Friday, 

August 13, 2010 

Part II 

Environmental 

Protection Agency 

40 CFR Chapter 1 

EPA’s Denial of the Petitions To 

Reconsider the Endangerment and Cause 

or Contribute Findings for Greenhouse 

Gases Under Section 202(a) of the Clean 

Air Act; Final Rule 


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49556 Federal Register / Vol. 75, No. 156 / Friday, August 13, 2010 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Chapter 1 

[EPA–HQ–OAR–2009–0171; FRL–9184–8] 

EPA’s Denial of the Petitions To 

Reconsider the Endangerment and 

Cause or Contribute Findings for 

Greenhouse Gases Under Section 

202(a) of the Clean Air Act 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice, denial of petitions to 

reconsider. 

SUMMARY: The Environmental Protection 

Agency (EPA) is denying the petitions to 

reconsider the Endangerment and Cause 

or Contribute Findings for Greenhouse 

Gases under Section 202(a) of the Clean 

Air Act. The Findings were signed by 

the Administrator on December 7, 2009. 

EPA has carefully reviewed all of the 

petitions and revisited both the 

scientific record and the Administrator’s 

decision process underlying the 

Findings in light of these petitions. 

EPA’s analysis of the petitions reveals 

that the petitioners have provided 

inadequate and generally unscientific 

arguments and evidence that the 

underlying science supporting the 

Findings is flawed, misinterpreted or 

inappropriately applied by EPA. The 

petitioners’ arguments fail to meet the 

criteria for reconsideration under the 

Clean Air Act. The science supporting 

the Administrator’s finding that 

elevated concentrations of greenhouse 

gases in the atmosphere may reasonably 

be anticipated to endanger the public 

health and welfare of current and future 

U.S. generations is robust, voluminous, 

and compelling, and has been strongly 

affirmed by the recent science 

assessment of the U.S. National 

Academy of Sciences. 

DATES: This denial is effective July 29, 

2010. 

ADDRESSES: EPA’s docket for this action 

is Docket ID No. EPA–HQ–OAR–2009– 

0171: All documents in the docket are 

listed on the http://www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, e.g., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at EPA’s Docket Center, Public 

Reading Room, EPA West Building, 

Room 3334, 1301 Constitution Avenue, 

NW., Washington, DC 20004. This 

Docket Facility is open from 8:30 a.m. 

to 4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566– 

1742. 

FOR FURTHER INFORMATION CONTACT: 

Jeremy Martinich, Climate Change 

Division, Office of Atmospheric 

Programs (MC–6207J), Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460; 

telephone number: (202) 343–9927; fax 

number: (202) 343–2202; e-mail address: 

ghgendangerment@epa.gov. For 

additional information regarding this 

Notice, please go to the Web site http:// 

www.epa.gov/climatechange/ 

endangerment.html. 

SUPPLEMENTARY INFORMATION: 

Acronyms and Abbreviations. The 

following acronyms and abbreviations 

are used in this Decision. 

ACUS Administrative Conference of the 

United States 

ANPR Advance Notice of Proposed 

Rulemaking 

APA Administrative Procedure Act 

CAA Clean Air Act 

CAFE Corporate Average Fuel Economy 

CAIT Climate Analysis Indicators Tool 

CBI confidential business information 

CCSP Climate Change Science Program 

CFR Code of Federal Regulations 

CH4 methane 

CO2 carbon dioxide 

CRU Climatic Research Unit 

DOT U.S. Department of Transportation 

EISA Energy Independence and Security 

Act 

EO Executive Order 

EPA U.S. Environmental Protection Agency 

EPCA Energy Policy and Conservation Act 

FOIA Freedom of Information Act 

FR Federal Register 

GHG greenhouse gas 

HadCRUT Climatic Research Unit (CRU) 

temperature record 

ICTA International Center For Technology 

Assessment 

IPCC Intergovernmental Panel on Climate 

Change 

MWP Medieval Warm Period 

N2O nitrous oxide 

NAAQS National Ambient Air Quality 

Standards 

NAS National Academy of Sciences 

NASA National Aeronautics and Space 

Administration 

NHTSA National Highway Traffic Safety 

Administration 

NOAA National Oceanic and Atmospheric 

Administration 

NOx nitrogen oxide 

NRC National Research Council 

NSPS new source performance standards 

PM particulate matter 

PSD Prevention of Significant Deterioration 

TSD technical support document 

U.S. United States 

UNFCCC United Nations Framework 

Convention on Climate Change 

USGCRP U.S. Global Change Research 

Program 

WMO World Meteorological Organization 

Table of Contents 

I. Introduction 

A. Summary 

B. Background 

1. The ICTA Petition and Massachusetts v. 

EPA 

2. Post-Massachusetts v. EPA 

3. Proposed and Final Endangerment and 

Cause or Contribute Findings 

4. Petitions for Reconsideration and Stay 

Requests 

II. Standard for Reconsideration 

III. Science Related Issues 

A. General Summary of Petitioners’ 

Arguments 

B. Summary of the Science Underlying the 

Administrator’s Endangerment Finding 

in Light of the Petitioners’ Claims 

1. What effects do greenhouse gases have 

on the environment and on climate in 

particular? 

2. How are human activities changing the 

amount of greenhouse gases in our 

atmosphere? 

3. What is the evidence indicating that 

average temperatures are increasing and 

climate change is occurring consistent 

with the direction one would expect 

with increasing greenhouse gases in our 

atmosphere? 

4. What is the evidence linking observed 

temperature changes and climate change 

to the anthropogenic increase in 

greenhouse gases? 

5. How are public health and welfare 

threatened by these changes to climate 

and the environment, now and in the 

future? 

C. Review of the Administrator’s Findings 

D. General Response to the Petitioners’ 

Scientific Arguments in Light of the Full 

Body of Scientific Evidence 

E. Specific Responses to the Claims and 

Arguments Raised by Petitioners 

1. Climate Science and Data Issues Raised 

by the Petitioners 

2. Issues Raised by EPA’s Use of the IPCC 

AR4 Assessment 

3. Process and Other Issues Raised by the 

Petitioners 

F. Petitioners’ Arguments Do Not Meet the 

Standard for Reconsideration 

IV. Other Issues 

A. The Tailoring Rule/Impacts of PSD and 

Title V Permitting Are Not of Central 

Relevance to the Findings 

B. NHTSA Rule 

C. Other Issues 

1. Effects of the Findings and Subsequent 

Rulemakings on States and Businesses 

2. A Formal Rulemaking Process Is Not 

Required 

3. Discretion in Making an Endangerment 

Finding 

V. Conclusion 


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1 IPCC (2007). Fourth Assessment Report: Climate 

Change 2007. Cambridge University Press, 

Cambridge, United Kingdom and New York, NY, 

USA. 

2All of the disclosed CRU e-mails at issue in this 

Decision can be found in full in EPA’s docket for 

the Endangerment Finding. See Docket ID No. EPA– 

HQ–OAR–2009–0171, ‘‘CRU E-mails 1996–2009.’’ 

3These inquires plus another addressing IPCC 

AR4 issues are referred to throughout this Decision 

and the RTP document. Every inquiry is provided 

in full in EPA’s docket for the Endangerment 

Finding. See Docket ID No. EPA–HQ–OAR–2009– 

0171, ‘‘Recent Inquiries and Investigations of the 

CRU E-mails and the IPCC Fourth Assessment 

Report.’’ 

I. Introduction 

A. Summary 

This is EPA’s response denying the 

petitions to reconsider the 

Endangerment and Cause or Contribute 

Findings for Greenhouse Gases under 

Section 202(a) of the Clean Air Act 

(‘‘Findings’’ or the ‘‘Endangerment 

Finding’’) (74 FR 66496, December 15, 

2009). EPA has considered all 10 

petitions, including the arguments 

presented therein and the supplemental 

information provided by the petitioners 

as supporting evidence of their claims. 

EPA has evaluated the merit of the 

petitioners’ arguments in the context of 

the entire body of scientific and other 

evidence before the Agency. This 

response (hereafter ‘‘Denial’’ or 

‘‘Decision’’) provides EPA’s scientific 

and legal justification for denying these 

petitions. This Denial is accompanied 

by a 3-volume, roughly 360-page 

Response to Petitions (RTP) document 

(http://www.epa.gov/climatechange/ 

endangerment.html), containing further 

responses and technical detail 

concerning every significant claim and 

assertion made by the petitioners. 

Section III of this Decision summarizes 

many of the responses provided in the 

RTP document. 

After a comprehensive, careful review 

and analysis of the petitions, EPA has 

determined that the petitioners’ 

arguments and evidence are inadequate, 

generally unscientific, and do not show 

that the underlying science supporting 

the Endangerment Finding is flawed, 

misinterpreted by EPA, or 

inappropriately applied by EPA. The 

science supporting the Administrator’s 

finding that elevated concentrations of 

greenhouse gases in the atmosphere may 

reasonably be anticipated to endanger 

the public health and welfare of current 

and future U.S. generations is robust, 

voluminous, and compelling. The most 

recent science assessment by the U.S. 

National Academy of Sciences strongly 

affirms this view. In addition, the 

approach and procedures used by EPA 

to evaluate the underlying science 

demonstrate that the Findings remain 

robust and appropriate. 

Petitioners generally argue that recent 

revelations show that the science 

supporting EPA’s Endangerment 

Finding was flawed or questionable, and 

that EPA should therefore reconsider 

the Endangerment Finding. The 

petitioners’ arguments and claims are 

based largely on disclosed private 

communications among various 

scientists, a limited number of errors 

and claimed errors in the 2007 

Intergovernmental Panel on Climate 

Change (IPCC) Fourth Assessment 

Report (AR4),1 and submissions of a 

limited number of additional studies not 

previously considered as part of the 

scientific record of the Endangerment 

Finding. 

As discussed in detail throughout this 

Decision and in fuller detail in the RTP 

document, petitioners’ claims and the 

information they submit do not change 

or undermine our understanding of how 

anthropogenic emissions of greenhouse 

gases cause climate change and how 

human-induced climate change 

generates risks and impacts to public 

health and welfare. This understanding 

has been decades in the making and has 

become more clear over time with the 

accumulation of evidence. The 

information provided by petitioners 

does not change any of the scientific 

conclusions that underlie the 

Administrator’s Findings, nor do the 

petitions lower the degrees of 

confidence associated with each of these 

major scientific conclusions. 

More specifically, the petitions do not 

change EPA’s proper characterization of 

the current body of knowledge and our 

ability to state with confidence our 

conclusions in the following key areas 

of greenhouse gas and climate change 

science: (1) That anthropogenic 

emissions of greenhouse gases are 

causing atmospheric levels of 

greenhouse gases in our atmosphere to 

rise to essentially unprecedented levels 

in human history; (2) that the 

accumulation of greenhouse gases in our 

atmosphere is exerting a warming effect 

on the global climate; (3) that there are 

multiple lines of evidence, including 

increasing average global surface 

temperatures, rising ocean temperatures 

and sea levels, and shrinking Arctic ice, 

all showing that climate change is 

occurring, and that the observed rate of 

climate change stands out as significant 

compared to recent historical rates of 

climate change; (4) that there is 

compelling evidence that anthropogenic 

emissions of greenhouse gases are the 

primary driver of recent observed 

increases in average global temperature; 

(5) that atmospheric levels of 

greenhouse gases are expected to 

continue to rise for the foreseeable 

future; and (6) that risks and impacts to 

public health and welfare are expected 

to grow as climate change continues, 

and that climate change over this 

century is expected to be greater 

compared to observed climate change 

over the past century. 

The core defect in petitioners’ 

arguments is that these arguments are 

not based on consideration of the body 

of scientific evidence. Petitioners fail to 

address the breadth and depth of the 

scientific evidence and instead rely on 

an assumption of inaccuracy in the 

science that they extend even to the 

body of science that is not directly 

addressed by information they provide 

or by arguments they make. This 

assumption of error is based on various 

statements and views expressed in some 

of the e-mail communications between 

scientists at the Climatic Research Unit 

(CRU) of the University of East Anglia 

in the United Kingdom and several 

other scientists (‘‘the CRU e-mails’’) 2. As 

EPA’s review and analysis shows, the 

petitioners routinely take these private 

e-mail communications out of context 

and assert they are ‘‘smoking gun’’ 

evidence of wrongdoing and scientific 

manipulation of data. EPA’s careful 

examination of the e-mails and their 

context shows that the petitioners’ 

claims are exaggerated, are often 

contradicted by other evidence, and are 

not a material or reliable basis to 

question the validity and credibility of 

the body of science underlying the 

Administrator’s Endangerment Finding 

or the Administrator’s decision process 

articulated in the Findings themselves 

Petitioners’ assumptions and subjective 

assertions regarding what the e-mails 

purport to show about the state of 

climate change science are clearly 

inadequate pieces of evidence to 

challenge the voluminous and well 

documented body of science that is the 

technical foundation of the 

Administrator’s Endangerment Finding. 

Inquiries from the UK House of 

Commons, Science and Technology 

Committee, the University of East 

Anglia, Oxburgh Panel, the 

Pennsylvania State University, and the 

University of East Anglia, Russell 

Panel,3 all entirely independent from 

EPA, have examined the issues and 

many of the same allegations brought 

forward by the petitioners as a result of 

the disclosure of the private CRU emails. These inquiries are now 

complete. Their conclusions are in line 

with EPA’s review and analysis of these 

same CRU e-mails. The inquiries have 


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4National Research Council (NRC) (2010). 

Advancing the Science of Climate Change. National 

Academy Press. Washington, DC. 

5Some petitioners also raise objections to EPA’s 

Endangerment Finding based on legal arguments 

related to other EPA or National Highway Traffic 

Safety Administration actions. For the reasons 

discussed in Section IV of this Decision, those 

objections also fail to meet the standard for 

reconsideration and are denied. 

found no evidence of scientific 

misconduct or intentional data 

manipulation on the part of the climate 

researchers associated with the CRU emails. The recommendation for more 

transparent procedures concerning 

availability of underlying data appears 

appropriate, but it has not cast doubt on 

the underlying body of science 

developed by these researchers. These 

inquiries lend further credence to EPA’s 

conclusion that petitioners’ claims that 

the CRU e-mails show the underlying 

science cannot or should not be trusted 

are exaggerated and unsupported. 

Petitioners’ also point to a limited 

number of factual mistakes in IPCC 

AR4, some confirmed, some alleged, to 

argue that the climate science 

supporting the Administrator’s 

Endangerment Finding is flawed. EPA’s 

review confirmed two factual mistakes. 

These two confirmed instances of 

factual mistakes are tangential and 

minor and do not change the key IPCC 

AR4 conclusions that are central to the 

Administrator’s Endangerment Finding. 

While it is unfortunate that IPCC’s 

review process did not catch these 

errors, in the context of a report of this 

size and scope (almost 3,000 pages), it 

is an inappropriate and unfounded 

exaggeration to claim that these two 

confirmed mistakes delegitimize all of 

the scientific statements and findings 

contained in IPCC AR4. To the contrary, 

given the scrutiny to which IPCC AR4 

has been subjected, the limited nature of 

these mistakes demonstrates that the 

IPCC review procedures have been 

highly effective and very robust. 

In a limited number of cases, the 

petitioners identify new scientific 

studies and data, published since the 

Endangerment Finding was finalized, 

which they claim require EPA to 

reconsider the Endangerment Finding. 

Some petitioners also argue that EPA 

ignored or misinterpreted scientific data 

that were significant and available when 

the Finding was made. EPA’s review of 

these claims shows that in many cases 

the issues raised by the petitioners are 

not new, but were in fact considered 

prior to issuing the Endangerment 

Finding. In other cases, the petitioners 

have misinterpreted or misrepresented 

the meaning and significance of recent 

scientific literature, findings, and data. 

Finally, there are instances in which the 

petitioners have failed to acknowledge 

other new studies in making their 

arguments. The RTP document contains 

study-by-study analysis of these failed 

arguments on the part of petitioners. 

Finally, in May 2010, the National 

Research Council (NRC) of the U.S. 

National Academy of Sciences 

published its comprehensive 

assessment, ‘‘Advancing the Science of 

Climate Change 4’’ (NRC, 2010). It 

concluded that ‘‘climate change is 

occurring, is caused largely by human 

activities, and poses significant risks 

for—and in many cases is already 

affecting—a broad range of human and 

natural systems.’’ Furthermore, the NRC 

stated that this conclusion is based on 

findings that are ‘‘consistent with the 

conclusions of recent assessments by 

the U.S. Global Change Research 

Program, the Intergovernmental Panel 

on Climate Change’s Fourth Assessment 

Report, and other assessments of the 

state of scientific knowledge on climate 

change.’’ These are the same 

assessments that served as the primary 

scientific references underlying the 

Administrator’s Endangerment Finding. 

Importantly, this recent NRC assessment 

represents another independent and 

critical inquiry of the state of climate 

change science, separate and apart from 

the previous IPCC and U.S. Global 

Change Research Program (USGCRP) 

assessments. The NRC assessment is a 

clear affirmation that the scientific 

underpinnings of the Administrator’s 

Endangerment Finding are robust, 

credible, and appropriately 

characterized by EPA. 

The endangerment to public health 

and welfare from atmospheric 

concentrations of greenhouse gases and 

associated climate change is too 

important an issue to be decided on any 

grounds other than a close and 

comprehensive scrutiny of the entire 

body of the scientific evidence. This 

principle calls for an outright rejection 

of the petitioners’ arguments. The 

petitioners’ arguments amount to a 

request that EPA ignore the deep body 

of science that has been built up over 

several decades and the direction it 

points in, and to do so based not on a 

careful and comprehensive analysis of 

the science, but instead on what amount 

to assertions and leaps in logic, 

unsupported by a rigorous examination 

of the science itself. The petitioners do 

not provide any substantial support for 

the argument that the Endangerment 

Finding should be revised. Therefore, 

none of the petitioners’ objections are of 

central relevance to the considerations 

that led to the final Endangerment 

Finding. In addition, in many cases 

these arguments by the petitioners 

either were or could have been raised 

during the comment period on the 

Endangerment Finding. In summary, 

EPA’s thorough review of petitioners’ 

arguments shows that the petitioners 

have not met the criteria for 

reconsideration under section 307(d) the 

Clean Air Act (CAA).5

B. Background 

The Findings were signed by the 

Administrator on December 7, 2009, 

were published in the Federal Register 

on December 15, 2009, and became 

effective January 14, 2010. The 

Administrator’s Endangerment Finding 

concluded that atmospheric 

concentrations of the group of six 

greenhouse gases are reasonably 

anticipated to endanger both the public 

health and public welfare of current and 

future U.S. generations. The 

Administrator also decided that the 

combined emissions of greenhouse 

gases from new motor vehicles and new 

motor vehicle engines contribute to the 

greenhouse gas air pollution that 

endangers both public health and public 

welfare (i.e., the second finding or 

‘‘cause or contribute’’ finding). These 

Findings were made under CAA section 

202(a). The Findings were also 

supported by a Technical Support 

Document (TSD) (Docket EPA–HQ– 

OAR–2009–0171–11645), containing the 

underlying greenhouse gas emissions 

data and a synthesis of climate change 

science, as well as an 11-volume RTC 

document (Docket EPA–HQ–OAR– 

2009–0171) that provides EPA’s 

responses to all significant public 

comments that had been received 

during the 60-day public comment 

period following the Administrator’s 

proposed Findings, signed April 17, 

2009. 

Since finalization of the Findings in 

December 2009, EPA has received 10 

petitions and supplements thereto 

requesting that EPA reconsider the 

Findings. The general bases of the 

petitions are the following: (1) Recent 

disclosure of private e-mail 

communications among some scientists 

who were involved in constructing one 

of the global temperature records and 

were involved in certain sections of 

IPCC AR4; (2) alleged and confirmed 

mistakes or alleged unsupported 

statements in the IPCC AR4; and 

(3) some new scientific studies not 

previously considered as part of the 

scientific record of the Endangerment 

Finding. Petitioners claim these pieces 

of evidence show that the science 

underlying the Administrator’s 

Endangerment Finding is potentially 


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flawed, and that therefore EPA should 

reopen the process and reconsider the 

Endangerment Finding. For reasons 

stated above and throughout this 

Decision and accompanying RTP 

document, EPA is denying the request 

to reconsider the Findings. 

As discussed further in sections III 

and IV of this Decision, some of the 

objections raised in the petitions fail to 

demonstrate that it was impracticable to 

raise the objections during the comment 

period following the proposed Findings, 

or that the grounds for the objections 

arose after the period for judicial 

review. For all issues and arguments 

presented by the petitioners, the 

objections are not of central relevance to 

the outcome of the Findings, as 

explained in detail below. Thus, none of 

the objections meet the criteria for 

reconsideration under the CAA. EPA is 

also denying two requests to stay the 

Findings pending reconsideration. 

1. The ICTA Petition and Massachusetts 

v. EPA 

a. ICTA Petition 

In October 1999, the International 

Center for Technology Assessment 

(ICTA) and 18 other organizations filed 

a petition with EPA, requesting that 

EPA issue emission standards for 

emissions of carbon dioxide, methane, 

nitrous oxide, and hydrofluorocarbons 

from motor vehicles under CAA section 

202(a) (ICTA Petition). The ICTA 

Petition alleged that emissions of these 

four greenhouse gases—CO2, CH4, N2O, 

and HFCs—constituted emissions of ‘‘air 

pollutants’’ under section 302(g) of the 

Act, 42 U.S.C. 7602(g). The ICTA 

Petition further argued that emissions of 

these gases from motor vehicles fully 

met the criteria for regulation under 

CAA section 202(a)(1), 42 U.S.C. 

7521(a)(1), and claimed that it would be 

feasible for EPA to regulate greenhouse 

gas emissions from mobile sources. 

After soliciting and considering 

approximately 50,000 public comments 

on the ICTA Petition, see 66 FR 7486, 

January 23, 2001), the Agency 

ultimately denied it on several 

independent grounds. EPA first 

explained that Congress did not intend 

in the CAA to provide the Agency with 

authority to regulate CO2 and other 

greenhouse gases to address global 

climate change (68 FR 52925–29). For a 

variety of reasons, EPA determined that 

it was unreasonable to read the Act as 

providing the Agency with authority to 

regulate emissions of CO2 and other 

greenhouse gases to address global 

climate change. Id. at 52928. Based on 

this conclusion, the Agency also 

determined that greenhouse gases could 

not be considered air pollutants for 

purposes of the CAA’s regulatory 

provisions for any contribution they 

may make to climate change. Id. 

The Agency also explained why, even 

if it had the authority to issue such 

regulations, it still believed that the 

ICTA Petition should be denied. To 

begin with, EPA found that requiring 

passenger cars and light trucks to emit 

less CO2, the predominant greenhouse 

gas, would be tantamount to imposing 

more stringent fuel economy standards 

on those vehicles. Id. at 52929. The 

Agency pointed out, however, that the 

Energy Policy and Conservation Act 

(EPCA) authorizes only the Department 

of Transportation (DOT) to increase the 

stringency of motor vehicle fuel 

economy standards, and specifies a 

detailed regulatory regime that an EPA 

requirement to significantly reduce 

motor vehicle CO2 emissions would 

unavoidably abrogate. Id.; see also 49 

U.S.C. 32902 (relevant provision of 

EPCA). 

EPA also disagreed with the 

petitioners’ view that, assuming the Act 

gives EPA authority to regulate CO2 and 

other greenhouse gases to address global 

climate change, the Agency had already 

made statements that triggered a 

mandatory duty to issue motor vehicle 

standards for CO2 and other greenhouse 

gases (68 FR 52929, September 8, 2003). 

After summarizing the findings of a 

2001 report on global climate change by 

the National Academy of Sciences 

(NAS), the Agency concluded that 

‘‘[u]ntil more is understood about the 

causes, extent and significance of 

climate change and the potential 

options for addressing it, EPA believes 

it is inappropriate to regulate 

[greenhouse gas] emissions from motor 

vehicles.’’ Id. at 52,931. 

b. Massachusetts v. EPA 

EPA’s initial denial of the ICTA 

petition (68 FR 52922, September 8, 

2003) was the basis for the U.S. 

Supreme Court’s decision in 

Massachusetts v. EPA, 549 U.S. 497 

(2007). In Massachusetts v. EPA, the 

Supreme Court held that EPA had 

improperly denied the petition. The 

Court held that greenhouse gases meet 

the definition of air pollutant in the 

CAA, and that the grounds EPA gave for 

denying the petition were ‘‘divorced 

from the statutory text’’ and hence 

improper. Specifically, the Court held 

that carbon dioxide, methane, nitrous 

oxide, and hydrofluorocarbons fit the 

CAA’s ‘‘sweeping definition of ‘air 

pollutant’ ’’ since they are ‘‘without a 

doubt ‘physical [and] chemical * * * 

substances which [are] emitted into 

* * * the ambient air.’ The statute is 

unambiguous.’’ Id. at 529. The Court 

also rejected the argument that EPA 

could not regulate motor vehicle 

emissions of the chief greenhouse gas, 

carbon dioxide, because doing so would 

essentially require control of vehicle 

fuel economy, and Congress delegated 

that authority to the Department of 

Transportation in the Energy Policy and 

Conservation Act. The Court held that 

the fact ‘‘that DOT sets mileage 

standards in no way licenses EPA to 

shirk its environmental responsibilities. 

EPA has been charged with protecting 

the public’s ‘health’ and ‘welfare,’ 42 

U.S.C. 7521(a)(1), a statutory obligation 

wholly independent of DOT’s mandate 

to promote energy efficiency.’’ Id. at 532 

(citation omitted). The two obligations 

may overlap ‘‘but there is no reason to 

think the two agencies cannot both 

administer their obligations and yet 

avoid inconsistency.’’ Id. 

Turning to EPA’s alternative grounds 

for denial, the Court held that EPA’s 

decision on whether or not to grant the 

petition must relate to ‘‘whether an air 

pollutant ‘causes, or contributes to, air 

pollution which may reasonably be 

anticipated to endanger public health or 

welfare.’ ’’ Id. at 532–33. Thus, ‘‘[u]nder 

the clear terms of the Clean Air Act, 

EPA can avoid taking further action 

only if it determines that greenhouse 

gases do not contribute to climate 

change or if it provides some reasonable 

explanation as to why it cannot or will 

not exercise its discretion to determine 

whether they do.’’ Id. at 533. The Court 

held that three of the four reasons EPA 

advanced as alternative grounds for 

denying the petition were unrelated to 

whether greenhouse gas emissions from 

new motor vehicles cause or contribute 

to air pollution that may reasonably be 

anticipated to endanger public health or 

welfare. Thus, EPA had failed to offer a 

reasoned explanation for its action. The 

Court further held that EPA’s 

generalized concerns about scientific 

uncertainty were likewise insufficient 

unless ‘‘the scientific uncertainty is so 

profound that it precludes EPA from 

making a reasoned judgment as to 

whether greenhouse gases contribute to 

global warming,’’ in which case EPA 

must so find. Id. at 534. 

The Supreme Court was careful to 

note that it was not dictating EPA’s 

action on remand, and was not deciding 

whether or not EPA must find that 

greenhouse gases endanger public 

health or welfare. Nor did the Court rule 

on ‘‘whether policy concerns can inform 

EPA’s actions in the event that it makes 

such a finding.’’ Id. at 534–35. The Court 

also observed that under CAA section 

202(a), ‘‘EPA no doubt has significant 

latitude as to the manner, timing, 


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6The West Virginia Coal Association also filed a 

letter in support of the existing petitions for 

reconsideration. 

content, and coordination of its 

regulations with those of other 

agencies.’’ Id. at 533. Nonetheless, any 

EPA decisions concerning the 

endangerment and cause or contribute 

criteria must be grounded in the 

requirements of CAA section 202(a). 

On September 17, 2007, EPA’s denial 

of the ICTA petition was vacated and 

remanded to EPA for further 

proceedings consistent with the 

Supreme Court’s opinion. 

2. Post-Massachusetts v. EPA 

In response to a May 2007 Executive 

Order (EO 13432) and instructions from 

then-President Bush, EPA began 

working closely with the Departments of 

Transportation, Energy and Agriculture 

to develop, under the CAA, proposals 

for greenhouse gas standards for motor 

vehicles and renewable and alternative 

fuel requirements for gasoline. 

However, after enactment of the 

Energy Independence and Security Act 

of 2007 (EISA) in late December 2007, 

work in response to the Supreme 

Court’s decision shifted. Rather than 

moving forward with the proposed 

endangerment determination and 

attendant greenhouse gas vehicle 

standards under the CAA, EPA 

developed an Advance Notice of 

Proposed Rulemaking (ANPR) on 

‘‘Regulating Greenhouse Gas Emissions 

under the Clean Air Act,’’ which was 

published on July 30, 2008 (73 FR 

44354). The ANPR presented 

information relevant to, and solicited 

public comment on, a wide variety of 

issues regarding the potential regulation 

of greenhouse gases under the CAA, 

including EPA’s response to the 

Supreme Court’s decision in 

Massachusetts v. EPA. Section V of the 

ANPR contained an earlier version of 

much of the material in the Findings, 

including the legal framework, a 

summary of the science of climate 

change, and an illustration of how the 

Administrator could analyze the cause 

or contribute element using information 

regarding the greenhouse gas emissions 

of the portion of the U.S. transportation 

sector covered by CAA section 202(a). A 

July 2008 version of the TSD for the 

endangerment finding was also in the 

docket for the ANPR (EPA–HQ–OAR– 

2008–0318). 

The comment period for the ANPR 

was 120 days, and it provided an 

opportunity for EPA to hear from the 

public with regard to the issues 

involved in endangerment and cause or 

contribute findings, as well as the 

supporting science. EPA received, 

reviewed, and considered numerous 

comments at that time and this public 

input was reflected in the Findings that 

the Administrator proposed in April 

2009. In addition, many comments were 

received on the TSD released with the 

ANPR. These comments are reflected in 

revisions to the TSD that was released 

in April 2009 to accompany the 

Administrator’s proposal. 

3. Proposed and Final Endangerment 

and Cause or Contribute Findings 

In April 2009, the Administrator 

proposed to find under CAA section 

202(a) that the mix of six key 

greenhouse gases in the atmosphere may 

reasonably be anticipated to endanger 

public health and welfare. Specifically, 

the Administrator proposed to define 

the ‘‘air pollution’’ referred to in CAA 

section 202(a) to be the mix of six key 

directly emitted and long-lived 

greenhouse gases: Carbon dioxide, 

methane, nitrous oxide, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride (74 FR 18886, 

April 24, 2009). The Administrator 

further proposed to find that combined 

greenhouse gas emissions from new 

motor vehicles and new motor vehicle 

engines contribute to this air pollution 

that endangers public health and 

welfare. 

The Administrator’s proposal was 

subject to a 60-day public comment 

period, which ended June 23, 2009, and 

also included two public hearings. Over 

380,000 public comments were received 

on the Administrator’s proposed 

endangerment and cause or contribute 

findings, including comments on the 

elements of the Administrator’s April 

2009 proposal, the legal issues 

pertaining to the Administrator’s 

decisions, and the underlying TSD 

containing the scientific and technical 

information. 

After carefully reviewing the public 

comments and all the information 

before her, on December 7, 2009, the 

Administrator signed the final Findings 

(74 FR 66496, December 15, 2009). 

Specifically, she found under CAA 

section 202(a) that atmospheric 

concentrations of the six greenhouse 

gases taken in combination may 

reasonably be anticipated to endanger 

both the public health and the public 

welfare of current and future 

generations. The Administrator also 

found that the combined emissions of 

these greenhouse gases from new motor 

vehicles and new motor vehicle engines 

contribute to the greenhouse gas air 

pollution that endangers public health 

and welfare under CAA section 202(a). 

The July 2008 ANPR and the April 

2009 proposed Findings were 

accompanied by draft versions of the 

TSD and the Findings were supported 

by the final TSD. The TSD provided an 

overview of all the major scientific 

assessments available at the time of each 

action, and greenhouse gas emission 

inventory data relevant to the 

contribution finding. Each of these three 

versions of the TSD were subject to 

review by Federal climate experts to 

ensure that they represented an accurate 

summary of the major scientific 

assessments. Moreover, the July 2008 

and the April 2009 versions of the TSD 

were subject to public review as part of 

the public comment periods for the 

ANPR and proposed Findings. 

4. Petitions for Reconsideration and 

Stay Requests 

Between December 2009 and March 

2010, EPA received 10 petitions (and 

supplements thereto) to reconsider the 

Findings.6 Nine of these petitions base 

their requests on allegations that 

developments since the close of the 

comment period on the proposed 

Findings call into question the science 

underlying the Findings. One petition 

focuses on statements since the close of 

the comment period regarding the 

impact of regulating stationary sources 

under the CAA, and the relationship 

between EPA’s proposed Light-Duty 

Vehicle Rule (see below) and the 

National Highway Transportation Safety 

Administration’s (NHTSA) proposed 

Corporate Average Fuel Economy 

(CAFE) rule as a basis for their request 

that EPA reconsider the Findings. Each 

significant objection in the petitions is 

discussed in detail below and the 

accompanying RTP document. Note that 

when more than one petitioner raised an 

objection, our response to that objection 

is provided only once. 

In addition, EPA received two 

requests to administratively stay the 

final Findings. One administrative stay 

request under CAA section 307(d)(7)(b) 

was tied to a petition to reconsider the 

findings based on concerns about the 

science and requested that EPA stay the 

final Findings for three months. The 

other administrative stay request was 

filed under CAA section 307(d)(7)(B), 

the Administrative Procedures Act 

(APA) section 705, and Federal Rule of 

Appellate Procedure 18(a)(1) as part of 

the petition for reconsideration relating 

to stationary source concerns, and 

requested a stay pending EPA’s 

completion of its reconsideration of the 

final Findings. 

II. Standard for Reconsideration 

Section 307(d)(7)(B) of the CAA 

strictly limits petitions for 


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reconsideration both in time and scope. 

It states that: ‘‘Only an objection to a 

rule or procedure which was raised with 

reasonable specificity during the period 

for public comment (including any 

public hearing) may be raised during 

judicial review. If the person raising an 

objection can demonstrate to the 

Administrator that it was impracticable 

to raise such objection within such time 

or if the grounds for such objection 

arose after the period for public 

comment (but within the time specified 

for judicial review) and if such objection 

is of central relevance to the outcome of 

the rule, the Administrator shall 

convene a proceeding for 

reconsideration of the rule and provide 

the same procedural rights as would 

have been afforded had the information 

been available at the time the rule was 

proposed. If the Administrator refuses to 

convene such a proceeding, such person 

may seek review of such refusal in the 

United States court of appeals for the 

appropriate circuit (as provided in 

subsection (b)). Such reconsideration 

shall not postpone the effectiveness of 

the rule. The effectiveness of the rule 

may be stayed during such 

reconsideration, however, by the 

Administrator or the court for a period 

not to exceed three months.’’ 

Thus the requirement to convene a 

proceeding to reconsider a rule is based 

on the petitioner demonstrating to EPA: 

(1) That it was impracticable to raise the 

objection during the comment period, or 

that the grounds for such objection arose 

after the comment period but within the 

time specified for judicial review (i.e., 

within 60 days after publication of the 

final rulemaking notice in the Federal 

Register, see CAA section 307(b)(1); and 

(2) that the objection is of central 

relevance to the outcome of the rule. 

As to the first procedural criterion for 

reconsideration, a petitioner must show 

why the issue could not have been 

presented during the comment period, 

either because it was impracticable to 

raise the issue during that time or 

because the grounds for the issue arose 

after the period for public comment (but 

within 60 days of publication of the 

final action). Thus, CAA section 

307(d)(7)(B) does not provide a forum to 

request EPA to reconsider issues that 

actually were raised, or could have been 

raised, prior to promulgation of the final 

rule. 

In EPA’s view, an objection is of 

central relevance to the outcome of the 

rule only if it provides substantial 

support for the argument that the 

regulation should be revised. See Denial 

of Petition to Reconsider, 68 FR 63021 

(November 7, 2003), Technical Support 

Document for Prevention of Significant 

Deterioration (PSD) and Nonattainment 

New Source Review (NSR): 

Reconsideration at 5 (Oct. 30, 2003) 

(EPA–456/R–03–005) (available at 

http://www.epa.gov/nsr/documents/ 

petitionresponses10-30-03.pdf); Denial 

of Petition to Reconsider NAAQS for 

PM, 53 FR 52698, 52700 (December 29, 

1988), citing Denial of Petition to Revise 

NSPS for Stationary Gas Turbines, 45 

FR 81653–54 (December 11, 1980), and 

decisions cited therein. 

This interpretation is clearly 

appropriate in light of the criteria 

adopted by Congress in this and other 

provisions in section 307(d). Section 

307(d)(4)(B)(i) provides that ‘‘[a]ll 

documents which become available 

after the proposed rule has been 

published and which the Administrator 

determines are of central relevance to 

the rulemaking shall be placed in the 

docket as soon as possible after their 

availability.’’ This provision draws a 

distinction between comments and 

other information submitted during the 

comment period, and other documents 

which become available after 

publication of the proposed rule. The 

former are docketed irrespective of their 

relevance or merit, while the latter must 

be docketed only if a higher hurdle of 

central relevance to the rulemaking is 

met. Congress also used the phrase 

‘‘central relevance’’ in sections 

307(d)(7)(B) and (d)(8), and in both 

cases Congress set a more stringent 

hurdle than in section 307(d)(4). Under 

section 307(d)(7)(B), the Administrator 

is required to reconsider a rule only if 

the objection is ‘‘of central relevance to 

the outcome of the rule.’’ Likewise, 

section 307(d)(8) authorizes a court to 

invalidate a rule for procedural errors 

only if the errors were ‘‘so serious and 

related to matters of such central 

relevance to the rule that there is a 

substantial likelihood that the rule 

would have been substantially changed 

if such errors had not been made.’’ In 

both of these provisions, it is not 

enough that the objection or error be of 

central relevance to the issues involved 

in the rulemaking, as in section 

307(d)(4). Instead, the objection has to 

be of central relevance ‘‘to the outcome 

of the rule’’ itself, and the procedural 

error has to be of such central relevance 

that it presents a ‘‘substantial likelihood 

that the rule would have been 

substantially changed.’’ Central 

relevance to the issues involved in the 

rulemaking is not enough to meet the 

criteria Congress set under sections 

307(d)(7) or (d)(8). Both of those 

provisions require that the objection or 

error be central to the substantive 

decision that is the outcome of the 

rulemaking. This difference is 

significant, and indicates that Congress 

set a much higher hurdle for disturbing 

a final rule that has already been issued, 

as compared to the less stringent criteria 

for docketing of documents before a 

decision has been made and a rule has 

been issued. 

In this context, EPA’s interpretation of 

section 307(d)(7)(B) gives full and 

appropriate meaning to the criteria 

adopted by Congress. An objection is 

considered of central relevance to the 

outcome of the rule only if it provides 

substantial support for the argument 

that the regulation should be revised. 

This properly links the criteria to the 

outcome of the rulemaking, not just the 

issues in the rulemaking. It requires that 

the objection be of such substance and 

merit that it can be considered central 

to the outcome of the rulemaking. This 

interpretation is consistent with section 

307(d)(8), which also ties central 

relevance to the outcome of the 

rulemaking, in terms of a ‘‘substantial 

likelihood’’ that the rule would be 

‘‘substantially changed.’’ This 

interpretation gives proper weight to the 

approach throughout section 307(b) and 

(d) of the importance Congress 

attributed to preserving the finality of 

agency rulemaking decisions. This 

interpretation is also consistent with the 

case law, as discussed below. 

As discussed in this Decision, EPA is 

denying the petitions because they fail 

to meet these criteria. In many cases, the 

objections raised in the petitions to 

reconsider were or could have been 

raised during the comment period of the 

proposed Findings. In all cases, the 

objections are not of central relevance to 

the outcome of the rule because they do 

not provide substantial support for the 

argument that the Endangerment 

Finding should be revised. 

Pacific Legal Foundation (PLF) argues 

that its objections are of central 

relevance because the CRU documents 

and e-mails ‘‘cast substantial uncertainty 

over’’ the final Endangerment Finding, 

and that EPA is required to grant the 

petition or reconsider ‘‘if information 

not available in the rulemaking record 

for public comment casts substantial 

uncertainty over the final regulation.’’ 

PLF Pet at 8–9. They argue that this is 

the case even if one does not assume or 

even argue that the statements in the 

CRU documents and e-mails are true. 

PLF Pet. at 6. They base this claim on 

Kennecott Corp. v. EPA, 684 F.2d 1007, 

1017–20 (DC Cir. 1982). 

PLF’s view of Kennecott fails to 

account for the specific procedural 

issues that were central to that case. In 

Kennecott, petitioners objected that EPA 

had not provided adequate notice and 


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7 It is this discussion of uncertainty that is cited 

by PLF. However this concerns the criteria for 

reversible error under CAA section 307(d)(9)(D)(iii) 

for a procedural violation. The court did not 

address this as the test for CAA section 307(d)(7)(B), 

and certainly did not do so for cases where there 

is no procedural violation. 

8Southeastern Legal Foundation, Inc. (SLF) 

inappropriately points to the docketing 

requirements under CAA section 307(d)(3) related 

to a proposed rule, SLF at 3–5. However, the 

documents SLF refers to are not EPA documents, 

were not part of the basis for EPA’s proposal, and 

arose after the comment period, not prior to 

proposal. The provisions for a petition to reconsider 

under CAA section 307(d)(7), not the provisions of 

CAA section 307(d)(3), apply to the concerns raised 

by SLF with respect to the arguments and 

documents submitted to the agency after the end of 

the comment period, in the petitions to reconsider. 

9The Chamber of Commerce’s petition was based 

on grounds that it claims arose after the time period 

for seeking judicial review of the underlying 

rulemaking. The Chamber argues that EPA should 

grant reconsideration in its discretion, even if it is 

not required to do so under section 307(d). The 

failure of the Chamber to file timely objections or 

to demonstrate that the objections it raises provide 

substantial support for the argument that the 

regulation should be revised are a fully adequate 

basis for EPA to deny the Chamber’s petition. In any 

case, even if the petition were timely, EPA has 

considered the objections raised by the Chamber 

and is denying their petition as discussed in more 

detail herein. 

an opportunity for comment in the 

underlying rulemaking, in violation of 

various CAA section 307(d) provisions. 

Petitioners had two different notice and 

comment objections. First, they objected 

to EPA’s failure to include certain 

documents in the docket at the time of 

the proposal, including various EPA 

financial analyses performed prior to 

the proposal. The court found that these 

documents were part of the basis for the 

proposed regulations and needed to be 

docketed so comment could be taken on 

them during the comment period. The 

court found that the failure to submit 

these documents to the docket at the 

time of the proposal was a procedural 

violation of CAA section 307(d)’s notice 

and comment requirements, because the 

documents EPA failed to docket made 

impossible any meaningful comment on 

the merits of EPA’s proposal. The 

missing documents led to uncertainty 

over EPA’s basis for the proposal, which 

the documents could clarify. This 

procedural violation met the test under 

CAA section 307(d)(9) for reversible 

error, because it indicated a ‘‘substantial 

likelihood’’ that the regulations would 

‘‘have been significantly changed.’’ 

Kennecott, 684 F.2d at 1018–1019.7

Petitioners in Kennecott also objected 

to EPA’s submission to the docket, one 

week prior to promulgation of the final 

rule, of certain economic forecast data 

upon which EPA relied for the final 

rule, where the forecast data differed 

significantly from the forecast data 

provided during the pubic comment 

period. The court found that this late 

submission of important information 

relied on by EPA, without an 

opportunity to comment, also violated 

the notice and comment requirements of 

CAA section 307(d). Id. at 1019. 

Given these two violations of the 

notice and comment requirements of 

CAA section 307(d), the court 

determined that consideration of a 

petition to reconsider after 

promulgation of the final rule was not 

an adequate substitute for the statutory 

required notice and opportunity to 

comment prior to promulgation of the 

rule. EPA failed to provide adequate 

notice and an opportunity to comment 

during the rulemaking process, and 

could not cure that by later considering 

the merits of the petitioner’s comments 

post-promulgation, through a petition to 

reconsider, where the issues involved 

were critical to the central issues 

involved in the rule. Id. at 1019. 

EPA’s failure to provide adequate 

notice and an opportunity to comment 

in violation of CAA section 307(d) was 

the critical underpinning for the court’s 

determination that in that case 

consideration of the merits of the 

objections through a post-promulgation 

petition to reconsider was not an 

adequate substitute for providing the 

required procedural rights prior to 

promulgation. That, however, is not the 

case here. Petitioners are not claiming 

that the CRU e-mails or other 

documents show that EPA failed to 

provide adequate notice and an 

opportunity to comment because EPA 

failed to docket any documents or EPA 

docketed late any documents used to 

support EPA’s final Endangerment 

Finding. Instead, petitioners are 

claiming that EPA should reopen the 

rulemaking and reconsider the 

Endangerment Finding based on new 

documents and arguments that 

petitioners bring to EPA, which they 

claim undermine the basis for EPA’s 

Endangerment Finding.8 There is no 

basis for treating the court’s decision in 

Kennecott as precedent here, where 

there is no comparable procedural 

notice and comment violation by EPA. 

There is no reason to limit EPA’s ability 

to consider the merits of the petitioners’ 

objections through a post-promulgation 

petition to reconsider, whereas in this 

case there is no violation of a statutory 

right to notice and comment and EPA’s 

consideration of the merits of the 

petitioners’ objections is not being used 

as an improper substitute or cure for an 

EPA failure to provide adequate notice 

and an opportunity to comment prior to 

promulgation of the final rule. Unlike 

the situation in Kennecott, EPA’s 

consideration of the petitions to 

reconsider is focused on whether the 

claimed new evidence and arguments 

warrant a reopening of a prior, properly 

noticed rulemaking. Absent a 

demonstration that the objections raised 

by petitioners provide substantial 

support for the argument that the 

regulation should be revised, such 

reopening is not warranted. Nothing in 

Kennecott holds otherwise. 

Appalachian Power Company et al. v. 

EPA, 249 F.3d 1032 (D.C. Cir. 2001) 

clearly supports this view. In that case, 

petitioners presented comments to EPA 

requesting that EPA consider various 

materials concerning the issue of 

substantial contribution under section 

126. Because EPA had already 

promulgated a rule that addressed the 

issue of significant contribution, EPA 

properly treated the request as a petition 

to reconsider the prior rule. EPA 

evaluated the evidence and its relevance 

to the section 126 rule and for a variety 

of reasons rejected it on the merits as a 

basis for reopening the rule. The court 

upheld EPA’s decision, stating that 

‘‘[g]iven the deferential standard 

employed in this context, the EPA’s 

refusal to reopen and reconsider its 

significant contribution findings must 

be upheld.’’ Id. at 1060. 

Part III of this Decision explains why 

EPA is denying the petitions with 

respect to the objections set forth in 

these petitions for reconsideration. With 

respect to some of these issues, the 

petitioners clearly have not met the 

procedural predicate for 

reconsideration. That is, the petitioners 

have not demonstrated that it was 

impracticable to raise these objections 

during the comment period, or that the 

grounds for these objections arose after 

the close of the comment period but 

within 60 days after publication of the 

final rule. As such, they do not meet the 

statutory criteria for administrative 

reconsideration under CAA section 

307(d)(7)(B).9 For all of the objections, 

whether or not the petitions might be 

considered to meet the procedural 

criterion for reconsideration, the 

petitioners’ objections and arguments in 

terms of substance are not ‘‘of central 

relevance’’ to the outcome of the 

rulemaking. Thus, none of the 

objections meet the criteria for 

reconsideration under the CAA. 

As noted in Section I.B.4 of this 

Decision, EPA also received two 

requests to administratively stay the 

final Findings. Two petitioners 

requested an administrative stay under 


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CAA section 307(d)(7)(B), tied to the 

petitions to reconsider the findings, 

requesting that EPA stay the Findings 

for three months. Southeastern Legal 

Foundation at 8, Chamber of Commerce 

at 1. EPA has authority to issue a stay 

for up to 3 months if it grants a petition 

to reconsider under CAA section 

307(d)(7)(B). As described below, EPA is 

denying the petitions to reconsider, 

hence there is no basis for issuance of 

an administrative stay under this 

provision. 

One of the administrative stay 

requests was filed under section 705 of 

the Administrative Procedure Act (APA) 

as part of the petition for 

reconsideration relating to stationary 

source concerns, and requested a stay 

pending EPA’s completion of its 

reconsideration of the final Findings. 

Chamber at 23–34. 5 U.S.C. 705 

authorizes an agency to postpone the 

effective date of an agency action 

pending judicial review when the 

agency finds that justice so requires. In 

this case, the Endangerment Finding 

was effective as of January 14, 2010. The 

request for an administrative stay was 

submitted by petition dated March 15, 

2010, after the Endangerment Finding 

was effective. Even if EPA believed that 

an administrative stay was warranted, 

which it does not, it is not clear whether 

EPA would have the authority under 

APA section 705 to stay an agency 

action that has already gone into effect. 

Postponing an effective date implies 

acting before the effective date occurs. 

In any case, an administrative stay of 

the Endangerment Finding is not 

warranted. In response to the arguments 

raised by the Chamber, (1) the Chamber 

has not made a strong showing on the 

merits, for all of the reasons upon which 

EPA is denying the petitions to 

reconsider; (2) the Chamber’s arguments 

concerning irreparable harm fail to 

adequately account for the proposed or 

recently issued Final Prevention of 

Significant Deterioration (PSD) and Title 

V Greenhouse Gas Tailoring Rule (75 FR 

31518, 31579–84; June 3, 2010) (Final 

Tailoring Rule), and present general, 

unspecific, and unsupported arguments; 

(3) the Chamber’s arguments that EPA’s 

standards for emissions of GHGs from 

light-duty vehicles would have no 

important benefit because of the related 

NHTSA CAFE rule are rejected for the 

reasons discussed in Section IV.B of this 

Notice, and (4) the Chamber’s arguments 

concerning the public interest, which 

repeat its prior arguments, are rejected 

for the same reasons. 

III. Science Related Issues 

A. General Summary of Petitioners’ 

Arguments 

The petitioners generally claim that 

the science underlying the 

Administrator’s Endangerment Finding 

is flawed and/or that EPA did not follow 

an appropriate or robust process in 

evaluating the underlying science for 

purposes of making an endangerment 

finding for greenhouse gases. Many of 

the 10 petitions present similar 

arguments. Some of the petitioners’ 

arguments were raised during the 

60-day public comment period 

following the proposed Findings (74 FR 

18886, April 24, 2009). 

Many of the petitioners critique 

specific elements of the underlying 

science that support the Findings, 

primarily the HadCRUT temperature 

record showing increases in global 

surface temperatures. There are many 

elements of the underlying science that 

support the Administrator’s 

Endangerment Finding that are not 

addressed by the petitioners. Petitioners 

assert that the global temperature record 

is so central to all greenhouse gas and 

climate change science that the 

problems with a global surface 

temperature record essentially mean all 

scientific knowledge linking greenhouse 

gases and climate change, and by 

extension all public health and welfare 

risks associated with human-induced 

climate change, must also be called into 

question. Petitioners also question the 

credibility of the IPCC and, by 

extension, EPA’s use of IPCC AR4 as a 

significant reference document 

supporting the Findings. 

The primary information provided by 

the petitioners to back their arguments 

are: 

(1) A set of disclosed private e-mail 

communications among some scientists 

associated with the HadCRUT 

temperature record and associated with 

certain sections of IPCC AR4. 

(2) A small number of factual 

mistakes and claimed factual mistakes 

and alleged unsupported statements in 

the voluminous, 2,927-page IPCC AR4. 

(3) A limited number of new studies 

for EPA to consider. 

EPA’s responses to the petitioners’ 

evidence, arguments, and claims are 

summarized in this section of this 

Decision and provided in fuller 

technical detail in the accompanying 

three-volume RTP document. More 

specifically, the petitioners’ arguments 

can generally be grouped into three 

broad categories: 

• Climate science and data issues, 

including (1) the validity of the 

reconstructed surface temperature 

record from the distant past and 

whether or not recent observations of 

global warming are unusual; (2) the 

validity of the more recent surface 

temperature record and whether recent 

temperature changes can be attributed to 

human emissions of greenhouse gases; 

(3) the validity of the HadCRUT surface 

temperature record of the Climatic 

Research Unit (CRU); (4) the validity of 

the recent surface temperature records 

constructed by the National 

Oceanographic and Atmospheric 

Administration (NOAA) and National 

Aeronautics and Space Administration 

(NASA); and (5) the implications of new 

studies not previously considered. 

• Issues raised by EPA’s use of IPCC 

reports, including: (1) Claims that 

recently found errors and claimed errors 

in IPCC AR4 undermine IPCC’s 

credibility and therefore EPA’s use of 

IPCC AR4 as a primary reference 

document; and (2) claims that IPCC has 

a policy agenda and is not an objective 

scientific body. 

• Process and other issues, including 

claims that: (1) The USGCRP and the 

NRC are not separate and independent 

assessments from IPCC; (2) EPA’s 

process to develop the scientific support 

for the Findings was inappropriate; 

(3) there are improper peer-review 

processes in the underlying scientific 

literature used by the major 

assessments; and (4) certain scientists 

did not adhere to UK and U.S. Freedom 

of Information Act Requests. 

B. Summary of the Science Underlying 

the Administrator’s Endangerment 

Finding in Light of the Petitioners’ 

Claims 

Before addressing the petitioners’ 

general and specific assertions, this 

section briefly describes the major 

scientific conclusions and data that 

support the Administrator’s 

Endangerment Finding that elevated 

atmospheric concentrations of the group 

of six key greenhouse gases are 

reasonably anticipated to endanger the 

public health and public welfare of 

current and future generations. As noted 

above, the petitioners do not take issue 

with the large body of scientific 

evidence. Rather, they focus most of 

their attention on questioning the 

validity of the global surface 

temperature record—specifically the 

HadCRUT temperature record, one of 

the three major global surface 

temperature records used by climate 

researchers—which show that 

temperatures are increasing. This 

section puts the global temperature 

record in the broader context of 

greenhouse gas and climate change 


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10National Research Council (2010) Advancing 

the Science of Climate Change: America’s Climate 

Choices, National Academies Press, Washington, 

DC. 

11USGCRP now encompasses the former Climate 

Change Science Program (CCSP) under the previous 

Administration. 

12CCSP (2008). Reanalysis of Historical Climate 

Data for Key Atmospheric Features: Implications for 

Attribution of Causes of Observed Change. A Report 

science, and demonstrates the limited 

scope of the petitioners’ arguments. 

There is a causal chain linking 

atmospheric concentrations of 

greenhouse gases to impacts and risks to 

public health and welfare. The elements 

of this causal chain are: 

• What effects do greenhouse gases 

have on the environment and on climate 

in particular? 

• Are human activities changing the 

amount of greenhouse gases in our 

atmosphere? 

• What is the evidence indicating that 

average temperatures are increasing and 

that climate change is occurring, 

consistent with the direction one would 

expect from increasing greenhouse gases 

in our atmosphere? 

• What is the evidence linking 

observed temperature changes and 

climate change to the anthropogenic 

increase in greenhouse gases? 

• How are public health and welfare 

threatened by these changes to climate 

and the environment, now and in the 

future? 

Each element of the causal chain is 

discussed below. Evidence related to 

each element is based on the underlying 

scientific assessments (e.g., IPCC and 

USGCRP) that EPA relied on to develop 

the TSD to support the Administrator’s 

Endangerment Finding, and, where 

noted, is also based on the most recent 

scientific assessment, published in May 

2010, of the NRC.10

1. What effects do greenhouse gases 

have on the environment and on climate 

in particular? 

The physical effect of greenhouse 

gases on climate and the environment 

remains a basic scientific fact— 

greenhouse gases slow the loss of 

Earth’s heat, which would otherwise 

escape to space. Much like a blanket 

keeps a person warm by preventing heat 

loss, greenhouse gases blanket the 

planet and warm the Earth by trapping 

in heat that would otherwise escape to 

space. This is the Earth’s natural 

greenhouse effect. An increase in the 

amount of greenhouse gases in our 

atmosphere intensifies the natural 

greenhouse effect and thus exerts a 

warming effect on the global climate. 

These are well-established physical 

properties of greenhouse gases. The six 

greenhouse gases grouped together in 

the Administrator’s Endangerment 

Finding are long-lived in the 

atmosphere and, once emitted, can 

remain in the atmosphere for decades to 

centuries. Carbon dioxide has other 

non-climate effects as well. Increases in 

atmospheric carbon dioxide 

concentrations can affect oceanic acidity 

and the growth rates of crops, weeds, 

and trees. Petitioners have not presented 

information challenging the basic 

physical properties of how the six 

greenhouse gases affect the climate and 

the environment. 

2. How are human activities changing 

the amount of greenhouse gases in our 

atmosphere? 

It is a well-documented and 

straightforward observation that levels 

of carbon dioxide and other greenhouse 

gases are increasing in our atmosphere. 

The six key greenhouse gases included 

in the Administrator’s Findings are at 

essentially unprecedented levels 

compared to the recent and distant past. 

Their concentrations are climbing, and 

this is projected to continue well into 

this century. The two most important 

directly emitted greenhouse gases, 

carbon dioxide and methane, are well 

above the natural range of atmospheric 

concentrations compared to at least the 

last 650,000 years (see TSD EPA–HQ– 

OAR–2009–0171–11645). The most 

recent report of the NRC states that 

carbon dioxide levels are now at 388 

parts per million and increasing by 

almost two parts per million per year. 

The fact that greenhouse 

concentrations are now at such high 

levels is absolutely central to the 

Administrator’s Endangerment Finding. 

Without such a large and everincreasing buildup of atmospheric 

levels of greenhouse gases there would 

be less concern about the potential 

future warming caused by human 

activities. Greenhouse gases are at such 

high levels in our atmosphere and 

continue to climb because human 

activities are adding greenhouse gases to 

the atmosphere in larger quantities and 

more quickly than the environment can 

handle. Our annual emissions from 

fossil fuel combustion, deforestation, 

and other sources are overwhelming the 

natural removal systems in the ocean, 

atmosphere, and terrestrial biosphere 

(e.g., trees and other vegetation). 

Furthermore, human activities are 

unambiguously the driver of the 

increase in atmospheric levels of 

greenhouse gases. The EPA TSD states: 

‘‘The global atmospheric CO2

concentration has increased about 38% 

from pre-industrial levels to 2009, and 

almost all of the increase is due to 

anthropogenic emissions.’’ This is 

supported by the most recent NRC 

report, which states that, ‘‘We know that 

this increase is largely the result of 

human activities because the chemical 

signature of excess CO2 in the 

atmosphere can be linked to the 

composition of the CO2 emissions from 

fossil fuel burning. Moreover, analyses 

of bubbles trapped in ice cores from 

Greenland and Antarctica reveal that 

atmospheric CO2 levels have been rising 

steadily since the start of the Industrial 

Revolution.’’ Petitioners do not provide 

any evidence that cause EPA to question 

this scientific conclusion. 

3. What is the evidence indicating that 

average temperatures are increasing and 

climate change is occurring consistent 

with the direction one would expect 

with increasing greenhouse gases in our 

atmosphere? 

The scientific literature is clear that 

the heating effect caused by the buildup 

of greenhouse gases is warming the 

climate system. As summarized in the 

TSD: 

• The global average net effect of the 

increase in atmospheric GHG 

concentrations, plus other human 

activities (e.g., land-use change and 

aerosol emissions), on the global energy 

balance since 1750 has been one of 

warming. This total net heating effect, 

referred to as forcing, is estimated to be 

+1.6 (+0.6 to +2.4) watts per square 

meter (W/m2), with much of the range 

surrounding this estimate due to 

uncertainties about the cooling and 

warming effects of aerosols. 

• Warming of the climate system is 

unequivocal, as is now evident from 

observations of increases in global 

average air and ocean temperatures, 

widespread melting of snow and ice, 

and rising global average sea level. 

Global mean surface temperatures have 

risen by 1.3 ± 0.32 °F (0.74 °C ± 0.18 °C) 

over the last 100 years. Eight of the 10 

warmest years on record have occurred 

since 2001. Global mean surface 

temperature was higher during the last 

few decades of the 20th century than 

during any comparable period during 

the preceding four centuries. 

• U.S. temperatures also warmed 

during the 20th and into the 21st 

century; temperatures are now 

approximately 1.3 °F (0.7 °C) warmer 

than at the start of the 20th century, 

with an increased rate of warming over 

the past 30 years. Both the IPCC and the 

USGCRP 11 reports attributed recent 

North American warming to elevated 

GHG concentrations. In the U.S. Climate 

Change Science Program (CCSP) 

(2008) 12 report, the authors find that for 


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by the U.S. Climate Change Science Program and 

the Subcommittee on Global Change Research 

[Randall Dole, Martin Hoerling, and Siegfried 

Schubert (eds.)]. Asheville, NC: National Oceanic 

and Atmospheric Administration, National Climatic 

Data Center. 156 pp. 

13Solomon, S., D. Qin, M. Manning, R.B. Alley, 

T. Berntsen, N.L. Bindoff, Z. Chen, A. Chidthaisong, 

J.M. Gregory, G.C. Hegerl, M. Heimann, B. 

Hewitson, B.J. Hoskins, F. Joos, J. Jouzel, V. Kattsov, 

U. Lohmann, T. Matsuno, M. Molina, N. Nicholls, 

J. Overpeck, G. Raga, V. Ramaswamy, J. Ren, M. 

Rusticucci, R. Somerville, T.F. Stocker, P. Whetton, 

R.A. Wood and D. Wratt (2007). Technical 

Summary. In: Climate Change 2007: The Physical 

Science Basis. Contribution of Working Group I to 

the Fourth Assessment Report of the 

Intergovernmental Panel on Climate Change 

[Solomon, S., D. Qin, M. Manning, Z. Chen, M. 

Marquis, K.B. Averyt, M. Tignor, and H.L. Miller 

(eds.)]. Cambridge University Press, Cambridge, 

United Kingdom and New York, NY, USA, 996 pp. 

14 IPCC (1990). First Assessment Report: Climate 

Change 1990. Cambridge University Press, 

Cambridge, United Kingdom and New York, NY, 

USA. 

15 IPCC (1996). Climate Change 1995: The Science 

of Climate Change. Intergovernmental Panel on 

Climate Change [J.T. Houghton, L.G. Meira Filho, 

B.A. Callander, N. Harris, A. Kattenberg, and K. 

Maskell (eds)]. Cambridge University Press. 

Cambridge, United Kingdom. 

16 IPCC (2001b). Summary for Policymakers. In. 

Climate Change 2001: The Scientific Basis. 

Contribution of Working Group I to the Third 

Assessment Report of the Intergovernmental Panel 

on Climate Change [J.T. Houghton et al. (eds.)]. 

Cambridge University Press, Cambridge, United 

Kingdom and New York, NY, USA. 

17 IPCC (2007b). Climate Change 2007: Synthesis 

Report. Contribution of Working Groups I, II and III 

to the Fourth Assessment Report of the 

Intergovernmental Panel on Climate Change [Core 

Writing Team, Pachauri, R.K and Reisinger, A. 

(eds.)]. IPCC, Geneva, Switzerland, 104 pp. 

18According to IPCC terminology, ‘‘very likely’’ 

conveys a 90 to 99% probability of occurrence. See 

Box 1.2 of the TSD for a full description of IPCC’s 

uncertainty terms. 

North America, ‘‘more than half of this 

warming [for the period 1951–2006] is 

likely the result of human-caused GHG 

forcing of climate change.’’ 

• Widespread changes in extreme 

temperatures have been observed in the 

last 50 years across all world regions, 

including the United States. Cold days, 

cold nights, and frost have become less 

frequent, while hot days, hot nights, and 

heat waves have become more frequent. 

• There is strong evidence that global 

sea level gradually rose in the 20th 

century and is currently rising at an 

increased rate. 

• Satellite data since 1979 show that 

annual average Arctic sea ice extent has 

shrunk by 4.1% per decade. 

• Observational evidence from all 

continents and most oceans shows that 

many natural systems are being affected 

by regional climate change, particularly 

temperature increases. 

• Observations show that climate 

change is currently affecting U.S. 

physical and biological systems in 

significant ways. 

• Ocean CO2 uptake has lowered the 

average ocean pH (increased acidity) 

level by approximately 0.1 since 1750. 

These conclusions are consistent 

with, or strengthened by, the most 

recent NRC report which states the 

following: ‘‘Earth is warming. Detailed 

observations of surface temperature 

assembled and analyzed by several 

different research groups show that the 

planet’s average surface temperature 

was 1.4 °F (0.8 °C) warmer during the 

first decade of the 21st century than 

during the first decade of the 20th 

century, with the most pronounced 

warming over the last three decades. 

These data are corroborated by a variety 

of independent observations that 

indicate warming in other parts of the 

Earth system, including the cryosphere 

(snow and ice covered regions), the 

lower atmosphere, and the oceans.’’ 

These multiple lines of evidence 

highlight a number of things. First, there 

is well-documented evidence that the 

buildup of greenhouse gases in our 

atmosphere is exerting, as expected, a 

significant heating effect called radiative 

forcing. This is not to be confused with 

temperature change or the temperature 

data that is the subject of many of the 

petitions. This heating effect or radiative 

forcing refers to a change in the energy 

balance of the planet, and is thus the 

driver of temperature change. 

The magnitude of this heating effect 

caused by the buildup in atmospheric 

greenhouse gases has been quantified in 

the scientific literature. The petitioners 

do not challenge these estimates and do 

not challenge the fact that the observed 

buildup of greenhouse gases is having a 

clear and quantifiable heating effect on 

the planet. This is a fundamental pillar 

of climate change science, and is a 

fundamental piece of supporting 

evidence for the Administrator’s 

Endangerment Finding. 

Second, the underlying science 

indicates that there is significant and 

unambiguous warming for the Earth and 

for North America. This is the first place 

along the causal chain where the 

petitioners question the science. Many 

petitioners question the validity of the 

global temperature evidence by pointing 

to the CRU e-mails and their impact on 

the scientific assessment reports used by 

EPA. This particular critique is 

addressed below and in fuller detail in 

Volume 1 of the RTP document. 

Third, the evidence of climate change 

caused by human activities goes beyond 

average increases in global and 

continental temperatures. There are 

well-documented increases in sea level, 

declines in sea ice, and changes to 

physical and biological systems, all 

primarily driven by, and therefore 

showing further evidence of, increases 

in average temperatures. These changes 

are documented by datasets other than 

temperature datasets, and bear no 

relation to the particular CRU 

temperature dataset that is the primary 

focus of many of the petitioners. 

Similarly, the observation that 

elevated levels of carbon dioxide are 

increasing the acidity of the world’s 

oceans is direct evidence of a large-scale 

and significant environmental effect that 

does not depend on any evidence from 

a temperature dataset. This particular 

effect was considered supporting 

evidence by the Administrator in the 

Endangerment Finding. This 

documented effect is not challenged by 

any of the petitioners. 

4. What is the evidence linking observed 

temperature changes and climate change 

to the anthropogenic increase in 

greenhouse gases? 

The underlying science has clearly 

attributed the observed warming to the 

buildup of greenhouse gases in our 

atmosphere. Summarized here is the 

underlying science that shows that 

increases in average global and 

continental temperatures, as well as 

other climatic changes, can confidently 

be attributed to the increases in 

greenhouse gas emissions from human 

activities. The extent to which observed 

warming can be attributed to the 

human-induced buildup of greenhouse 

gases in the atmosphere is the second 

area of the causal chain where some 

petitioners question the science. 

IPCC statements on the linkage 

between greenhouse gases and 

temperatures have strengthened since 

the organization’s early assessments 

(Solomon et al., 2007).13 The IPCC’s 

First Assessment Report in 1990 

contained little observational evidence 

of a detectable anthropogenic influence 

on climate (IPCC, 1990).14 In its Second 

Assessment Report in 1995, the IPCC 

stated that the balance of evidence 

suggests a discernible human influence 

on the climate of the 20th century 

(IPCC, 1996).15 The Third Assessment 

Report in 2001 concluded that most of 

the observed warming over the last 50 

years is likely to have been due to the 

increase in greenhouse gas 

concentrations (IPCC, 2001b).16 The 

conclusion in IPCC’s 2007 Fourth 

Assessment Report (2007b) 17 is the 

strongest yet: ‘‘Most of the observed 

increase in global average temperatures 

since the mid-20th century is very 

likely 18 due to the observed increase in 

anthropogenic GHG concentrations.’’ 

The strength of this statement reflects 

our current, much better understanding 


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19Hegerl, G.C., et al. (2007). Understanding and 

Attributing Climate Change. In: Climate Change 

2007: The Physical Science Basis. Contribution of 

Working Group I to the Fourth Assessment Report 

of the Intergovernmental Panel on Climate Change 

[Solomon, S., D. Qin, M. Manning, Z. Chen, M. 

Marquis, K.B. Averyt, M. Tignor, and H.L. Miller 

(eds.)]. Cambridge University Press, Cambridge, 

United Kingdom and New York, NY, USA. 

20 IPCC (2007a) Climate Change 2007: The 

Physical Science Basis. Contribution of Working 

Group I to the Fourth Assessment Report of the 

Intergovernmental Panel on Climate Change. 

[Solomon, S., D. Qin, M. Manning, Z. Chen, M. 

Marquis, K.B. Averyt, M. Tignor, and H.L. Miller 

(eds.)]. Cambridge University Press, Cambridge, 

United Kingdom and New York, NY, USA. 

21 Karl, T., J. Melillo, and T. Peterson (Eds.) (2009) 

Global Climate Change Impacts in the United 

States. Cambridge University Press, Cambridge, 

United Kingdom. 

of all the factors, not just greenhouse 

gases, that influence temperature 

fluctuations and other climatic changes. 

On this point, EPA’s TSD (citing Hegerl 

et al., 2007) 19 listed the major scientific 

advances between the Third and Fourth 

Assessment Reports of the IPCC that led 

to this increased confidence in the 

ability to attribute observed temperature 

and other climate changes to 

anthropogenic greenhouse gases: 

• An expanded and improved range 

of observations allowing attribution of 

warming to be more fully addressed 

jointly with other changes in the climate 

system. 

• Improvements in the simulation of 

many aspects of present mean climate 

and its variability on seasonal to interdecadal time scales. 

• More detailed representations of 

processes related to aerosol and other 

forcings (i.e., heating and cooling 

effects) in models. 

• Simulations of 20th-century climate 

change that use many more models and 

much more complete anthropogenic and 

natural forcings. 

• Multi-model ensembles that 

increase confidence in attribution 

results by providing an improved 

representation of model uncertainty. 

Climate model simulations suggest 

that natural heating factors alone cannot 

explain the observed warming for the 

entire globe, the global land, or the 

global ocean. The observed warming can 

only be reproduced with models that 

contain both natural and anthropogenic 

heating and cooling influences. 

EPA’s TSD, based on the underlying 

assessment literature, states that if the 

additional heating effect of elevated 

levels of greenhouse gases were the only 

external influence on the global climate, 

this likely would have resulted in 

warming greater than observed. This 

statement is made because our 

understanding of the climate system is 

sophisticated enough to consider and 

model multiple and simultaneous 

influences on the global climate. For 

example, there are known and 

quantifiable cooling effects from human 

emissions of aerosols and natural 

forcings (e.g., volcanic eruptions and 

solar variability) that have offset some of 

the greenhouse gas-induced warming 

during the past half century. 

The sophistication of climate models 

that examine the influence of human 

emissions of greenhouse gases has 

increased. Confidence in these models 

comes from their foundation in accepted 

physical principles and from their 

ability to reproduce observed features of 

current climate and past climate 

changes (IPCC, 2007a).20 One petitioner 

questions the reliability of the models 

by pointing to certain CRU e-mails. 

Questions regarding the reliability of 

climate models are addressed in Volume 

4 of the RTC document and in Volume 

1 of the RTP document. 

Furthermore, warming of the climate 

system has been detected in changes of 

surface and atmospheric temperatures, 

in the upper several hundred meters of 

the ocean (as evident by the observed 

increase in ocean heat content), and in 

contributions to sea level rise. The 

scientific assessments have established 

human contributions to all of these 

changes. 

Not only has an anthropogenic 

warming signal been detected for the 

surface temperatures, but evidence has 

also accumulated of an anthropogenic 

influence throughout different layers of 

the atmosphere. Some petitioners have 

raised one potential inconsistency 

between observed warming and 

modeled warming higher in the 

atmosphere over the tropics. Karl et al. 

(2009) 21 state that when uncertainties in 

models and observations are properly 

accounted for, newer observational 

datasets are in agreement with climate 

model results. A detailed discussion of 

this issue is contained in Volume 1, 

section 1.2 of the RTP document. 

Lastly, evidence from climates in the 

geologic past, going back millions of 

years, also supports the conclusion that 

elevated levels of greenhouse gases in 

the atmosphere are expected to lead to 

warmer climates. Measurements show 

that climates from the geologic past 

have been both warmer and colder than 

present, and that warmer periods have 

generally coincided with high 

atmospheric carbon dioxide levels. 

Analyses of these paleoclimate data 

have increased confidence in the role of 

external influences on climate. Climate 

models for predicting future climate 

have been used to reproduce key 

features of past climates using 

conditions and radiative forcing for 

those periods. 

Here too, these conclusions are 

reinforced by the most recent NRC 

report, which states: 

‘‘Global warming can be attributed to 

human activities. Many lines of evidence 

support the conclusion that most of the 

observed warming since the start of the 20th 

century, and especially the last several 

decades, can be attributed to human 

activities, including the following: 

• Earth’s surface temperature has clearly 

risen over the past 100 years, at the same 

time that human activities have resulted in 

sharp increases in CO2 and other GHGs. 

• Both the physics of the greenhouse effect 

and more detailed calculations dictate that 

increases in atmospheric GHGs should lead 

to warming of Earth’s surface and lower 

atmosphere. 

• The vertical pattern of observed 

warming—with warming in the bottommost 

layer of the atmosphere and cooling 

immediately above—is consistent with 

warming caused by GHG increases, and 

inconsistent with other possible causes. 

• Detailed simulations with state-of-the-art 

computer-based models of the climate system 

are able to reproduce the observed warming 

tend and patterns only when human-induced 

GHG emissions are included. 

Based on these and other lines of evidence, 

the Panel on Advancing the Science of 

Climate Change—along with an 

overwhelming majority of scientists 

(Rosenberg et al., 2010)—conclude that much 

of the observed warming since the start of the 

20th century, and most of the warming over 

the last several decades, can be attributed to 

human activities’’ [NRC at 29]. 

The clear conclusion from all of this 

evidence is that the human-induced 

buildup of greenhouse gases in the 

atmosphere is primarily responsible for 

most of the observed warming and other 

climate changes occurring now. The 

information petitioners present to 

challenge this part of the scientific 

record is clearly inadequate. 

• Petitioners provide no credible 

evidence to question the clear 

observation that greenhouse gases are 

increasing in our atmosphere to 

significant levels. 

• The petitioners provide no 

information to question the quantified 

radiative forcing (heating effect) caused 

by this greenhouse gas buildup. 

• Petitioners’ objections about 

paleoclimate temperature 

reconstructions focus on one type of 

reconstruction (tree ring analysis). The 

objections, addressed in Volume 1 of the 

RTP document, do not withstand 

scrutiny, nor do they undermine our 

confidence in the conclusions of the 

studies. These conclusions, and the 

accompanying limitations and 

uncertainties, have been properly 

characterized in the assessment reports 


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and the Endangerment Finding. 

Petitioners do not contest or address the 

variety of other aspects of paleoclimate 

research supporting the attribution of 

recent warming to anthropogenic 

greenhouse gases. 

• With respect to the variety of 

evidence on observed temperature 

change, the petitioners focus their 

criticism on the validity of one of three 

global surface temperature records, the 

HadCRUT temperature record. 

Petitioners’ objections are addressed in 

detail below and in Volume 1 of the 

RTP document, as are the petitioners’ 

related criticisms of the NOAA and 

NASA temperature datasets. Their 

objections do not withstand scrutiny, 

nor do they reduce our confidence in 

these temperature records, which have 

been properly characterized in the 

assessment reports and the 

Endangerment Finding. In addition, the 

petitioners ignore and do not address 

the clear information and observations 

showing that other elements of the 

climate system are undergoing changes 

consistent with these average 

temperature increases (e.g., ocean 

heating, sea level rise, Arctic ice loss). 

Petitioners do not show that these 

observations are in error or are the result 

of some other, unidentified mechanism. 

• Petitioners focus their criticism on 

a possible discrepancy between model 

predictions and the vertical temperature 

structure of the atmosphere in the 

tropics; this criticism is not 

substantively supported, as discussed 

below and in Volume 1 of the RTP 

document. 

• The petitioners do not attempt to 

provide an alternative explanation of 

the compellingly strong match between 

the observed magnitude and pattern of 

warming and the modeled simulations, 

which include all known factors, 

including the greenhouse gas buildup, 

the offsetting cooling influence of 

aerosols, and variability in solar output. 

• Petitioners’ arguments that a 

possible slowdown in the rate of 

warming over the last 10 years should 

weaken confidence in the fact that 

human emissions of greenhouse gases 

are the primary driver of recent 

warming are not valid. EPA addresses 

this issue more fully below and in 

Volume 1 of the RTP document. 

5. How are public health and welfare 

threatened by these changes to climate 

and the environment, now and in the 

future? 

The TSD summarizes a number of 

conclusions from the underlying science 

on this issue. In addition to 

documenting many of the key observed 

changes to atmospheric composition 

and climate, such as those outlined 

above, the TSD summarizes key findings 

about projected increases in greenhouse 

gas emissions and the future climate 

change associated with these future 

scenarios: 

• Most future scenarios that assume 

no explicit greenhouse gas mitigation 

actions (beyond those already enacted) 

project increasing global greenhouse gas 

emissions over the century, with 

climbing greenhouse gas concentrations. 

• Future warming over the course of 

the 21st century, even under scenarios 

of low-emission growth, is very likely to 

be greater than observed warming over 

the past century. 

• All of the United States is very 

likely to warm during this century, and 

most areas of the United States are 

expected to warm by more than the 

global average. 

• It is very likely that heat waves will 

become more intense, more frequent, 

and longer-lasting in a future warm 

climate, whereas cold episodes are 

projected to decrease significantly. 

• Increases in the amount of 

precipitation are very likely in higher 

latitudes, while decreases are likely in 

most subtropical latitudes and in the 

southwestern United States, continuing 

observed patterns. 

• Intensity of precipitation events is 

projected to increase in the United 

States and other regions of the world. 

• It is likely that hurricanes will 

become more intense, with stronger 

peak winds and more heavy 

precipitation associated with ongoing 

increases of tropical sea surface 

temperatures. Frequency changes in 

hurricanes are currently too uncertain 

for confident projections. 

• By the end of the century, global 

average sea level is projected by the 

IPCC to rise between 7.1 and 23 inches 

(18 and 59 centimeter [cm]), relative to 

around 1990, in the absence of 

increased dynamic ice sheet loss. 

• Sea ice extent is projected to shrink 

in the Arctic under all IPCC emission 

scenarios. 

The validity of these future climate 

change projections is not addressed by 

the petitioners, although some of the 

petitioners do call into question the 

climate models that are used to conduct 

these climate change projections. The 

petitioners claim that some of the 

models must be calibrated with the 

current temperature record, which in 

turn they assert appears to be flawed. 

EPA addresses this faulty critique of the 

models in Volume 1, section 1.2.3 of the 

RTP document, and had previously 

addressed similar critiques of climate 

models in Volume 4 of the RTC 

document. 

It is important to note that none of the 

petitioners question the conclusion that 

atmospheric levels of greenhouse gases 

are expected to continue climbing for 

the foreseeable future, given the longlived physical properties of the 

greenhouse gases themselves and the 

plausible pathways of human-emitting 

activities over the next few decades. 

Climate models aside, it is difficult to 

imagine a world where the heating 

effect of climbing greenhouse gas 

concentrations does not increase for the 

foreseeable future. 

With regard to the impacts and risks 

to public health and welfare, the TSD 

and the Administrator’s Findings stated 

the following: 

• Severe heat waves are projected to 

intensify in magnitude and duration 

over the portions of the United States 

where these events already occur, with 

potential increases in mortality and 

morbidity, especially among the elderly, 

young, and frail. 

• Some reduction in the risk of death 

related to extreme cold is expected. It is 

not clear whether reduced mortality 

from cold will be greater or less than 

increased heat-related mortality in the 

United States due to climate change. In 

addition, the latest USGCRP report 

refers to a study that analyzed daily 

mortality and weather data in 50 U.S. 

cities from 1989 to 2000 and found that, 

on average, cold snaps in the United 

States increased death rates by 1.6 

percent, while heat waves triggered a 

5.7 percent increase in death rates. The 

study concludes that increases in heatrelated mortality due to global warming 

in the United States are unlikely to be 

compensated for by decreases in coldrelated mortality. 

• Increases in regional ozone 

pollution relative to ozone levels 

without climate change are expected 

due to higher temperatures and weaker 

circulation in the United States and 

other world cities relative to air quality 

levels without climate change. 

• CCSP concludes that, with 

increased CO2 and temperature, the life 

cycle of grain and oilseed crops will 

likely progress more rapidly. But, as 

temperature rises, these crops will 

increasingly begin to experience failure, 

especially if climate variability 

increases and precipitation lessens or 

becomes more variable. 

• Higher temperatures will very likely 

reduce livestock production during the 

summer season in some areas, but these 

losses will very likely be partially offset 

by warmer temperatures during the 

winter season. 

• Cold-water fisheries will likely be 

negatively affected; warm-water 

fisheries will generally benefit; and the 


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results for cool-water fisheries will be 

mixed, with gains in the northern and 

losses in the southern portions of 

ranges. 

• Climate change has very likely 

increased the size and number of forest 

fires, insect outbreaks, and tree 

mortality in the interior West, the 

Southwest, and Alaska, and will 

continue to do so. 

• Coastal communities and habitats 

will be increasingly stressed by climate 

change impacts interacting with 

development and pollution. 

• Climate change will likely further 

constrain already overallocated water 

resources in some regions of the United 

States, increasing competition among 

agricultural, municipal, industrial, and 

ecological uses. 

• Higher water temperatures, 

increased precipitation intensity, and 

longer periods of low flows will 

exacerbate many forms of water 

pollution, potentially making 

attainment of water quality goals more 

difficult. 

• Ocean acidification is projected to 

continue, resulting in the reduced 

biological production of marine 

calcifiers, including corals. 

• Climate change is likely to affect 

U.S. energy use and energy production 

and physical and institutional 

infrastructures. 

Furthermore, the most recent NRC 

report from 2010 states that: ‘‘Global 

warming is closely associated with a 

broad spectrum of other climate 

changes, such as increases in the 

frequency of intense rainfall, decreases 

in snow cover and sea ice, more and 

increasingly intense heat waves, rising 

sea levels, and widespread ocean 

acidification. Individually and 

collectively, and in combination with 

the effects of other human activities, 

these changes pose risks for a wide 

range of human and environmental 

systems, including freshwater resources, 

the coastal environment, ecosystems, 

agriculture, fisheries, human health, and 

national security, among others.’’ 

The petitioners have not raised any 

objections to EPA’s analysis and 

judgments concerning these risks and 

impacts to public health and welfare, 

which were the foundation of the 

Administrator’s Endangerment Finding. 

C. Review of the Administrator’s 

Findings 

Throughout this Decision, EPA 

explains why the petitioners’ arguments 

and information fail to show that the 

scientific underpinnings of the 

Endangerment Finding are flawed. EPA 

remains convinced that the underlying 

science is robust, and that the 

Administrator appropriately interpreted 

the science to make the Endangerment 

Finding. This section summarizes the 

Administrator’s December 2009 

rationale and judgment based on the 

underlying science. 

The Administrator exercised her 

judgment under CAA section 202(a) by 

evaluating what the body of scientific 

evidence indicates with respect to how 

greenhouse gases affect the climate, and 

the degree of scientific consensus about 

the appropriate conclusions to draw 

from this evidence. Based on this 

consideration, the Administrator 

proposed and took comment on her 

preliminary judgment of endangerment 

to public health and welfare. The 

Administrator found the case to be 

compelling that greenhouse gas air 

pollution endangers both public health 

and welfare within the United States. 

The underlying science that EPA relied 

on included careful qualifications and 

characterizations about the degree of 

certainty regarding the scientific 

conclusions that were germane to the 

Administrator’s Findings. The 

Administrator’s reasoning and decisionmaking process to reach the Findings 

make clear that there was full 

acknowledgement that certain elements 

of the science are known with virtual 

certainty and others are currently more 

uncertain. 

A robust and comprehensive 

opportunity for comment allowed any 

and all objections regarding her 

judgment to be raised. After carefully 

reviewing the comments, the 

Administrator confirmed her judgment 

on endangerment and provided 

responses to the scientific, legal, and 

policy issues raised by commenters. The 

final rule explains in detail the basis for 

the Administrator’s Endangerment 

Finding. Key elements of the 

Administrator’s justification and 

decision process are summarized in the 

following 10 paragraphs from the 

December 15, 2009 Findings (74 FR 

66523–24). 

‘‘As described in Section II of these 

Findings, the endangerment test under CAA 

section 202(a) does not require the 

Administrator to identify a bright line, 

quantitative threshold above which a positive 

endangerment finding can be made. The 

statutory language explicitly calls upon the 

Administrator to use her judgment. This 

section describes the general approach used 

by the Administrator in reaching the 

judgment that a positive endangerment 

finding should be made, as well as the 

specific rationale for finding that the 

greenhouse gas air pollution may reasonably 

be anticipated to endanger both public health 

and welfare. 

First, the Administrator finds the scientific 

evidence linking human emissions and 

resulting elevated atmospheric 

concentrations of the six well-mixed 

greenhouse gases to observed global and 

regional temperature increases and other 

climate changes to be sufficiently robust and 

compelling. This evidence is briefly 

explained in more detail in Section V of 

these Findings. The Administrator recognizes 

that the climate change associated with 

elevated atmospheric concentrations of 

carbon dioxide and the other well-mixed 

greenhouse gases have the potential to affect 

essentially every aspect of human health, 

society, and the natural environment. 

The Administrator is therefore not limiting 

her consideration of potential risks and 

impacts associated with human emissions of 

greenhouse gases to any one particular 

element of human health, sector of the 

economy, region of the country, or to any one 

particular aspect of the natural environment. 

Rather, the Administrator is basing her 

finding on the total weight of scientific 

evidence, and what the science has to say 

regarding the nature and potential magnitude 

of the risks and impacts across all climatesensitive elements of public health and 

welfare, now and projected out into the 

foreseeable future. The Administrator has 

considered the state of the science on how 

human emissions and the resulting elevated 

atmospheric concentrations of well-mixed 

greenhouse gases may affect each of the 

major risk categories, i.e., those that are 

described in the TSD, which include human 

health, air quality, food production and 

agriculture, forestry, water resources, sea 

level rise and coastal areas, the energy sector, 

infrastructure and settlements, and 

ecosystems and wildlife. The Administrator 

understands that the nature and potential 

severity of impacts can vary across these 

different elements of public health and 

welfare, and that they can vary by region, as 

well as over time. 

The Administrator is therefore aware that, 

because human-induced climate change has 

the potential to be far-reaching and multidimensional, not all risks and potential 

impacts can be characterized with a uniform 

level of quantification or understanding, nor 

can they be characterized with uniform 

metrics. Given this variety in not only the 

nature and potential magnitude of risks and 

impacts, but also in our ability to 

characterize, quantify and project into the 

future such impacts, the Administrator must 

use her judgment to weigh the threat in each 

of the risk categories, weigh the potential 

benefits where relevant, and ultimately judge 

whether these risks and benefits, when 

viewed in total, are judged to be 

endangerment to public health and/or 

welfare. 

This has a number of implications for the 

Administrator’s approach in assessing the 

nature and magnitude of risk and impacts 

across each of the risk categories. First, the 

Administrator has not established a specific 

threshold metric for each category of risk and 

impacts. Also, the Administrator is not 

necessarily placing the greatest weight on 

those risks and impacts, which have been the 

subject of the most study or quantification. 

Part of the variation in risks and impacts 

is the fact that climbing atmospheric 


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concentrations of greenhouse gases and 

associated temperature increases can bring 

about some potential benefits to public 

health and welfare in addition to adverse 

risks. The current understanding of any 

potential benefits associated with humaninduced climate change is described in the 

TSD and is taken into consideration here. 

The potential for both adverse and beneficial 

effects are considered, as well as the relative 

magnitude of such effects, to the extent that 

the relative magnitudes can be quantified or 

characterized. Furthermore, given the 

multiple ways in which the buildup of 

atmospheric greenhouse gases can cause 

effects (e.g., via elevated carbon dioxide 

concentrations, via temperature increases, via 

precipitation increases, via sea level rise, and 

via changes in extreme events), these 

multiple pathways are considered. For 

example, elevated carbon dioxide 

concentrations may be beneficial to crop 

yields, but changes in temperature and 

precipitation may be adverse and must also 

be considered. Likewise, modest temperature 

increases may have some public health 

benefits as well as harms, and other 

pathways such as changes in air quality and 

extreme events must also be considered. 

The Administrator has balanced and 

weighed the varying risks and effects for each 

sector. She has judged whether there is a 

pattern across the sector that supports or 

does not support an endangerment finding, 

and if so, whether the support is of more or 

less weight. In cases where there is both a 

potential for benefits and risks of harm, the 

Administrator has balanced these factors by 

determining whether there appears to be any 

directional trend in the overall evidence that 

would support placing more weight on one 

than the other, taking into consideration all 

that is known about the likelihood of the 

various risks and effects and their 

seriousness. In all of these cases, the 

judgment is largely qualitative in nature, and 

is not reducible to precise metrics or 

quantification. 

Regarding the timeframe for the 

endangerment test, it is the Administrator’s 

view that both current and future conditions 

must be considered. The Administrator is 

thus taking the view that the endangerment 

period of analysis extend from the current 

time to the next several decades, and in some 

cases to the end of this century. This 

consideration is also consistent with the 

timeframes used in the underlying scientific 

assessments. The future timeframe under 

consideration is consistent with the 

atmospheric lifetime and climate effects of 

the six well-mixed greenhouse gases, and 

also with our ability to make reasonable and 

plausible projections of future conditions. 

The Administrator acknowledges that some 

aspects of climate change science and the 

projected impacts are more certain than 

others. Our state of knowledge is strongest for 

recently observed, large-scale changes. 

Uncertainty tends to increase in 

characterizing changes at smaller (regional) 

scales relative to large (global) scales. 

Uncertainty also increases as the temporal 

scales move away from present, either 

backward, but more importantly, forward in 

time. Nonetheless, the current state of 

knowledge of observed and past climate 

changes and their causes enables projections 

of plausible future changes under different 

scenarios of anthropogenic forcing for a range 

of spatial and temporal scales. 

In some cases, where the level of 

sensitivity to climate of a particular sector 

has been extensively studied, future impacts 

can be quantified whereas in other instances 

only a qualitative description of a directional 

change, if that, may be possible. The inherent 

uncertainty in the direction, magnitude, and/ 

or rate of certain future climate change 

impacts opens up the possibility that some 

changes could be more or less severe than 

expected, and the possibility of 

unanticipated outcomes. In some cases, low 

probability, high impact outcomes (i.e., 

known unknowns) are possibilities but 

cannot be explicitly assessed.’’ 

The Findings show that the 

Administrator took a measured, 

balanced and systematic approach in 

judging the body of scientific evidence 

for the Endangerment Finding. The 

Administrator did not take a narrow 

view of the science, nor consider only 

those pieces of evidence that would 

support a positive endangerment 

finding. 

In taking this approach, the 

Administrator determined that the body 

of scientific evidence compellingly 

supports a positive endangerment 

finding. The major assessments by the 

USGCRP, IPCC, and the NRC (published 

before 2010) served as the primary 

scientific basis supporting the 

Administrator’s endangerment finding. 

The Administrator reached her 

determination by considering both 

observed and projected effects of 

greenhouse gases in the atmosphere, 

their effect on climate, and the public 

health and welfare risks and impacts 

associated with such climate change. 

The Administrator’s assessment focused 

on public health and public welfare 

impacts within the United States. She 

also examined the evidence with respect 

to impacts in other world regions, and 

she concluded that these impacts 

strengthen the case for endangerment to 

public health and welfare because 

impacts in other world regions can in 

turn adversely affect the United States. 

The Administrator considered how 

elevated concentrations of the wellmixed greenhouse gases and associated 

climate change affect public health by 

evaluating the risks associated with 

changes in air quality, increases in 

temperatures, changes in extreme 

weather events, increases in food- and 

water-borne pathogens, and changes in 

aeroallergens. The Administrator placed 

weight on the fact that certain groups, 

including children, the elderly, and the 

poor, are most vulnerable to these 

climate-related health effects. 

The Administrator considered how 

elevated concentrations of the wellmixed greenhouse gases and associated 

climate change affect public welfare by 

evaluating numerous and far-ranging 

risks to food production and agriculture, 

forestry, water resources, sea level rise 

and coastal areas, energy, infrastructure, 

and settlements, and ecosystems and 

wildlife. For each of these sectors, the 

evidence provides support for a finding 

of endangerment to public welfare. The 

evidence concerning adverse impacts in 

the areas of water resources and sea 

level rise and coastal areas provides the 

clearest and strongest support for an 

endangerment finding, both for current 

and future generations. Strong support 

is also found in the evidence concerning 

infrastructure and settlements, as well 

as ecosystems and wildlife. Across the 

sectors, the potential serious adverse 

impacts of extreme events, such as 

wildfires, flooding, drought, and 

extreme weather conditions, provide 

strong support for such a finding. 

The petitioners have not provided 

information that would lead EPA to 

believe that the Administrator’s 

approach, briefly summarized here and 

explained in full in the December 2009 

Findings, was flawed, should have been 

carried out differently, or should have 

led to a different conclusion. 

D. General Response to the Petitioners’ 

Scientific Arguments in Light of the Full 

Body of Scientific Evidence 

EPA’s overarching conclusion is that 

there is no material or reliable basis to 

question the validity and credibility of 

the body of science underlying the 

Administrator’s Endangerment Finding 

or the Administrator’s decision process 

articulated in the Findings themselves. 

The large body of scientific evidence 

and the Administrator’s conclusions 

drawn from this evidence, including the 

appropriate characterizations as to the 

degrees of certainty and uncertainty in 

the underlying science, has not been 

changed by the arguments presented by 

the petitioners. While the petitioners 

largely rely on making broad assertions 

about the science based on private 

communications, EPA’s focus is on the 

actual science itself, and the petitioners 

have not presented a valid basis 

supporting the view that the credibility 

or reliability of either the science or the 

scientific conclusions that petitioners 

contest have been undermined or 

changed in any material way. 

The petitioners present very little 

scientific evidence or scientific 

arguments to support their views. As 

demonstrated above, they do not rely on 

an in-depth and comprehensive analysis 

of the science and make arguments on 


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that basis. Instead they largely rely on 

a small number of statements from the 

CRU e-mails in which certain scientists 

expressed various thoughts and feelings, 

such as frustration and disrespect for 

other scientists, along with strong views 

on scientific issues and what constitutes 

good science. From this evidence, the 

petitioners conclude that the scientists 

acted together to distort the review and 

presentation of the body of science, and 

presented false, inaccurate, or 

misleading conclusions about what the 

body of scientific studies tells us about 

various aspects of climate change. 

Petitioners do not argue their case by 

marshalling and synthesizing the 

breadth of the body of scientific 

evidence and demonstrating why it 

leads to a different conclusion than that 

presented in the underlying science 

supporting the Findings. Instead, they 

largely argue that the state of mind of 

these scientists and their private 

remarks must lead to the conclusions 

drawn by the petitioners. They also 

conclude, based on a selective reading 

of the CRU e-mails, that the state of the 

science must be much more uncertain 

than how it is characterized in the 

underlying assessment reports used by 

EPA and the Endangerment Finding. 

Other than the conduct of sending 

e-mails that evidence strong emotions or 

unprofessional language, the petitioners 

present almost no evidence of any 

actual conduct by the scientists that 

support their conclusion that the 

science was assessed inaccurately. Most 

of the conduct that is identified, such as 

statements about the professional 

challenges of working as an IPCC lead 

author or the discussion with a journal 

editor to delay the paper publication 

(but not the online publication) of a 

study, is of no relevance to the 

evaluation of the science involved in the 

assessment reports and the EPA 

rulemaking. 

Petitioners’ claims of distortion of 

data, withholding of temperature data, 

or abuses in data analysis also do not 

withstand scrutiny. These issues are 

addressed in fuller detail in volumes 1 

and 3 of the RTP document. In addition, 

some of these issues were raised and 

addressed by EPA during the public 

comment period, and thus fail to meet 

the test in CAA 307(d). Petitioners have 

shown no evidence that the HadCRUT 

temperature record based on the 

underlying raw temperature data was 

flawed in any way, or that CRU’s lack 

of possession of a small portion of the 

raw temperature data impedes the 

ability of other researchers to check the 

publically available data, or that it 

changes the scientific validity of the 

analyses performed by CRU. The 

HadCRUT temperature record remains 

consistent with all of the other evidence 

of warming, including other surface 

temperature analyses as well as other 

evidence of warming, such as satellite 

data, ocean temperature data, and 

physical and biological evidence of the 

effects of warming. 

The petitioners ask EPA to reject the 

comprehensive and well-documented 

views reflecting a synthesis of the body 

of scientific evidence produced by the 

U.S. and the world’s climate science 

community, and instead accept 

assertions and three profound leaps in 

logic, based on a very limited discussion 

of the underlying science. The first leap 

is that petitioners’ objections to the 

HadCRUT surface temperature record 

and objections to reconstructions of past 

global temperatures are correct, and that 

as a result all other elements of 

greenhouse gas and climate change 

science indicating temperatures are 

increasing and that anthropogenic 

greenhouse gases are the primary driver 

should be called into question. The 

second leap is that some errors found in 

the IPCC AR4—errors that are both 

minor and tangential to EPA’s 

Endangerment Finding—mean that any 

and all information from that report 

should be called into question. The 

third is that any other assessment report 

that relies on or references the IPCC 

AR4 in any way is also suspect and 

cannot serve as a foundation for the 

Endangerment Finding. EPA’s review, 

discussed in the following sections and 

in fuller detail in the three volumes of 

the RTP document, plus the latest 

conclusions of the May 2010 NRC 

scientific assessment, lead us to the firm 

conclusion that the petitioners’ specific 

arguments and broad claims must be 

rejected for their lack of supporting 

evidence and absence of comprehensive 

and clear scientific reasoning. 

As stated in one of the findings of the 

Independent Climate Change E-mails 

Review, ‘‘In particular, we did not find 

any evidence of behaviour that might 

undermine the conclusions of the IPCC 

assessments.’’ EPA’s review and analysis 

leads to this same conclusion. 

E. Specific Responses to the Claims and 

Arguments Raised by Petitioners 

EPA’s responses to the petitioners’ 

specific claims and arguments are 

summarized here, and provided in more 

detail in the RTP document. The more 

general conclusions provided in this 

Decision, articulated above, are based 

on EPA’s detailed analysis of and 

responses to the petitioners’ issues 

contained in the RTP document. As 

stated previously, the science-based 

objections raised by petitioners fall into 

three categories: Climate science and 

data issues; issues raised by EPA’s use 

of IPCC AR4; and process issues. This 

section and the three volumes of the 

RTP document are organized around 

these three categories. 

1. Climate Science and Data Issues 

Raised by the Petitioners 

The climate science and data issues 

raised by the petitioners include (a) the 

validity of the temperature record from 

the distant past and whether or not 

recent observations of global warming 

are unusual; (b) the validity of the more 

recent surface temperature record; (c) 

the validity of the HadCRUT surface 

temperature record and other CRU 

datasets; (d) the validity of the recent 

surface temperature record as 

constructed by the National 

Oceanographic and Atmospheric 

Administration (NOAA) and National 

Aeronautics and Space Administration 

(NASA); and (e) the implications of new 

studies not previously considered. Each 

of these issues is addressed in general 

here and in fuller detail in the Volume 

1 of the RTP document. 

a. Validity of Paleoclimate Temperature 

Reconstructions and Attribution of 

Observed Temperature Trends to 

Greenhouse Gases 

Petitioners raise various claims about 

the comparisons of current temperatures 

with historic temperatures of the distant 

past (called paleoclimate temperature 

reconstructions). Petitioners use these 

claims to contest the view that current 

warming is unusual and argue that EPA 

should not rely on this evidence to 

support the statement in the 

Endangerment Finding that recent 

warming can be primarily attributed to 

increased atmospheric concentrations of 

greenhouse gases caused by human 

emissions. EPA addresses these claims 

in Volume 1, section 1.1 of the RTP 

document, and summarizes the 

responses here. 

As background, surface temperature 

records based on observation have 

global coverage over approximately the 

last 150 years. To determine 

temperatures in time periods before the 

instrumental record, climate scientists 

use indirect methods called ‘‘proxies.’’ 

These indirect methods include 

examining tree rings, pollen, plankton 

records in sediment cores, and other 

proxies such as atomic isotope ratios in 

corals and other marine organisms. The 

statistical relationships found between 

the proxy and regional temperatures 

over the past 150 years (i.e., the period 

when the datasets overlap) are then 

used to extrapolate over the hundreds or 

thousands of years before instrumental 


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22National Research Council (NRC) (2006). 

Surface Temperature Reconstructions For the Last 

2,000 Years. National Academy Press. Washington, 

DC. 

23 D’Arrigo, R. et al. (2008). On the ‘‘divergence 

problem’’ in northern forests: a review of the treering evidence and possible causes, 60 Glob. Planet. 

Chng. 289. Esper, J. and D. Frank (2009). Divergence 

pitfalls in tree-ring research. Clim. Chng. 94: 261, 

262. 

24Loehle, C. and J. H. McCulloch, 2008. 

Correction to: A 200-year global temperature 

reconstruction based on non-tree proxies. Energy & 

Environment. 19(1): 93–100. 

25Mann, M.E. et al. (2008). Proxy-based 

reconstructions of hemispheric and global surface 

temperature variations over the past two millennia. 

PNAS. 105:36. 

records. Researchers combine a number 

of different proxies from around the 

world to develop their temperature 

reconstructions of the past. The further 

back in the past, the fewer proxies that 

exist and the greater the uncertainty 

becomes about estimating past 

temperatures. These reconstructions 

contribute to our understanding of 

historical temperatures and variability 

and enable comparison of present 

changes to changes in the past. They 

also allow testing of climate models and 

our understanding of how the climate 

system responded to historical 

conditions. The term ‘‘divergence’’ refers 

to a certain subset of the tree ring 

records whose growth in recent decades 

no longer correlates with (i.e., it 

‘‘diverges’’ from) temperature change in 

recent decades. 

Petitioners claim the CRU e-mails 

provide new reason to highlight this 

divergence issue as it may undermine 

the use of historical temperature 

reconstructions. EPA disagrees, and 

finds that the CRU e-mails demonstrate 

that the scientists were well aware of 

the divergence issue and addressed it 

appropriately in their research and 

publications. A cursory examination of 

this literature and the assessment 

reports makes clear that the science 

community has long been aware of the 

tree ring divergence issue, as well as 

other issues concerning the certainty of 

proxy reconstructions. The uncertainties 

in the proxy reconstructions were fully 

presented in the assessment literature, 

and were considered by EPA in making 

the Endangerment Finding. In fact, 

during public comment on the proposed 

Finding, EPA evaluated and responded 

to these issues (See EPA RTC, Volume 

2, comments 2–64 and 2–67). A recent 

NRC assessment (2006) 22 focused 

specifically on surface temperature 

reconstructions and it found that 

divergence is not an issue with all tree 

ring proxies, much less the many nontree ring proxies used in the 

temperature reconstructions. The 

petitioners cite some studies 23 in 

support of their views that the 

divergence issue was hidden and not 

appropriately acknowledged. These 

studies do not support the petitioners’ 

arguments, instead stating that the 

divergence problem is neither new nor 

hidden, that it is actually ‘‘widely 

perceived’’ and that the ‘‘potential 

consequences [are] discussed (e.g., 

IPCC, 2007).’’ 

Nonetheless, petitioners allege that a 

number of the CRU e-mails suggest that 

these temperature reconstructions were 

manipulated and that data has been 

hidden. Several petitioners refer to an 

e-mail including the phrase ‘‘Mike’s 

Nature trick’’, claiming that this quote is 

evidence of deception. However, this 

e-mail about how to connect tree ring 

data and thermometer data was written 

in 1999, prior to the publication of the 

IPCC Third Assessment Report from 

2001. The e-mail refers to a graph 

prepared for the front cover of World 

Meteorological Organization (WMO) 

report, unrelated to IPCC, published in 

2000. This graph and underlying 

analysis that is being objected to by 

petitioners has no relevance to the 

discussion in either IPCC AR4 or EPA’s 

TSD, and therefore did not enter into 

the Administrator’s consideration for 

the Endangerment Finding. The IPCC 

AR4 and other assessment literature 

very transparently document, illustrate, 

and discuss the divergence issue, as did 

EPA in the TSD and RTC document. See 

Figure 4.3, TSD. Other quotes provided 

by the petitioners do not support a 

claim of ‘‘deliberate manipulation’’ or 

‘‘artificial adjustments’’ when 

considered in context. This issue of 

historic temperature reconstructions is 

discussed in detail in Volume 1 of the 

RTP document. The UK Independent 

Climate Change E-Mails Review reached 

a similar conclusion to EPA’s, stating 

that they ‘‘do not find that the way that 

data derived from tree rings is described 

and presented in IPCC AR4 and shown 

in its Figure 6.10 is misleading’’ and 

regarding the phenomenon of 

divergence that they ‘‘are satisfied that it 

is not hidden and that the subject is 

openly and extensively discussed in the 

literature, including CRU papers.’’ 

Petitioners also claim that the 

Medieval Warming Period may have 

been warmer than present temperatures, 

undermining the conclusion that 

greenhouse gases are a primary cause of 

current warming. Issues involving the 

Medieval Warming Period were 

addressed during the public comment 

period (see Response 2–62 of the RTC 

document). Petitioners raise this issue 

again because of their assertion that the 

CRU e-mails indicate that the current 

temperature record may be faulty, 

which to them gives the Medieval 

Warming Period new significance. In 

making their case, petitioners cite a 

temperature reconstruction without tree 

rings, notably a study that could have 

been submitted during the public 

comment period.24 However, that paper 

uses an improper methodology, a 

straight average of 18 proxies, 

apparently without weighting them to 

account for geographic distribution or 

the strength of the data to detect 

temperature changes. In contrast, 

another study using a more 

sophisticated methodology 25 found that 

recent Northern Hemispheric warmth 

was anomalous regardless of whether 

tree ring data were included. 

Petitioners argue that if the current 

warming is not ‘‘unprecedented,’’ our 

ability to attribute the current warming 

to greenhouse gases is undermined, and 

that EPA has not provided ‘‘compelling’’ 

evidence that the current temperatures 

are unusual compared to the last 1,000 

years. Petitioners misstate EPA’s 

conclusions and overstate the role of 

this line of evidence. EPA has not 

claimed that current warming is 

‘‘unprecedented’’; the Administrator’s 

Endangerment Finding stated that ‘‘The 

second line of evidence arises from 

indirect, historical estimates of past 

climate changes that suggest that the 

changes in global surface temperature 

over the last several decades are 

unusual.’’ (74 FR 66518) EPA found the 

scientific evidence ‘‘supports’’ this 

conclusion (see for example section 4 of 

the TSD), not that it compels it, as 

petitioners incorrectly assert. EPA 

clearly characterized the uncertainty in 

this line of the evidence, properly 

stating that there is significant 

uncertainty in the temperature record 

prior to 1600 A.D. (see section 4(b) of 

the TSD). 

This comparison to past temperature 

estimates is also only one part of the 

paleoclimate evidence. Other parts, not 

contested by petitioners, include (1) the 

correlation and interactions over time 

between periods of higher greenhouse 

gas concentrations and higher 

temperatures, and (2) the use of 

temperature reconstructions to evaluate 

and improve climate models. Overall, 

this comparison of current to past 

temperatures is but one part of one line 

of evidence in attributing current 

warming to greenhouse gases; it is not 

the primary line of evidence. The 

petitioners have not shown that EPA 

failed to properly characterize this 

evidence, and the petitioners’ assertions 

regarding EPA’s treatment and reliance 


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26http://www.ncdc.noaa.gov/sotc/ 

?report=global&year=2009&month=13&submitted=

Get+Report#gtemp. 

27 Jones, P.D., P.Y. Groisman, M. Coughlan, N. 

Plummer, W.-C. Wang, and T.R. Karl (1990). 

Assessment of urbanization effects in time series of 

surface air temperature over land. Nature 347:169– 

172. 

on this evidence are inaccurate and 

misleading. 

Petitioners claim that characteristics 

of trends in the vertical temperature 

profile of the atmosphere should present 

a ‘‘fingerprint’’ of human-induced 

warming, and that this expected 

fingerprint has not been observed in the 

tropics, and that therefore the 

attribution of recent warming to human 

causes is placed into doubt. However, 

EPA recognized and already addressed 

this issue in the TSD (see section 5(a) of 

the TSD) which notes newer data sets 

are in general agreement with climate 

models in the tropics and therefore 

there is no longer an inconsistency. In 

addition, petitioners do not contest any 

of the other important pieces of 

evidence that link current warming to 

greenhouse gases, such as rates of sea 

level rise and Arctic ice loss. 

Petitioners claim that the projections 

from climate models do not support 

attribution to greenhouse gases because 

the models have not explained why 

there may have been a slowdown in the 

rate of warming over the last 10 or so 

years. First, according to the latest 

NOAA (2010) data,26 the decade 

spanning 2000–2009 was substantially 

warmer than the prior decade (1990– 

1999) (see also the figure in Response 1– 

22 in Volume 1 of the RTP document). 

The exact rate of warming in the past 

decade depends on one’s choice of 

temperature record and the start and 

stop date chosen for computing a trend 

in that record. Second, whether models 

can reproduce a short-term slowdown in 

the warming in no way invalidates their 

use for attributing or projecting longterm changes in global climate from 

anthropogenic forcing of the climate 

system. The latter long-term projections 

are their primary purpose, not year-toyear projections of changes over a 

period of around a decade or less. In 

addition, recent studies indicate that 

short-term trends can run counter to 

overall long term trends, and the climate 

models can reproduce this. 

The IPCC, NRC, and EPA’s TSD 

appropriately reflect the state of the 

science and discussed the areas of 

uncertainty in temperature 

reconstructions. They fully considered 

the entire body of evidence, including 

the kinds of evidence and arguments 

presented by petitioners. In contrast, 

petitioners generally have not 

considered the breadth of evidence on 

these issues, and they fail to 

acknowledge the comprehensive 

treatment of these issues in the 

assessment reports. They have instead 

relied upon a limited selection of 

information that does not warrant the 

broad conclusions they draw. 

Petitioners’ evidence does not 

materially change or warrant any less 

reliance on the other important lines of 

evidence linking greenhouse gases and 

climate change: Our basic physical 

understanding of the effects of changing 

greenhouse gas concentrations and other 

factors; the broad, qualitative 

consistency between observed changes 

in climate and the computer model 

simulations of how climate would be 

expected to change in response to 

anthropogenic emissions of greenhouse 

gases (and aerosols); as well as other 

important evidence of an anthropogenic 

fingerprint in the observed warming. 

b. Validity of the HadCRUT Surface 

Temperature Record 

Petitioners present five major 

arguments regarding the validity and 

use of the HadCRUT temperature 

record. In particular, they claim that: (1) 

Alleged destruction of raw data for the 

HadCRUT temperature record renders 

the scientific data on surface 

temperature worthless and makes 

replication of temperature trends 

impossible; (2) comments within code 

and log files are evidence of 

manipulation that ‘‘undercuts the 

credibility of CRU databases;’’ (3) a 

report allegedly claims to show that the 

Russian stations used in the HadCRUT 

temperature record were selectively 

chosen to show increased warming; (4) 

the IPCC improperly relied on Jones et 

al. (1990) 27 for its conclusions about the 

magnitude of the urban heat island 

effect; and (5) the allegedly faulty 

HadCRUT temperature record is the 

primary basis for the conclusion of 

‘‘unprecedented’’ warming and the 

foundation of anthropogenic global 

warming analyses. In effect petitioners 

use these claims to contest the existence 

or amount of recent warming. 

As background, monitoring the 

changes in the Earth’s surface 

temperature is only one of several key 

components of studying climate change. 

Other indicators of climate change 

include receding glaciers, shrinking 

Arctic sea ice, and sea level rise, as well 

as a number of other temperaturesensitive physical and biological 

changes, such as bird migration patterns 

and changes in the length of the growing 

season. 

Surface temperature records are built 

on data collected from thousands of 

weather stations around the world, as 

well as sea surface temperature records 

taken by ships crossing the ocean on 

different routes, with some data going 

back more than 100 years. Because the 

data originates from many international 

sources, some quality control is required 

such as checking for and deleting data 

that are shown to be duplicate, or 

adjusting to account for inconsistent 

reporting methodologies. Additionally, 

these weather stations and their data 

were not originally intended to be used 

for long-term climate monitoring, and 

sometimes adjustments are necessary to 

avoid confusing a local artificial 

temperature change (e.g., due to a shift 

in the elevation of a monitoring station) 

with large-scale or global temperature 

patterns. 

The three major temperature record 

developers, CRU, NOAA, and NASA, all 

use different approaches for these 

adjustments. The approach by CRU is 

the only one of the three that relies on 

a substantial set of manual adjustments 

globally. NOAA uses an automated 

algorithm to adjust for discontinuities 

such as might be expected from station 

moves, with additional corrections in 

the U.S. because a large number of 

stations changed measurement 

instrumentation as well as the time of 

day of temperature readings. NASA uses 

NOAA’s adjustments for the U.S. as an 

input, but uses an algorithm that 

identifies urban centers based on 

satellite observations and adjusts those 

urban centers to have trends that are 

consistent with nearby rural stations. In 

addition, the data are not evenly 

situated around the planet, and need to 

be extrapolated and averaged so that 

areas with many stations are not 

overrepresented and areas with few 

stations are not underrepresented. The 

kinds of adjustments made to the 

underlying raw data are designed so that 

the surface temperature analyses reflect 

as much as possible the actual direction 

and magnitude of any change in surface 

temperature and do not reflect other 

changes, such as changes in 

measurement devices. 

The temperature reconstructions 

generally do not evaluate the average 

actual surface temperature, but rather 

determine the changes in temperature, 

both regionally and globally. The 

emphasis on changes in temperature is 

important, because they are better 

correlated with large regional changes. 

For example, two nearby stations—one 

on top of a mountain and one in the 

valley—will likely have different 

absolute temperatures, but are likely to 


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28Pivovarova, N. (2009). Institute for Economic 

Analysis (IEA): How warming is made. The case of 

Russia. (December 15, 2009). Available at: http:// 

www.iea.ru/article/kioto_order/15.12.2009.pdf; 

translation at: http:// 

climateaudit.files.wordpress.com/2009/12/iea1.pdf. 

Last accessed on April 26, 2010. 

have similar changes in temperature 

over time. 

CRU also maintains a dataset known 

as TS3.0, with TS2.1 as an older 

version. This dataset is different from 

HadCRUT, and includes various climate 

metrics and data information not in 

HadCRUT. TS2.1 is referred to in IPCC 

AR4 only twice in relation to historical 

precipitation data. Almost all of the 

references to global temperatures over 

time that refer to CRU data refer to the 

HadCRUT temperature record, and not 

the TS3.0 or 2.1 datasets. 

(i) Raw Data. 

Several petitioners claim that CRU 

has not kept all of the raw data from the 

surface weather stations, only the 

adjusted data, e.g. corrected for station 

moves and measurement changes, and 

therefore the evidence for warming in 

the past century is questionable and 

cannot be independently replicated. 

CRU acknowledges that it did not 

keep a small percent of the raw weather 

station data collected since the 1980s 

and that it cannot release other raw data 

because of agreements with national 

meteorological organizations. CRU has 

provided a detailed explanation for its 

handling of the data, and EPA already 

addressed this issue at length in 

Response 2–39 of the RTC. Not retaining 

a small amount of the raw data does not 

interfere in a material way with 

replication or development of 

independent estimates of global or 

regional surface temperature history. 

The vast majority of the raw weather 

station data is indeed publicly available 

from the Global Historical Climate 

Network (GHCN) and other public data 

sources, contrary to the petitioners’ 

assertions. An independent estimate of 

global temperatures can be generated, as 

NASA/GISS, NOAA/NCDC, and other 

groups have done. The separate NASA 

and NOAA analyses of global surface 

temperature records find similar 

temperature increases and strongly 

support the conclusion that the 

HadCRUT surface temperature record 

accurately reflects the changes in 

temperature. The UK Independent 

Climate Change E-Mails Review was 

able to download raw data and produce 

global temperature trend results similar 

to the other analyses in less than two 

days. In addition, the major conclusions 

about warming based on the HadCRUT 

temperature record have remained 

robust, even as CRU integrated more 

data and refined its methodologies over 

two decades. 

The petitioners do not provide any 

global analysis of the available data 

from temperature stations that yields a 

different result. Further, they have 

provided no evidence that an additional 

or different analysis using the publicly 

available temperature data would yield 

a different result from the warming 

reflected in the HadCRUT, NOAA and 

NASA analyses of global surface 

temperature. It is an unwarranted leap 

in logic to assume these analyses have 

no merit because a small percentage of 

the underlying raw data is no longer in 

CRU’s possession. 

(ii) Biased Methods. 

Petitioners claim the various methods 

that CRU used to integrate and adjust 

the surface temperature data introduce 

biases in the temperature record that 

were designed to support the view that 

global surface temperatures are 

increasing faster than they actually are. 

The petitioners refer to this as 

‘‘manipulation’’ and cite several CRU emails and other documents as support. 

A couple of fragments of code and a 

debugging log (HARRY_READ_ME.txt) 

are quoted extensively as support for 

these claims. 

EPA has thoroughly reviewed all of 

the disclosed CRU e-mails in light of the 

petitioners’ claims, and EPA responds to 

all of the petitioners arguments in detail 

in Volume 1 of the RTP document. Here, 

EPA focuses on two of the most wellknown CRU documents: 

BRIFFA_SEPT98_.PRO and 

HARRY_READ_ME.txt. 

The code fragment 

BRIFFA_SEPT98_E.PRO that includes a 

comment in the header for the code that 

states that the code ‘‘APPLIES A VERY 

ARTIFICIAL CORRECTION FOR 

DECLINE’’ is over a decade old and 

appears to be provisional test code. The 

comments in capital letters are to 

remind the programmer to replace the 

temporary fudge factors with more valid 

adjustments before the code is used for 

public products. It further appears that 

the ‘‘fudge’’ factor highlighted by 

petitioners is not related to the 

HadCRUT temperature record, but 

instead refers to the divergence issue 

discussed above and the unrelated 

WMO report. The petitioners do not 

show that the BRIFFA_SEPT98_E.PRO 

code has any relationship to the 

HadCRUT temperature record or that it 

was actually used for any public final 

product. 

The HARRY_READ_ME.txt debugging 

notes are a record of attempts to update 

the CRU TS product by merging six 

years of additional data to an old data 

set and migrating the code to a new 

computer system at the same time. The 

petitioners fail to acknowledge that the 

CRU TS products are different from the 

HadCRUT temperature record that is 

referred to in the assessment reports and 

the EPA TSD, and they improperly 

assert that issues with the TS products 

directly call into question the HadCRUT 

temperature record. The file referred to 

by petitioners does indicate that there 

were a number of difficult quality 

control issues that had to be addressed 

concerning new data, the code written 

for the updating process, and the old 

code for producing TS2.1. The full 

debugging log demonstrates that a 

number of the identified problems were 

successfully fixed. Many of the quotes 

highlighted by petitioners were 

expressions of frustration that were not 

related to the quality of the product. A 

number of the problems were related to 

inconsistencies involving reported 

WMO codes used to identify weather 

stations. These inconsistencies have 

previously been highlighted in the 

literature, and the approach to address 

them as related in the log file was 

similar to the approaches detailed in 

previous papers. In sum, the 

HARRY_READ_ME.txt file is focused on 

issues that do not relate to the 

HadCRUT temperature record and 

contains no evidence of any attempts to 

bias any output data. 

(iii) Biased Dataset. 

Petitioners claim that CRU scientists 

selectively chose Russian data stations 

to create a biased dataset that would 

show more warming than would the full 

dataset. To support this argument, they 

provide a link to a translation (hosted at 

a blog) of a report written in Russian by 

the Institute for Economic Analysis in 

Moscow (Pivovarova, 2009).28

Examination of this document 

indicates that the Moscow Institute for 

Economic Analysis temperature record 

using the full set of Russian stations 

agrees well after 1955 with the 

temperature record that the Institute 

derived from the set of stations used in 

the HadCRUT temperature record, and 

that the difference between temperature 

records derived from the two datasets is 

mainly in the 1850 to 1950 portion. 

However, the method used by the 

Institute for Economic Analysis to 

compare the two temperature datasets 

was an improper comparison of apples 

and oranges (i.e., the HadCRUT 

temperature record uses a different 

geographic weighting approach than did 

the Institute for Economic Analysis, 

which is more important when the data 

is sparse as it is before 1955). 

Petitioners also do not support their 

claim that CRU selectively picked 

stations. EPA has found no evidence in 


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29 Jones, P.D., P.Y. Groisman, M. Coughlan, N. 

Plummer, W.-C. Wang, and T.R. Karl (1990). 

Assessment of urbanization effects in time series of 

surface air temperature over land. Nature 347:169– 

172. 

the CRU e-mails or the information 

provided by petitioners to indicate that 

stations were chosen by CRU scientists. 

CRU uses a number of data sources and 

the petitioners did not assess whether 

these data sources included the missing 

Russian stations, or whether the stations 

met criteria discussed in published 

papers (see volume 1 of the RTP 

document). 

(iv) Urban Heat Island Corrections. 

Petitioners criticize the urban heat 

island corrections as another alleged 

example of temperature data 

manipulation. 

This issue is not new. EPA addressed 

urban heat island issues in responses 2– 

28 through 2–30 of the RTC document. 

Referencing Jones et al. (1990) 29 and 

other studies, IPCC AR4 concludes that 

‘‘urban heat island effects are real but 

local, and have not biased the largescale trends.’’ In addition, satellite 

records are not susceptible to urban heat 

island effects and globally show similar 

trends to land-based measurements over 

their overlapping time period. EPA 

summarized this information in the 

TSD. EPA’s specific responses to the 

petitioners’ arguments are provided in 

Volume 1 of the RTP document. 

(v) Faulty Temperature Record Used 

by IPCC. 

Petitioners claim the allegedly faulty 

HadCRUT temperature record is the 

primary or core support for IPCC 

conclusions on current warming, 

attribution, and projections of future 

warming, thus calling into question the 

fundamental conclusions of IPCC AR4 

and EPA’s use of IPCC AR4 as a primary 

reference to support the Endangerment 

Finding. 

First, for reasons stated above and 

detailed further in Volume 1 of the RTP 

document, EPA disagrees with the 

petitioners’ claims that the HadCRUT 

temperature record is faulty. Second, as 

noted previously, multiple independent 

assessments of climate change science 

by not only the IPCC but also USGCRP 

and NRC have concluded that warming 

of the climate system in recent decades 

is ‘‘unequivocal.’’ This conclusion is not 

drawn from any one source of data, but 

is based on a review of multiple sources 

of data and information, which includes 

the HadCRUT temperature record, 

additional temperature records from 

other sources, and numerous other 

independent indicators of global 

warming (see section 4 of EPA’s TSD). 

NOAA and NASA surface 

temperature records show nearly 

identical warming trends to the 

HadCRUT temperature record, despite 

different analysis methodologies. 

Moreover, entirely independent records 

of lower tropospheric temperature 

measured by both weather balloons and 

satellites demonstrate strong agreement 

with the surface temperature records of 

all three organizations. The TSD also 

discussed the following additional 

indicators of global warming: 

• Increasing global ocean heat content 

(Section 4(f) of the TSD). 

• Rising global sea levels (Section 4(f) 

of the TSD). 

• Shrinking glaciers worldwide 

(Section 4(i) of the TSD). 

Changes in biological systems, 

including poleward and elevational 

range shifts of flora and fauna; the 

earlier onset of spring events, migration, 

and lengthening of the growing season; 

and changes in abundance of certain 

species (Section 4(i) of the TSD). 

It is this entire body of evidence that 

supports the conclusion that there is an 

unambiguous warming trend over the 

last 100 years, with the greatest 

warming occurring over the past 30 

years. Contrary to petitioners’ claims, 

the models used to generate projections 

of future warming described in IPCC 

AR4 do not directly rely on the 

HadCRUT or other surface temperature 

records. These models are driven by 

physical equations describing the 

radiative properties and dynamics of the 

atmosphere and oceans and 

parameterizations of small-scale 

processes, not observed temperature 

data. 

In summary, EPA disagrees with the 

premise of this claim—that the 

HadCRUT temperature record is 

faulty—and therefore disagrees that use 

of the HadCRUT temperature record 

within IPCC AR4 has somehow 

corrupted the IPCC’s conclusions. In 

addition, the petitioners’ claim that the 

HadCRUT temperature record is such a 

central thread to the entire IPCC AR4 

that this would then invalidate all IPCC 

AR4 conclusions is unsupported and 

exaggerated. 

c. Validity of NOAA and NASA 

Temperature Records 

A number of petitioners question the 

validity of NOAA and NASA surface 

temperature records, raising claims 

concerning station ‘‘drop-out,’’ flawed or 

manipulative adjustments to data, and a 

lack of independence between the three 

major surface temperature records. 

EPA’s response clearly shows that (1) 

petitioners rely on a questionable, nonpeer-reviewed source which contains a 

number of inaccurate statements and 

relies on a scientifically flawed analysis; 

(2) petitioners demonstrate a 

fundamental scientific 

misunderstanding of what issues 

actually would lead to either a warming 

or cooling bias in the temperature 

record; and (3) petitioners fail to 

acknowledge that climatic records other 

than land surface temperature records 

also show clear warming trends. 

As background, one of the sources of 

data for the HadCRUT temperature 

record is the GHCN, which was 

developed and is maintained by NOAA. 

The GCHN dataset is also used by both 

NOAA and NASA in their surface 

temperature records. NOAA, NASA, and 

CRU each calculate global surface 

temperature trends from a combination 

of GHCN data and other data sources. 

Each group performs different 

adjustments and corrections to the data, 

and in some cases uses different subsets 

of the GHCN data or includes other 

outside datasets. 

Petitioners contest certain individual 

aspects or details of the surface 

temperature evidence, and in general 

raise objections that fail to recognize the 

various approaches used to develop the 

global surface temperature record. Many 

of the issues raised by the petitioners 

are not new, and have been addressed 

previously within the TSD and RTC 

document. Some objections fail to 

recognize that the change in 

temperature is being evaluated, not the 

absolute temperature level. Other 

objections misconstrue the underlying 

studies cited by the petitioners. In 

several cases, petitioners object that 

various adjustments to the raw data 

have the effect of changing the data, but 

they fail to consider that adjustments 

are appropriately performed, for 

example, to account for circumstances 

that otherwise would interfere with 

accurately isolating and determining a 

real trend in surface temperature. 

Petitioners fail to address the reasons 

behind the adjustments and fail to 

explain or show that the types of 

adjustments made in developing such 

datasets from multiple sources of data 

are not appropriate. Likewise, 

petitioners fail to account for the valid 

data-driven reasons that have led to a 

reduction over time in the number of 

weather stations used for the surface 

temperature analysis, fail to explain or 

show that the reductions have biased 

the temperature record, and overstate 

the magnitude of the temperature 

station reductions in some cases. 

Consistency between all three 

separate surface temperature records 

(NASA, NOAA, CRU), as well as 

consistency between the three surface 

temperature records and other evidence 

of warming, such as satellite data, ocean 


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30 D’Aleo and Watts (2010). Surface Temperature 

Records: Policy Driven Deception? Available at: 

http://scienceandpublicpolicy.org/originals/ 

policy_driven_deception.html. Accessed: April 8, 

2010. 

31Peterson, T. C. and R. S. Vose (1997). An 

overview of the global historical climatology 

network temperature data base. Bull. Am. Met. Soc., 

78: 2837–2849. 

32Long, E.R. (2010). Contiguous U.S. 

Temperature Trends Using NCDC Raw and 

Adjusted Data for One-Per-State Rural and Urban 

Station Sets. Available at http:// 

scienceandpublicpolicy.org/images/stories/papers/

originals/Rate_of_Temp_Change_Raw_and_

Adjusted_NCDC_Data.pdf. Accessed April 8, 2010. 

temperature data, and physical evidence 

of the effects of warming, should be 

seen as confirmation of the evidence of 

warming. Petitioners appear to assume 

that all of this evidence must be wrong 

because they, incorrectly (see above), 

allege that some of it is. 

(i) Station Drop-out. 

Petitioners raise a number of issues 

regarding the alleged ‘‘drop-out’’ of 

stations after 1990, and the 

extrapolation of data from ‘‘warmer’’ 

areas to ‘‘colder’’ areas due to this dropout or for other reasons. They claim this 

leads to bias in the global surface 

temperature record. Volume 1, section 

1.4.3.1 of the RTP document addresses 

these claims in detail, and EPA’s 

summary of the issue follows. 

Many of the petitioners’ arguments 

rely on a non-peer-reviewed document 

by D’Aleo and Watts (2010).30 However, 

the study and the source upon which it 

relies do not support petitioners’ claims 

and conclusions. D’Aleo and Watts 

(2010) provide no evidence that there 

was a systematic and purposeful 

‘‘weeding out’’ process. Peterson and 

Vose (1997),31 the paper describing the 

GHCN dataset, describes the procedures 

for updating the GHCN database and 

explains that there are fewer measuring 

stations post-1992 than during the 1980s 

because only three of the data sources 

were being be updated on a regular 

basis. 

The D’Aleo and Watts study assumed 

that dropping stations at higher 

latitudes and in colder climates would 

result in a biased, warmer temperature 

trend. This unfounded assumption is a 

misunderstanding of the basic 

methodology used in analyzing surface 

temperature data. The surface 

temperature record sets evaluate the 

change in temperature over time at the 

various stations, not the absolute 

temperature level. The change in 

temperature over time is what indicates 

whether warming is occurring, not just 

the absolute temperature itself; for 

example, the Arctic region has been 

experiencing the highest rates of 

warming in the world, yet average 

Arctic temperatures are obviously still 

considerably colder than temperatures 

in most other world regions where 

average temperatures may not have 

increased as much. Petitioners 

incorrectly assume and do not explain 

why dropping these stations would bias 

the trend in the change in temperature 

toward greater warmth. In fact, 

petitioners fail to acknowledge that 

colder, high latitude areas are the 

regions of the world where the most 

warming is occurring, and is expected to 

continue occurring. If one were to 

accept this line of the petitioners’ 

original argument, there should have 

been concern about a bias towards less 

warming, not more warming. 

Moreover, the D’Aleo and Watts study 

used simple averages of absolute 

temperatures at the stations—without, 

apparently, taking into account their 

geographic distribution, much less 

calculating the change in temperature at 

the stations. This improper 

methodology is a significant error that 

undermines the petitioners’ critique of 

the temperature records. 

Furthermore, satellite data is available 

for the time periods of land-based 

station ‘‘drop-out’’, and the satellite 

temperature record is broadly consistent 

with surface temperature trends 

throughout the period when the ‘‘drop 

out’’ was occurring, confirming that the 

reduction in the number of data stations 

has not created a warming bias. 

Additionally, analyses using only 

stations with continuous records are 

almost identical to analyses using only 

stations which were ‘‘dropped’’ over the 

decades before the ‘‘drop-out’’, further 

undermining the petitioners’ claim that 

a warming bias was introduced by the 

station ‘‘drop-out’’. 

(ii) Improper Heat Island 

Adjustments. 

Petitioners assert that the urban heat 

island adjustments performed by NASA 

are insufficient or improperly applied, 

both globally and in the U.S. 

Southeastern Legal Foundation points to 

the study Long (2010) 32 as support for 

this assertion. These assertions are 

addressed in detail in volume 1, section 

1.4.3.2 of the RTP document, and EPA’s 

general response is summarized here. 

The Long (2010) study found that the 

net effect of NOAA adjustments to the 

raw data led to more warming in rural 

stations (the NOAA adjustments for the 

U.S. are also used in developing the 

NASA temperature record). Neither the 

petitioners nor Long show, however, 

that the adjustments to rural stations 

were inappropriate. (As stated above, 

adjustments are sometimes necessary to 

ensure a real, and not artificial, 

temperature change is being recorded 

when, for example, there might be a 

change in the elevation of the station or 

the daily timing of temperature 

readings.) Importantly, Long does not 

take into account either the changes in 

the time of observation or the changes 

in instrumentation at many rural 

stations, both of which led to 

temperature discontinuities that must be 

accounted for (e.g., through 

adjustments) in order to accurately 

portray the actual long-term temperature 

trend. 

With respect to the claimed failure to 

account for the urban heat island effect 

(where metropolitan areas tend to be 

warmer than surrounding areas due to 

built up land surfaces and building 

materials that retain heat), this issue 

was raised previously during the public 

comment period and EPA has addressed 

this in the RTC document. Response 2– 

28 of the RTC document makes clear 

that all of the different surface 

temperature datasets shown or cited in 

the TSD account for the urban heat 

island effect, either directly and/or 

indirectly. The TSD, citing IPCC 

(Trenberth et al., 2007), summarized 

this issue as the following: ‘‘ * * * 

urban heat island effects are real but 

local, and have not biased the largescale trends.’’ Note also that the oceans 

are warming and that the most rapid 

land-based warming is occurring in the 

Arctic, two areas where urban heat 

island effects are obviously not an issue. 

(iii) Data Adjustments. 

Petitioners cite the records of some 

individual stations that they claim show 

inappropriate manipulation, referring to 

stations in Australia and New Zealand. 

The evidence and arguments about 

data adjustments in New Zealand do not 

support the claim that these adjustments 

were invalid, after taking into account 

station history and neighboring station 

records. While there is some evidence 

that the automated algorithm may have 

introduced a spurious trend in one 

station in Australia in the NOAA 

temperature record (but not in the CRU 

or NASA temperature records), there 

was at least one valid reason for 

adjustment, and there is no evidence 

that this error in one station biases the 

large-scale global temperature trends. 

There is certainly no evidence of 

‘‘chicanery’’ involved in these 

adjustments, as one petitioner claimed. 

Petitioners focus on individual 

stations or limited areas. It is not 

surprising that data from one station or 

one region would show a large 

difference between adjusted and 

unadjusted data. The important point is 

that when the stations and regions are 

combined for a global analysis, these 


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33 IPCC (2010b). Fourth Assessment Report: 

Working Group II Erratum. Intergovernmental Panel 

on Climate Change (IPCC). 26 Jan. 2010. http:// 

www.ipcc.ch/publications_and_data/ar4/wg2/en/ 

errataserrata-errata.html. 

kinds of effects are balanced out and do 

not produce a bias in the overall result. 

EPA addresses these issues for the 

specific station data at issue in New 

Zealand and Australia in greater detail 

in Volume 1, section 1.4.3.4 of the RTP 

document. 

(iv) Independence of the NOAA and 

NASA Temperature Records. Some 

petitioners claim that the NOAA and 

NASA temperature records are not 

independent from the HadCRUT 

temperature record, developed by CRU, 

because they share some of the same 

raw data, and thus are assumed to also 

share some of the same alleged 

problems. EPA addresses these claims 

in volume 1, section 1.4.3.5 of the RTP 

document, and summarizes the 

response here. 

The three major temperature records 

do rely on a large amount of raw data 

obtained from GHCN, though the 

HadCRUT temperature record in 

particular integrates additional data 

obtained from other, independent 

sources. As discussed above and 

throughout volume 1 of the RTP 

document, petitioners have not 

demonstrated any major flaws in the 

raw data. In addition, the processing of 

the GHCN data by the three groups is 

carried out independently from one 

another; therefore the similarities of the 

final temperature trends among the 

three groups provide additional 

confidence in those independent 

processing methodologies, and 

additional confidence in the consistent 

result that average global temperatures 

are increasing. 

d. Implications of New Studies and Data 

Submitted by the Petitioners 

Several petitioners identify scientific 

studies most (but not all) of which were 

published around the time of or shortly 

after the Administrator’s December 2009 

Endangerment Finding, as well as data 

not previously considered as part of the 

scientific record for the Endangerment 

Finding. Petitioners argue these studies 

and data have the potential to alter our 

understanding of key aspects of the 

science and therefore warrant 

reconsideration of the Findings. 

Petitioners also argue that EPA ignored 

or misinterpreted scientific data that 

were significant and available when the 

Finding was made. These studies and 

data issues involve: 

• Implications of a new study on 

stratospheric water vapor. 

• Implications of material concerning 

whether carbon dioxide is well-mixed 

in the atmosphere and whether the 

airborne fraction of carbon dioxide has 

changed. 

• Implications of new tropical 

cyclone studies. 

• Implications of new data on 

observational snow cover trends. 

• A claim that EPA ignored a satellite 

dataset. 

Though some of these studies are 

new, they do not raise new issues that 

had not already been accounted for in 

the assessment literature used by EPA. 

Furthermore, petitioners misinterpret 

the findings of these new studies, make 

unsupportable claims, rely on 

incomplete and biased analyses, do not 

acknowledge important results, and, at 

times, ignore EPA’s record. Contrary to 

the petitioners’ claims, the new science 

cited by the petitioners does not 

undermine the key findings and 

conclusions that were reached in the 

assessment literature and the scientific 

foundation for the Administrator’s 

Findings. EPA’s study-by-study 

responses to the petitioners’ assertions 

can be found in volume 1, section 1.5 

of the RTP document. 

2. Issues Raised by EPA’s Use of the 

IPCC AR4 Assessment 

The objections raised by petitioners 

involving EPA’s use of IPCC AR4 

include (a) claims that recently found 

errors in IPCC AR4 undermine the 

IPCC’s credibility and therefore EPA’s 

use of IPCC AR4 as a primary reference 

document to support the Findings; and 

(b) claims that the IPCC has a policy 

agenda and is not an objective scientific 

body. These issues are addressed here 

and in greater detail in volume 2 of the 

RTP document. 

a. Claims That Errors Undermine the 

IPCC AR4 Findings and Technical 

Support for Endangerment 

The petitioners allege certain errors 

and unsupported statements in IPCC 

AR4 show that the science EPA relied 

upon is uncertain and/or not credible. 

Petitioners focus on the errors found 

regarding the timing of future projected 

melting of Himalayan glaciers, the 

percentage of the Netherlands below sea 

level, and a few more minor issues 

highlighted in the petitions. Each of 

these identified and alleged errors in 

IPCC AR4 has been examined in detail 

by EPA in Volume 2 of the RTP 

document; the general response is 

provided here. 

EPA has reviewed these IPCC AR4 

issues in the context of the key IPCC 

AR4 conclusions that were germane to 

the Administrator’s Endangerment 

Finding. The small number of errors and 

alleged errors in the IPCC AR4 report 

are not materially relevant for EPA’s 

Endangerment Finding. Neither of the 

two errors that are verifiable 

(Netherlands sea level and Himalayan 

glaciers) are relevant to impacts in the 

United States and neither are part of the 

basis for the Endangerment Finding. 

Furthermore, there is no evidence that 

these two confirmed minor errors are an 

indication of a more serious problem 

with the quality and reliability of any 

other findings and conclusions from the 

IPCC AR4, including those that are 

relevant for the Endangerment Finding. 

The remaining alleged errors, taken 

from non-peer-reviewed (‘‘gray’’) 

literature, do not appear to be errors 

according to EPA’s review. The IPCC 

provides guidance on how and when to 

use gray literature, and petitioners do 

not demonstrate that the guidance was 

not followed. Gray literature is not 

automatically incorrect or suspect, and 

an examination of the particular gray 

literature sources demonstrates that the 

petitioners’ allegations regarding these 

alleged errors are unfounded. 

Furthermore, the IPCC AR4 statements 

at issue have no material relevance to 

EPA’s Findings. Below are brief 

responses as to why the petitioners’ 

assertions based on these known and 

alleged errors are unfounded and 

exaggerated. Additional detail on these 

issues is contained in Section 2.1, 

Volume 2 of the RTP document. 

(i) Percent of the Netherlands Below Sea 

Level 

The IPCC AR4 erroneously stated that 

55 percent of the Netherlands is below 

sea level, whereas the actual number is 

only 26 percent. The statistic quoted in 

the AR4 was inaccurate, and a 

correction was published by the 

Netherlands Environmental Assessment 

Agency. What should have been stated 

is that 55 percent of the Netherlands is 

at risk of flooding; 26 percent of the 

country is below sea level, and 29 

percent is susceptible to river flooding. 

The error originated with the 

Netherlands Environmental Assessment 

Agency, not the IPCC. The IPCC 

published an official erratum (IPCC, 

2010b) 33 correcting the mistake, and 

noted ‘‘The sea level statistic was used 

for background information only, and 

the updated information remains 

consistent with the overall conclusions.’’ 

EPA does not refer to or rely on this 

statistic in the Findings and the 

percentage of the Netherlands below sea 

level does not pertain to the 

endangerment of public health and 

welfare in the United States. This error 

is very minor and has no impact on the 


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34 IPCC, 2010c. IPCC Statement on the Melting of 

Himalayan Glaciers, January 20, 2010. http:// 

www.ipcc.ch/pdf/presentations/himalayastatement-20january2010.pdf. 

35Rowell, A. and P.F. Moore (2000). Global 

Review of Forest Fires. World Wildlife Federation 

and The World Conservation Union. available at: 

http://data.iucn.org/dbtw-wpd/edocs/2000-047.pdf. 

(last accessed April 12, 2010). 

36Nepstad, D. C., et al. (1999). Large-scale 

impoverishment of Amazonian forests by logging 

and fire. Nature 398:505–508. 

37Sunday Times correction. http:// 

www.thesundaytimes.co.uk/sto/news/uk_news/ 

Environment/article322890.ece. 

climate science and health and welfare 

impacts supporting EPA’s 

Endangerment Finding. Furthermore, 

there is no evidence that this minor 

error is somehow, as the petitioner 

would allege, an indication of flawed 

science and poor quality control 

practices sweeping across all 

conclusions of IPCC AR4. 

(ii) Himalayan Glacier Projection 

Several petitioners state that the IPCC 

AR4 erred in projecting that glaciers in 

the Himalayas would disappear by 

2035, and that EPA relied on this 

projection. 

The IPCC did inaccurately state the 

year 2035 in that particular statement. 

The IPCC issued a correction concerning 

the melting of Himalayan glaciers (IPCC, 

2010c) 34 which also found that its 

general conclusion (provided below) on 

this issue remains robust and ‘‘entirely 

consistent with the underlying science.’’ 

Widespread mass losses from glaciers 

and reductions in snow cover over 

recent decades are projected to 

accelerate throughout the 21st century, 

reducing water availability, hydropower 

potential, and changing seasonality of 

flows in regions supplied by meltwater 

from major mountain ranges (e.g., 

Hindu-Kush, Himalaya, Andes), where 

more than one-sixth of the world 

population currently lives. 

EPA did not refer to the original IPCC 

projection in either its TSD or in the 

Administrator’s Endangerment Finding. 

It does not impact climate change 

science findings or have any meaningful 

implication for the issue of 

endangerment in the United States. 

Furthermore, Volume 2, section 2.1.3 of 

the RTP document shows that EPA 

reviewed the entire discussion of glacial 

effects in IPCC AR4 and concludes that 

this single faulty projection does not 

compromise the IPCC’s overall 

assessment of observed glacier loss, 

projected glacier loss, and the impacts 

of glacier loss on water resources in the 

Himalayas. 

(iii) Characterization of Climate Change 

and Disaster Losses 

The Southeastern Legal Foundation 

asserts that the IPCC AR4 

mischaracterized the findings of a study 

on climate change and historic disaster 

losses. EPA addresses the specific study 

at issue in Volume 2, section 2.1.4 of the 

RTP document and provides its more 

general response to this study and this 

issue here. 

First, EPA never cited or relied on the 

study at issue in its TSD. EPA did not 

discuss the link between climate change 

and the historic trends in the economic 

magnitude of disaster losses in the TSD. 

To support the Endangerment Finding, 

EPA cited the potential future impacts 

of climate change on the number and 

severity of extreme weather events, for 

which the Southeastern Legal 

Foundation levels no criticism. There 

are many different factors influencing 

the economic losses from a disaster, 

making it difficult to determine the 

impact of climate change from historic 

data on trends in economic disaster loss. 

Therefore, contrary to petitioners’ 

claims, EPA did not rely on historic 

trends of economic disaster losses (the 

subject of the study at issue) to evaluate 

the likelihood that climate change 

would lead to an increase in the number 

or frequency of such weather events. 

EPA instead focused on the physical 

and environmental (not the economic) 

impacts associated with climate change. 

The Administrator’s Endangerment 

Finding was clear that it was more 

forward-looking on this issue, stating: 

The evidence concerning how humaninduced climate change may alter extreme 

weather events also clearly supports a 

finding of endangerment, given the serious 

adverse impacts that can result from such 

events and the increase in risk, even if small, 

of the occurrence and intensity of events 

such as hurricanes and floods. (74 FR 66526) 

Furthermore, EPA’s review of the 

particular study at issue in Volume 2, 

section 2.1.4 of the RTP document 

shows that IPCC did not mischaracterize 

this study (e.g., IPCC included the 

appropriate caveats that were also stated 

in the underlying study), and that there 

were valid reasons for IPCC to use the 

study (e.g., as the most recent study of 

its kind at the time). 

(iv) Validity of Alps, Andes, and African 

Mountain Snow Impacts 

Several petitioners argue that IPCC 

claims of glacier melt in the Andes, the 

Alps, and parts of Africa arise from a 

magazine article and a Master’s thesis, 

and thus should not be viewed as 

credible. This particular issue is 

addressed in Volume 2, section 2.1.5 of 

the RTP document, and EPA’s response 

is summarized here. 

First, the extent to which snow and 

glaciers in the Andes, Alps and parts of 

Africa are melting or are projected to 

melt is an issue that is tangential to the 

Administrator’s decision that public 

health and welfare are endangered 

within the United States. Second, the 

petitioners mischaracterize these 

references within IPCC AR4, as these are 

actually references to ‘‘loss of ice 

climbs,’’ not reductions in mountain 

glaciers. Loss of ice climbs is an 

indicator of warming over ice-covered 

areas. EPA acknowledges that these 

references come from gray literature but 

these citations are appropriate and 

within the IPCC’s guidelines for use of 

gray literature. They provide additional 

evidence consistent with the peerreview-supported conclusion that in 

most places snowpack is declining and 

glaciers are melting worldwide. 

Furthermore, EPA did not rely on these 

references or refer to ‘‘loss of ice climbs’’ 

as an indicator of climate change. 

(v) Validity of Amazon Rainforest 

Dieback Projection 

Petitioners challenge the IPCC’s 

statement that ‘‘[U]p to 40 percent of the 

Amazonian forests could react 

drastically to even a slight reduction in 

precipitation,’’ alleging that it is 

unsubstantiated gray literature. EPA 

reviews this issue in Volume 2, section 

2.1.6 of the RTP document and provides 

its general response here. 

The IPCC AR4 statement in question 

about the Amazon appears to have been 

inadequately referenced but the content 

of the statement is correct according to 

the underlying literature. For this 

statement, the IPCC did cite gray 

literature 35, which itself cited a peerreviewed study 36 and relied on other 

peer-reviewed literature. It is worth 

noting that a newspaper that originally 

reported this alleged problem with the 

IPCC’s representation of this Amazon 

issue recently reversed itself and 

printed a correction on June 20, 2010.37

Morever, this issue is not discussed in 

the TSD and is of no relevance to the 

Findings. 

(vi) Validity of African Rain-Fed 

Agriculture Projection 

Some petitioners object that a 

statement in EPA’s TSD based on a 

statement in IPCC AR4 concerning 

reduction of yields from rain-fed 

agriculture in some countries in Africa 

was from gray literature and is therefore 

not credible. EPA reviews this issue in 

Volume 2, section 2.1.7 of the RTP 

document and provides its general 

response here. 

There is no evidence that the IPCC 

statement in question regarding African 


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38Agoumi, A. (2003). Vulnerability of North 

African Countries to Climatic Changes. 

International Institute for Sustainable Development 

and the Climate Change Knowledge Network. 

(2003). Available at: http://www.cckn.net//pdf/ 

north_africa.pdf. Accessed April 12, 2010. 

39 Jansen et al., 2007. 

40Russell, 2010. 

41Reviewer comments and author responses for 

draft chapters of IPCC AR4 Working Group I and 

II volumes (the primary volumes at issue for the 

Endangerment Finding) are publically available at 

the following Web sites, respectively: http:// 

hcl.harvard.edu/collections/ipcc/ and http:// 

ipcc-wg2.gov/publications/AR4/ar4review.html. 

rain-fed agricultural yields is not 

credible, based on the underlying 

studies, nor is there any evidence that 

IPCC authors acted inappropriately by 

citing the material on which this 

statement is based. The IPCC statement 

cites a report 38 published by the 

International Institute for Sustainable 

Development funded by Canada, U.S. 

AID, and other public and private 

institutions. The percent reduction 

number was obtained from vulnerability 

studies prepared under the UN 

Environmental Programme Global 

Environment Fund and National 

Communications of three African 

countries to the UNFCCC. This study 

was included due to the paucity of peerreviewed material relating to some parts 

of the world, particularly Africa. This is 

consistent with the IPCC’s guidance on 

the use of gray literature. Furthermore, 

the statement relates to impacts outside 

the United States, and it did not 

materially impact the Administrator’s 

determination of endangerment of 

public health and welfare in the United 

States. 

b. Response to Claims That the IPCC 

Has a Policy Agenda and is Not 

Objective and Impartial 

Several petitioners raise various 

arguments to support their allegation 

that IPCC AR4 is advancing a policy 

agenda and is not an objective and 

impartial scientific body, thus 

questioning EPA’s use of IPCC AR4 as 

a significant reference document to 

support the Administrator’s Findings. 

EPA reviews and responds to each of 

these claims in Volume 2, section 2.2 of 

the RTP document, and provides the 

more general responses here. EPA also 

previously responded to public 

comments about IPCC’s report 

development procedures in the RTC 

document (see Volume 1, section 1 and 

Appendix A, ‘‘IPCC Principles and 

Procedures’’). 

The petitioners submit four objections 

along with excerpts from the CRU emails related to: (1) Authorship and 

reviewer roles among IPCC personnel; 

(2) a CRU e-mail allegedly showing that 

IPCC authors were aware that citing 

their own papers could be seen as using 

the IPCC process to advance their own 

views rather than to present a neutral 

overview of the science; (3) allegations 

that the IPCC is a biased organization, 

including claims that IPCC lead authors 

encouraged other authors to focus on 

policy-prescriptive science; and (4) 

allegations that IPCC authors forced 

consensus and altered the contents of 

the assessment reports to eliminate any 

suggestion of non-consensus. 

After reviewing the petitioners’ 

arguments, EPA finds that the evidence 

and arguments provided by petitioners 

do not support their serious allegation 

that the peer-review and assessment 

report processes employed by the IPCC 

were ‘‘fundamentally corrupt’’ and 

policy prescriptive. The petitioners’ 

arguments, which heavily rely on the 

selective use and narrow reading of CRU 

e-mails, as well as some newspaper 

articles, do not demonstrate that the 

IPCC peer-review and report 

development processes were 

inadequately designed or that they were 

not properly implemented. These 

allegations by the petitioners are devoid 

of any scientific evidence or scientific 

argument that would cause EPA to find 

that the key conclusions of IPCC AR4 

are inaccurate or that they do not 

appropriately reflect the degree of 

scientific consensus on the scientific 

issues germane to the Administrator’s 

Endangerment Finding. Therefore, 

petitioners’ evidence and arguments do 

not support changing EPA’s position, as 

stated in the Endangerment Finding, 

that the assessment literature, including 

IPCC AR4, represents the ‘‘best reference 

materials for determining the general 

state of knowledge on the scientific and 

technical issues before the agency in 

making an endangerment decision.’’ 

Volume 2, section 2.2.3.1 of the RTP 

document, for example, demonstrates 

that, contrary to petitioners’ assertions, 

a few scientists that were not named as 

contributing authors for Chapter 6 of 

IPCC AR4, Working Group I 39 did not 

contribute significantly to the writing 

and editorial decisions of that chapter. 

Given their very limited role in the 

chapter (e.g., providing input on a single 

figure), it is entirely reasonable that they 

were not named contributing authors, 

who are charged with writing parts of 

the report. Therefore, EPA finds that 

there is no basis for the claim that IPCC 

reviewer and author procedures were 

circumvented. EPA’s review of this 

issue is consistent with the finding of 

the Independent Climate Change 

E-mails Review 40 which stated, among 

other things, that ‘‘There is no 

proscription in the IPCC rules to prevent 

the author team seeking expert advice 

when and where needed.’’ 

Petitioners appear concerned about 

the contributing author designation 

because these few scientists were expert 

reviewers of the IPCC AR4, and the 

petitioners believe that the act of 

providing even a limited amount of 

information, in addition to their 

reviewer roles, would have given them 

undo power to shape the report. This 

argument is baseless. EPA notes that 

although the expert review comments 

are available to the public 41, petitioners 

did not provide a single example from 

the comments of these individuals to 

support their claim of undo influence or 

abuse of their purported ‘‘power’’ over 

IPCC AR4 conclusions. 

Volume 2, section 2.2.3.2 of the RTP 

document examines the allegation by 

petitioners that the frequency with 

which IPCC authors cite their own 

studies should be viewed as 

unacceptable and seen as evidence that 

IPCC AR4 lacks objectivity. First, it 

should come as no surprise that for 

some of these fairly specialized fields of 

climate change science authors who 

publish the most on these topics would 

in turn be selected by IPCC to author 

chapters on those same topics. EPA 

finds the frequency with which IPCC 

authors cite their own peer-reviewed 

studies to be entirely acceptable and 

reasonable. Again, petitioners 

completely fail to show why this 

underlying cited literature itself is 

flawed or why the IPCC AR4 

conclusions, based on this underlying 

literature, are flawed. Importantly, one 

of the CRU e-mails that petititioners use 

as purported evidence of IPCC authors 

engaged in foul play to cite their own 

work actually shows an IPCC 

coordinating lead author explicitly 

encouraging his IPCC co-authors to 

minimize citations to their own work, 

and to do so only ‘‘unless they are 

absolutely needed.’’ 

Volume 2, section 2.2.3.3 of the RTP 

document examines the petitioners’ 

assertion that IPCC is biased and that 

IPCC authors worked to produce policyprescriptive science and to reach 

preconceived conclusions. Here too, the 

petitioners do not address any of the 

IPCC AR4 science directly. Rather, 

petitioners refer to a selection of CRU emails by IPCC authors who wrote to 

other IPCC co-authors to urge them, for 

example, to focus on ‘‘policy relevant’’ 

science. First, ‘‘policy relevant’’ by no 

means implies ‘‘policy prescriptive’’ or 

scientifically biased. It is, in fact, policy 

informative and neutral, in direct 

contrast to the goal of policy 


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42 IPCC, 2010c. 

prescriptive statements. Second, 

petitioners do not identify how specific 

information in IPCC AR4 should be 

considered biased as a result of the 

private e-mail exchanges. Petitioners do 

not highlight the specific statements in 

the IPCC AR4 that are supposedly 

‘‘policy prescriptive,’’ never explain 

what policy agenda was being 

advanced, and never describe how the 

CRU e-mails support their claim that the 

science was actually manipulated in 

service of this unspecified agenda. The 

IPCC’s own guidelines 42 state that its 

mission is to produce information that 

is ‘‘policy relevant and policy neutral, 

never policy prescriptive.’’ There is no 

evidence provided by petitioners that 

IPCC authors deviated from this 

practice. 

In another example in Volume 2, 

section 2.2.3.3 of the RTP document, 

petitioners claim that a CRU e-mail 

exchange demonstrates that IPCC 

authors were colluding to make a strong 

case about a certain scientific 

conclusion rather than working to 

produce neutral science. EPA’s review 

shows that there is no support for this 

claim. EPA’s review shows that the CRU 

e-mails, in their full context, speak for 

themselves and simply show a small 

group of scientists working on various 

alternative ways to present a figure that 

was comprehensive and offered key 

contextual information on temperature 

trends over the past several centuries. 

Petitioners do not show that these 

alternatives—which are discussed in the 

e-mails—are biased, or explain why the 

option that was selected is not ‘‘neutral.’’ 

If fact, the e-mail record shows that the 

alternative selected was the most 

comprehensive and transparent of the 

options. 

In Volume 2, section 2.2.3.4 of the 

RTP document, EPA reviews 

petitioners’ claim that certain IPCC 

authors kept out some studies with the 

goal of hiding any non-consensus on 

key issues. The CRU e-mail exchanges 

among some IPCC authors are the only 

pieces of evidence offered by petitioners 

to support this allegation. EPA’s review 

of this issue demonstrates that the CRU 

e-mails simply do not show that the 

contents of the IPCC chapter in 

question, let alone the contents of the 

entire IPCC AR4, were altered to 

eliminate a suggestion of nonconsensus, or IPCC authors actively 

tried to suppress (or were successful in 

suppressing) external challenges to 

consensus. It is not uncommon for 

scientists to critique the work of others, 

and the e-mails do not provide evidence 

that the IPCC authors acted unethically. 

Section 2.2.3.4 of the RTP document 

also addresses the now oft-cited e-mail 

where an IPCC author states, ‘‘I tried 

hard to balance the needs of the science 

and the IPCC, which were not always 

the same.’’ Petitioners claim this e-mail 

demonstrates a biased IPCC process. A 

simple reading of the entire e-mail 

exchange reveals a different story. In 

fact, this IPCC author gets 

complimented from another for his 

objectivity and even-handedness in 

handling the challenges of working on 

IPCC AR4. This IPCC author also 

expressed frustration with the time 

spent away from doing new science, 

which is not the primary job of an IPCC 

chapter author or of the IPCC in general; 

the primary role of the IPCC is to assess 

existing science already published in 

the literature, i.e., in this author’s 

words, ‘‘the needs of the science and the 

IPCC’’ are not always the same. In 

context, it is clear that the needs of the 

IPCC in this case are the requirements 

of doing assessments of existing 

literature rather than producing 

‘‘original and substantive’’ work. EPA’s 

review demonstrates that when the emails are read in their full context, it is 

clear that the authors of these e-mails 

sought to convey the science accurately 

and address disagreements in a fair and 

even-handed way. Again, petitioners 

have selectively picked excerpts from 

these e-mails to make assertions 

attacking the underlying science of the 

Endangerment Finding, but these 

assertions simply have no support. 

3. Process and Other Issues Raised by 

the Petitioners 

The process and other issues raised by 

the petitioners include claims that (a) 

the USGCRP and the NRC are not 

separate and independent assessments 

from IPCC; (b) EPA’s process to develop 

the scientific support for the Findings is 

flawed; (c) there are improper peerreview processes in the underlying 

scientific literature used by the major 

assessments; and (d) certain scientists 

did not adhere to Freedom of 

Information Act requests. Each of these 

issues is addressed below and in more 

detail in Volume 3 of the RTP 

document. 

a. Claims That the Assessments by the 

USGCRP and NRC Are Not Separate and 

Independent Assessments 

Two petitioners argue that the 

assessment reports upon which EPA 

relied are not from three separate, 

independent groups. They claim that 

the USGCRP and NRC assessment 

reports are not separate and 

independent because they are based on 

the findings of IPCC AR4. Petitioners 

claim the USGCRP and NRC reports 

regularly cite and rely on data, 

resources, and conclusions in the IPCC 

reports, contradicting arguments that all 

three of the assessments are separate 

and independent. The petitioners argue 

that because of this the USGCRP and 

NRC assessments must be flawed in the 

same way that IPCC AR4 is purported to 

be flawed by the petitioners. Volume 3, 

section 3.2 of the RTP document 

addresses this claim and EPA 

summarizes its response here. 

EPA finds no merit to this argument. 

The organizational and personnel 

differences, and the detailed and robust 

report development procedures 

employed by the IPCC, USGCRP, and 

NRC demonstrate that these assessment 

reports are separate and independent. 

Petitioners’ claims to the contrary are 

insufficient and unsubstantiated. 

The similarity of the conclusions 

among the assessment reports from the 

three bodies, for example, provides 

evidence of the strength of the science 

in that it consistently points different 

scientific reviewers in the same 

direction. The fact that each of these 

bodies referenced many of the same 

studies and IPCC AR4 or arrived at 

consistent conclusions is not evidence 

that these reports are not independent 

assessments of the available science 

related to climate change. The test of 

separation and independence is not 

whether an assessment reaches a 

different result or conclusion, it is 

whether independent discretion and 

judgment were exercised. To assert, as 

the petitioners do, that consistency of 

results represents a weakness rather 

than a strength of the underlying 

science is an unwarranted argument that 

assumes fundamental flaws in the IPCC 

and a resulting grand ripple effect across 

all the major assessments used by EPA. 

EPA discusses above and further 

demonstrates throughout the RTP 

document that there is no material or 

reliable basis to question the validity 

and credibility of the body of science 

underlying the Administrator’s 

Endangerment Finding, including the 

IPCC AR4 conclusions and its 

underlying studies, and therefore EPA 

rejects the premise of this argument. 

Furthermore, the USGCRP, the IPCC, 

and NRC have their own, separate report 

development procedures. These 

separate processes have already been 

described in the TSD and in the RTC 

document, Volume 1. The differences in 

the organizations, the groups of 

scientists who developed the 

assessments, and scope of the 

assessments produced by each body is 

discussed in detail in Volume 1 of the 

RTC document. 


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• The IPCC, created in 1988 by the 

United Nations Environment 

Programme and the World 

Meteorological Organization (WMO), is 

open to all member countries of the 

United Nations and the WMO. At 

regular intervals, the IPCC prepares 

comprehensive assessments of 

scientific, technical, and socioeconomic information relevant for the 

understanding of human-induced 

climate change, potential impacts of 

climate change, and options for 

mitigation and adaptation all at global 

and regional scales. The most recent 

assessment—the AR4—included 

thousands of scientists from all over the 

world, who participated on a voluntary 

basis as authors, contributors, and 

reviewers (IPCC, 2007a). While many 

federal and nonfederal scientists from 

the United States were involved in the 

development of the AR4, the United 

States is just one of 194 countries that 

contribute to the assessments. 

• The USGCRP is part of the United 

States Executive Branch. Thirteen 

departments and agencies participate in 

the USGCRP, including EPA. A critical 

role of the interagency program is to 

coordinate research and integrate and 

synthesize information to achieve 

results that no single agency, or small 

group of agencies, could attain. Between 

2004 and 2009, the USGCRP produced 

21 synthesis and assessment reports on 

a wide range of topics (e.g., temperature 

trends in the lower atmosphere; weather 

and climate extremes in a changing 

climate; and the effects of climate 

change on agriculture, land resources, 

water resources, and biodiversity). The 

USGCRP assessment reports are 

developed to enhance understanding of 

natural and human-induced changes in 

the Earth’s global environmental system; 

to monitor, understand, and predict 

global change in the United States; and 

to provide a sound scientific basis for 

national and international decisionmaking. Each of these reports had a 

unique team of authors, drawn from 

relevant disciplines. Many authors were 

federal scientists, and in some cases, 

nonfederal scientists contributed their 

expertise to the process. While some of 

the USGCRP authors participated in the 

development of the IPCC AR4, most did 

not. 

• The NRC is an independent 

scientific organization that is not 

affiliated with either the IPCC or 

USGCRP. As described in Appendix C 

of Volume 1 of the RTC document, the 

NRC: 

enlist(s) the nation’s foremost scientists, 

engineers, health professionals, and other 

experts to address the scientific and technical 

aspects of society’s most pressing problems. 

Each year, more than 6,000 of these experts 

are selected to serve on hundreds of study 

committees that are convened to answer 

specific sets of questions. All serve without 

pay. Federal agencies are the primary 

financial sponsors of the Academies’ work. 

Additional studies are funded by state 

agencies, foundations, other private sponsors, 

and the National Academies endowment. 

The Academies provide independent advice; 

the external sponsors have no control over 

the conduct of a study once the statement of 

task and budget are finalized. Study 

committees gather information from many 

sources in public meetings but they carry out 

their deliberations in private in order to 

avoid political, special interest, and sponsor 

influence. 

Ten NRC reports are cited in the 

Endangerment Finding and TSD. Each 

of these reports has a unique author 

committee, selected based on their areas 

of expertise. While some of the NRC 

study committee members have 

participated in either the IPCC or 

USGCRP report development processes, 

many have not. 

The USGCRP and NRC reports on 

which EPA relied were the result of an 

objective review and assessment of the 

scientific literature available at the time 

of their development (including any 

previously published assessments), 

related to the effects of greenhouse gas 

emissions on the climate system and the 

impacts of these changes on ecosystems 

and society. The organizations 

conducting the reviews were distinct 

and separate, and neither organization 

had control or supervision over the 

other. The groups of scientists involved 

in the reviews overlapped to some 

degree, but significant numbers of 

scientists were involved with one but 

not other reports. In all cases, personnel 

at NRC who supervised the review and 

preparation of the final reports were 

different from those who performed 

these functions for USGCRP. 

Like the IPCC, the USGCRP and NRC 

provide public opportunities to provide 

input and comment during report 

development (see RTC document, 

Volume 1). In addition, the NRC reports 

undergo a rigorous, independent 

external review by experts whose 

comments are provided anonymously to 

the committee members. 

Separate and apart from the issue of 

the independence of these assessment 

reports, the petitioners provide no 

information to demonstrate that the key 

scientific conclusions of the IPCC, 

USGCRP, and NRC are wrong or that 

EPA erred in relying upon them. The 

specific science issues raised by 

petitioners are discussed throughout 

this Decision and in the RTP document. 

Thus, whether or not the various 

assessment reports are separate and 

independent, EPA reasonably relied 

upon them as reflecting the current state 

of the science and the degree of broad 

consensus within the science 

community on these issues. 

Bolstering the case that the IPCC, 

USGCRP and NRC assessments available 

at the time of the final Endangerment 

Finding in December 2009 were robust 

and appropriate for EPA to use, the May 

2010 assessment of the NRC, 

‘‘Advancing the Science of Climate 

Change,’’ states that its major scientific 

conclusion is ‘‘consistent with the 

conclusions’’ of those previous 

assessments. Note also that this May 

2010 NRC assessment was able to 

incorporate scientific literature 

published since EPA completed its 

scientific record to finalize the 2009 

Endangerment Finding. 

b. Approaches and Processes Used To 

Develop the Scientific Support for the 

Findings 

Several petitioners object to the 

process and approach EPA used in 

developing the scientific support for the 

Endangerment Finding. One of these 

specific arguments is new whereby the 

petitioners allege that EPA ignored 

public concerns about the implications 

of the e-mails involving scientists at the 

CRU, and instead ‘‘plowed ahead with 

compromised data, undermining its core 

conclusions in the process.’’ EPA 

discusses and responds to this issue in 

section (i) below and in section 3.1.2 of 

the RTP document. The petitioners also 

raise issues that EPA already responded 

to in Volume 1 of the RTC document. 

Some of the concerns submitted are 

supported with ‘‘new information’’ and 

some are not. In (ii) below, EPA 

summarizes the response to the claim 

that EPA did not independently judge 

the underlying science, and in (iii) 

below EPA concludes that the Agency 

did not violate the Information Quality 

Act (IQA, or the Data Quality Act), as 

alleged by petitioners. Section 3.1.3 of 

the RTP document more fully responds 

to these three allegations and other 

related concerns raised by the 

petitioners regarding the process and 

approach EPA used in developing the 

scientific support for the Endangerment 

Finding. 

(i) Issues Regarding Consideration of the 

CRU E-mails 

The sole new argument raised by 

petitioners regarding the approach and 

process EPA used into develop the 

Findings is that EPA ignored public 

concerns about the implications of the 

e-mails involving scientists at CRU, and 

instead ‘‘plowed ahead with 

compromised data, undermining its core 


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conclusions in the process.’’ EPA 

responds to this issue in Volume 3, 

section 3.1.2 of the RTP document and 

summarizes its response here. 

Prior to finalizing the Endangerment 

Finding, EPA carefully reviewed many 

of the CRU e-mails, and determined that 

many of the issues raised therein had 

also been raised through the public 

comments on the proposed Findings. 

EPA reviewed the underlying scientific 

issues that were presented to EPA at the 

time (see, for example, RTC Volume 2). 

Based on that initial review, EPA 

concluded that the fundamental 

conclusions of the assessment literature 

remained sound as to the state of the 

science on greenhouse gases and climate 

change. EPA did not inappropriately 

‘‘plow ahead;’’ EPA assessed the issues 

raised by commenters and the CRU 

e-mails in light of our comprehensive 

review of climate science and all of the 

objections to the science raised by 

commenters, and concluded that our 

review of the science and the 

conclusions based on it were sound. 

Petitioners have now raised more 

specific concerns with respect to the 

CRU e-mails. EPA has reviewed all of 

the CRU e-mails, and our responses to 

the particular science issues raised by 

petitioners in light of these e-mails are 

provided in other sections of this 

Decision and in the RTP document. As 

discussed there, petitioners have 

routinely misunderstood or 

mischaracterized the scientific issues, 

drawn faulty scientific conclusions, 

resorted to hyperbole, impugned the 

ethics of climate scientists in general, 

characterized actions as ‘‘falsification’’ 

and ‘‘manipulation’’ with no basis or 

support, and placed an inordinate 

reliance on blogs, news stories, and 

literature that is often neither peer 

reviewed nor accurately summarized in 

their petitions. Petitioners often ‘‘cherrypick’’ language that creates the 

suggestion or appearance of 

impropriety, without looking deeper 

into the issues or providing 

corroborating evidence that improper 

action actually occurred. 

(ii) Claims That EPA Did Not 

Independently Judge the Underlying 

Science 

Several petitioners argue that the 

Administrator did not independently 

judge the primary scientific literature 

and data. Instead, they claim that she 

improperly relied on summary scientific 

reports produced by third parties or 

‘‘foreign entities.’’ This is not a new 

issue brought to EPA, but was raised 

and addressed during the public 

comment period. Section III.A of the 

Findings responds to comments that 

EPA should have conducted its own 

independent assessment of the primary 

scientific literature and not relied on 

scientific reports produced by third 

parties such as the USGCRP, NRC or 

IPCC. See also Volume 1 of RTC 

document, particularly Response 1–1. 

It is useful to describe the process 

EPA followed in exercising its scientific 

judgment in making the Endangerment 

Finding. EPA did not passively and 

uncritically accept a scientific judgment 

and finding of endangerment supplied 

to it by outsiders. Instead, EPA 

evaluated all of the scientific 

information before it, determined the 

current state of the science on 

greenhouse gases, the extent to which 

they cause climate change, how climate 

change can impact public health and 

public welfare, and the degree of 

scientific consensus on this science. 

EPA applied this science to the legal 

criteria for determining endangerment, 

i.e., whether greenhouses gases cause, or 

contribute to, air pollution that may 

reasonably be anticipated to endanger 

public health or welfare. EPA did this 

after presenting its scientific views 

before the public for comment and 

evaluating and considering all 

comments received, as well as 

documenting responses to all significant 

public comments (see volumes 1–11 of 

the RTC document). EPA properly and 

carefully exercised its own judgment in 

all matters related to the Endangerment 

Finding. 

The core of petitioners’ objection is 

that they do not agree with important 

parts of the scientific information upon 

which EPA relied. They frame this as a 

failure of EPA to exercise its own 

judgment, or as EPA ceding to an 

outside body its responsibility to 

exercise independent judgment. It is 

clear from the record for the Findings 

that EPA exercised its own judgment 

and did not cede its authority or 

judgment to anyone. The fact that 

petitioners disagree with the 

information EPA relied upon and EPA’s 

conclusions is not evidence of a lack of 

exercise of discretion or judgment. 

EPA relied on the existing assessment 

reports of the USGCRP, IPCC, and NRC 

as a primary source for determining the 

current state of the science relating to 

greenhouse gases and climate change, 

and for determining the degree of 

scientific consensus on these issues. 

EPA’s view then and now is that these 

assessment reports represent the best 

primary references to provide the 

scientific underpinnings to inform the 

Administrator’s judgment regarding 

endangerment. These assessment 

reports provide exactly the kind of 

information that is required, i.e., they 

demonstrate how greenhouse gases are 

affecting the climate now, are projected 

to affect climate in the future, and how 

these current and projected climate 

changes impact public health and 

welfare. These assessment reports also 

bring together and synthesize the 

numerous individual studies in the 

scientific literature to draw overarching 

conclusions about the state of the 

science. Finally, each of these 

assessment reports go through rigorous 

and transparent peer-review processes, 

such that the conclusions carry 

significant weight in a way that is 

typically not possible for one individual 

study in a scientific journal. EPA’s 

review of the objections raised by 

petitioners to the process and the 

substance of the various assessment 

reports does not support changing this 

view. 

The petitioners appear to imply that 

EPA would have drawn different 

conclusions had it conducted its own 

separate assessment. After examining 

the breadth and quality of the USGCRP, 

IPCC, and NRC assessments, EPA 

disagrees. These reports already reflect 

the body of underlying scientific 

literature that EPA itself would have 

had to synthesize had it decided to 

conduct yet another assessment, 

independent from USGCRP, IPCC and 

NRC. These assessments have been 

reviewed and formally accepted by, 

commissioned by, and in some cases 

authored by U.S. government agencies 

and individual government scientists. 

By relying on the assessment literature, 

EPA is benefitting from the confidence 

and strength of an entire federal 

research enterprise. There is no reason 

to think that these assessments do not 

represent the best primary source 

material to determine the state of 

science on the relevant issues. 

Petitioners disagree with some of the 

conclusions of the assessment literature 

and believe that not all scientific points 

of view were fully considered therein. 

However, there was a robust public 

comment process on EPA’s proposed 

Endangerment Finding, which provided 

an opportunity for the public to evaluate 

and comment on EPA’s preliminary 

scientific conclusions. Many 

commenters provided literature and/or 

arguments to support their views and 

EPA reviewed such literature and 

arguments in the Agency’s responses. 

EPA’s final judgment was based on 

EPA’s evaluation of both the assessment 

literature and the additional information 

and views provided through public 

comment. EPA has no reason to believe 

that putting this significant body of 

work aside and attempting to develop a 

new and separate assessment would 


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43U.S. EPA (2002). Guidelines for Ensuring and 

Maximizing the Quality, Objectivity, Utility, and 

Integrity of Information Disseminated by the 

Environmental Protection Agency. Washington, DC: 

U.S. Environmental Protection Agency. EPA/260/R– 

02/008. 

44UK Parliamentary (2010). House of Commons, 

Science and Technology Memoranda. Available at: 

http://www.publications.parliament.uk/pa/ 

cm200910/cmselect/cmsctech/memo/climatedata/ 

contents.htm. 

45UK Parliamentary (2010). House of Commons, 

Science and Technology Memoranda. Available at: 

http://www.publications.parliament.uk/pa/ 

cm200910/cmselect/cmsctech/memo/climatedata/ 

contents.htm. 

provide any better scientific basis for 

making the endangerment decision. 

(iii) Claims That EPA Violated the 

Information Quality Act 

EPA already provided a detailed 

response to arguments of alleged IQA 

violations in RTC Volume 1. The 

petitioners now make essentially the 

same general argument that EPA’s use of 

third-party assessment reports violates 

the IQA. EPA notes that the petitioners 

are re-raising this issue in the petitions 

for reconsideration because they believe 

that the CRU e-mails show that ‘‘IPCC 

authors deleted information and hid 

behind foreign laws to avoid disclosure 

of key data’’ and that EPA would not 

have been able to obtain the data 

anyway. EPA responds to allegations 

involving the behavior of CRU 

scientists, including the allegation that 

data was destroyed, in (c) below, 

Volume 1 of the RTP document and 

Sections 3.3 and 3.4 of the RTP 

document. As stated in these sections, 

the evidence submitted by the 

petitioners in the form of the CRU 

e-mails does not support their allegation 

that data were destroyed. Therefore, the 

‘‘new’’ information presented by the 

petitioners does not call into question 

the overall integrity of the science, nor 

does it call into question the process 

EPA used in developing the Findings. 

As noted in RTC Volume 1, the IQA 

requires that an agency issue guidelines 

regarding data quality and ensure their 

implementation. EPA complied with the 

IQA by issuing its Guidelines for 

Ensuring and Maximizing the Quality, 

Objectivity, Utility and Integrity of 

Information Disseminated by the 

Environmental Protection Agency 

(U.S. EPA, 2002) 43 and has acted 

consistently with these guidelines in 

developing the Findings. As stated in 

RTC Volume 1, EPA’s use of the 

assessment literature ‘‘is consistent with 

these guidelines because we thoroughly 

reviewed and evaluated the author 

selection, report preparation, expert 

review, public review, information 

quality, and approval procedures of 

IPCC, USGCRP/CCSP, and NRC to 

ensure the information adhered to a 

basic standard of quality, including 

objectivity, utility, and integrity.’’ 

The CRU e-mails cited by the 

petitioners do not undermine this view. 

EPA’s responses on the science issues 

raised by petitioners concerning these 

e-mails are discussed in detail in several 

other sections of this Decision as well as 

in the RTP document. As our detailed 

responses show, petitioners’ sciencebased claims do not support the 

conclusion that the IPCC or other 

assessment reports were biased, 

inaccurate, or scientifically incorrect. 

c. Freedom of Information Act Issues 

Several petitioners claim that the CRU 

e-mails provide evidence that leading 

climate scientists deliberately withheld 

key data and computer codes and 

attempted to obstruct or avoid UK 

Freedom of Information (FOI) and 

U.S. Freedom of Information Act (FOIA) 

requests from ‘‘climate skeptics.’’ These 

claims are addressed in Volume 3, 

section 3.4 of the RTP document and 

EPA’s response is summarized here. 

EPA’s review of the CRU e-mails 

indicates that in many cases, the data at 

issue were in fact released by the 

scientists, including data concerning a 

human ‘‘fingerprint’’ in the tropics, data 

underlying the HadCRUT temperature 

record, and data concerning historic 

temperature reconstructions. In 

addition, significant data were publicly 

available. Petitioners have not explained 

or shown why the amount of data and 

other information that was available was 

not adequate for researchers to replicate 

or otherwise evaluate key findings, or to 

conduct other research. In addition, 

there was a robust and public process to 

submit, review, and publicly respond to 

comments on the scientific issues 

involved in all parts of the IPCC AR4. 

Petitioners do not rely on science or 

science based arguments to support 

their claim that the assessment report 

resulting from this robust process 

should not be relied upon by EPA. 

Instead, they rely on unsupported 

conclusions drawn from e-mails 

concerning a FOI request for personal 

communications between various 

scientists, where it appears that the 

appropriate University FOI officers had 

determined that these e-mails were 

exempt from release. This evidence does 

not support petitioners’ claims that the 

IPCC AR4 should not be considered as 

part of the scientific basis for the 

Endangerment Finding. 

EPA agrees with the results of the 

various investigations, which found that 

the scientists at issue conducted their 

research with scientific integrity and 

rigor, the research utilized methods 

which are fair and satisfactory, and that 

their actions were consistent with the 

common practice in climate research at 

that time. EPA also agrees with the 

recommendations of the Independent 

Climate Change E-mails Review 

supporting greater transparency in the 

future in this area of climate research. 

Petitioners’ evidence, however, does not 

support their conclusions that the 

research produced by these scientists 

was suspect, flawed, or biased, or that 

IPCC AR4 or other assessment reports 

were suspect, flawed, or biased. Their 

evidence does not support the 

conclusion that the science at issue 

should not be relied upon by EPA. 

EPA has reviewed the petitioners’ 

claims and the e-mails and finds that in 

many cases, the petitioners make overly 

broad generalizations based on 

suggestions of inappropriate actions that 

are not supported by the evidence 

provided by the petitioners. Regarding 

the quote from the UK Information 

Commissioner’s Office, the recent 

inquiry by the UK House of Commons 

Science and Technology Committee 

(2010) 44 concluded that this statement 

was the personal opinion of the Deputy 

Information Commissioner and was not 

based on the results of a formal 

government investigation. 

EPA finds that most of the language 

in the CRU e-mails that petitioners 

allege shows impropriety is taken out of 

context. Petitioners do not provide 

corroborating evidence that improper 

action actually occurred, let alone 

evidence that any alleged improper 

action led to biased or inaccurate 

science that was ultimately used by EPA 

to support the Findings. Based on our 

review of the e-mails, the authors were 

dismayed at what they viewed as 

frivolous requests that were wasting 

their time, not that the requestors were 

going to uncover ‘‘fraud’’ or 

‘‘wrongdoing’’ with regard to their 

research, as has been alleged by the 

petitioners. 

EPA finds from its review that the 

e-mail authors expressed significant 

frustration at repeated requests for 

specific explanations and computer 

codes when the basic data had already 

been made available and the 

methodology for replicating particular 

studies had already been published in 

the literature. This type of approach was 

considered to be common practice at the 

time, as the UK House of Commons 

Science and Technology Committee 

(2010) 45 also found in their analysis of 

the CRU e-mails: ‘‘In the context of the 

sharing of data and methodologies, we 

consider that Professor Jones’s actions 


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were in line with common practice in 

the climate science community. It is not 

standard practice in climate science to 

publish the raw data and the computer 

code in academic papers.’’ EPA finds 

that the petitioners’ evidence does not 

provide a basis to question the scientific 

integrity or conclusions of the climate 

change research conducted by CRU 

researchers. 

d. Integrity of Peer-Reviewed Literature 

Several petitioners claim that the CRU 

e-mails provide evidence that leading 

climate scientists engaged in actions to 

suppress dissenting views about 

anthropogenic global warming. 

Specifically, petitioners claim that these 

scientists unfairly gave favorable 

reviews of each other’s manuscripts 

while providing negative reviews of 

manuscripts authored by ‘‘climate 

skeptics,’’ made efforts to unfairly 

expedite publication of their responses 

to papers by ‘‘climate skeptics,’’ 

conspired to remove editors of 

prominent journals that had published 

dissenting views of climate change, and 

boycotted the journals in reprisal. The 

petitioners argue that the cumulative 

effect of these alleged actions with 

regard to peer-reviewed literature has 

been to create an artificial consensus 

about anthropogenic climate change that 

has ‘‘tainted [climate change literature] 

in favor of desired papers.’’ Some 

petitioners conclude that EPA has lost 

the basis for its Findings because the 

Agency assumed a ‘‘legitimate, objective 

‘consensus’ regarding anthropogenic 

global warming’’ existed among 

scientists and disregarded any contrary 

views or contrary evidence. EPA 

responds to these claims in Volume 3, 

section 3.3 and summarizes its response 

here. 

Petitioners’ claims are not based on 

scientific analysis or arguments, and 

their evidence does not support 

changing or revising EPA’s use of the 

major assessments of peer-reviewed 

literature or the overall scientific 

conclusions about climate change 

reached from the thousands of papers 

considered in the assessments. The 

objections raised by the petitioners have 

not called into question or changed 

EPA’s conclusion that the science 

supporting the Endangerment Findings 

is robust, compelling, and has been 

appropriately characterized by EPA. 

EPA disagrees with the petitioners’ 

argument that the Findings were based 

on a false consensus regarding 

anthropogenic climate change, and that 

EPA disregarded contrary views or 

evidence including those not 

represented in the peer-reviewed 

literature. For reasons stated throughout 

this Decision and section 3.3 of the RTP 

document, EPA’s view is that the state 

of the science has been carefully and 

appropriately characterized by EPA and 

properly interpreted by the 

Administrator in the Endangerment 

Finding. 

Many diverging viewpoints and a 

variety of findings are represented in the 

scientific literature on climate change. 

The assessment reports routinely 

identified the degree of certainty around 

any conclusion and recognized the 

existence of ongoing debate within the 

scientific community on all of these 

issues, as is the norm in all science 

endeavors. The Administrator’s 

Endangerment Finding relied on a 

careful consideration of the full weight 

of scientific evidence and a thorough 

review of hundreds of thousands of 

public comments, which contained 

many different opinions and 

interpretations of the science. Therefore, 

to claim, as the petitioners do, that these 

e-mails demonstrate that EPA did not 

take into account any dissenting views 

on the subject of climate change science 

is a gross mischaracterization of the 

total record that supports the 

Administrator’s Findings. 

The petitioners rely upon some CRU 

e-mails (typically taken out of context), 

a small number of papers, and both 

actual and alleged events regarding 

scientific journals to claim that leading 

climate scientists conspired to keep 

dissenting views of climate change out 

of the broad body of peer-reviewed 

literature and create an artificial 

consensus about anthropogenic climate 

change. In all cases presented by the 

petitioners it appears the scientists 

involved were making their scientific 

objections known, and were basing their 

objections on the science and not on 

assumptions or speculation. The 

evidence presented by petitioners does 

not support their claims of bias, either 

for the specific papers and individuals 

at issue, or for the much broader and 

sweeping challenges made concerning 

the integrity of all peer-reviewed 

climate literature. 

For the few papers at issue, the 

petitioners do not argue based on 

scientific merits, and instead assume 

that the few papers they cite received 

unjustified unfavorable reviews and 

were unfairly rejected for publication 

without providing supporting evidence. 

Petitioners do not address the 

possibility that these papers were 

scientifically inadequate and that the 

scientists were justified in 

recommending that they not be 

published. EPA notes that there is no 

evidence presented beyond these few 

papers of the claimed general effort to 

manipulate the peer-reviewed journal 

publication process. 

The evidence provided by the 

petitioners also does not show that the 

scientists engaged in improper behavior 

or sabotage of the two journals that are 

discussed in the e-mails, or their 

editors, nor is there evidence to 

conclude that any action on the part of 

these scientists involved in the e-mail 

correspondence resulted in the 

replacement of the journal editors. Our 

review of the full discussion of the emails indicates, again, that petitioners 

have exaggerated the significance of 

actual or purported events in an attempt 

to cast doubt on the underlying science 

and the processes relied upon to 

produce the science. 

F. Petitioners’ Arguments Do Not Meet 

the Standard for Reconsideration 

As discussed above, petitioners must 

demonstrate that their objections are of 

central relevance to the outcome of the 

underlying decision, and must 

demonstrate either that it was 

impracticable to raise the objections 

during the public comment period or 

that the grounds for raising such 

objections arose after the close of the 

comment period (but within the time 

specified for judicial review). The above 

analysis shows that science-based and 

other objections discussed in this 

Section III and the accompanying 

support document are not of central 

relevance to the Administrator’s 

decision on endangerment and thus 

reconsideration is properly denied. 

An objection is of central relevance if 

it provides substantial support for the 

argument that the underlying decision 

should be revised. As shown above, 

none of the petitioners’ arguments 

related to climate science and data 

issues, issues raised by EPA’s use of 

IPCC AR4, and process issues provide 

substantial support for the argument 

that the Administrator’s Endangerment 

Finding should be revised. The 

petitioners’ arguments and evidence are 

inadequate, generally unscientific, and 

do not show that the underlying science 

supporting the Endangerment Finding is 

flawed, misinterpreted by EPA, or 

inappropriately applied by EPA. 

Importantly, petitioners’ claims and the 

information they submit do not change 

or undermine our understanding of how 

human emissions of greenhouse gases 

cause climate change and how humaninduced climate change generates risks 

and impacts to public health and 

welfare. The information provided by 

petitioners does not change any of the 

scientific conclusions that underlie the 

Administrator’s Findings, nor do the 

petitions lower the degrees of 


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46The Final Prevention of Significant 

Deterioration (PSD) and Title V Greenhouse Gas 

Tailoring Rule was signed on May 13, 2010, and 

published June 3, 2010. 75 FR 31514 (June 3, 2010). 

confidence associated with each of these 

major scientific conclusions. 

A petition for reconsideration cannot 

merely cite to new information and 

claim that is sufficient to require 

initiating a reconsideration process, 

attendant with the same procedures as 

the original decision. Mere allegations 

that information is of central relevance 

will not suffice. New information, even 

new information related to an agency 

decision, does not by itself warrant 

undermining the finality of agency 

decision making. To justify 

reconsideration a petitioner must show 

why the new information demonstrates 

that the agency’s decision should be 

changed. 

Petitioners fail to do this. The core 

defect in petitioners’ arguments is that 

these arguments are not based on 

consideration of the body of scientific 

evidence. Petitioners fail to address the 

breadth and depth of the scientific 

evidence and instead rely on an 

assumption of inaccuracy in the science 

that they extend even to the body of 

science that is not directly addressed by 

information they provide or by 

arguments they make. Petitioners 

routinely take private e-mail 

communications out of context and 

assert they are ‘‘smoking gun’’ evidence 

of wrongdoing and scientific 

manipulation of data. In contrast, EPA’s 

careful examination of the e-mails and 

their full context shows that the 

petitioners’ claims are exaggerated and 

are not a material or reliable basis to 

question the validity and credibility of 

the body of science underlying the 

Administrator’s Endangerment Finding 

or the Administrator’s decision process 

articulated in the Findings themselves. 

Petitioners’ assumptions and subjective 

assertions regarding what the e-mails 

purport to show about the state of 

climate change science are woefully 

inadequate pieces of evidence to 

challenge the voluminous and well 

documented body of science that is the 

technical foundation of the 

Administrator’s Endangerment Finding. 

Petitioners’ objections that a limited 

number of factual mistakes now 

identified in the IPCC AR4, as well as 

other claimed mistakes, call into 

question the climate science supporting 

the Administrator’s Endangerment 

Finding, are similarly flawed. The two 

factual mistakes in IPCC AR4 confirmed 

by EPA’s review are tangential and 

minor and do not change the key IPCC 

AR4 conclusions that are central to the 

Administrator’s Endangerment Finding. 

Finally, as shown above, regarding 

objections based on allegedly new 

scientific studies and data, EPA’s review 

of these claims shows that in many 

cases the issues raised by the petitioners 

are not new, but were in fact considered 

prior to issuing the Endangerment 

Finding. In other cases, the petitioners 

have misinterpreted or misrepresented 

the meaning and significance of recent 

scientific literature, findings, and data. 

Finally, there are instances where the 

petitioners have failed to acknowledge 

other new studies in making their 

arguments. Thus, petitioners have failed 

to demonstrate that their objections 

related to climate science and data 

issues, issues raised by EPA’s use of 

IPCC AR4, and process issues provide 

substantial support for the argument 

that the Administrator’s decision on 

endangerment should be revised. 

Moreover, regarding many of their 

objections, petitioners also fail to 

demonstrate that it was impracticable to 

raise the objections during the public 

comment period or that the grounds for 

raising such objections arose after the 

close of the comment period (but within 

the time specified for judicial review). 

In many but not all cases EPA has 

identified instances where petitioners 

fail to base an objection on such new 

information. Given the volume of 

individualized comments and 

objections, EPA is identifying some of 

the types of situations where the 

objection, or grounds for the objection, 

raised by a petitioner does not satisfy 

this requirement for reconsideration. 

Several types of objections are premised 

on studies and other information that 

were available before the close of the 

comment period. In some cases 

petitioners basically repeat or raise the 

same arguments that were raised and 

responded to in the rulemaking. In other 

cases, petitioners raise allegedly new 

grounds, such as CRU e-mails, that they 

claim should cause EPA to reconsider a 

prior comment, or that justifies 

petitioners’ raising a new issue for the 

first time in the reconsideration 

petition. But as explained above and 

throughout this Denial and supporting 

documents, the allegedly new 

information is not of central relevance, 

and therefore, EPA essentially is left 

with arguments that either were made 

previously during the comment period, 

or could have been raised during the 

comment period. Thus, many of the 

petitioners’ objections not only are not 

of central relevance, but they also fail to 

meet the temporal requirement for a 

petition for reconsideration. 

IV. Other Issues 

In this section, EPA responds to 

various objections to the Endangerment 

Finding based on concerns raised with 

respect to the impact of stationary 

source permitting requirements, the 

relationship of the Findings to NHTSA’s 

recent CAFE rule, the effects of the 

Findings and subsequent rulemakings 

on states and businesses, the need for a 

Formal Rulemaking Process, and EPA’s 

justification for its exercise of discretion 

in making the Endangerment Finding. 

A. The Tailoring Rule/Impacts of PSD 

and Title V Permitting Are Not of 

Central Relevance to the Findings 

Several petitioners raise objections 

based on EPA’s proposed rule to tailor 

the Prevention of Significant 

Deterioration (PSD) and title V permit 

programs for greenhouse gases. 

Proposed Prevention of Significant 

Deterioration (PSD) and Title V 

Greenhouse Gas Tailoring Rule, 74 FR 

55292 (Oct. 27, 2009) (Proposed 

Tailoring Rule).46 Specifically, 

petitioners argue that EPA’s statements 

in the Proposed Tailoring Rule 

demonstrate that the Findings are 

contrary to law and/or arbitrary and 

capricious. Because the Proposed 

Tailoring Rule was issued after the close 

of the comment period, but before the 

period for judicial review ran, 

petitioners argue that it presents reasons 

for EPA to reconsider the Findings in 

general. 

Petitioners argue that the Proposed 

Tailoring Rule is of central relevance to 

the Findings because it involves the 

PSD and title V permitting requirements 

that flow as an inevitable result of the 

Findings, and the impacts of such 

permitting are relevant to the Findings. 

e.g., SLF 5th Supp. at 15; Ohio Coal 

Assn. at 4. They point to the fact that 

the Tailoring Rule was proposed, and 

comments thereon were received, after 

the close of the comment period for the 

Findings, and request that EPA grant 

reconsideration and re-open the 

Findings docket ‘‘to allow the public to 

comment on the implications of the 

Tailoring Rule[sic] to the form and 

content of the Endangerment Finding,’’ 

SLF 5th Supp. at 15, and to ‘‘further 

explore the extent to which 

implementation of the Endangerment 

Finding is practically impossible * * * 

since impossibility calls into question 

all justification for the Endangerment 

Finding.’’ Ohio Coal Assn. at 4. 

At least one petitioner points to the 

alleged implementation problems 

identified in the Proposed Tailoring 

Rule and comments received thereon as 

a basis for reconsidering the 

appropriateness of the Findings. Ohio 

Coal Assn. at 6–9. The petitioner argues 


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47This petitioner also stated in its petition that 

if EPA had neither ‘‘granted the petition nor 

contacted the [petitioner] to establish a mutually 

agreeable schedule for reconsideration by April 14, 

2010, such inaction will be deemed a denial of the 

petition.’’ Chamber at 1. No EPA action, or inaction, 

other than this Decision and supporting material 

constitutes a denial of the petitions. See, e.g., Final 

LDVR, 75 FR at 25402; EPA’s Combined Opposition 

to Remand (filed April 29, 2010 in DC Cir. No. 09– 

1322). 

that despite statements in the final 

Findings that EPA did not consider, and 

indeed could not have considered, 

policy concerns about the repercussions 

of impact of the finding when making 

the endangerment finding, EPA did 

‘‘give credence and expression’’ and ‘‘did 

in fact consider the widespread and 

economically crippling’’ PSD permitting 

implementation issues. Ohio Coal Supp. 

at 15, 18. Therefore, the petitioner 

continues, new information about EPA’s 

ability to tailor the PSD program 

justifies granting reconsideration. 

Specifically, the petitioner cites to 

comments filed by state permitting 

authorities that they allege call into 

question the approach EPA proposed in 

the Tailoring Rule to address the 

negative impacts that EPA 

acknowledges ‘‘would inexorably flow 

from the Endangerment Finding—that 

is, triggering the PSD and Title V 

permitting requirements at the low 

applicability levels provided under the 

Clean Air Act.’’ Ohio Coal Supp. at 16– 

18. They claim that statements made by 

state permitting agencies about the 

ability of the proposal to address state 

law concerns, and the remaining burden 

even at the higher thresholds all 

undermine EPA’s claim that it can 

fashion a reasonable and common-sense 

solution to the perceived problem. 

Thus, petitioners conclude, the ‘‘most 

viable and sensible option’’ would be 

instead for EPA to withdraw the 

Findings until the impacts of the PSD 

and title V permitting programs can be 

fully assessed and resolved. Ohio Coal 

Assn. at 8; Ohio Coal Supp. at 22. 

Another petitioner provides slightly 

different reasons for claiming the 

Proposed Tailoring Rule necessitates 

granting reconsideration and re-opening 

the Findings for comment.47 This 

petitioner argues that the Proposed 

Tailoring Rule reflects an 

acknowledgement by EPA that 

regulating GHG under the CAA is 

absurd. Chamber at 3. The petitioner 

also argues that new information 

demonstrates that some of the public 

health and welfare effects from 

stationary source emission reductions 

that EPA expected when issuing the 

Findings will be legally unavailable. Id. 

at 9–10. The petitioner alleges that EPA 

recognized the ‘‘ill-fit’’ between 

pollutants like greenhouse gases, which 

become well-mixed in the atmosphere 

and cause global problems, and the 

existing structure of the CAA. The 

petitioner further claims that it was 

because of this ill-fit that EPA crafted 

the Tailoring Rule in order to avoid the 

absurd result of trying to regulate GHGs 

under part of the CAA. Petitioner’s 

suggested solution is for EPA to 

reconsider the Findings in light of EPA’s 

recognition that regulation of GHGs 

under the CAA is ‘‘absurd.’’ In so doing, 

the petitioner reiterates comments it, 

and others, submitted during the public 

comment period arguing that EPA 

retains discretion under Massachusetts 

to consider, among other things, the 

impacts of an endangerment finding 

when deciding whether to issue an 

endangerment findings. Chamber at 

10–12. 

More specifically, the petitioners 

argue that the Supreme Court decision 

did not address the issue of whether 

GHGs could be regulated under the CAA 

consistent with Congress’ intent and 

without triggering absurd results. 

Chamber at 11. Rather, they contend, 

the Supreme Court decision was about 

the narrow issue of whether GHGs were 

air pollutants under CAA section 202(a). 

Chamber at 11. Some petitioners argue 

that EPA should have informed the 

Supreme Court of the impact of a 

positive endangerment finding under 

CAA section 202(a) on stationary source 

permitting, and the fact that it may 

require EPA to resort to the absurdity 

doctrine; if EPA had, they continue, the 

Court may have issued a different 

opinion. CEI Supp. at 4–5. Another 

petitioner argues that the Supreme 

Court left open the option of EPA 

declining to make an endangerment 

finding, and that in making its decision 

EPA must adhere to the customary 

mode of statutory interpretation in 

Chevron v. NRDC, 467 U.S. 837 (1984), 

considering all relevant statutory 

language, legislative history and absurd 

results that may apply when regulating 

GHGs under the CAA. Chamber at 12. 

Based on this alleged premise, the 

petition then turns to EPA’s statements 

in the Proposed Tailoring Rule 

concerning the potential absurd results 

that could result from applying the 

statutory permitting thresholds of 100 

and 250 tons per year (tpy) to GHGs, 

and the additional administrative 

impossibility that would result from 

applying these statutory thresholds 

immediately when GHGs are regulated 

under CAA section 202(a). Petitioner 

submits additional evidence it alleges 

demonstrates the absurdity of regulating 

GHGs from stationary sources: (1) The 

PSD program is designed to address 

pollutants with localized impacts in 

specific geographic areas (e.g., the 

NAAQS), and not global pollutants like 

GHGs; (2) the statutory thresholds 

would require burdensome, expensive, 

individualized emissions controls at 

hundreds of thousands of small 

emissions sources, contrary to 

Congressional intent; and (3) the 

application of permitting to GHGs 

would jeopardize economic growth, 

which would be particularly absurd in 

the current economic situation. 

Chamber at 15–17. 

Thus, according to this and other 

petitioners, EPA must reconsider the 

Findings in light of the absurd results 

that would result from GHGs being 

regulated pollutants under the PSD and 

title V permitting programs. See, e.g., 

Chamber at 18; CEI Supp. at 5. 

Specifically, petitioners argue that the 

absurdity doctrine demands that EPA 

consider whether regulating GHGs 

under the CAA as a whole is absurd or 

not, but that EPA completely ignored 

this possibility when developing the 

Findings. Rather than relying on the 

absurd results doctrine to merely 

‘‘tailor’’ the PSD and title V permitting 

programs, petitioners argue that EPA 

should rely on it to avoid creating the 

permitting program dilemma in the first 

place, or at the very least take comment 

on that option. Chamber at 18–19; CEI 

Supp. at 5. At least one petitioner 

contends that case law regarding the 

absurd results doctrine requires 

adopting the narrowest, most restrictive 

interpretation of the statute, and that 

there may be an interpretation that 

authorizes EPA to avoid making the 

endangerment finding in the first place, 

not one that merely addresses the PSD 

and title V statutory thresholds (e.g., by 

interpreting ‘‘emissions’’ or ‘‘major 

emitting facility’’ narrowly). Chamber at 

18–19. Petitioners argue that given 

EPA’s failure to consider this 

alternative, coupled with the alleged 

acknowledgement that the CAA motor 

vehicle rules are not necessary to 

achieve public health and welfare 

advantages in light of the NHTSA CAFE 

rule (see below), EPA must reconsider 

the Findings. See, e.g., Chamber at 23. 

Finally, other petitioners argue that 

the Proposed Tailoring Rule itself is 

illegal, pointing to numerous industry 

comments filed on the proposal. They 

contend that since the Tailoring Rule is 

illegal, it is ‘‘a patently unconstitutional 

attempt by the Executive Branch to 

unilaterally amend a statute.’’ SLF 5th 

Supp. at 16. In summary, they conclude 

that since EPA cannot regulate GHGs 

under the CAA without ignoring part of 

the statute, it cannot regulate GHGs in 

a manner consistent with the CAA and 


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48We note that EPA has addressed the concerns 

about the approach set forth in the Proposed 

Tailoring Rule raised by state permitting 

authorities. In response to the very comments raised 

by petitioners here, as well as other comments, EPA 

revised its approach for implementing its tailoring 

rule approach to allow for faster state adoption of 

the solution. Final Prevention of Significant 

Deterioration (PSD) and Title V Greenhouse Gas 

Tailoring Rule 75 FR at 31518, 31579–84 (June 3, 

2010) (Final Tailoring Rule). Moreover, EPA also 

finalized applicability thresholds that are higher 

than those proposed, and otherwise refined the 

phase-in of permitting for GHGs to better 

accommodate the workload. Id. at 31523–25. 

any attempt to do so is beyond EPA’s 

legal authority, arbitrary and capricious, 

and an abuse of discretion. Id. at 17–19. 

The petitioners also contend that EPA’s 

Endangerment Finding is arbitrary and 

capricious and an abuse of discretion 

because, they allege, it is climatically 

pointless as well. They state that rather 

than undertake a course of illegal action, 

especially one that they allege does not 

have any detectable effect, EPA should 

start over and reconsider the Findings. 

Id. 

EPA is denying the petitions for 

reconsideration that raise objections 

based on the Proposed Tailoring Rule 

because these objections are not of 

central relevance to the outcome of the 

final Findings and/or could have been 

raised during the public comment 

period. 

These objections are not of central 

relevance to the Findings for three 

primary reasons discussed in more 

detail below. First, as EPA noted in the 

Findings, the impact of regulations that 

may flow from a positive endangerment 

finding, even if absurd, is not a relevant 

consideration to the science based 

question of whether air pollution may 

reasonably be anticipated to 

endangerment public health or welfare. 

See, 74 FR at 66501, 66515–16; RTC 

volume 11 at 4–5. Thus, EPA disagrees 

with a fundamental basis for petitioners’ 

objections based on the Proposed 

Tailoring Rule—i.e., that EPA could or 

must decline to issue an endangerment 

finding under CAA section 202(a), 

regardless of the scientific evidence 

relevant to determining endangerment, 

based on concerns with implementing 

stationary source permitting. Second, 

even if the absurd results doctrine could 

influence EPA’s interpretation of CAA 

section 202(a) after the Supreme Court’s 

decision in Massachusetts, EPA’s 

approach to resolving the absurdity is 

reasonable because it focuses narrowly 

on that part of the CAA where the 

absurdity originates while giving effect 

to other statutory provisions, in order to 

balance the goal of improving public 

health and the environment with the 

goal of avoiding absurd results. Third, 

EPA disagrees with the petitioners who 

argue that because EPA is relying on the 

absurd results doctrine as a result of the 

Findings, the Findings themselves must 

therefore be illegal. Reliance on a 

doctrine of administrative law when 

interpreting a statute is not an 

indication of the illegality of agency 

action; indeed, it shows just the 

opposite. By applying, inter alia, the 

doctrines of absurd results and 

administrative necessity, EPA has been 

able to issue effective regulations 

addressing greenhouse gases while 

avoiding the absurd results that could 

arise from immediately applying the 

statutory thresholds for PSD and title V 

to greenhouse gases. Thus, petitioners’ 

objections do not provide substantial 

support for the argument that the final 

Findings should be revised. 

More specifically, EPA stated the 

following in the Findings in response to 

comments urging EPA to delay making 

an endangerment finding based on, 

among other things, concerns about the 

impact of the PSD program: 

‘‘EPA agrees with the commenters who 

argue that the Supreme Court decision held 

that EPA is limited to consideration of 

science when undertaking an endangerment 

finding, and that EPA cannot delay issuing a 

finding due to policy concerns if the science 

is sufficiently certain (as it is here). The 

Supreme Court stated that ‘‘EPA can avoid 

taking further action only if it determines 

that greenhouse gases do not contribute to 

climate change or if it provides some 

reasonable explanation as to why it cannot or 

will not exercise its discretion to determine 

whether they do’’ 549 U.S. at 533. Some 

commenters point to this last provision, 

arguing that the policy reasons they provide 

are a ‘‘reasonable explanation’’ for not moving 

forward at this time. However, this ignores 

other language in the decision that clearly 

indicates that the Court interprets the statute 

to allow for the consideration only of science. 

For example, in rejecting the policy concerns 

expressed by EPA in its 2003 denial of the 

rulemaking petition, the Court noted that ‘‘it 

is evident [the policy considerations] have 

nothing to do with whether greenhouse gas 

emissions contribute to climate change. Still 

less do they amount to a reasoned 

justification for declining to form a scientific 

judgment. Id. at 533–34 (emphasis added). 

Moreover, the Court also held that 

‘‘[t]he statutory question is whether 

sufficient information exists to make an 

endangerment finding’’ Id. at 534. Taken 

as a whole, the Supreme Court’s 

decision clearly indicates that policy 

reasons do not justify the Administrator 

avoiding taking further action on the 

question here’’ (74 FR 66501, December 

15, 2009). 

Furthermore, EPA noted the following 

when responding to comments arguing 

that EPA should consider the impact of 

regulating GHGs when determining 

whether they endanger public health 

and welfare: 

‘‘At their core, these comments are not 

about whether commenters believe 

greenhouse gases may reasonably be 

anticipated to endanger public health or 

welfare, but rather about commenters’ 

dissatisfaction with the decisions that 

Congress made regarding the response to any 

endangerment finding that EPA makes under 

CAA section 202(a). * * * 

What these comments object to is that 

Congress has already made some decisions 

about next steps after a finding of 

endangerment, and the commenters are 

displeased with the results. But if this is the 

case, commenters should take up their 

concerns with Congress, not EPA. EPA’s 

charge is to issue new motor vehicle 

standards under CAA section 202(a) 

applicable to emissions of air pollutants that 

cause or contribute to air pollution which 

may reasonably be anticipated to endanger 

public health or welfare. It is not to find that 

there is no endangerment in order to avoid 

issuing those standards, and dealing with any 

additional regulatory impact. 

Indeed, commenters’ argument would 

insert policy considerations into the 

endangerment decision, an approach already 

rejected by the Supreme Court. First, as 

discussed in Section I.B of these Findings, in 

Massachusetts v. EPA, the court clearly 

indicated that the Administrator’s decision 

must be a ‘‘scientific judgment.’’ 549 U.S. at 

534. She must base her decision about 

endangerment on the science, and not on 

policy considerations about the 

repercussions or impact of such a finding’’ 

74 FR at 66515; December 15, 2009). 

Thus, petitioners are wrong in their 

claim that either EPA statements in the 

Proposed Tailoring Rule, or comments 

received thereon, regarding potential 

implementation difficulties in the PSD 

or title V permitting programs are 

legally relevant at all, let alone of 

central relevance, to EPA’s 

Endangerment Findings.48 The agency’s 

statements in the Findings that it ‘‘does 

not believe that the impact of regulation 

under the CAA as a whole * * * will 

lead to the panoply of adverse 

consequences that commenters predict,’’ 

and that ‘‘EPA has and will continue to 

take a measured approach to address 

greenhouse gas emissions’’ do not mean 

that EPA gave ‘‘credence and expression 

to one key negative impact’’ as one 

petitioner alleges. Ohio Coal Supp. at 

15. These statements, which 

immediately follow EPA’s explanation 

of how the Administrator must look at 

the science and not policy 

consideration, are merely EPA’s 

response to the dire predictions 

submitted by commenters. EPA did not 

and could not consider such impacts in 

making its science based judgment on 

endangerment. 

EPA further disagrees with the 

arguments that it must grant 


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49 In response to objections which are based in 

part on allegations that EPA must reconsider its 

final decision because new evidence allegedly 

shows that the LDVR will not get meaningful 

reductions, EPA has already stated in the final 

Findings that it does not need to find that any 

attendant regulations flowing from an 

endangerment finding would ‘‘fruitfully attack’’ or 

prevent at least a substantial part of the danger in 

order to find endangerment. 74 FR at 66507–08. 

Moreover, contrary to one petitioner’s implied 

allegation, EPA did not consider the benefits 

resulting from stationary source emissions 

reductions when issuing the Findings, and the 

petitioner did not point to any evidence that EPA 

did base the Findings on such considerations. 

Finally, to the extent petitioners are arguing that 

EPA should reevaluate its approach to absurd 

results because there is little environment or public 

health benefit from the LDVR which followed the 

Findings, EPA disagrees. See Section IV.B 

responding to comments regarding NHTSA rules. 

reconsideration and reopen the Findings 

because since the close of the comment 

period EPA has recognized that the 

Findings would lead to the LDVR, 

which triggers the PSD and title V 

requirements, which in turn would give 

rise to ‘‘absurd results’’ in the permitting 

provisions applicable to some stationary 

sources. The fact that the impacts from 

PSD and title V permitting may be 

absurd does not mean that EPA can 

reinterpret section 202(a) to allow the 

consideration of those absurd results, 

and then find no endangerment or avoid 

making a determination on 

endangerment. 

What petitioners fail to analyze is 

how, given the overwhelming science 

supporting the endangerment finding 

(see above), EPA could decline to issue 

the Findings because of policy/ 

implementation concerns unrelated to 

the science and unrelated to the 

question of whether there is 

endangerment, and not violate the 

Supreme Court’s decision in 

Massachusetts v. EPA. As discussed 

above, EPA disagrees with petitioners 

who argue that ‘‘Massachusetts requires 

EPA to carefully consider [the absurdity 

doctrine] implications for the Agency’s 

overall statutory interpretation.’’ 

Chamber at 13. The Supreme Court was 

clear that GHG fit within the definition 

of ‘‘air pollutant’’ under the CAA, and 

that when considering the question of 

endangerment the Administrator may 

consider only the science. EPA ‘‘must 

ground its reasons for action or inaction 

in the statute,’’ and the statutory 

endangerment provision in section 

202(a) required that EPA’s ‘‘exercise of 

judgment must relate to whether an air 

pollutant ‘cause[s], or contribute[s] to, 

endangerment.’’ This was a ‘‘direction to 

exercise discretion within defined 

statutory limits,’’ and the Court 

explicitly rejected EPA’s authority to 

exercise its judgment for policy reasons 

not related to ‘‘compl[iance] with this 

clear statutory command.’’ 

Massachusetts at 532–533. Petitioners 

would have us ignore the clear mandate 

of the Court’s decision on the premise 

that if the case had been argued 

differently, the Court would have 

rendered a different opinion. EPA 

reasonably followed the instructions 

from the Supreme Court as provided in 

Massachusetts. 

Even if EPA had the authority and 

could reconsider its statutory authority 

under CAA section 202(a) in light of the 

absurdity doctrine, rather than follow 

petitioners’ implied approach, EPA 

would follow the approach set out in 

the Final Tailoring Rule—a narrow 

solution that focuses on that part of the 

CAA where the absurdity originates. 

EPA’s approach balances the goal of 

improving public health and the 

environment by tackling air pollution 

problems with the goal of avoiding 

absurd results.49 Petitioners would 

apply the absurd results doctrine too 

broadly, undertaking a sweeping 

approach that negates any and all 

regulation of GHGs under the CAA in 

order to avoid problems that have arisen 

in specific programs. EPA’s targeted use 

of the absurd results doctrine in the 

Tailoring Rule is the better approach to 

reconciling all its obligations under the 

CAA. EPA has interpreted the statute as 

a whole, and interpreted it in a manner 

that does not allow difficulties in one 

program to nullify the various other 

Congressional provisions that may be 

relevant to climate change under the 

CAA. 

Applying the Chevron two step test, 

EPA must, at Step 1, determine 

Congressional intent. Chevron U.S.A. v. 

NRDC, 467 U.S. 837 (1984). Under the 

absurd results doctrine ‘‘the literal 

meaning of statutory requirements 

should not be considered to indicate 

Congressional intent if that literal 

meaning would produce a result that is 

senseless or that is otherwise 

inconsistent with—and especially one 

that undermines—underlying 

congressional purpose.’’ Final Tailoring 

Rule, 75 FR at 31517. Looking at section 

202(a) of the CAA, congressional intent 

appears clear, under Chevron Step 1, 

that Congress intended the 

Administrator to regulate emissions of 

air pollutants from new motor vehicles 

if the Administrator found that such 

emissions cause or contribute to air 

pollution which endangered public 

health or welfare. The Supreme Court 

stated that ‘‘[i]f EPA makes a finding of 

endangerment, the Clean Air Act 

requires the agency to regulate 

emissions of the deleterious pollutant 

from new motor vehicles.’’ 

Massachusetts at 533. Moreover, the 

Supreme Court has held that when 

making the endangerment finding the 

Administrator must look only at the 

science. There are no absurd results in 

the specific actions under section 202(a) 

of either issuing an endangerment 

finding itself or in issuing standards 

applicable to GHG emissions from new 

motor vehicles. The absurd results stem 

from the contents of other statutory 

provisions, the PSD and Title V 

provisions discussed in the Tailoring 

Rule, not section 202(a). Even for those 

provisions, in the Final Tailoring Rule 

EPA specifically determined that the 

PSD and title V provisions indicate a 

clear congressional intent to cover at 

least the largest sources of GHGs under 

these programs. Id. at 31517. Taking all 

of these facts together, EPA’s approach 

to utilization of the absurdity doctrine 

gives the greatest effect to the various 

provisions of the CAA and the overall 

congressional intent under the CAA, by 

minimizing the scope of limitation on 

statutory provisions in the application 

of the absurd results doctrine. 

As EPA discussed in the Tailoring 

Rule: 

‘‘[i]n determining and implementing 

congressional intent, it is important that the 

statutory provisions at issue be considered 

together—(1) The obligation to make a 

determination on endangerment and 

contribution under CAA section 202(a); (2) if 

affirmative endangerment/cause or contribute 

findings are made, the obligation to 

promulgate standards applicable to the 

emissions of any such air pollutant from new 

motor vehicles or new motor vehicle engines 

under CAA section 202(a); and (3) the PSD 

and title V applicability provisions. The most 

appropriate reading, and certainly a 

reasonable reading, is that we are required to 

take the action we have taken, that is to issue 

the findings, promulgate the LDVR, and 

promulgate the Tailoring Rule. Our approach 

gives effect to as much of Congress’s intent 

for each of these provisions, and the CAA as 

whole, as possible. 

With respect to the endangerment/cause or 

contribute findings under CAA section 

202(a), congressional intent is clear that, as 

we stated in making the Findings and the 

Supreme Court held in Massachusetts v. 

EPA, we are precluded from considering 

factors other than the science based factors 

relevant to determining the health and 

welfare effects of the air pollution in 

question. Accordingly, as discussed above, 

EPA determined that the Agency was 

precluded from deferring or foregoing the 

findings due to concern over impacts on 

stationary sources affected by PSD or title V 

requirements. See 74 FR at 66496, 66500–01 

(‘‘Taken as a whole, the Supreme Court’s 

decision clearly indicates that policy reasons 

do not justify the Administrator avoiding 

taking further action on the questions here.’’); 

see also Massachusetts v. EPA, 549 U.S. at 

533; see also (74 FR 66515–16, December 9, 

2009) (The Administrator ‘‘must base her 

decision about endangerment on the science, 


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50This reasonable and common-sense approach 

includes the kind of step by step approach that 

includes regulation of GHG emissions from new 

motor vehicles, as described by Justice Stevens in 

Massachusetts, when discussing the issue of 

standing. Id. at 524. 

and not on the policy considerations about 

the repercussions or impact of such a 

finding.’’). Moreover, as EPA also noted, 

‘‘EPA has the ability to fashion a reasonable 

and common-sense approach to address 

greenhouse gas emissions and climate 

change. 74 FR at 66516.’’ (75 FR 31574, June 

3, 2010)(footnote omitted).50

The petitioners merely continue to 

disagree with EPA’s interpretation of the 

Supreme Court decision and question 

EPA’s ability to address permitting 

concerns, rather than provide anything 

new in their petitions on this topic. 

To the extent the petitioners are 

requesting that EPA reconsider and 

defer or forego issuance of the Findings 

to avoid causing an absurd result from 

implementation of the separate PSD and 

title V programs until such time as EPA 

could fully implement these programs 

without an absurd result, underlying 

this claim is the assumption that this 

approach would allow EPA to avoid the 

‘‘absurd results’’ that are discussed in the 

Tailoring Rule, which states: 

‘‘* * * there is no basis at this point to 

determine that streamlining will ultimately 

allow full compliance with the PSD and title 

V requirements. Rather, it is possible that 

EPA may conclude that none of the available 

streamlining techniques will allow all GHG 

sources at the statutory thresholds to comply 

with PSD and title V requirements in a 

manner that does not impose undue costs on 

the sources or undue administrative burdens 

on the permitting authorities. Under these 

circumstances, EPA may then permanently 

exclude GHG source categories from PSD or 

title V applicability under the absurd results 

doctrine. Moreover, it may well take many 

years before EPA is in a position to come to 

a conclusion about the extent to which 

streamlining will be effective and therefore 

be able to come to a conclusion as to whether 

any source categories should be permanently 

excluded from PSD or title V applicability. In 

our rulemaking today, we describe what 

actions we expect to take in the first 6 years 

after PSD and title V are triggered for GHG 

sources, and we may well be in a situation 

in which we continue to evaluate 

streamlining measures and PSD and title V 

applicability to GHG sources after this 6-year 

period. 

Accordingly, deferring the endangerment/ 

cause or contribute findings and LDVR until 

such time that PSD and title V streamlining 

would allow full implementation of these 

programs at the statutory limits would serve 

only to delay the benefits of the LDVR, as 

well as the benefits that come from phasing 

in implementation of the PSD program to 

cover larger sources first. It would rely on an 

assumption that is unfounded at this point, 

that is, that such full compliance will be 

required at some point in the future. Delaying 

the emissions benefits of the LDVR and the 

related emissions benefits from partial 

implementation of the PSD program fails to 

implement Congress’ intent that the 

endangerment/cause or contribute findings 

‘‘shall’’ lead to emissions standards for new 

motor vehicles contributing to the 

endangerment, and related emissions 

controls for the same air pollutant under the 

PSD program. EPA need not determine at this 

time what approach would be appropriate if 

there was a determination that full 

compliance with PSD and title V would in 

fact occur at some point in the future. In this 

case, absent such a determination, it would 

be improper to rely on speculation of such 

a future possibility as a basis under section 

202(a) to defer or forego issuance of the 

LDVR on the grounds that EPA should defer 

or forego the LDVR to avoid causing an 

absurd result. Likewise there is no basis to 

defer proceeding at this time with the 

streamlining of the PSD and title V programs. 

With respect to the PSD and title V 

applicability requirements, as we discuss 

elsewhere, we believe that Congress 

expressed a clear intent to apply PSD and 

title V to GHG sources and that the phase-in 

approach incorporated in the Tailoring Rule 

is fully appropriate. Proceeding now with the 

endangerment/contribution findings and 

LDVR, even if phasing-in of the PSD and title 

V programs is required, is consistent with our 

interpretation of the PSD and title V 

applicability requirements. Delaying the 

endangerment/contribution findings or 

LDVR, and thereby delaying the triggering of 

PSD and title V requirements for GHG 

sources, would lead to the loss of a 

practicable opportunity to implement the 

PSD and title V requirements in important 

part, and thereby lead to the loss of important 

benefits. As discussed elsewhere, 

promulgating the LDVR and applying the 

PSD and title V requirements to the largest 

GHG sources, as we do in this Tailoring Rule, 

is practicable because the sources that would 

be affected by the initial implementation 

steps we promulgate in this rule are able to 

bear the costs and the permitting authorities 

are able to bear the associated administrative 

burdens. Promulgating the LDVR now 

provides important advantages because the 

sources that would be affected by the initial 

steps are responsible for most of the GHG 

emissions from stationary sources. 

It should also be noted that as discussed 

elsewhere in this rulemaking, our ability to 

develop appropriate streamlining techniques 

for PSD and title V requirements is best done 

within the context of actual implementation 

of the permitting programs, and not in 

isolation of them. That is, because the great 

majority of GHG sources have not been 

subject to PSD and title V requirements, we 

will need to rely on the early experience in 

implementing the permitting requirements 

for the very large sources that initially will 

be subject to those requirements in order to 

develop streamlining techniques for smaller 

sources. It is the real world experience 

gained from this initial phase that will allow 

EPA to develop any further modifications 

that might be necessary. This would not and 

could not occur if the LDVR were delayed 

indefinitely or permanently, so that PSD and 

title V requirements were not triggered. It is 

unrealistic to expect that delaying action 

until a future tailoring rule could resolve all 

of the problems identified in this rulemaking, 

absent any real world implementation 

experience. 

At its core, commenters’ argument is that 

EPA should delay (if not forego altogether) 

doing anything to address GHG emissions 

and the problems they cause until it can do 

so in a way that does not cause any 

implementation challenges, even if that delay 

results in continued endangerment to public 

health and welfare. EPA does not take such 

a myopic view of its duties and 

responsibilities under the CAA. Congress 

wrote the CAA to, among other things, 

promote the public health and welfare and 

the productive capacity of the population. 

CAA § 101(b)(1). EPA’s path forward does 

just this. Thus, proceeding with the 

endangerment/cause or contribute findings, 

the LDVR, and with PSD and title V through 

the phase-in approach of the Tailoring Rule 

maximizes the ability of EPA to achieve the 

Congressional goals underlying CAA sections 

202(a) and the PSD and title V provisions, 

and the overarching CAA goal of protecting 

public health and welfare. Congress called 

for EPA (1) to determine whether emissions 

from new motor vehicles contribute to air 

pollution that endangers, (2) if that the 

determination is affirmative, to issue 

emissions standards for new motor vehicles 

to address the endangerment, and (3) to 

implement the PSD and Title V program to 

address similar emissions in their permitting 

program as another tool to address the air 

pollutant at issue. Delaying both the LDVR 

and PSD/title V implementation, as 

commenters have called for, would run 

directly counter to these Congressional 

expectations. Commenters’ calls for deferral 

or foregoing of the findings or LDVR are 

generally phrased in a conclusory fashion, 

and do not demonstrate how EPA could take 

the required CAA actions concerning GHGs 

while remaining within the requirements of 

each of the various CAA provisions, and 

achieving the overall goals of the CAA. As 

such the comments do not provide a valid 

basis for the deferral of agency action they 

suggest.’’ (75 FR 31575–56; June 3, 2010). 

As explained above, EPA is resolving 

the absurdity caused by the statutory 

thresholds in the PSD and title V 

permitting programs not by avoiding an 

endangerment finding or avoiding all 

regulation under the CAA, but rather by 

interpreting the statute in a way that 

gives effect to the greatest extent 

possible to both section 202(a) and the 

applicable permitting provisions. This 

gives the greatest effect possible to the 

congressional intent about addressing 

air pollutant problems that endanger 

public health and welfare, while also 

focusing the permitting programs, at 

least initially, on large stationary 

sources. EPA’s targeted use of the 

absurd results doctrine in the Tailoring 

Rule is a reasonable approach to 

reconcile the various statutory 

obligations under the CAA at issue here. 


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51Contrary to one petitioner’s argument, EPA did 

not craft the Tailoring Rule in response to the global 

nature of greenhouse gas concentrations and 

climate change. Rather, it is the much higher 

amounts at which greenhouse gases are emitted by 

stationary sources, compared to existing criteria and 

other regulated air pollutants, that necessitated 

EPA’s reasonable approach to permitting. The 

absurdity that EPA was trying to avoid was 

permitting stationary sources much smaller than 

Congress intended when writing the permitting 

provisions of the CAA. The global nature of 

greenhouse gases and climate change was not the 

reason for the Tailoring Rule. 

EPA also disagrees with petitioners 

who argue either implicitly or explicitly 

that EPA has admitted, through its 

invocation of the absurd results doctrine 

in the Proposed Tailoring Rule, that it 

cannot regulate GHGs under the CAA 

without violating the statute. While, in 

the Tailoring Rule, EPA has noted that 

applying the statutory thresholds in the 

PSD and title V programs to greenhouse 

gases immediately for all sources would 

present problems, and may indeed lead 

to absurd results even in the long run, 

EPA did not and does not take the 

position that all regulation of GHGs 

under the CAA leads to absurd results 

or is illegal. In fact, just the opposite is 

true. EPA has issued reasonable, 

effective GHG emissions standards for 

light duty vehicles, and has announced 

plans for further GHG emissions 

standards for later model year light-duty 

vehicles. EPA also plans to propose the 

same for heavy-duty motor vehicles. 

Moreover, by applying, inter alia, the 

doctrines of absurd results and 

administrative necessity, EPA has been 

able to avoid the absurd results that 

could arise from applying the statutory 

thresholds for PSD and title V to 

greenhouse gases.51 The concept behind 

the absurd results doctrine is that an 

agency can (if not must) ignore the 

literal meaning of a statute in order to 

effectuate congressional intent. That is 

exactly what EPA’s approach does— 

ignore only the statutory thresholds for 

PSD and title V in order to effectuate 

congressional intent under the CAA as 

a whole. EPA’s reliance on one or more 

doctrines of administrative law when 

interpreting the statute is not evidence 

of the illegality of EPA’s actions; rather 

it is evidence of the reasonable 

approach EPA took to interpreting and 

implementing the statute. 

Finally, EPA is also denying the 

petitions because, while the Tailoring 

Rule was proposed after the close of the 

comment period for the Findings, EPA 

discussed the impact of applying the 

PSD and title V statutory thresholds to 

GHGs, and the potential need to tailor 

those programs as appropriate, in the 

July 2008 ANPR. 73 FR 44354, 44497– 

514, 44503 (‘‘we have identified two 

legal doctrines that may provide EPA 

with discretion to tailor the PSD 

program to GHGs: Absurd results and 

administrative necessity.’’), 44512 

(discussing same legal theories in 

context of title V). Indeed, EPA received 

comments from some of the same 

entities that are petitioning for 

reconsideration now regarding the 

Agency’s position about its ability to 

craft a reasonable approach to 

addressing GHGs under the CAA, 

including the CAA permitting programs. 

See, e.g., Comments submitted by Marlo 

Lewis for the Competitive Enterprise 

Institute (EPA–HQ–OAR–2009–0171– 

2898.1). Thus, while EPA itself may 

have elaborated regarding the potential 

for absurd results from GHG permitting 

at the statutory thresholds in the 

Proposed Tailoring Rule, the issue was 

not raised for the first time in the 

Tailoring Rule; it had already been 

raised in the ANPR, and there was 

nothing preventing petitioners from 

commenting on the issue in their 

comments on the proposed Findings (as 

indeed some did). Commenters on the 

proposed Findings also argued that the 

Supreme Court was unaware of the 

impacts of the permitting programs 

when deciding Massachusetts. RTC 

Volume 11 at 5. Thus, objections based 

on the need to apply the absurd results 

doctrine to the PSD and title V 

programs, and on arguments related to 

how EPA defended its actions in 

Massachusetts, could have been (and 

indeed were) raised during the comment 

period on the Findings and are not 

appropriately raised in petitions for 

reconsideration. 

B. NHTSA Rule 

The Chamber of Commerce raised 

objections based on the authority of the 

National Highway Traffic Safety 

Administration (NHTSA) to issue 

Corporate Average Fuel Economy 

(CAFE) standards for new motor 

vehicles. Specifically, the Chamber 

argued that the federal government must 

choose between two alternative 

regulatory approaches: Seeking to 

regulate GHG emissions using NHTSA’s 

authority, under EPCA as revised by 

EISA or, alternatively, regulating such 

emissions on authority of Title II of the 

CAA. According to the Chamber, 

NHTSA has recently acknowledged it 

has adequate legal authority under 

EPCA and EISA to regulate greenhouse 

gas emissions, independent from EPA’s 

authority under CAA section 202(a), 

therefore EPA must reconsider the 

Endangerment Finding because it 

cannot claim to generate the public 

health benefits from CAA mobile source 

GHG emissions reductions. The 

Chamber argues that according to EPA, 

the Endangerment Finding, standing 

alone, produces no current public 

health or welfare benefits but will 

instead produce such benefits in the 

future, but only if it effectively serves as 

a precondition for the regulation of GHG 

emissions from new motor vehicles or 

some other category of emission 

sources. Thus, the Chamber concludes, 

EPA has justified the Endangerment 

Finding as a means to the end of new 

motor vehicle regulation. 

The Chamber claims that this core 

rationale for EPA’s Endangerment 

Finding and regulatory program can no 

longer bear scrutiny. It argues that if 

EPA affirmatively wishes to pursue an 

Endangerment Finding to regulate 

emissions from new motor vehicles, it 

must explain what it can add to a 

NHTSA-only rulemaking. According to 

the Chamber, EPA may not rely on a 

presumed need for motor vehicle 

regulations that could be accomplished 

through NHTSA regulations alone. 

(Chamber, 19–23) 

Petitioner claims that EPA issued and 

justified the Endangerment Finding 

based on the need for emissions 

reductions from EPA regulation of new 

motor vehicles, and the expectation that 

such EPA regulation would achieve the 

expected emissions reductions. That 

argument mischaracterizes EPA’s 

position. 

Consistent with the statutory 

language, legislative history and 

Supreme Court case law, EPA 

determined whether atmospheric 

concentrations of greenhouse gases are 

reasonably anticipated to endanger 

public health or welfare, and based that 

determination on the scientific and 

other evidence relevant to the issues of 

endangerment. As EPA made clear, CAA 

section 202(a) limited the issues EPA 

could consider in making a 

determination concerning 

endangerment, and they did not include 

consideration of the degree of 

reductions that would reasonably be 

achieved by regulations to control 

emissions from new motor vehicles. 

EPA clearly stated that: 

‘‘As the Supreme Court made clear in 

Massachusetts v. EPA, EPA’s judgment in 

making the endangerment and contribution 

findings is constrained by the statute, and 

EPA is to decide these issues based solely on 

the scientific and other evidence relevant to 

that decision. EPA may not ‘‘rest[] on 

reasoning divorced from the statutory text,’’ 

and instead EPA’s exercise of judgment must 

relate to whether an air pollutant causes or 

contributes to air pollution that endangers. 

Massachusetts v. EPA, 549 U.S. at 532. As 

the Supreme Court noted, EPA must 

‘‘exercise discretion within defined statutory 

limits.’’ Id. at 533. EPA’s belief one way or 


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the other regarding whether regulation of 

greenhouse gases from new motor vehicles 

would be ‘‘effective’’ is irrelevant in making 

the endangerment and contribution decisions 

before EPA. Id. Instead ‘‘[t]he statutory 

question is whether sufficient information 

exists to make an endangerment finding’’ Id. 

at 534. 

The effectiveness of a potential future 

control strategy is not relevant to deciding 

whether air pollution levels in the 

atmosphere endanger. It is also not relevant 

to deciding whether emissions of greenhouse 

gases from new motor vehicles contribute to 

such air pollution. Commenters argue that 

Congress implicitly imposed a third 

requirement, that the future control strategy 

have a certain degree of effectiveness in 

reducing the endangerment before EPA could 

make the affirmative findings that would 

authorize such regulation. There is no 

statutory text that supports such an 

interpretation, and the Supreme Court makes 

it clear that EPA has no discretion to read 

this kind of additional factor into CAA 

section 202(a)’s endangerment and 

contribution criteria. In fact, the Supreme 

Court rejected similar arguments that EPA 

had the discretion to consider various other 

factors besides endangerment and 

contribution in deciding whether to deny a 

petition. Massachusetts v. EPA, 549 U.S. at 

532–35.’’ (74 FR 66496, 66507–8; December 

15, 2009). 

This excerpt was in response to 

comments arguing that EPA should take 

into account the emissions impacts of 

EPA’s then upcoming rule to control 

emissions of greenhouse gases from 

light-duty vehicles and trucks, and 

consider that the CAFE standards issued 

by NHTSA would effectively achieve 

the same reductions. Id. at 66501, 

66507. Just as the effectiveness of future 

motor vehicle regulations was not 

relevant to determining endangerment, 

EPA made it clear that CAA section 

202(a) did not allow EPA to consider 

issues such as future adaptation and 

mitigation, which reflected how society 

responded to the issue of endangerment, 

not whether endangerment existed. Id. 

at 66512–514. 

Thus, it is clear that EPA did not 

justify or base its Endangerment Finding 

on either the need for emissions 

reductions from EPA regulations of new 

motor vehicles, or the expectation that 

such an EPA regulation would achieve 

emissions reductions. EPA rejected 

suggestions during the rulemaking that 

EPA refrain from issuing and 

Endangerment Finding because NHTSA 

has the authority to issue CAFE 

standards that also reduce greenhouse 

gases, as discussed above. The Chamber 

is raising basically the same issue raised 

in the rulemaking, and has presented no 

reason that would support any different 

response. EPA is rejecting Chamber’s 

request for the same reasons it rejected 

these same kinds of requests in the 

rulemaking. 

It is also clear that it was eminently 

practicable for the Chamber to raise this 

issue in the comment period. As 

described above, various commenters 

pointed to NHTSA’s separate authority, 

and argued that NHTSA would 

effectively achieve the same reductions 

as EPA, undermining the basis for EPA’s 

Endangerment Finding. Id. at 66507. 

Also see 66544, in the context of the 

Contribution Finding. The Chamber 

raises the same kind of objection here, 

and could have raised it during the 

comment period. While they point to a 

subsequent statement by NHTSA 

indicating that NHTSA’s statutory 

authority is separate from EPA’s, that is 

not new or different information 

concerning NHTSA’s authority and does 

not change the nature of the Chamber’s 

objection. Their failure to raise their 

objection in a timely manner is another 

reason to reject their request to 

reconsider on these grounds. 

As part of their argument, the 

Chamber claims that EPA must explain 

what it can add to a NHTSA-only 

rulemaking. This is one part of the 

argument raised above, and is rejected 

for the same reasons. As with the 

arguments discussed above, the 

Chamber could have raised this 

argument during the comment period, 

and the failure to do so is another 

reason to reject their request to 

reconsider on these grounds. 

In any case, EPA has explained in 

detail how the recently issued 

regulations under CAA section 202(a) to 

control emission of greenhouse gases 

from light-duty vehicles and trucks 

differ from NHTSA’s CAFE program for 

the same vehicles, and why it was 

important for EPA to issue its rule. In 

the final rule issuing greenhouse gas 

emissions standards for new motor 

vehicles, EPA responded to comments 

that it should delay issuance of the 

motor vehicle standards until a later 

time, to avoid concerns over stationary 

source permitting impacts. EPA stated: 

‘‘[The Supreme Court in Massachusetts] 

stated that under section 202(a), ‘‘[i]f EPA 

makes [the endangerment and cause or 

contribute findings], the Clean Air Act 

requires the agency to regulate emissions of 

the deleterious pollutant.’’ 549 U.S. at 534. As 

discussed above, EPA has made the two 

findings on contribution and endangerment. 

74 FR 66496 (December 15, 2009). Thus, EPA 

is required to issue standards applicable to 

emissions of this air pollutant from new 

motor vehicles. 

The Court properly noted that EPA 

retained ‘‘significant latitude’’ as to the 

‘‘timing * * * and coordination of its 

regulations with those of other agencies’’ 

(id.). However it has now been nearly three 

years since the Court issued its opinion, and 

the time for delay has passed. In the absence 

of these final standards, there would be three 

separate Federal and State regimes 

independently regulating light-duty vehicles 

to increase fuel economy and reduce GHG 

emissions: NHTSA’s CAFE standards, EPA’s 

GHG standards, and the GHG standards 

applicable in California and other states 

adopting the California standards. This joint 

EPA–NHTSA program will allow automakers 

to meet all of these requirements with a 

single national fleet because California has 

indicated that it will accept compliance with 

EPA’s GHG standards as compliance with 

California’s GHG standards. 74 FR at 49460. 

California has not indicated that it would 

accept NHTSA’s CAFE standards by 

themselves. Without EPA’s vehicle GHG 

standards, the states will not offer the Federal 

program as an alternative compliance option 

to automakers and the benefits of a 

harmonized national program will be lost. 

California and several other states have 

expressed strong concern that, without 

comparable Federal vehicle GHG standards, 

the states will not offer the Federal program 

as an alternative compliance option to 

automakers. Letter dated February 23, 2010 

from Commissioners of California, Maine, 

New Mexico, Oregon and Washington to 

Senators Harry Reid and Mitch McConnell 

(Docket EPA–HQ–OAR–2009–0472–11400). 

The automobile industry also strongly 

supports issuance of these rules to allow 

implementation of the national program and 

avoid ‘‘a myriad of problems for the auto 

industry in terms of product planning, 

vehicle distribution, adverse economic 

impacts and, most importantly, adverse 

consequences for their dealers and 

customers.’’ Letter dated March 17, 2010 from 

Alliance of Automobile Manufacturers to 

Senators Harry Reid and Mitch McConnell, 

and Representatives Nancy Pelosi and John 

Boehner (Docket EPA–HQ–OAR–2009–0472– 

11368). Thus, without EPA’s GHG standards 

as part of a Federal harmonized program, 

important GHG reductions as well as benefits 

to the automakers and to consumers would 

be lost. In addition, delaying the rule would 

impose significant burdens and uncertainty 

on automakers, who are already well into 

planning for production of MY 2012 vehicles, 

relying on the ability to produce a single 

national fleet. Delaying the issuance of this 

final rule would very seriously disrupt the 

industry’s plans’’ (75 FR 25314, 25402; May 

7, 2010). 

EPA also noted that the greenhouse 

gas standards issued by EPA achieved 

greater overall reductions in greenhouse 

gases than NHTSA’s CAFE standards. Id 

at n.165, 25402; also see 25397, 25549– 

50. Thus, EPA has explained in full the 

reasons for refusing to delay issuance of 

EPA’s motor vehicle emissions 

standards, and what EPA’s rule adds to 

NHTSA’s CAFE rule. As noted above, 

these issues are not relevant to the 

issues EPA considers in making a 

determination on endangerment under 

CAA section 202(a). 


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52The State of Texas stated that this letter was 

provided to the endangerment docket (EPA–HQ– 

OAR–2009–0171), but it was actually submitted to 

the docket for the Proposed Tailoring Rule (EPA– 

HQ–OAR–2009–0571). 

53Petitioners also provide this information in the 

context of requesting an administrative stay of the 

Findings from EPA. See Section II for a discussion 

of EPA’s denial of these stay requests. 

54EPA responds to the argument regarding the 

public health finding in section IV.B.I of the 

Findings and Volume 5 of the RTC document. 

C. Other Issues 

1. Effects of the Findings and 

Subsequent Rulemakings on States and 

Businesses 

Many of the petitioners provide 

detailed information regarding the 

impact that they allege would flow from 

the Findings; these discussions are in 

addition to arguments based on the 

Proposed Tailoring Rule (see Section 

IV.A of this Notice for the response to 

the arguments based on the Proposed 

Tailoring Rule). For example, the State 

of Texas, in addition to providing 

information regarding efforts the State 

has made to address GHGs, details harm 

it predicted could occur to the State 

through allegedly adverse impacts to its 

farming and ranching, mineral interest 

revenue stream, and oil and gas sector. 

Texas at 5–7, 32–34. The State also 

discusses what it describes as the 

‘‘fallout’’ from the Findings. Id. at 34–38. 

More specifically, the State of Texas 

discusses resolutions and bills that have 

been introduced in the U.S. House of 

Representatives and the U.S. Senate, 

comments from the Small Business 

Administration’s Office of Advocacy on 

the Proposed Tailoring Rule,52 and 

various inquiries into, or statements 

about, the CRU e-mails and IPCC. 

The State of Virginia, while not 

providing any additional information 

regarding the alleged impacts of the 

Findings, states that ‘‘EPA’s remote 

finding of endangerment to health and 

welfare fail to consider and properly 

weigh the offsetting harms to health and 

welfare necessarily flowing from 

economically destructive regulation.’’ 

Virginia at 3. 

The petitioners’ information regarding 

the impact to petitioners and others 

often follows sections of the petitions in 

which petitioners raise allegedly new 

concerns with the science underlying 

the Findings. The information regarding 

the impact from the Findings is most 

often provided in order to emphasize to 

EPA the necessity of reconsidering the 

Findings based on those earlier 

concerns.53 See, e.g., Texas at 35 (‘‘In 

light of these * * * concerns * * * the 

Administrator’s improper handling of 

the scientific assessment process takes 

on an even greater meaning.’’); Letter 

from WV Coal Assn. at 1 (‘‘EPA’s 

findings would have a grave impact on 

our industry and the thousands of West 

Virginians who depend on the 

production and use of our high quality 

coal everyday * * *. This makes it all 

the more important that EPA suspend 

its decision and reconsider it in light of 

these important new developments.’’). 

The objections based either explicitly 

or implicitly on EPA’s decision to not 

consider the impacts of greenhouse gas 

regulations when making the Findings 

could have been, and indeed were, 

raised during the public comment 

period on the Findings. Thus, they are 

not properly raised in CAA section 

307(d) petition for reconsideration and 

are therefore denied. 

Moreover, as discussed elsewhere in 

this Decision and supporting material, 

this information is essentially irrelevant 

to the scientific based questions before 

EPA when making the endangerment 

and contribution findings. EPA already 

explained in the Findings how the 

potential impacts from the regulations 

that may follow an endangerment 

finding are not proper considerations 

when determining whether GHGs may 

reasonably be anticipated to endanger 

public health or welfare. See generally, 

74 FR at 66515–16; see also id. at 66515 

(The Administrator ‘‘must base her 

decision about endangerment on the 

science, and not on policy 

considerations about the repercussions 

or impact of such a finding.’’); id. at 

66516 (‘‘Therefore, it is reasonable to 

interpret the endangerment test as not 

requiring the consideration of the 

impacts of implementing the statute in 

the event of an endangerment finding as 

part of the endangerment finding 

itself.’’). 

Finally, as detailed elsewhere in this 

Decision and RTP document, the CRU emails and other scientific information 

provided by the petitioners do not call 

into question the underlying science, 

EPA’s reliance on it, or the 

Administrator’s final determination. 

2. A Formal Rulemaking Process Is Not 

Required 

One petitioner discusses why EPA 

should not only reconsider the 

Findings, but also utilize the formal 

rulemaking process in the 

reconsideration proceedings. Peabody 

Energy at IX–9 to IX–18. Essentially, the 

petitioner believes that the questions 

raised by the CRU e-mails and errors in 

IPCC AR4 are so serious that EPA’s 

responsibilities to address them can be 

discharged only through granting 

reconsideration, and undertaking a 

formal rulemaking process. More 

specifically, the petitioner states that 

‘‘[a]n on-the-record proceeding is 

necessary to rectify the substantial flaws 

in the process that EPA has employed, 

flaws that stem from the abuses 

infecting the studies on which the 

Endangerment Finding is principally 

based.’’ Peabody Energy at IX–9. 

In support of its argument, petitioner 

first notes that while EPA may not be 

required by the CAA to undertake an 

on-the-record proceeding, nothing 

prohibits EPA from undertaking more 

process than is required by statute. Id. 

at IX–9 to IX–10. The petitioner then 

argues that case law and ‘‘other 

authoritative guidance,’’ specifically 

guidance from the Administrative 

Conference of the United States (ACUS), 

‘‘make clear than an evidentiary 

hearing’’ on the petitions for 

reconsideration is warranted. Id. at IX– 

10. The petitioner contends that a 

formal evidentiary hearing will fix 

EPA’s record, which they claim is 

‘‘wholly inadequate’’ and cannot justify 

finding endangerment to public 

health.54 More specifically, they claim 

that a ‘‘responsive thrust and parry’’ 

about the science underlying the 

Administrator’s decision, including 

‘‘secondary sources’’ such as the IPCC, 

should occur and that the informal 

rulemaking proceeding EPA undertook 

does not allow for this. Peabody Energy 

at IX–16. 

Comments suggesting that EPA 

undertake a formal rulemaking process, 

not only could have been raised, but 

were raised, during the comment period 

for the Findings. 74 FR at 66504–05, 

66510–12. Thus, they are not 

appropriately raised in petitions for 

reconsideration. Please see the above 

portions of the Findings, RTC Volume 1, 

and Section III of this Decision for 

further discussion on why EPA’s denial 

of the request for formal hearing in the 

Findings, and the agency’s continued 

reliance on the assessment reports, is 

reasonable. 

To the extent that the petitioners are 

re-raising these comments in light of the 

CRU e-mails and IPCC developments, 

and asking for EPA to reconsider its 

prior denial of the request for a formal 

rulemaking hearing, for the reasons 

explained elsewhere in this Decision 

and supporting materials, these 

materials do not necessitate EPA 

granting reconsideration, let alone 

initiating the exceedingly rare process of 

a formal, on-the-record rulemaking. 

When all is said and done, the CRU emails and IPCC errors do not call into 

question the science supporting the 

Administrator’s decision. They surely 

do not rise to the level of ‘‘extremely 


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55The extremely compelling circumstances found 

by courts in the cases cited by petitioners do not 

exist here. See People of the State of Illinois v. 

United States, 666 F.2d 1066, 1082–83 (7th Cir. 

1981) (court relied upon a combination of unique 

factors including that the Interstate Commerce 

Commission had allowed cross-examination on 

some information in an adjudicatory proceeding, 

but not other similar information, and the crossexamination had been found to be ‘‘critical to 

achieving an accurate determination of the facts.’’); 

National Wildlife Federation v. Marsh, 721 F.2d 

767, (11th Cir. 1983) (the court merely required the 

Army Corps of Engineers to follow its own 

longstanding internal procedures when issuing a 

permit). EPA also notes that two of the cases the 

petitioner cites for the proposition that ‘‘cross 

examination is the most effective way to ascertain 

the truth,’’ Peabody at IX–15, are criminal cases, 

therefore it is not surprising that cross-examination 

was at issue. The third, discussed above, involved 

a decision in which the agency had already decided 

to allow cross-examination. People, 666 at 1083. 

compelling circumstances’’ that 

petitioner argues would justify a court 

dictating that EPA undertake formal 

rulemaking procedures. Peabody Energy 

at IX–10. 

Petitioner argues that while EPA is 

not required by the CAA to follow a 

formal rulemaking process, EPA has the 

authority to convene such a hearing and 

nothing in the CAA should be read to 

‘‘limit EPA’s discretion in deciding 

whether to do so.’’ Peabody Energy at 

IX–9. n. 494. The petition also notes that 

EPA is equipped to undertake such a 

hearing, citing the existing procedures 

for adjudications, 40 CFR 22.3(a). While 

EPA may have the discretion to provide 

more process than the minimum 

required by CAA section 307(d), EPA 

notes that the petition does not discuss 

how a formal on-the-record hearing 

process would fit within the informal 

rulemaking proceedings mandated by 

the CAA. See 74 FR at 66505 (noting 

that original request also did not discuss 

how a formal hearing would fit with 

CAA requirements). Nor does it discuss 

how the 40 CFR part 22 regulations, 

which are entitled ‘‘Consolidated Rules 

of Practice Governing the 

Administrative Assessment of Civil 

Penalties and Revocation/Termination 

or Suspension of Permits’’ and cover 

administrative adjudicatory proceedings 

for specifically delineated civil penalty 

or permit actions, would authorize the 

type of hearing petitioner suggests, or 

even how they would work assuming 

EPA chose to apply them as suggested 

by petitioner. 

The cases cited by petitioner stand for 

the unsurprising proposition that some 

circumstances justify more or different 

procedures than others. But they do not, 

as petitioner alleges, lead to the 

inevitable conclusion that the only 

reasonable recourse for EPA is to 

undertake a formal rulemaking 

process.55 Indeed, that would be a 

departure ‘‘from the very basic tenet of 

administrative law that agencies should 

be free to fashion their own rules of 

procedure.’’ Vermont Yankee Nuclear 

Power Corp. v. NRDC, 435 U.S. 519, 544 

(1978). In Vermont Yankee the Supreme 

Court rejected an argument similar to 

that being made by petitioner here—that 

the issues before the agency were so 

complex and important that they 

necessitated more process, including 

cross-examination, even if such 

procedures were beyond the minimum 

required. Id. at 539–49. Also see 

Kennecott, 684 F.2d at 1020 fn 33. 

To the extent that petitioner argues 

that EPA’s record is inadequate if it does 

not include the ‘‘thrust and parry’’ of a 

formal rulemaking hearing, with cross 

examination, EPA disagrees. Congress 

clearly indicated that the robust 

informal rulemaking procedures of CAA 

section 307(d) are appropriate for the 

myriad complex issues that EPA must 

address when issuing particular CAA 

rules. Nothing that petitioners have 

provided call into question EPA’s 

decision to follow the clear direction 

provided in section 307(d). 

Indeed, the robust informal 

rulemaking requirements of section 

307(d) of the CAA ensure adequate and 

appropriate notice and comment for 

CAA decisions. See generally 74 FR 

66500–05 (discussing the public 

involvement in development of the 

Findings, including EPA’s careful 

review and response to more than 

380,000 public comments). Moreover, 

the section 307(d) reconsideration 

process provides ample opportunity for 

petitioners, and any other interested 

party, to submit to EPA for 

consideration new information which 

they believe is of central relevance to 

the Administrator’s final decision, and 

hence necessitates reconsideration of 

that decision. Other than continuing to 

disagree with EPA’s denial of the 

original request for a formal rulemaking, 

and continuing to state its opinion that 

the science and regulatory impact from 

an endangerment finding demands more 

process, petitioner has not demonstrated 

why the clearly applicable procedures 

of section 307(d) are inadequate, let 

alone why only the rarely-used formal 

rulemaking process is the only 

reasonable path forward. Petitioners 

have submitted over 500 pages of 

reconsideration petitions, as well as 

attachments consisting of hundreds of 

pages that contain information 

including dozens of studies, more than 

300 pages of computer code, and more 

than 1000 e-mails. Peabody Energy and 

other petitioners have had a full 

opportunity, both in the underlying 

rulemaking and in the reconsideration 

process, to submit whatever information 

or evidence they want concerning the 

variety of scientific and other issues of 

concern to them, such as those 

identified at Peabody IX–12. EPA’s 

lengthy and detailed Denial, including 

this document and the RTP document, 

carefully examines each objection raised 

and explains why each objection is 

untimely and/or not of central 

relevance. The CAA reconsideration 

process provides ample opportunity for 

interested parties to present new 

information to EPA, and for EPA to 

examine that information. Petitioner has 

not identified what cross examination it 

thinks is required to ‘‘ensure that results 

reached by EPA reflect scientific truths’’. 

For example, do they envision cross 

examination of all of the authors of the 

thousands of studies discussed in the 

rulemaking, or discussed in an 

assessment report? Cross examination of 

every author and other participant in an 

assessment report? Cross examination of 

agency scientists? And for all of these, 

on what subjects and issues? The 

administrative record includes the 

assessment reports and their integration 

of the science within areas of climate 

research and across various areas of 

climate research, as well as EPA’s TSD 

and additional reports and studies 

provided by commenters. The proposed 

and final Findings also included the 

Administrator’s judgments and 

conclusions on all of this evidence. 

Petitioners have failed to explain what 

facts they would like cross examination 

on, what witnesses they envision cross 

examining, and how any such 

examination would add in any way, 

much less a practical way, to the ability 

they already have, through submission 

of comments and petitions to 

reconsider, to attack and contest at 

length any and all of these parts of the 

informal rulemaking record. They have 

failed to demonstrate how their broad, 

general assertions of a better process 

would actually work as a practical way 

to better ensure the scientific integrity of 

the record before the Agency. It is quite 

reasonable for EPA to rely on the robust 

and in-depth informal rulemaking 

procedures followed in this rulemaking, 

as mandated by Congress, rather than 

embark on the rarely-used formal 

rulemaking pathway. 

As discussed in the final Findings, the 

ACUS guidelines are non-binding 

recommendations regarding ‘‘important 

circumstances tending to suggest the 

desirability of such procedural devices’’. 

1 U.S.C. 305.76–3(1). EPA notes that the 

ACUS recommendations cited by 

petitioner are not specifically for the 

formal rulemaking proceedings 


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Federal Register / Vol. 75, No. 156 / Friday, August 13, 2010 / Rules and Regulations 49593 

suggested by petitioner. Rather, they are 

more general, for ‘‘[h]earing argument 

and other oral presentation, when the 

presiding agency official or officials may 

ask questions, including questions 

submitted by interested persons.’’ 1 

U.S.C. 305.76–3(1)(f). The CAA requires 

a hearing and opportunity for oral 

presentation, CAA section 307(d)(5), 

and EPA held two hearings during 

which interested parties could present 

their arguments and information and 

EPA could ask questions. Thus, EPA has 

already undertaken procedures similar 

to those recommended by the ACUS. 

Last, part of the recommendation of 

the ACUS not raised by petitioner is the 

following: 

An agency should employ any of the 

devices specified in paragraph 1 or permit 

cross-examination only to the extent that it 

believes that the anticipated costs (including 

those related to increasing the time involved 

and the deployment of additional agency 

resources) are offset by anticipated gains in 

the quality of the rule and the extent to 

which the rulemaking procedure will be 

perceived as having been fair. 

1 U.S.C. 305.76–3(3). 

For all the reasons stated above, in the 

final Findings, and elsewhere in this 

document and supporting material, EPA 

does not believe that the potential for 

gains in the quality of the 

Administrator’s decision, if any, would 

offset the costs, both in terms of agency 

resources and delay. Moreover, the 

section 307(d) rulemaking process is 

quite fair, providing adequate 

opportunity for everyone, and not just 

parties who could afford to participate 

in a formal hearing, to present their 

views. Contrary to petitioner’s 

argument, it resulted in a record that is 

both scientifically sound and adequate. 

For all the foregoing reasons, the 

request to reconsider its prior decision 

and undertake a formal rulemaking, 

evidentiary hearing process, is denied. 

3. Discretion in Making an 

Endangerment Finding 

Peabody Energy argues that whatever 

discretion EPA may have in making an 

Endangerment Finding, it must justify 

and defend the specific findings of 

endangerment it actually made. More 

specifically, Peabody Energy argues that 

EPA did not assess the danger as low 

risk/high magnitude. It found instead 

both a high risk and high magnitude of 

harm, citing the following quotes from 

the Findings—‘‘[t]he scientific evidence 

is compelling that elevated 

concentrations of heat-trapping 

greenhouse gases are the root cause of 

recently observed climate change’’ and 

‘‘[m]ost of the observed increase in 

global average temperatures since the 

mid-20th century is very likely due to 

the observed increase in anthropogenic 

GHG concentrations,’’ with ‘‘very likely’’ 

defined as 90–99% probability. Thus, 

they conclude, EPA must now defend 

its high risk/high harm conclusion, even 

if arguendo it had discretion to make a 

lower finding of endangerment. 

Peabody Energy argues that this 

distinction between the Endangerment 

Finding that EPA might be authorized to 

make and the Endangerment Finding it 

actually made is crucial in light of the 

CRU material. Peabody contends that 

even if EPA might still be able to make 

an Endangerment Finding of some kind 

(a fact that Peabody does not concede), 

that would not justify the Endangerment 

Finding that EPA actually made and 

would not form a sufficient basis to 

allow EPA to deny the petitions for 

reconsideration. Peabody argues that the 

regulation that EPA ultimately proposes 

must be guided by the nature and extent 

of the endangerment that EPA has 

found, because a high risk/high 

magnitude endangerment finding might 

justify one level of regulation, while a 

different finding might justify a different 

level. Thus, Peabody Energy claims the 

question that EPA must answer at the 

endangerment phase is not just 

‘‘endangerment, yes or no?,’’ but 

specifically what type of endangerment. 

In that context, Peabody Energy argues 

that the revelations in the CRU material 

mean that EPA must reconsider its 

Endangerment Finding no matter what 

level of legal discretion the Agency has. 

Peabody Energy at IX–6 to 9. 

Peabody Energy vastly oversimplifies 

the basis for EPA’s Endangerment 

Finding, characterizing it as a simple 

‘‘high risk/high magnitude’’ decision. 

With respect to existence of climate 

changes and attribution to 

anthropogenic emissions of greenhouse 

gases, the Administrator concluded that: 

the scientific evidence linking human 

emissions and resulting elevated atmospheric 

concentrations of the six well-mixed 

greenhouse gases to observed global and 

regional temperature increases and other 

climate changes to be sufficiently robust and 

compelling. 

74 FR at 66523. 

Based on this, the Administrator 

considered a wide variety of categories 

of public health and welfare that could 

be affected by the climate changes. The 

Administrator: 

considered the state of the science on how 

human emissions and the resulting elevated 

atmospheric concentrations of well mixed 

greenhouse gases may affect each of the 

major risk categories, i.e., those that are 

described in the TSD, which include human 

health, air quality, food production and 

agriculture, forestry, water resources, sea 

level rise and coastal areas, the energy sector, 

infrastructure and settlements, and 

ecosystems and wildlife. The Administrator 

understands that the nature and potential 

severity of impacts can vary across these 

different elements of public health and 

welfare, and that they can vary by region, as 

well as over time. 

Id at 66509. 

For each of these categories the 

Administrator took into account the 

varying degree of certainty of an impact 

as well as the potential magnitude of an 

impact. She considered both beneficial 

as well as adverse impacts. Id at 66524– 

537. There was no simple ‘‘high risk/ 

high magnitude’’ paradigm. Instead, the 

Administrator was aware that: 

because human-induced climate change has 

the potential to be far reaching and multidimensional, not all risks and potential 

impacts can be characterized with a uniform 

level of quantification or understanding, nor 

can they be characterized with uniform 

metrics. Given this variety in not only the 

nature and potential magnitude of risks and 

impacts, but also in our ability to 

characterize, quantify and project into the 

future such impacts, the Administrator must 

use her judgment to weigh the threat in each 

of the risk categories, weigh the potential 

benefits where relevant, and ultimately judge 

whether these risks and benefits, when 

viewed in total, are judged to be 

endangerment to public health and/or 

welfare. 

Id at 66523–24. 

Instead of the simple approach 

described by Peabody Energy, the 

Administrator properly exercised her 

judgment by taking into consideration 

the complexity and breadth of the range 

of risks and harms presented by the 

evidence. 

In this context, Peabody Energy and 

other petitioners focus their arguments 

and claims almost exclusively on the 

question of the existence of climate 

change and its attribution to 

anthropogenic emissions of greenhouse 

gases. After considering their claims, 

EPA is denying the petitions to 

reconsider for the reasons described 

above. They have not provided 

substantial support for the argument 

that the Endangerment Finding should 

be revised, and EPA continues to find 

that the ‘‘scientific evidence linking 

human emissions and resulting elevated 

atmospheric concentrations of the six 

well-mixed greenhouse gases to 

observed global and regional 

temperature increases and other climate 

changes to be sufficiently robust and 

compelling.’’ 

In sum, contrary to Peabody Energy’s 

assertion EPA did not employ a 

simplified ‘‘high risk/high magnitude’’ 

paradigm in making the Endangerment 

Finding. Instead the Administrator 


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carefully and comprehensively 

considered the recognized broad range 

of varying risks and harms across 

multiple sectors of public health and 

welfare. In addition, EPA is not now 

changing its Endangerment Finding or 

using its discretion under section 202(a) 

to base it on a ‘‘lower finding of 

endangerment’’. 

V. Conclusion 

For all of the reasons discussed above 

and in the accompanying RTP 

document, the petitions to reconsider 

the Endangerment and Cause or 

Contribute Findings for Greenhouse 

Gases under Section 202(a) of the Clean 

Air Act are denied, as are the petitions 

for an administrative stay. 

Dated: July 29, 2010. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2010–19153 Filed 8–12–10; 8:45 am] 

BILLING CODE 6560–50–P 


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