGlaciers, Glacier Retreat, and

Subsequent Impacts in Nepal, India, and China. WWF Nepal Program, March 2005, 2 (quoting Dr.

Hasnain without describing his claims as “very likely” to be correct). 98 Jonathan Leake and Chris Hasting, World misled over Himalayan glacier meltdown, THE TIMES, Jan. 17,

2010, available at http://www.timesonline.co.uk/tol/news/environment/artic1e6991177.ece (last visited Feb.

15, 2010).

See IPCC Fourth Assessment Report: 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.

18
the region so I have to rely on credible published research. The comments in the WWF

report were made by a respected Indian scientist and it was reasonable to assume he knew

what he 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 if we 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 himself from that allegation:

“We as authors followed them to the letter . . . . Had we received information that

undermined the claim, we would have 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 of State 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-glacier claim] when it was reported in the media about ten 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 error but did nothing to correct it because

he wanted to avoid unfavorable 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 the journal Science, said he had asked Dr Pachauri about the nowdiscredited claim about glaciers in November of 2008 and that Dr Pachauri had

answered: “I don’t have anything to add on glaciers.”° 7

o° Jonathan Leake and Chris Hasting, World misled over Himalayan glacier meltdown, THE TIMES, Jan.

17, 2010, available at http://www.timesonline.co.ukltol/news/environment/artiele699 I I 77.ece (last visited

Feb. 15, 2010). 101 David Rose, Glacier scientist: I knew data hadn’t been ver(fied, DAILY MAlL, Jan. 24, 2010, available at

http://www.dailymail.co.uk/news/article-I 245636/Glacier-scientists-says-knew-data-verified.html. 102 Id I03 Id 104 Aarti Dhar, Government Contention Vindicated: Jairam Ramesh, THE HINDU, Jan. 18, 2010, available

at http://beta.thehindu.com/news/national/article82160.ece (last visited Feb. 15, 2010). 105 Ben Webster, Climate chiefwas told offalse glacier claims before Copenhagen, THE TIMES, Jan. 30,

2010, available at http://www.timesonline.co.uk/tol/news/environment/article7009O8l.ece, (last visited

Feb. 15, 2010). 106 Id.

‘°71d.

19
2. FINDINGS ON CHINESE WEATHER TAINTED 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 at the Chinese stations. 109 The history of where the weather stations

were sited was central to the 1990 paper because it concluded that the warmer

temperatures in China were caused by climate change rather than the heat-island effect of

growing cities. 110 The authors of that 1990 paper were Phil Jones and Wei-Chyung Wang

of the State University of New 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 order of magnitude smaller” than other trends.” 2

However, an amateur climate analyst, Doug Keenan, has been able to show that 49 of the

Chinese meteorological stations had no histories of their location or other details.” 3The

49 stations included 40 of the 42 rural stations cited in the study.” 4Keenan demanded

that Dr. Jones retract his claims about the Chinese data: “I ask you to retract your GRL

paper, in full, and to retract the claims made in Nature about the Chinese data, If you 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 of New York at Albany after Wang refused to retract the

claim.” 6Although the university found “evidence of the alleged fabrication of results,” it

exonerated Wang. Ironically, Phil Jones submitted a report to the Journal of Geophysical

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

shown in the study.

l08 Fred Pearce, Leaked climate change emails scientist ‘hid’ dataflaws, THE GUARDIAN, Feb. 1,2010,

available at http://www.guardian.co.uk/environment/2010/feb/01 /leaked-emails-climate-jones-chinese,

(last visited Feb. 15, 2010).

109d.

110 Id.

Id. 112 IPCC Fourth Assessment Report: Climate Change 2007: Working Group 1: The Physical Science Basis.

3.2.2.2 Urban Heat Islands and Land Use Effects. 113 Fred Pearce, Strange case ofmoving weather posts and a scientist under siege, THE GUARDiAN, Feb. 1,

2010, available at http://www.guardian.co.uk/environment/20 10/feb/01 /dispute-weather-fraud (last visisted

Feb. 10, 2010). 114

115 Email of Doug Keenan to Dr. Wei-Chyung Wang and Phil Jones, April 20, 2007, available at

http://www.guardian.co.uk/environment/20 10/feb/01 /dispute-weather-fraud (last visited Feb. 15, 2010). 116 Fred Pearce, Strange case ofmoving weather posts and a scientist under siege. THE GUARDIAN, (Feb. 1,

2010) available at http://www.guardian.co.uk/environment/2010/feb/0 1/dispute-weather-fraud. (last

visisted Feb. 10, 2010).

20
Similarly, the Fourth Assessment erroneously claimed that “[t]he Netherlands is an

example of a country highly susceptible to both sea-level rise and river flooding because

55% of its territory is below sea level where 60% of its population lives and 65% of its

Gross National Product (GNP) is produced.” 7The Dutch government has asked for a

correction to that claim, noting that only 26 percent of the country is below sea 18

Trimo Vallaart, the Dutch environment ministry spokesman, said he regretted the fact

that proper procedure was not followed, and added that it should not be left to politicians

to check the IPCC’s numbers.” 9He also said that the Dutch government “will order a

review ofthe report to see if it 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% of the 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 and adaptive capacity. 118 Alister Doyle, UN. Climate panel reviews Dutch sea level glitch, REUTERS, Feb. 5, 2010, available at

http://www.reuters.com/article/idUSTRE6 141 VU2O 100205 (last visited Feb. 15, 2010). 119 Dutch Point Out New Mistakes in U.N. Climate Report, Feb. 5, 2010, available at

http://www.foxnews.com/scitech/201 0/02/05/dutch-point-new-mistakes-climate-report! (last visited Feb.

15, 2010).

‘201d

121 Andy Rowell and Peter Moore, Global Review ofForest Fires: A WWF/IUCN Report, 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 Assessment Report: Climate Change 2007: Working Group II: Impacts, Adaption and

Vulnerability, Summary of Expected Key Future Impacts and Vulnerabilities, Section 13.4.1, Natural

ecosystems.

Daniel C. Nepstadt et al., Large-scale impoverishment ofAmazonian forests by logging andjlre.

NATURE vol. 398 at 505 et seq., April 8, 1999, available at

lrnp://www.whrc.or’resources/pub1ishedl iterature/pdfThepstadNature.99.pdf (last visited Feb. 1 5, 2010)

(noting that, “[l]ogging companies in Amazonia kill or damage 10±40% of the living biomass of forests

through the harvest process.”). 124 Christopher Booker, Amazongate: new evidence ofthe JPCC ‘S failures, DAILY TELEGRAPH, Jan. 30,

2010, available at

http://www. telegraph. co. uk/comment/columnists/christopherbooker/7 113582/Amazongate-new-evidence

of-the-IPCCs-failures.html, (last visited Feb. 15, 2010). 125 IPCC Fourth Assessment: Climate Change 2007: Working Group II: Impacts, Adaption and

Vulnerability, Section 1.3.1.1 Observed effects due to changes in the cryosphere.

21
dissertation that quoted interviews with mountain guides in the Alps.’ 27 But perhaps most

egregious was the Fourth Assessment’s citation’ 28to a boot cleaning manual.’ 29Citations

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 Observed effects due to changes in the cryosphere. Table 1.2 (identifying

“Loss of ice climbs” as one of several “Selected observed effects due to changes in the cryosphere

produced by warming”). 127 Richard Grey and Rebecca Lefort, UN climate change panel based claims on student

dissertation and magazine article, THE DAILY TELEGRAPH. Jan. 30, 2010, available at

http://www.te1egraph.co.uk/earth1environment/climatechange/7 111 525/UN-climate-change-panelbasedclaims-on-student-dissertation-and-magazine-article.html (last visited Feb. 10, 2010). 128 IPCC Fourth Assessment: Climate Change 2007: Working Group II: Impacts, Adaption and

Vulnerability, Section 15.7.2., Economic impact and sustainability in Antartica (citing to “IAATO, 2005”). 129 International Association of Antarctic Tour Operators, Boot, Clothing, and Equipment Decontamination

Guidelinesfor Small Boat Operators, available at http://www.iaato.org/docs/Boot_Washing07.pdf(last

visited Feb. 15, 2010). lO Other non-peer reviewed sources that the Fourth Assessment cites include the following: Marris, E.,

2005: First tests showflood waters high in bacteria and lead. NEWS@NATURe, 437, 301-3011; Dey, P.,

2006: Climate change devastating Latin America frogs. University of Alberta; Butler, A., 2002: Tourism

burned.’ visits to parks down drastically, even awayfromflames. ROCKY MOUNTAIN NEws. July 15, 2002;

Kesmodel, D., 2002: Low and thy: Drought chokes offDurango rafting business. ROCKY MOUNTAIN

NEwS, 25 June 2002; Wilgoren, J. and K.R. Roane, 1999: Cold Showers, Rotting Food, the Lights, Then

Dancing. NEW YORK TIMES, Al. July 8, 1999; Welch, C., 2006: Sweeping change reshapes Arctic. THE

SEATTLE TIMES. Jan. 1 2006; Stiger, R.W., 2001: Alaska DOTdeais with permafrost thaws. Better Roads.

June, 30-31. [Accessed 12.02.07; Business Week, 2005: A Second Look at Katrinas Cost. BUSINESS WEEK;

September 13, 2005. [Accessed 09.02.07; Associated Press, 2002: Rough yearfor rafters. September 3,

2002; COLOMBIA TRADE NEwS, 2006: illegal crops damage Colombia’s environmental resources.

Colombian Government Trade Bureau; FAO, 2004b: La participaciOn de las comunidades en Ia gestiOn

forestal es decisiva para reducir los incendios (Involving local communities to prevent and control forest

fires). FAO Newsroom FAO, 2005: Cattle ranching is encroaching on forests in Latin America. FAO

NEWSROOM ENVIRONMENT NEWS SERVICE, 2002: Hungry Cambodians at the 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 hit northwest Africa again: situation deteriorating in the Sahel. FAO News Release, 17 September

2004; Sparks, T.H., H. Heyen, 0. Braslavska and E. Lehikoinen, 1999: Are European birds migrating

earlier? \pard csl2BTO NEWS, 223, 8; Benedick, R., 2001: Striking a new 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 of combating

global warming, facing the tradeoffs. Foreign Affairs, November/December Cowan, J., E. Eidinow, Laura

Likely, 2000: A scenario-planning process for the new millennium. Deeper News, 9(1); THE ECONOMIST,

2000: Sins of the secular missionaries. January 29, 2000; Speth, J.G., 2002: Recycling Environmentalis,n.

Foreign Policy, July/August, pp. 74-76. Shashank, J., 2004: Energy conservation in the industrial sector: A

special report on energy conservation day. New Delhi, ECONOMIC TIMES; Nippon Steel, 2002: Advanced

technology ofNippon Steel contributes to ULSAB-AVC Program. NIPPON STEEL NEWS, 295, September

2002; Shorrock, T., 2002: Enron’s Asia misadventure. Asia Times 29 January, accessed 02/07/07; ISNA,

2004: From wood to coal in an effort to stop deforestation. Inter Services news agency (IPS), Rome; IRIN,

2004: Angola: frustration as oil windfall spending neglects the poor. United Nations Integrated Regional

Information Networks; WNA reportforecasts three scenariosfor nuclear’s growth. NUCLEAR NEWS,

November 2005: pp. 60-62, 69.

22
C. THE LACK OF OBJECTIVITY & THE SUPPRESSION OF DISSENT

1. THE ABUSE OF THE PEER REVIEW 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 of authors prevented the incorporation of a range of perspectives and alternative

views or biased the conclusions.” 32 Since the comment period for the Endangerment

Finding concluded,’ 33it 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 of scientific objectivity, impartiality, transparency, and

accuracy. These revelations disprove EPA’s previous claim that there 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: 11recently rejected two papers

[one for the Journal of Geophysical Research and one for Geophysical Research Letters]

from people saying CRU has it wrong over Siberia. Went to town in both reviews,

hopefully successfully. If either 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

analyzed much of the 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 the journal to tell

them I’m having nothing more to do with it until they rid themselves of this 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= 10807421 44.txt (last visited Feb. 16,

2010).

135 Fred Pearce, Climate Change Emails Between Scientists Reveal Flaws in Peer Reviews, THE GUARDIAN

(February 2, 2010), available at http://www. guardian.co.uklenvironment/20 I 0/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).

23
The root of the 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 greater traction. Dr. Jones wrote: “I think the skeptics

will use this paper to their own ends and it will set paleo [climate science] back a number

of years if it goes unchallenged.” 37 Second, they had long maligned their skeptical

opponents’ positions by arguing that the opposition’s research had not been published by

a peer-reviewed journal—and could therefore not be 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 the journal’s itself: “The skeptics appear

to have staged a ‘coup’ at ‘Climate Research’ (it was a mediocre journal to begin with, but

now its a mediocre journal with a definite ‘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 the journal: “I think we have to stop

considering ‘Climate Research’ as a legitimate peer-reviewed journal. Perhaps we should

encourage our colleagues in the climate research community to no longer submit to, or

cite papers in, this journal. We would also need to consider what we tell or request of our

more reasonable colleagues who currently sit on the editorial board.” 39

Importantly, because of Dr. 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 Research resigned.” 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 Briffa et. 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 I 047388489.txt (last visited Feb. 16,

2010).

140 Patrick J. Micaels, How to Manufacture Climate Consensus, WALL STREET JOURNAL December 17,

2009.

24
scientists 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 a journal 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’t afford 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 of the blog ClimateAudit.org, had submitted

a manuscript to GRL—and the journal agreed to publish McIntyre’s work, which was

largely critical of Mann’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 three reviews recommended publication.” 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 for publication,

proclaimed that “the contrarians now have 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 of this, we could go through official AGU channels to get him

ousted.” 44

Within a year it appears that Professor Wigley’s goal of removing 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 leak may 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/emai ls.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 at http:/!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 at http://www.eastangliaemails.com/emails.nhp?eid484 (last visited Feb. 16, 2010).

25
been plugged up now w/ new editorial leadership there. ‘‘ According to Professor

Michaels, the offending editor was Yale University’s James Saiers, whose departure from

the journal coincided with Mann, Wigley, and Dr. Jones’s plan to ‘get him ousted.” 46

Clearly, these scientists’ efforts to exclude so-called skeptics’ studies from journal

publication are indicative of a serious breach of objectivity and scientific propriety. And

an email from Dr. Jones to Michael Mann unquestionably reveals that their improper

conduct spilled over into their involvement with the IPCC and unquestionably tainted the

IPCC report. Shortly after Dr. Jones and Kevin Trenberth of the 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 of man-made global warming. In that email, Dr. Jones wrote: “I can’t see either

of these papers being in the next IPCC report.” Further, he said: “Kevin and I will keep

them out somehow—even if we have to redefine what the 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 a balance of perspectives regarding the state of the 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 of the institution used in the development of reports if

the individual has a conflict of interest that is relevant to the functions to be

performed.” 49Thus, EPA identifies the National Academies’ prohibition on conflicts of

interest as a means of ensuring that the Endangerment Finding is balanced and unbiased.

The Chair of the 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 Patrick J. Micaels, How to Manufacture Climate Consensus, WALL STREET JOURNAL (December 17,

2009).

147 Email from Phil Jones to Michael E. Mann, July 8, 2004, available at:

http://www.eastangliaemaiIs.corn/emai1s.php?eid4 1 9&filename= 10893 1861 6.txt (last visited Feb. 16,

2010).

148 Endangerment and Cause or Contribute Findingsfor Greenhouse Gases under Section 202(a) ofthe

Clean Air Act: EPA’s Response to Public Comments, Volume I at 3. 149 Id. (quoting Our Study Process: Ensuring an Objective Voice, National Academies, 2006 at 3).

In a 2009 meeting ofthe IPCC Bureau (the governing body ofthe IPCC that provides guidance during

the preparation of the IPCC assessment reports), the Chair ofthe IPCC, Dr. Rajendra Pachauri, “recalled

the role of IPCC procedures in guaranteeing a proper code of conduct in IPCC activities. Any possible

conflict of interest should be made clear at the outset ofthe process.” Report ofthe 39th Session ofthe

26
Institute (“TERI”), an organization that was a awarded over $4 million in grants for

research on the melting of glaciers; that research was premised on an inaccurate claim

that the Endangerment Finding cited and endorsed, and which was made by TERI’s head

of glaciology) Furthermore, Dr. Pachauri serves on a number of boards 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 of an 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 of Siderian, a venture capital firm investing in sustainable technologies.

He is also an adviser on renewable and sustainable energy to Credit Suisse bank and the

Rockefeller Foundation.’ 54Among his other private activities related to his work as IPCC

chair, Dr. Pachauri has earned hundreds of thousands of dollars in consulting fees (paid to

TERI) from Deutche Bank, Credit Suisse, and Yale University.’ 55

These conflicts of interest violate the standards of conduct that the Dr. Pachauri himself

has prescribed for the IPCC. In so doing, Dr. Pachauri’s conflicts of interest 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 that EPA claims to want to avoid.

IPCC Bureau (2009) at 10, available at http://www.ipcc.chlmeetings/bureau-sessions/bureau39rep.pdf(last

visited February 16, 2010). 151 Christopher Booker and Dean Nelson UN climate chief’s research institute won grants afterflawed

predictions on glaciers, DAILY TELEGRAPH, 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 Find Fault with UN. Climate Pane,. NEW YORK TIMES, February 8, 2010,

available at http://www.nytimes.com/2010/02/09/science/earth/09ciimate.htmI. (last visited February 16,

2010).

153 Christopher Booker and Richard Northwhite. Questions over business deals of UN climate change guru

Dr. Rajendra Pachauri, DAILY TELEGRAPH, Dec. 20, 2009, available at

httD://www.telegraph.co.uklnews/6847227/Ouestions-over-business-deals-of-UN-climate-change-guru-DrRajendra-Pachauri.html (last visited February 16, 2010).

IStBradley Fike, Rajendra Kumar Pachauri is More Equal than You, NC TIMEs.coM BLOGS, December 14, 2009,

available at htto://www.nctimes.com/ap,Jfblogs/wp/?,3=5870 (last visited Feb. 15, 2010).

155 Elisabeth Rosenthal, Skeptics Find Fault with 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).

27
E. 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 of transparency

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 and the information supporting her decision.

For example, Volume I of EPA’s Response to Public Comments about the Endangerment

Finding contains a response to a commenter who complained about the unavailability of

raw data, computer models, and other information that was presumably used to reach the

conclusion that man-made greenhouse gases affect the 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

If EPA’s ability to be fully transparent about the information that forms the basis of its

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 truly her own.

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 of transparent.

Even a cursory review of the 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 of the comment period reveal that contributors

actually cited their IPCC involvement as a purported method of circumventing freedom

of information laws—including the United States Freedom of Information 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)

therefore we don’t have an obligation to pass it on.”

‘56Endangerment and Cause or Contribute Findingsfor Greenhouse Gases under Section 202(a) ofthe

Clean Air Act: EPA ‘s Response to Public Comments, Volume I, Response 1-62.

157 Email from Phil Jones to Gavin Schmidt, August 20, 2008, available at

http://www.eastangliaemails.com/ernails. php?eid=9 1 4&filename 12192391 72.txt (last visited Feb. 16,

2010).

28
Unlike the United States, where the Freedom of Information 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 of surprise—which

was quickly overtaken by disdain—that the law would 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 of personal information - references for jobs 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 information rather than comply with the law

and disclose it: “Ifthey ever hear there is a Freedom ofInformation Act now in the UK, I

think I’ll delete the file rather than send to 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 had to abide by the requests. It took a couple of half hour sessions - one at

a screen, to convince them otherwise showing them what [Steve McIntyre’s

ClimateAudit] was all about. Once they became aware of the types of people 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 worked to thwart that requestor’s access to it. But, merely denying access was not

enough—in the same email Dr. Jones later boasted that he destroyed information in order

to avoid the possibility of having to produce it: “If he 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 of emails, so have very little - if anything at

all.” 62

The following email exchange between Dr. Jones, CRU colleague Tim Osborn, CRU

Deputy Chief Keith Briffa, and Caspar Amman of the National Center for Atmospheric

Research in Colorado is illustrative of the scientists’ general (dis)regard for transparency.

In the first exchange, Amman receives a forwarded email from an individual complaining

about his inability to obtain information about the scientists’ work on the IPCC report:

‘58Freedom of Information Act (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=l I 07454306.txt (last visited 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 I 228330629.txt (last visited Feb. 16,

2010).

162 Id.

29
“I have read correspondence on web about your letter to 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 first to 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 of them can be kept private. Apparently, consistency

of our 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 that undoubtedly conveyed the group’s respect for transparency in government:

“I have been of the opinion right from the start of these FOl requests,

that our private, inter-collegial discussion is just that—PRIVATE. Your

communication with individual colleagues was on the same basis as

that for any other person 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 of us should submit to

these ‘requests’.” 66

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

government:

“You can delete this attachment if you 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 of AR4. We think we’ve

163 Email from Bryan Lynch to Caspar Amman, June 21, 2008, available at

http:’/www.eastangliaemails.coni/emails.php?eid=906&filename 121 4228874.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=121 4228874.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=l2 14228874.txt (last visited Feb. 16,

2010).

166 Email from Keith Briffa to 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).

30
found 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 of BMRC, Melbourne. He

said they are ignoring anybody who has dealings with [ClimateAudit], as there are

threads on it about Australian 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 of their right to access public information who

may have been 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 of the Freedom of Information Act

makes it an offence for public authorities to act so as to prevent intentionally the

disclosure of requested 70

Professor John Beddington, Chief Scientific Advisor to the British Government said, “I

don’t think it’s healthy to dismiss proper scepticism. Science grows and improves in the

light of criticism. There is a fundamental uncertainty about climate change prediction that

can’t be changed.” 7’

167 Email from Phil Jones to 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 Schmidt to Ben Santer, December 2, 2008, available at

hnp://www.eastanliaernails.com/ernails.php?eid939&filenarne=122825871 4.txt (last visited Feb. 16,

2010).

170 Email from the Information Commissioner’s Office Press Office to Jonathan Leake, The Times of

London, January 22, 2010, available at http://www.docstoc.corn/docs/23993708/Climate-Email (last

visited Feb. 16, 2010). 171 Ben Webster, Science ChiefJohn Beddington Calls for Honesty on Climate Change, THE TIMES OF

LONDON, January 27, 2010, available at

httrj://www.timesonline.co.uk/tolfnews/environment/articIe7003622.ece?&EMC-BItn99KCH2F (last visited Feb. 16,

2010).

31
VIII. 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, cash receipts from the agriculture sector exceeded $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 and ranching for their livelihood.’ 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 of those 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 and ranchers prioritize conservation of our natural resources.” 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 of the myriad

ways Texas farmers and ranchers would be harmed by the Endangerment Finding—and if

farmers and ranchers are hurting, Texas is hurting.

As the National Association of State Departments of Agriculture (“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 vulnerable to litigation over the 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—through regulation and litigation.

From the regulatory perspective, the Secretary of Agriculture captured the Endangerment

Finding’s potential impact on both large and small farm operations:

172 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) of

the Clean Air Act, at 16 (June 23, 2009).

173d.

174d.

175 Letter from Hon. Todd Staples to Hon. Lisa Jackson (June 23, 2009), available at www.regulation.gov,

Docket No. 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, beef cattle

operations of over 50 cattle, swine operations with over 200 hogs, and

farms with over 500 acres of corn may need to get a Title V permit. It is

neither efficient nor practical to require permitting and reporting of

GHG emissions from farms of this size. Excluding only the 200,000

largest commercial farms, our agricultural landscape is comprised of

1.9 million farms with an average value of production 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 of Texas. 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 of Texas 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 of its own Special Mineral Fund—which earned more than

$15.5 million in the last five years.

There are multiple other ways that the State of Texas 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 of Texas has earned over $3.6 billion from its mineral interests in

the last five years.

‘“Letter from Hon. Ed Schafer, Secretary ofthe U.S. Department of Agriculture, Hon. Carlos Gutierrez,

Secretary ofthe U.S. Department of Commerce, Hon. Mary E. Peters, U.S. Secretary of Transportation,

and Hon. Samuel W. Bodman, to Hon. Susan Dudley, Administrator, Office of Information & Regulatory

Affairs, Office of Management & Budget (July 9, 2008), available at

(last visited Feb. 16, 2010).

17 Handbook of Texas Online, Permanent School Fund available at (last visited Feb. 16,

2010).

Agency, Texas Permanent School Fund Annual Report, December, 2009 at 4, available

at http:/!ritter.tea.state.tx.us/psf/PSFARO9.pdf (last visited Feb. 16, 2010).

33
C. 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.’ Of those, 312,000—3.1% of the 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 related payments.’ 84 In 2006, the State’s annual oil production tax

revenue was $444,124,979 and its natural gas tax revenue was $160,024,732, which

combined for a total of more than $604 million.’ 85 That direct positive 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

in value.’ 87

IX. FALLOUT

Since the Administrator’s Endangerment Finding was made final on December 15, 2009,

both chambers of Congress 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

Speaker Nancy Pelosi—along with Congresswoman J0 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 ‘air pollutant’ shall not include any of the following solely on

the basis of its 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 or Contribute Findings for Greenhouse Gases Under Section 202(A) of the Clean

Air Act, at 14 (June 23, 2009). 181 Id.

‘821d. at 18. 183 Hon. Susan Combs, American Clean Energy and Security Act, available at

http://www.window.state.tx.us/fi nances/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 or Contribute Findings for Greenhouse Gases Under Section 202(A) of

the Clean Air Act, at 19 (June 23, 2009). 185 Id. 186 Id. at 27. 187 Id.

34
Nitrous 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), and thirty-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

Endangerment Finding.

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 large numbers ofsmall entities.” 9°

In light of these federal officials’ concerns with the implementation and impact of the

Endangerment Finding—which the State of Texas shares—the Administrator’s improper

handling ofthe scientific assessment process takes on even greater meaning. Without the

IPCC’s flawed scientific assessment relied 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 of improper 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 of Texas is

not alone in expressing concern about the practices and conduct that have been revealed

since the CRU emails were released last November.

Many well-respected scientists who have said that human activity is to blame for global

warming have nonetheless been highly critical of the conduct revealed in the CRU. For

example, Professor John Beddington, Chief Scientific Advisor to the British Government,

said: “I don’t think it’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 Chief Counsel of Advocacy, to Hon. Lisa Jackson,

Administrator, U.S. Environmental Protection Agency (December 23, 2009), available at

www.regu lations.ov, docket #: EPA-HQ-OAR-2009-0 17 1. 191 F.R. 66497.

35
in the light of criticism.” 192 Sir David King, former chief scientist to the British

Government, said of the CRU: “The emails from scientists at the University of East

Anglia suggest that certain members of the IPCC felt that 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 of its

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 of nonpeer-reviewed sources and the way reviewers comments are handled.” 95

The President of the 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 of Greenpeace’s British operation has called for the IPCC

Chairman’s replacement in light of the organization’s lost credibility: “The IPCC needs

to regain credibility. Is that going to happen with Pachuari? I don’t think so. . . . If we

get a new person in with an open mind, prepared to fundamentally review how the IPCC

works, we would regain the confidence of the 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 ChiefJohn Beddington Callsfor Honesty 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, IPCC runs against the spirit ofscience, THE TELEGRAPH, February 6,2010, available at

http:L’www.telegraph.co.uk!earthienvironment!climatechange/7 1 70299/Sir-David-King-IPCC-runs-ai2ainstthe-spirit-of-science.htrni (last visited on Feb. 16, 2010).

Insert cite and confirm Sprigg’s exact title from IPCC Vol. I (Source #138) 195 Mike Hulme, The IPCC’s problems have been compounded by its imperious attitude, THE GUARDIAN,

Feb. 5, 2010, available at http://www.guardian.co.uk/environment/201 0/feb/05/rajendra-pachauri-hackedci irnate-science-ernal is 196 Andrew C. Revkin, Signs ofDamage to Public Trust in Climate Findings, NYT’S DOT EARTH BLOG,

Feb. 5, 2010, available at http:!!wwv’.cuardian.co.uklenvironmenti20 I 0/feb/05/rajendra-pachauri-hackedclimate-science-emails (last visited on Feb. 16, 2010). 197 Ben Webster, IPCC ChiefRajendra Pachuari Under Pressure Over Glacier 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).

36
potentially embarrassing correspondence with a view to evading the Freedom of

Information Act.” 98

Governments around the world are also reacting to the release of the CRU emails and the

multitude of errors in the IPCC report. LU Xuedu, Deputy Director General of China’s

National Climate Center and a Chinese delegate to the IPCC has called for reforms within

the organization and has been quoted saying: “Some scientists take a political stance and

wear colored glasses, which means they do not look at issues in a comprehensive way.

The managing institute, authors, and contributors of the assessment reports should be

more objective in order to be more convmcing.” 99

Britain’s MET Office—an agency of the Defense Ministry that serves as the country’s

official weather service—has opened a formal inquiry and plans to reexamine 160 years

of temperature data. 20° The MET’s review of the climate data is expected to take three

years to complete. 20’

The British House of Commons is also investigating the matter. On December 2, 2009,

Science and Technology Committee Chairman Phil Willis wrote to the Vice Chancellor

of East Anglia University asking for an explanation of CRU’s conduct and expressing

concern about allegations that CRU “data may 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 of climate 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% of the Netherlands is under sea level; a claim which is

simply not true.

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 and tribalism, 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 Climatologist Callsfor Reform ofIPCC, THE GUARDIAN, February 9,

2010, available at htto://www.guardian.co.uklenvironment/20 10/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 of Commons, to

Edward Acton, Vice-Chancellor, East Anglia University (December 7, 2009), available at:

http://www.parliament.uklparliamentary comrnittees!science_technologv!s_t pnO4 091 207.cfm 203 Rob Kievit, Sea level blunder enrages Dutch minister, Radio NETHERLANDS WORLDWIDE, February 4,

2010, available at http://www.rnw.n l!engl ish/article/error-dutch-polder-data-undermines-trust-ipcc (last

visited Feb. 16, 2010). 204 Mark Kinver, Cliinategate E-Mails Inquiry Under Way, BRITISH BROADCASTTNG CORPORATION

(February Il, 2010).

37
investigations are in addition to what the British Information Commissioner’s Office

(ICO) has already publicly said: “requests under the Freedom of Information Act were

not dealt with as they should have been under the legislation. Section 77 of the Freedom

of Information Act makes it an offence for public authorities to act so as to prevent

intentionally the disclosure of requested information.” 20 But the ICO’s inquiry continues

because the commissioner is reviewing whether the British Freedom of Information Act

needs to be revised in light of the CRU’s refusal to disclose public information. 206

X. CONCLUSION

Since the CRU emails first appeared on the Internet in November, 2009, there has been a

parade of controversies as new examples of improprieties 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 of which this petition has shown relied on

the IPCC—as the primary scientific and technical basis for her Endangerment Finding,

the Administrator’s decision is of central 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 of the 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, in the Administrator’s own judgment, make a determination that is

supported by the law and facts.

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

C. ANDREW WEBER

First Assistant Attorney 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/23993 708/Climate-Email (last

visited Feb. 16, 2010). 206 Id.

38