BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY In re: ) ) EPA Docket No. Endangerment and Cause or Contribute ) Findings for Greenhouse Gases Under ) EPA-HQ-OAR-2009-0171 Section 202(a) of the Clean Air Act ) )
PETITION FOR RECONSIDERATION OF “ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR GREENHOUSE GASES UNDER SECTION 20 2(a) OF THE CLEAN AIR ACT” Filed by United States Representative John Linder (GA –7th District), U.S. Representative Dana Rohrabacher (CA-46th District), U.S. Representative John Shimkus (IL–19th District), U.S. Representative Phil Gingrey (GA–11t h District), U.S. Representative Lynn Westmoreland (GA–3rd District), U.S. Represen tative Tom Price (GA–6th District), U.S. Representative Paul Broun (GA–10th District), U.S. Representative Steve King (IA–5th District), U.S. Representative Na than Deal (GA–9th District), by and through Southeastern Legal Foundation Inc. Shannon L. Goessling Executive Director & Chief Legal Counsel Southeastern Legal Foundation Inc. 6100 Lake Forrest Drive, Suite 520 Atlanta, Georgia 30328 (404) 257-9667 Edward A. Kazmarek Counsel to Southeastern Legal Foundation Inc. Kazmarek Geiger & Laseter LLP 3490 Piedmont Road, Suite 201 Atlanta, GA 30305 404-812-0840 Harry W. MacDougald Counsel to Southeastern Legal Foundation Inc. Caldwell & Watson LLP 5825 Glenridge Dr., N.E. Building Two, Suite 200 Atlanta, GA 30328-5579 (404) 843-1956ii PETITION FOR RECONSIDERATION OF “ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR GREENHOUSE GASES UNDER SECTION 20 2(a) OF THE CLEAN AIR ACT”
TABLE OF CONTENTS I. Introduction ................................................................................................................... ........... 1 II. Legal Standard................................................................................................................. ......... 3 III. Manipulation Of The “Scientific” Ba sis For The Endangerment Finding............................... 5 A. Climategate reveals a serious lack of integr ity in the underlying data and models, such that it is doubtful that any process can be trusted until the data and models are validated and their integrity assured. .................................................................................. 7 1. Climategate reveals that the computer code for the climate models was defective and manipulated, without any meani ngful oversight or controls................................. 7 2. Climategate reveals the systematic manipul ation of data as ne cessary to produce a pre-determined result. ................................................................................................. 11 a. “Hide the Decline”................................................................................................ 11 b. Smoking Gun At Darwin, Australia...................................................................... 12
c. Data Manipulation in Russia................................................................................. 14 d. Other manipulations of climate data..................................................................... 15 3. The Climategate cabal tried to conceal th eir data from researchers, especially those likely to reach co ntrary conclusions.................................................................. 15 4. E-mails were apparently altered or deleted to cover up wrongdoing. ........................ 17 5. Summary..................................................................................................................... 18 B. Climategate shows that the processes of peer review, consensus building, and scientific evaluation were fundamentally corrupted to the point that EPA should reconsider its reliance on the reports a nd analyses that led to the Endangerment Finding. ............................................................................................................................. 18 1. Suppression of Dissenting Views. .............................................................................. 19 2. Persecution and black-balling of jour nals, editors, and reviewers.............................. 19 3. The contents of reports, including the IP CC reports, were altered to elim inate any suggestion of any non-consensus on key points. ........................................................ 21 4. Summary..................................................................................................................... 22 C. The Climategate e-mails reveal a systematic effort by self-proclaimed “gatekeepers” to enforce scientific orthodoxy. ........................................................................................ 23 IV. The Need For Reconsideration............................................................................................... 24 V. Conclusion.............................................................................................................................. 25I. INTRODUCTION
Pursuant to Section 307(d) of the Clean Air Act, 42 U.S.C. § 7607(d), United States Representative John Linder (GA –7th District), U.S. Representa tive Dana Rohrabacher (CA-46th District), U.S. Representative John Shimkus (IL–19t h District), U.S. Representative Phil Gingrey (GA–11th District), U.S. Representative Lynn Westmoreland (GA–3rd District), U.S. Representative Tom Price (GA–6th District ), U.S. Representative Paul Broun (GA–10th District), U.S. Representative Steve King (IA–5th District), U.S. Representative Nathan Deal (GA–9th District), by and through Southeastern Legal Found ation Inc. (“SLF”), hereby petition the U.S. Environmental Protection Agency (“EPA” or “the Agency”) to convene a proceeding for reconsideration of the “Endangerment and Caus e or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act” published by the Agency on December 15, 2009 (74 F.R. 66496, Dec. 15, 2009) (“the Endangerment Finding”). As is more fully shown below, newly revealed information, in what is being referred to as “Climategate 1 ,” indicates that the purportedly “scien tific” information on which the Agency relied was the subject of a num ber of systematic manipulations , including collusion to withhold scientific information, deletion of e-mails and raw data to prevent di scovery of key facts,

1 “Climategate” (some commentators refer to it as the “Water gate” of climate science) refers to the release of some 1000 e-mails, 2000 documents, and some computer code, a ll pertaining to climate research over the period from 1996 to 2009. The controversy centered around a few individuals at several universities, although the implications extend to several journals, the content of various governmen t reports, and the reliability of several important sets of data. In an interview with The Guardian , Mr. Phil Jones, one of the principals in the controversy, confirmed that the e-mails sparking most of the controversy appear to be genuine. “Climate scientist at centre of leaked email row dismisses conspiracy claims: Phil Jones of the University of East Anglia denies emails provide evidence of collusion by climatolgists to fix data.” The Guardian (Nov. 24, 2009), found at: http://www.guardian.co.uk/environment/2009/ nov/24/climate-professor-leaked-emails-uea (last visited Dec. 22, 2009) As of December 1, 2009, the University of East Anglia announced that Mr. Jones was to stand aside as director of CRU while a review was co nducted to examine e-mail exchanges to determine whether there is evidence of suppression or manipulation of data. “Climate research chief Phil Jones stands down pending inquiry into leaked emails: Director denies conspiracy claims and stands by scientists' findings on global warming.” The Guardian (Dec. 1, 2009), found at: http://www.guardian.co.uk/uk/2009/dec/ 01/climate-change-scientist-steps-down (last visited Dec. 23, 2009).2 manipulation of data and computer code to cr eate false impressions, and concerted efforts to boycott key journals and exclude disagreement. 2 Although some of the participants have attempted to brush aside the incident, describi ng it variously as a “smear campaign” or “a tempest in a teapot” or “a mi sunderstanding of normal scientific give-and-take,” in fact the “Climategate” incident goes to the very heart of the scientific theories on which EPA relies in the Endangerment Finding. Because the full extent of the corruption of scientific processes was not known during the public comment period, obviously it was impracticable to raise these objecti ons at that time. In addition, these objections are plainly of central relevance to the Endangerment Finding. As is more fully shown below, EPA relies expressly and extensively on the integrity of the scientific processes, the credibility of which is gravel y undermined by Climategate. Whatever one may think of how Climategate may ultimately affect the content of the Endangerment Finding, it is beyond any reasonable dispute that EPA must conve ne a proceeding to consider the question. To refuse to do so would be irratio nal, arbitrary, and obstinate. The sections that follow further explain the ba sis for this Petition as follows: Section II sets out the legal standard governing consideration of this Petition; Sectio n III details the nature and extent of the manipulation of the underlying climate data a nd “scientific” literature, and shows how these manipulations call into questio n the bases for the Endangerment Finding; and Section IV explains why EPA should convene a proceeding to consider the effect of the Climategate revelations on the Endangerment Finding.

2 The full breadth of the “Clim ategate” scandal is continuing to unfold and the main sources of information are various news sources, mostly online. Where appropriate, such references are provided below.3 II. LEGAL STANDARD Section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B), states in relevant part: If the person raising an objection can dem onstrate to the Administrator that it was impracticable to raise such an objection with in 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 right s as would have been afforded had the information been available at the time the rule was proposed. Thus, EPA is required to convene a proceedi ng for reconsideration upon a showing of two conditions precedent: (1) the information arose after the period for public comment on the Endangerment Finding and (2) the objection is of “cen tral relevance to the outcome of the rule.” The first element is easily met. The public comment period for the proposed Endangerment Finding closed on June 23, 2009. The Climategate scandal first surfaced in late November 2009. 3 (Note, although the most co mmon description of the inci dent is that the release of the e-mails in question was caused by “hackers, ” to date these supposed “hackers” have never been identified, and it remains an open question as to whether th e release of revealing e-mails should be attributed to “hackers” or “whistlebl owers,” i.e. insiders motivated by a legitimate desire to shed light on the scandalous goings-on of the culpable parties.) 4 The second element is also clearly met. The Climategate documents and their implications are of central rele vance to the Endangerment Finding because they go to the core requirements of Section 202, including the public ’s opportunity to comm ent on those provisions

3 “Hackers target leading climate research unit.” BBC News, 20 November 2009, found at: ( http://news.bbc.co.uk/2/hi/8370282.stm (last visited 20 December 2009).

4 For a technical computer networking anal ysis concluding that it was likely a leak, see Levsin, Lance. “Comprehensive network analysis shows Climategate likely to be a leak.” Found at: http://wattsupwiththat.com/2009/12/07/comprhensive-net work-analysis-shows-climategate-likely-to-be-a-leak/ (last visited Dec. 23, 2009)4 under 307(d)(3), and the consistency of those pr ovisions with the Act and with fundamental standards of reasoned agency deci sionmaking. This challenged e rror, as discussed in detail below, is “so serious” that there is a substa ntial likelihood that the rule would have been significantly changed if such errors had not been made. See 42 U.S.C. 7607 (d)(8), (d)(9)(D)(iii). See e.g., NRDC v. Herrington , 768 F.2d 1355, 1421 (D.C.Cir. 1985) (holding that agencies are obliged to produce substantial evid ence for major assumptions in rulemaking). The information revealed by Climategate directly impeaches the validity and reliability of the purported scientific consensus on which EPA relies, the factual data upon which the Endangerment Finding is based, and the validity and reliability of the methodology used in determining and analyzing said da ta. Under Section 307(d)(3), EPA is clearly required to include this information in the docket and receive public for comment prior to fi nal promulgation of the rule. Since this new information is of “central rele vance” to the outcome of the rule, and arose after the mandatory public comment period, it would be an abuse of discretion not to give the public the opportunity to comment on said info rmation. As stated a bove, Section 307(d)(3) requires that this information is published for pub lic comment. Moreover, courts have held that “meaningful public comment” is essential to both the structure and the spirit of section 307. See Sierra Club v. Costle , 657 F.2d 298, 398 (D.C.Cir. 1981), rev’d on other grounds , Ruckelshaus v. Sierra Club , 463 U.S. 680 (1983)(finding that if docum ents upon which EPA intended to rely had been entered on the docket too late for any mean ingful public comment such that the structure and the spirit of section 307 would have been violated). In summary, therefore, the central questi on for the Administrator’s determination in response to this Petition is whet her the Climategate information is of central relevance to the5 “outcome” of the rule, i.e. its ultimate finding th at “six greenhouse gases taken in combination endanger both the public health and the public we lfare of current and future generations.” As shown in Section III, below, SLF submits that the answer is a resounding ”Yes.”

III. MANIPULATION OF THE “SCIENTIFI C” BASIS FOR THE ENDANGERMENT FINDING As widely noted, the “global warming” deba te sometimes has more the hallmarks of political or religious polemics than rational consideration of impartial scientific analysis. 5 Indeed, it has even been suggested that EPA’s Endangerment Finding was foreordained by political considerations, predetermined long before any “consideration” of the merits of scientific debate. 6 For purposes of this Petition, however, SLF assumes only that, whatever the course of events leading to EPA’s Endangerment Finding, the Agency should now fairly consider the nature of the Climategate scandal in consider ing whether to convene a proceeding to permit additional public input. The Endangerment Finding states that EPA relied in large part on a number of purportedly “scientific” reports, principally those of the Inte rgovernmental Panel on Climate Change (“IPCC”), the U.S. Climate Change Science Program (“CCSP”) and U.S. Global Change Research Program (“GCRP”), and the National Research Council (“NRC”). See Technical

5 For example, Venezuelan Marxist Dictator Hugo Ch avez received a standing ovation at the recent climate conference in Copenhagen, Denmark when he said, “Our revolution seeks to help all people...socialism, the other ghost that is probably wandering around this room, that’s the way to save the planet, capitalism is the road to hell....let’s fight against capitalism and make it obey us.” Taylor, Lenore. “Penny Wong jeered, Hugo Chavez cheered.” The Australian (Dec. 17, 2009). Found at: http://www.theaustralian.com.au/politics/penny-wong-jeeredhugo-chavez-cheered/story-e6frgczf-1225811179614 (last visited Dec. 23, 2009).

6 EPA acknowledged but rejected this allegation, noting it had been suggested. “that the President’s and Administrator Jackson’s announcement indicated that the endangerment rulema king was but a formality and that a final endangerment finding was a fait accompli. Commenters argue that this means the result of this rulemaking has been preordained and the merits of the issues have been prejudged.” Endangerment Finding at p.66502. Consideration of the Climategate fiasco should not be dictated by political considerations, but by a fair evaluation of what those materials indicate ab out the underlying “science.”6 Support Document for “Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act ” (December 7, 2009) (the “TSD”), pp. 4-5. These sources were relied upon because: [T]hey 1) are very recent and represent the current state of knowledge on GHG [greenhouse gas] emissions, climate change science, vulnerabilities, and poten tial impacts; 2) have assessed numerous individual, peer-revie wed studies in order to draw general conclusions about the stat e of science; 3) have been reviewed and formally accepted, commissioned, or in some cases authored by U.S. government agencies and individual government scientists; and 4) they refl ect and convey the consensus conclusions of expert authors. TSD, p.5. Throughout the TSD, the Agency expressl y and impliedly assumes that the scientific data and reports on which the Endangerment Fi nding is based reflect impartial, reasoned analysis. For example, EPA relies on the IPCC “ Climate Change 2007: Impacts, Adaptation and Vulnerability . Contribution of Working Gr oup II to the Fourth Assessment Report” to conclude that there is “ very high confidence ” (i.e. a 9/10 chance, TSD p.23 at n.24) that the “global average net effect of human activities since 175 0 has been one of warming, with a radiative forcing of +1.6 (+0.6 to +2.4) W/m 2 .” TSD p. 23. Other examples abound, as shown below. The Climategate scandal is relevant, theref ore, on three grounds. First, Climategate reveals a serious lack of integrity in the underlying data and models , such that it is doubtful that any process can be trusted until the data and mode ls are validated and their integrity assured. Second, Climategate shows that th e processes of peer review, c onsensus building, and scientific7 evaluation were fundamentally corrupted to the point that EPA should re consider its reliance on the reports and analyses that led to the Endangerment Finding. Third, Climategate reveals a disturbing, anti-scientific compulsion for mandato ry orthodoxy. Each of these points is discussed below. A. C LIMATEGATE REVEALS A SERIOUS LACK OF INTEGRITY IN THE UNDERLYING DATA AND MODELS , SUCH THAT IT IS DOUBTFUL THAT ANY PROCESS CAN BE TRUSTED UNTIL THE DATA AND MODELS ARE VALIDATED AND THEIR INTEGRITY ASSURED
. By way of background, EPA s hould not underestimate the importance of the CRU data nor the extent to which Climategate reveal s the deliberate manipulation of that data. The Climate Research Unit (“CRU”) at the Univ ersity of East Anglia is one of only two available sets of data for worldwide surface temperatures. The CRU dataset constitutes one of the most important sets of information on which all analyses of anthropogenic global warming (“AGW”) are based. In addition, th e models used by CRU formed th e basis for IPCC’s models of future global warming. EPA itself relies on IPCC’s analyses in formulating its conclusion in the Endangerment Finding. Accordingly, evidence of tampering with the CRU data and models must be taken very seriously. The Climategate revelations show such tampering in scandalous terms. 1. C LIMATEGATE REVEALS THAT THE COMPUTER CODE FOR THE CLIMATE MODELS WAS DEFECTIVE AND MANIPULATED , WITHOUT ANY MEANINGFUL OVERSIGHT OR CONTROLS
. Included within the Climategate files are a num ber of very revealing documents, but one in particular is very disturbi ng, the “HARRY_READ_ME.txt” file. 7 What this file reveals is an appalling series of manipulations of the data and the code, with no provisions for review, no

7 A printout of the HARRY_READ_ME.txt file is submitted in conjunction with this Petition for Reconsideration (hereinafter referred to “Read Me.txt”). References to page numbers in the file refer to page numbers in the submitted printout.8 QA/QC on the data or the code, no double-check on data integrity. As has been noted by several commentators, the HARRY_READ_ ME.txt file really is th e “smoking gun” of the AGW argument. You can't imagine what this has cost me - to actually allow the operator to assign false WMO codes!! But what else is there in such situations? Esp ecially when dealing with a 'Master' database of dubious provenance (which, er, they all are and always will be)

. False codes will be obtained by multiplying the legitimate code (5 digits) by 100, then adding 1 at a time until a number is found with no matches in the database. THIS IS NOT PERFECT but as there is no central repository for WMO codes - es pecially made-up ones - we'll have to chance duplicating one that 's present in one of the other databases. In any case, anyone comparing WMO code s between databases - something I've studiously avoided doing except for tmin/tmax where I had to - will be treating the false codes with suspicion anyway. Hopefully. Of course, option 3 cannot be offered fo r CLIMAT bulletins, there being no metadata with which to form a new station. This still meant an awful lot of encounters w ith naughty Master stat ions, when really I suspect nobody else gives a hoot about. So w ith a somewhat cynical shrug, I added the nuclear option - to match every WMO possible, and turn the rest into new stations (er, CLIMAT excepted). In other words, what CR U usually do. It will allow bad databases to pass unnoticed, and good databases to become b ad, but I really don't think people care enough to fix 'em, and it's the main reas on the project is nearly a year late

. 8 (Emphasis added). Discovered that WMO codes are still a pain in the arse. And that I'd forgotten to match Australian updates by BOM code (last field in header) instead of WMO code - so I had to modify newmergedbauto. Also found that running fixwmos.for was le ss than successful on VAP, because it's already screwed:

... I am seriously close to giving up, again. The history of this is so complex that I can't get far Enough into it before by head hurts and I hav e to stop. Each parameter has a tortuous history of manual and semi-automated interven tions that I simply cannot just go back to early versions and run the update prog

. I could be throwing away all kinds of correc tions - to lat/lons, to WMOs (yes!), and more.

8 ReadMe.txt, p.105.9 So what the hell can I do about all these duplicate stations ? Well, how about fixdupes. for? That would be perfect - except that I ne ver finished it, I was diverted off to fight some other fire. Aarrgghhh

. I - need - a - database - cleane r. What about the ones I used for the CRUTEM3 work with Phil Brohan? Can't find the bugger!! Looked eve rywhere, Matlab scri pts aplenty but not the one that produced the plots I used in my CRU presentation in 2005

. Oh, FUCK IT. Sorry. I will have to WRITE a pr ogram to find potential duplicates. It can show me pairs of headers, and correlations betw een the data, and I can say 'yay' or 'nay'. There is the finddupes.for progr am, though I think the comment for *this* program sums it up nicely: ' program postprocdupes2 c Further post-processing of the duplica tes file - just to show how crap the c program that produced it was ! Well - not so much t hat but that once it was c running, it took 2 days to finish so I couldn't really re set it to improve c things. Anyway, *this* version does the following useful stuff: c (1) Removes and squirrels away all segments where dates don't match; c (2) Marks segments >5 where dates don't match; c (3) Groups segments from the same pair of stations; c (4) Sorts based on total segmen t length for each station pair' You see how messy it gets when you actually examine the problem ? 9 (Emphasis added.) Then - comparing the two candidate spc databases: spc.0312221624.dtb spc.94-00.0312221624.dtb I find that they are broadly similar, except the normals lines (which both start with '6190') are very different. I was expecting that maybe the latter contained 94-00 normals, what I wasn't expecting was that thet are in % x10 not %! Unbelievable - even here the conventions have not been followed. It 's botch after botch after botch. Modified the conversion program to process either kind of normals line. 10 (Emphasis added.) OH FUCK THIS. It's Sunday evening, I've worked all weekend, and just when I thought it was done I'm hitting yet anothe r problem that's based on the hopeless

9 ReadMe.txt, pp. 270, 297.

10 ReadMe.txt, p.19.10 state of our databases. There is no uniform data integrity, it's ju st a catalogue of issues that continues to grow as they're found. 11

Wrote 'makedtr.for' to tackle the thorny problem of the tmin and tmax databases not being kept in step. Sounds familiar, if worrying. am I the first person to attempt to get the CRU databases in working order?!! 12 (Emphasis added.) Well, dtr2cld is not the wo rld's most complicated program. Wheras cloudreg is, and I immediately found a mistake! Scanning forward to 1951 was done with a loop that, for completely unfathomable reasons , didn't include months! So we read 50 grids instead of 600!!! That may have had something to do with it. I also noticed, as I was correcting THAT, that I reopened the DTR and CLD data files when I should have been opening the bloody station files!! 13 (Emphasis added.) Back to the gridding. I am seriously worri ed that our flagship gridded data product is produced by Delaunay tri angulation - apparently linear as well. As far as I can see, this renders the station counts totally meaningless . It also means that we cannot say exactly how the gridded data is arrived at from a statistical perspective - since we're using an off-the-shelf product th at isn't documented sufficiently to say that. Why this wasn't code d up in Fortran I don't know - time pressures perhaps? Was too much effort expended on homogenisa tion, that there wasn 't enough time to write a gridding procedure? Of course, it's too late for me to fix it too
. Meh 14 (Emphasis added.) The entire HARRY_READ_ME.txt file is so riddled with such damning admissions that there’s really little point in highlighting th em all. The key conclusion is inescapable: no reasonable person can conclude that the models that CRU produced, and the datasets on which they were based, meet basic scientific standard s for reliability, and therefore the IPCC analyses and projections cannot be said to be reliable, and therefore EPA’s incorporation of IPCC’s

11 ReadMe.txt, p.269.

12 ReadMe.txt, p.50.

13 ReadMe.txt, p.249

14 ReadMe.txt, p.6011 findings and conclusions must be reconsider ed. Put differently, there is zero chance that CRU’s work could survive a Daubert challenge 15 that was armed with the Climategate documents. Since CRU’s work would be inadmissible in federal co urt as junk science, it should not be relied upon by the EPA as the foundation of the most far-reac hing and consequential ac tion in its history. 2. C LIMATEGATE REVEALS THE SYSTEMATIC MANIPULATION OF DATA AS NECESSARY TO PRODUCE A PRE

- DETERMINED RESULT
.
a. “Hide the Decline” A very disturbing revelation in the Clim ategate scandal is the degree to which participants were willing to manipulate data so as to exaggerate or creat e an impression of global warming. Consider, for example, the infamous “hide the decline” e-mail from Phil Jones: Dear Ray, Mike and Malcolm, Once Tim's got a diagram here we'll send that either later today or first thing tomorrow. I've just completed Mike's Nature trick of addi ng in the real temps to each series for the last 20 years (ie from 1981 onwards) and (sic) from 1961 for Keith's to hide the decline... 16 Responses to this startling text have vari ed from claims that the text is being misinterpreted, to it reflects or dinary scientific “tricks of the trade” to supplement data, to the disturbing conclusion that the e-ma il means what it says: an atte mpt to cook the books to conceal the fact that the famous “hockey stick” drawing is a manipulated, misleadi ng barrel of scientific nonsense. What seems to be undeniable, however, is that proxy temperature reconstructions began to decline in approximately 1960, and thus diverged from the instrumental temperature record, which showed increases after 1960. The “trick” to “hide the d ecline” was grafting the

15 Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589 (1993).

16 E-mail from P. Jones to R. Bradley, “Diagram for WMO Statement” (Nov 16, 1999). Found at: http://www.eastangliaemails.com/emails .php?eid=154&filename=942777075.txt (last visited: Dec 23, 2009).12 instrumental record onto the proxy record co mmencing in about 1960 instead of continuing the proxy reconstruction to the pres ent with its full divergence. The post-1960 decline in the proxy reconstructions while inst rumental records showed an increase fatally impeached the validity and reliability of proxy reconstructions over all time periods. 17 By “hiding the decline” the CRU scient ists made their proxy reconstruction seem “more skilful than it really is.” The importan ce of these proxy reconstructions to the AGW conjecture can hardly be overstated. Since th e Climategate documents gravely impeach the validity and reliability of these reconstructions, they are obviously of central relevance to the Endangerment Finding. The documents compel EPA to convene a proceeding and take public comment on the crucial significance of Climategate. b. Smoking Gun At Darwin, Australia A similar instance of chicanery arose with the manipulation of the Australian climate data. The HARRY_READ_ME.txt file makes nu merous references to manipulating the Australian data, but one must examine the data itself to fully understand what the Climategate crew was doing. While it concerns a single loca tion, the adjustments to data from Darwin, Australia, admit no legitimate explanation. The raw, unadjusted records showed a slight cooling trend, as shown below: 18

17 Sheppard, Marc. “Understanding Climateg ate’s Hidden Decline.” American Thinker (Dec. 6, 2009). Found at: http://www.americanthinker.com/2009/12/un derstanding climategates hid html (last visited Dec. 23, 2009).

18 Eschenbach, Willis. “The Smoking Gun at Darwin Ze ro.” American Thinker (Dec. 8, 2009). Found at: http://wattsupwiththat.com/2009/12/08/the-smoking-gun-at-darwin-zero/ (last visited Dec. 23, 2009).13 Admittedly, there are processes employed to “homogenize” the data to account for anomalies, and those are sometimes legitimate. Bu t what we have learned from the Climategate materials is that CRU “homogenized” the data to make it look like this: 19

19 Id

.14 As Mr. Eschenbach said of this “homogenization”: Those, dear friends, are the clumsy finge rprints of someone messing with the data Egyptian style ... they are indisputable ev idence that the “homogenized” data has been changed to fit someone’s preconceptio ns about whether the earth is warming. One thing is clear from this. People w ho say that “Climategate was only about scientists behaving badly, but the data [a re] OK” are wrong. At l east one part of the data is bad, too. The Smoking Gun for that statement is at Darwin Zero. 20

c. Data Manipulation in Russia Analysts in other countries have already reach ed the same conclusion. For example, this report came from a Russian source: Climategate has already affected Russia. On Tuesday, the Moscow-b ased Institute of Economic Analysis (IEA) issued a report clai ming that the Hadley Center for Climate Change based at the headquarters of the Brit ish Meteorological Offi ce in Exeter (Devon, England) had probably tampered with Russi an-climate data. The IEA believes that Russian meteorological-stati on data did not substantia te the anthropogenic globalwarming theory. Analysts say Russian mete orological stations cover most of the country’s territory, and that the Hadley Ce nter had used data submitted by only 25% of such stations in its reports. Over 40% of Russian territory was notincluded in globaltemperature calculations for some other reasons , rather than the lack of meteorological stations and observations. The data of stations located in areas not listed in the Hadley Climate Research Unit Temperature UK (H adCRUT) survey often does not show any substantial warming in the late 20t h century and the early 21st century. 21
Likewise, based on the Climategate scandal, MET has announced that it will reexamine 160 years of climate data, attributing the need to re examine the data to a “lack of public confidence” based on the leaked e-mails. 22

20 Id

.
21 McIntyre, Steve. “IEA: Hadley Center probably tampered with Russian climate data.” Found at: http://climateaudit.org/2009/12/16/iearussia-hadley-cen ter-probably-tampered-with-russian-climate-data/ (last visited Dec. 23, 2009)

22 Webster, Ben. “Met Office to re-examine 160 years of climate data.” TimesOnline (Dec. 5, 2009). Found at: http://www.timesonline.co.uk/tol/new s/environment/article6945445.ece (last visited Dec. 23, 2009).15 d. Other manipulations of climate data. Other instances of such data manipulation are also beginning to surface. For example, new information published November 25, 2009 also shows an eerily similar pattern of “adjustments” was made to raw temperature data in New Zealand – downward adjustments in the early 20 th century and upward adjustments from the middle of the 20 th century onward. 23 While the information on the New Zealand temperature adju stments was not part of Climategate, it is new, and it adds to the pattern of similar manipulations - downward adjustments in the first part of the 20 th century and upward adjustments in the latt er half - yielding a warming trend over the last century that is almost enti rely fictitious. EPA should evaluate this controversy to determine whether these recently revealed “adjustments,” lik e those of Climategate, indicate more of the same collusion, manipulations, and chicanery. 24

3. T HE C LIMATEGATE CABAL TRIED TO CONCEAL THEIR DATA FROM RESEARCHERS , ESPECIALLY THOSE LIKELY TO REACH CONTRARY CONCLUSIONS
. Phil Jones, the Director of the CRU, orchestrated a years’ long effort to conceal CRU data from scientists they feared might be critical of their work. In an e-ma il sharing strategies for obstructing responses to FOIA requests, he said: When the FOI requests began here, the FOI person said we had to abide by the requests. It took a couple of half hour sess ions - one at a screen, to convince them otherwise showing them what CA was a ll about. Once they became aware of the types of people we were dealing with, ever yone at UEA (in the registry and in the

23 Treadgold, Richard (New Zealand Climate Science Coa lition). “Are we feeling warmer yet?” (Nov. 25, 2009). Found at: http://www.climatescience.org.nz/images/PDFs/global warming nz2.pdf (last visited Dec. 23, 2009)

24 Without belaboring the point, yet another curious manipulation occurs in the context of the USHCN data set. See “Difference Between Raw and Fina l USHCN Data Sets,” found at: http://www ncdc noaa.gov/img/climate/research /ushcn/ts.ushcn anom25 diffs urb-raw pg.gif (last visited December 23, 2009). Absent Climategate, one might assume the adjust ments were legitimate. In light of the extensive (and ever expanding) evidence of improper manipulations, however, one must wonder.16 Environmental Sciences school - the head of school and a few others) became very supportive. 25 Again, from Phil Jones: Yes, we've learned [our] lesson about FTP. We 're going to be very careful in the future what gets put there. Scott really screwed up big time when he est ablished that directory so that Tim could access the data. Yeah, there is a freedom of information act in the U.S., and the contrarians are going to try to use it for all its worth. But there are also intellectual propert y rights issues, so it isn't clear how these sorts of things will play out ultim ately in the U.S.

... The two MMs have been after the CRU data fo r years. If they ever hear there is a Freedom of Information Act now in the U.K., I th ink I’ll delete the file rather than send to anyone. ... We also have a data protecti on act, which I will hide behind. 26
(The “two MMs” are probably Stephen McIntyre and Ross McKitrick, two Canadians who have spent years fact-checking the published data and conclusions.) 27 Shortly after the Climategate documents became public, CRU was forced to admit on or about November 29, 2009 that much of their original data has been destroyed, allege dly because they did not have room to store it all. 28 This means that other scientists will not be able to check the accuracy of CRU’s “homogenization” of data. Oblivious to the iron y, CRU said in a statement on its website that

25 E-mail from P. Jones to “santer1” and T. Wigley (Dec. 3, 2008). Found at: http://www.eastangliaemails.com/emails .php?eid=940&filename=1228330629.txt (last visited Dec. 23, 2009).

26 E-mail from P. Jones to M. Mann (Feb. 3, 2005) (and related e-mail string). Found at: http://www.eastangliaemails.com/emails .php?eid=490&filename=1107454306.txt (last visited Dec. 23, 2009).

27 The reference to “deleting” the data, although such deletion may not have occurred, does raise a legal consideration: We request that EPA request that the Depart ment of Justice to send a “litigation hold” letter to all agencies and personnel involved in U.S. sponsored climate research that have or are relying upon the CRU dataset. See Zubulake v. UBS Warburg LLC , 217 F.R.D. 309 (S.D.N.Y. 2003) and subsequent proceedings.

28 Leake, Jonathan. “Climate change data dumped.” TimesOnline (Nov. 29, 2009). Found at: http://www.timesonline.co.uk/tol/new s/environment/article6936328.ece (last visited Dec. 23, 2009)17 “We do not hold the original raw data but only the value-added (quality controlled and homogenised ) data.” 29 (Emphasis added). A scientist named Willis Eschenbach attempted to obtain station data for the HadCRUt3 global temperature average from CRU, and was met with a years’ long pattern of stonewalling and obstruction. The Climategate documents prove that the conspiracy to obstruct his requests went to the highest leve ls of climate science. 30
4. E- MAILS WERE APPARENTLY ALTERED OR DELETED TO COVER UP WRONGDOING
. Phil Jones, in an e-mail to Eugene Wahl of NOAA and Caspar Amman of the National Center for Atmospheric Research urged them to alter their e-mail records: [T]ry and change the Received date. Don’t give those skep tics something to amuse themselves with. 31 In another now infamous e-mail, Phil Jones ur ged Michael E. Mann to delete e-mails that were subject to a pending FOIA request: From: Phil Jones To: “Michael E. Mann” Subject: IPCC & FOI Date: Thu May 29 11:04:11 2008 Mike, Can you delete any emails you may have had with Keit h re AR4? Keith will do likewise. He’s not in at the moment – minor family crisis. Can you also email Gene and get him to do the same? I don’t have his new email address. We will be getting Caspar to do likewise. I see that CA cl aim they discovered the 1945 problem in the Nature paper!! Cheers Phil Prof. Phil Jones Climatic Research Unit Telephone +44 (0) **** 592090 32

29 Id

. 30 McIntyre, Steve. “Willis Eschenbach’s FOI Re quest.” ClimateAudit (Nov. 25, 2009). Found at: http://climateaudit.org/2009/11/25/willis-eschenbachs-foi-request/ (last visited Dec. 23, 2009).

31 Quoted in “Global Warming With the Lid Off.” Wall Street Journal / Opinion Journal (Nov. 24, 2009). Found at: http://online.wsj.com/article/SB10001424052748704888404574547730924988354 html (last visited Dec. 23, 2009).18 Michael Mann, the recipient of this e-mail, wrot e an op-ed that was published in the Washington Post on December 19, 2009 in which he claimed there was “no evidence ” that e-mails were deleted in response to this request. 33 Whether he deleted the e-mails or not, he did respond: “I'll contact Gene about this ASAP. His new email is: generwahl@xxxxxxxxx.xxx ” 34 And, in any event, the apparent wi llingness of these partie s to destroy evidence 35 speaks volumes about their work should be relied upon by EPA. 5. S UMMARY
. Data integrity is the cornerstone of scientific method. As a result, evidence of sloppiness, ad hoc “adjustments,” concealment, and outri ght manipulation demand an immediate and complete reexamination of the CRU processes and all of the “s cientific” analyses that depend thereon. B. C LIMATEGATE SHOWS THAT THE PROCESSES OF PEER REVIEW , CONSENSUS BUILDING , AND SCIENTIFIC EVALUATION WERE FUNDAMENTALLY CORRUPTED TO THE POINT THAT EPA SHOULD RECONSIDER ITS RELIANCE ON THE REPORTS AND ANALYSES THAT LED TO THE E NDANGERMENT F INDING
. EPA relies heavily on its assumption that ther e exists a legitimate, objective “consensus” regarding Anthropogenic Global Warming. For example, in the Endangerment Finding, EPA states, “The USGCRP, IPCC, and NRC assessments synthesize literally thous ands of individual studies and convey the consensus conclusions on what the body of scientific literature tells us

32 Responding to P. Jones e-mail, found in E-mail from M. Mann to P. Jones. “Re: IPCC and FOI.” Found at: http://www.eastangliaemails.com/emails .php?eid=891&filename=1212063122.txt (last visited Dec. 23, 2009).

33 Mann, Michael E. “E-mail furor doesn’t alter evidence for climate change.” Washington Post (Dec. 18, 2009). Found at: http://www.washingtonpost.com/wp-dyn/content/article/2009/12/17/AR2009121703682.html (last visited Dec. 23, 2009).

34 E-mail from M. Mann to P. Jone s. ““Re: IPCC and FOI.” Found at: http://www.eastangliaemails.com/emails .php?eid=891&filename=1212063122.txt (last visited Dec. 23, 2009)

35 See Note 29, supra , regarding the need for an immediate “litigation ho ld” directive to prevent destruction of files.19 [emphasis added].” 36 Likewise, in the TSD, EPA states that the IPCC, CCSP, GCRP, and NRC reports, “reflect and convey the consensus conclusions of expert authors [emphasis added].” 37 In fact, Climategate makes it clear that no su ch consensus exists. The normal processes of peer review and objective scientific evaluation that might ordi narily lead to “consensus” have been shown to be so fundamentally degraded by collusion, intimidation, and deception that no one can seriously contend that a ny consensus exists at this time . To this point, SLF directs the Agency’s attention to the following specific items. 1. S UPPRESSION OF D ISSENTING V IEWS
. The Climategate participants established a concerted effort to purge dissenting views from the scientific literature: I think we have to stop considering ‘Clim ate Research’ as a legitimate peerreviewed journal. We would also need to consider what we tell or request of our more reasonable colleagues who currently sit on the editorial board. Perhaps we should encourage our colleagues in the clim ate research community to no longer submit to, or cite pap ers in, this journal. 38
2. P ERSECUTION AND BLACK

- BALLING OF JOURNALS , EDITORS , AND REVIEWERS
. The Climategate cabal manipulated the scientif ic literature to purge any and all contrary opinions. For example, this group orchestrated th e ousting of a journal editor who sought to present a viewpoint that would ha ve deviated from the “consensus” mantra. From Tom Wigley in
2003: PS Re CR, I do not know the best way to handle the specifics of th e editoring. Hans von Storch is partly to blame—he encourages the publication of crap science ‘in order to

36 Endangerment Finding, 74 FR at 66511.

37 TSD at p. 5.

38 E-mail from M. Mann to P. Jones. “Re: Fwd: Soon & Baliunas” (Mar 11, 2003). Found at: http://www.eastangliaemails.com/emails .php?eid=295&filename=1047388489.txt (last visited Dec. 23, 2009).20 stimulate debate’. One approach is to go dire ct to the publishers and point out the fact that their journal is perceived as being a medium fo r disseminating misinformation under the guise of refereed work. I use the word ‘per ceived’ here, since whether it is true or not is not what the publishers care about—it is how the journal is seen by the community that counts. I think we could get a large group of hi ghly credentialed scien tists to sign such a letter—50+ people.Note that I am copying this view only to Mike Hulme and Phil Jones. Mike’s idea to get editorial board membe rs to resign will probably not work—must get rid of von Storch too, otherwise holes will eventually fill up with people like Legates, Balling, Lindzen, Michaels, Singer, etc. I ha ve heard that the pub lishers are not happy with von Storch, so the above approach might remove that hurdle too. 39
A similar approach was taken to oust Yale’s James Saiers, causing Jones to remark: “ The GRL leak may have been plugged up now w/ new editorial leadership there.” 40 As Dr. John Christy has phrased it: “The CRU emails have revealed how the normal conventions of the peer review process appear to have been compromised by a team of global warming scientists, with the willing cooperation of the editor of the In ternational Journal of Climatology (IJC), Glenn McGregor.” 41 Note, this suppression of dissenting views af fects not only the public ations of the those orchestrating the ouster, it affects the totality of scientific literature for two reasons: there is no reason to believe that other editors would not like wise quickly apprehend th e risk to their careers from being too “fair minded” in the presentation of the debate, 42 and the “peer reviewed” literature was obviously manipulated to keep dissenting peers out of the literature. As

39 E-mail from T. Wigley to T. Carter. “Re: Java Climate Model” (Apr. 24, 2003). Found at: http://www.eastangliaemails.com/emails .php?eid=307&filename=1051190249.txt (last visited Dec. 23, 2009).

40 Quoted in Michaels, Patrick J.: “How to Manufactur e a Climate Consensus.” Wall Street Journal / Opinion Journal ( Dec. 17, 2009). Found at: http://online.wsj.com/article/SB10001424052748704398304574598230426037244 html (last visited Dec. 23, 2009).

41 Douglass, David H. and John R. Christy. “A Climatology Conspiracy?” American Thinker (Dec. 20, 2009). Found at: http://www.american thinker.com/2009/12/a clim atology conspiracy.html (last visited Dec. 23, 2009).

42 After Mr. Messrs. Jones and Mann threatened a boycott of publications and reviews, half of the editorial board of Climate Research resigned. Michaels, Patrick J. “How to Manufacture a Climate Consensus,” Wall Street Journal (December 17, 2009).21 Dr. Michaels noted, “Mr. Wigley repeatedly tells news reporters not to li sten to ‘skeptics’ (or even nonskeptics like me), because they didn’t pu blish enough in the peer-reviewed literature— even as he and his friends sought to ma ke it difficult or impossible to do so.” 43 Dr. Michaels elsewhere makes a similar poi nt in even more compelling terms: When scientists make putative compendia of th at literature, such as is done by the U.N. climate change panel every six years, the writ ers assume that the p eer-reviewed literature is a true and unbiased sample of the state of climate science. That can no longer be the case. The alliance of scientists at East Anglia , Penn State, and the University Corporation for Atmospheric Research (in Boulder, Colo.) has done its best to bias it. 44
Or, even more pointedly, “EPA claimed to rely solely upon compendia of th e refereed literature such as the IPCC reports, in order to make its finding of endangerment from carbon dioxide. Now that we know that literature was biased by the heavy-handed ta ctics of the East Anglia mob, the EPA has lost the basis for its finding .” 45 (Emphasis added). 3. T HE CONTENTS OF REPORTS , INCLUDING THE IPCC REPORTS , WERE ALTERED TO ELIMINATE ANY SUGGESTION OF ANY NON

- CONSENSUS ON KEY POINTS
. For example, consider the following from Phil Jones, head of the University of East Anglia Climate Research Unit: The other paper by MM is just garbage – as you knew. De Freitas again. Pielke is also losing all credibility as well by replying to the mad Finn as we ll – frequently as I see it. I can’t see either of these pape rs being in the next IPCC repor t. K and I will keep them out somehow – even if we have to redefine what the peer-review literature is! 46

43 Michaels, Patrick J.: “How to Manufacture a Climat e Consensus.” Wall Street Journal / Opinion Journal ( Dec. 17, 2009). Found at: http://online.wsj.com/article/SB10001424052748704398304574598230426037244 html (last visited Dec. 23, 2009).

44 Ibid

.
45 Ibid.

46 E-mail from P. Jones to M. Mann. “HIGHLY CONFIDENTIAL” (July 8, 2004). Found at: http://www.eastangliaemails.com/emails .php?eid=419&filename=1089318616.txt (last visited Dec. 23, 2009).22 (”K” is probably Kevin Trenberth, one of Jones’ s fellow IPCC authors.) This is a very serious allegation. Dr. Peter Kelemen, professor of geochemi stry at Columbia Univ ersity, has said that “If scientists attempted to exclude critics’ peer -reviewed papers from IPCC reports, this was unethical in my view.” 47 Similarly, one of the most baffling aspects of the IPCC reports, until now, was how seemingly reliable reports by well-respected scie ntists were systematically excluded without persuasive explanation. The Climategate revela tions explain exactly why that was happening, and why EPA should now reexamine the underlyi ng reports and documentation free from IPCC’s corrupting bias. 48 As Dr. Pielke says, “The challenge to the IPCC community, now that their duplicity has been exposed, is to communicate to all of us why the peer-reviewed papers that we documented, and that were available in time for th e IPCC review process, were considered “bad papers” and thus ignored in the IPCC report.” 49 We doubt that IPCC will take Dr. Pielke up on his suggestion, which is all th e more reason why EPA should. 4. S UMMARY
. What these aspects of Climategate reveal is that the so-called “science” of global warming has been conducted in an ideologically charged environment, such that any possibility of giving due regard to dissenting views was forecl osed at the outset. Thus, the conclusions of organizing bodies, especially IPCC, cannot be sa id to reflect scientific “consensus” in any

47 Keleman, Peter. “What East Anglia's E-mails Rea lly Tell Us About Climate Change.” Popular Mechanics (Dec. 1, 2009). Found at: http://www.webcitation.org/5m33oK4QO (last visited Dec. 23, 2009).

48 SLF maintains that EPA’s process of re lying on syntheses of scientific reports (such as the IPCC reports), rather than the underlying reports themselves, is a violation of the Administrator’s duty to exercise “judgment” under Section 202. That is all the more true where, as here, th e syntheses reflect a political agenda and, as we now know, deliberate bias in the selection and evaluation of the science.

49 Pielke Sr., Roger. “Comment On The Hacking Of The CRU Website.” Found at: http://pielkeclimatesci.wordpress.com/2009/11/20/ comment-on-the-hacking-of-the-cru-website/ (last visited Dec. 23, 2009)23 meaningful sense of that word. Instead, they refl ect a political movement that has commandeered science to the service of its age nda. This is “post-normal scienc e”: the long-dreaded arrival of deconstructionism to the natural sciences, according to which scientific quality is determined not by its fidelity to truth, but by its fidelity to the political agenda. 50 A leading climate scientists and contributor to the IPCC, Mike Hulme, 51 has called the IPCC “a classic example” of “post normal science” Philosophers and practitioners of science ha ve identified this particular mode of scientific activity as one that occurs ... where values are embedded in the way science is done and spoken. It has been labelled “post-normal” science. Climate change seems to fall in this category. Di sputes in post-normal science focus ... on the process of science – w ho gets funded, who evaluates quality, who has the ear of policy. ... The IPCC is a classic example of a post-normal scientific activity. 52 The law of the United States requires that th e EPA’s endangerment findings be based on real science, not the “post-normal scie nce” laid bare by Climategate.

C. T HE C LIMATEGATE E

- MAILS REVEAL A SYSTEMATIC EFFORT BY SELF

PROCLAIMED “ GATEKEEPERS ” TO ENFORCE SCIENTIFIC ORTHODOXY
. One of the reasons EPA should convene a procee ding to sort through all of this is that it can be difficult to distinguish “consensus” from enforced doctrinal orthodoxy. The Climategate

50 Post-normal science was defined by Eva Kunseler, in her paper “Towards a new paradigm of Science” as follows: A new concept of science was introduced by Funtowicz and Ravetz during the 1990s...The concept of post-normal science goes beyond the traditiona l assumptions that science is both certain and value-free...The exercise of scholarly activities is defined by the dominance of goal orientation where scientific goals are controlled by political or societal actors...Scientists’ integrity lies not in disinterestedness but in their behaviour as stakeholders. Found at: http://www.nusap net/downloads/KunselerEssay2007.pdf (last visited Dec. 23, 2009)

51 Mike Hulme, founding director of the Tyndall Centre, and Professor of Climate Change at the University of East Anglia (UEA), prepared climate s cenarios and reports for the UK Government (including the UKCIP98 and UKCIP02 scenarios, and reviewer for UKCP09), the European Commission, UNEP, UNDP, WWF-International and the IPCC, and was co-ordinating Lead Author for the chapter on ‘Climate scenario development’ for the Third Assessment Report of the IPCC, as well as a contributing author for several other chapters

52 Hulme, Mike. “The Applianc e of Science.” The Guardian (Mar. 14, 2007). Found at: http://www.guardian.co.uk/society/2007/mar/ 14/scienceofclimatechange.climatechange (last visited Dec. 23, 2009).24 scandal reveals an approach among the priest hood of AGW proponents toward dissenters not unlike that of the guardians of religious orthodoxy towards heresy. As Dr. Christy says, These people act in concert to diminish, reje ct, and otherwise denigrate findings with which they do not agree -- and they are able to do so because of their "establishment" positions. This is the preservation of "group th ink" at its most serious level.... The group represented by the bulk of these emails does indeed have a message to defend. Those of us who see problems with that message are aware of how the data are manufactured and interpreted to support that message -- and wors e, how these establishm ent scientists act as gatekeepers for the "consensus" repo rts to suppress alternative findings.” 53

IV. THE NEED FOR RECONSIDERATION. Given the substantial, credible evidence that at least some of the data, publications, and reports relied upon by EPA were the subject of systematic manipula tions to create a false sense of consensus, stifle scientific debate, and alter the c ontent of the published lit erature, EPA really has only two options: ignore the controversy a nd proceed with the Endangerment Finding as if nothing happened, or convene a proceeding to allow the public to comment on the situation. It is an undeniable fact that many promin ent accomplished, published and well-respected scientists have spoken out loud and clear to say that the Clim ategate has exposed the greatest scientific fraud in history. 54 Such is the condition of the explicit premise of the EPA’s Endangerment Finding.

53 Hake, Tony. The Columbia Examiner : “Climategate email scientists feeling the heat” (Dec. 13, 2009). Found at:http://www.examiner.com/x-25061-Climate-Change-Examiner~y2009m12d13-Climategate-email-scandalscientists-feeling-the-heat (last visited Dec. 23, 2009).

54 It is worth noting some of the reactions of prominent scientists to the Climategate scandal:

 Princeton University's Robert Austin: “I view it as science fraud, pure and simp le.” Quoted in: McCullagh, Declan. “Physicists Stick to Warm ing Claim Post-Climategate,” CBS News (Dec, 8, 2009). Found at: http://www.cbsnews.com/blogs/2009/12/ 08/taking liberties/entry5933353.shtml (last visited Dec. 23, 2009).

 Robert Austin (Princeton), Will Happer (Princeton ) and Hal Lewis (UC Santa Barbara) “ClimateGate, which was and is an international scientific fraud, the worst any of us have seen.” Ibid.

 Don Easterbrook: “Legitimate scientists do not doctor data, delete data they don't like, hide data they don't want seen, hijack the peer review process, personally attack other scientists whose views differ from theirs,25 Petitioners respectfully suggest that whether these sc ientists are right or not is not the question before EPA. EPA may well decide that the science, taken as a whole, survives the Climategate scandal. 55 But the public, and other members of the scientific community who have a contrary view, have a right to weigh in on that issue. This is not an issue on which the public previously commented, and therefore it is not one that EPA has responded to, and, were EPA’s evaluation to conclude that some or all of the da ta and reports are not reli able, the outcome of the Finding could very well be different. Accordingly, in all fairness EPA must convene a proceeding to allow public comment on these issues.

V. CONCLUSION For all of the foregoing reasons, EPA should convene a proceeding to reconsider the Endangerment Finding. Respectfully submitted this 23rd day of December 2009. Attorneys for Petitioners

Shannon L. Goessling Executive Director & Chief Legal Counsel Southeastern Legal Foundation Inc.
send fraudulent data to the IPCC that is used to pe rpetuate the greatest hoax in the history of science, provide false data to further legislation on climate change that will result in huge profits for corrupt lobbyists and politicians, and tell outright lies about scientific data." Found at: http://www.climatedepot.com/a/4140/Geologist-appa lled-at-NYTs-Krugman-Legitimate-scientists-do-notdoctor-datahijack-peerreviewsend-fraudulent-data-to-UN-that-is-used-to-perpetuate-greatest-hoax-in-thehistory-of-science (Nov. 29, 2009) (last visited Dec. 23, 2009).

 Ian Plimer “If you have to argue your science by using fraud, your science is not valid.” Quoted in “Climate Change Fraud.” Daily Express (Dec. 2, 2009). Found at: http://www.express.co.uk/posts/view/143573/Climate-change-rocked- (last visited Dec. 23, 2009).

55 SLF has already taken the position that EPA’s Endangerment Finding is fundamentally flawed based on the preClimategate science. Indeed, SLF has already commented that EPA was relying too heavily on a manufactured “consensus” and altered data. While SLF ha s tried to resist the urge to say, “I told you so,” the Climategate scandal lends considerable support to SLF’s prior statements.26 Southeastern Legal Foundation Inc. 6100 Lake Forrest Drive, Suite 520 Atlanta, Georgia 30328 (404) 257-9667 Fax: (404) 257-0049

Edward A. Kazmarek Kazmarek Geiger & Laseter LLP 3490 Piedmont Road NE, Suite 201 Atlanta, GA 30305 (404) 812-0840 Fax: (404) 812-0845 E-mail: skazmarek@kglattorneys.com

Harry W. MacDougald Caldwell & Watson LLP 5825 Glenridge Dr., N.E. Building Two, Suite 200 Atlanta, GA 30328-5579 (404) 843-1956 Fax: (404) 843-2737 E-mail: hmacdougald@cwlaw.orgBEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY In re: ) ) EPA Docket No. Endangerment and Cause or Contribute ) Findings for Greenhouse Gases Under ) EPA-HQ-OAR-2009-0171 Section 202(a) of the Clean Air Act ) )
FIRST AMENDMENT TO : PETITION FOR RECONSIDERATION OF “ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR GREENHOUSE GASES UNDER SECTION 20 2(a) OF THE CLEAN AIR ACT” United States Representative John Linder (GA –7th District), U.S. Representative Dana Rohrabacher (CA-46th District), U.S. Representative John Shimkus (IL–19th District), U.S. Representative Phil Gingrey (GA–11t h District), U.S. Representative Lynn Westmoreland (GA–3rd District), U.S. Represen tative Tom Price (GA–6th District), U.S. Representative Paul Broun (GA–10th District), U.S. Representative Steve King (IA–5th District), U.S. Representative Na than Deal (GA–9th District), by and through Southeastern Legal Foundation Inc. Shannon L. Goessling Executive Director & Chief Legal Counsel Southeastern Legal Foundation Inc. 6100 Lake Forrest Drive, Suite 520 Atlanta, Georgia 30328 (404) 257-9667 Edward A. Kazmarek Counsel to Southeastern Legal Foundation Inc. Kazmarek Geiger & Laseter LLP 3490 Piedmont Road, Suite 201 Atlanta, GA 30305 404-812-0840 Harry W. MacDougald Counsel to Southeastern Legal Foundation Inc. Caldwell & Watson LLP 5825 Glenridge Dr., N.E. Building Two, Suite 200 Atlanta, GA 30328-5579 (404) 843-19562 Petitioners United States Representativ e John Linder (GA–7th District), U.S. Representative Dana Rohrabacher (CA-46th Dist rict), U.S. Representative John Shimkus (IL– 19th District), U.S. Representative Phil Gingrey (GA–11th District), U.S. Representative Lynn Westmoreland (GA–3rd District), U.S. Repres entative Tom Price (GA–6th District), U.S. Representative Paul Broun (GA–10th District ), U.S. Representative Steve King (IA–5th District), U.S. Representative Nathan Deal (GA–9th District), by and through Southeastern Legal Foundation Inc. (“SLF”), hereby amend their Pet ition for Reconsideration of “Endangerment and Cause or Contribute Findings for Greenhouse Gase s Under Section 202(a) of the Clean Air Act,” filed by Petitioners on December 23, 2009, to add the following petitioner: Representative Jack Kingston (GA – 1 st District), also represented by and through So utheastern Legal Foundation Inc. Respectfully submitted this 24th day of December 2009. Attorneys for Petitioners

Shannon L. Goessling Executive Director & Chief Legal Counsel Southeastern Legal Foundation Inc. Southeastern Legal Foundation Inc. 6100 Lake Forrest Drive, Suite 520 Atlanta, Georgia 30328 (404) 257-9667 Fax: (404) 257-0049

Edward A. Kazmarek Kazmarek Geiger & Laseter LLP3 3490 Piedmont Road NE, Suite 201 Atlanta, GA 30305 (404) 812-0840 Fax: (404) 812-0845 E-mail: skazmarek@kglattorneys.com

Harry W. MacDougald Caldwell & Watson LLP 5825 Glenridge Dr., N.E. Building Two, Suite 200 Atlanta, GA 30328-5579 (404) 843-1956 Fax: (404) 843-2737 E-mail: hmacdougald@cwlaw.orgBEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY In re: ) ) EPA Docket No. Endangerment and Cause or Contribute ) Findings for Greenhouse Gases Under ) EPA-HQ-OAR-2009-0171 Section 202(a) of the Clean Air Act ) )
SECOND AMENDMENT TO : PETITION FOR RECONSIDERATION OF “ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR GREENHOUSE GASES UNDER SECTION 20 2(a) OF THE CLEAN AIR ACT” United States Representative John Linder (GA –7th District), U.S. Representative Dana Rohrabacher (CA-46th District), U.S. Representative John Shimkus (IL–19th District), U.S. Representative Phil Gingrey (GA–11t h District), U.S. Representative Lynn Westmoreland (GA–3rd District), U.S. Represen tative Tom Price (GA–6th District), U.S. Representative Paul Broun (GA–10th District), U.S. Representative Steve King (IA–5th District), U.S. Representative Nathan Deal (GA–9th District), Representative Jack Kingston (GA – 1 st District), and Southeaste rn Legal Foundation Inc. Shannon L. Goessling Executive Director & Chief Legal Counsel Southeastern Legal Foundation Inc. 6100 Lake Forrest Drive, Suite 520 Atlanta, Georgia 30328 (404) 257-9667 Edward A. Kazmarek Counsel to Southeastern Legal Foundation Inc. Kazmarek Geiger & Laseter LLP 3490 Piedmont Road, Suite 201 Atlanta, GA 30305 404-812-0840 Harry W. MacDougald Counsel to Southeastern Legal Foundation Inc. Caldwell & Watson LLP 5825 Glenridge Dr., N.E. Building Two, Suite 200 Atlanta, GA 30328-5579 (404) 843-19562 Petitioners United States Representativ e John Linder (GA–7th District), U.S. Representative Dana Rohrabacher (CA-46th Dist rict), U.S. Representative John Shimkus (IL– 19th District), U.S. Representative Phil Gingrey (GA–11th District), U.S. Representative Lynn Westmoreland (GA–3rd District), U.S. Repres entative Tom Price (GA–6th District), U.S. Representative Paul Broun (GA–10th District ), U.S. Representative Steve King (IA–5th District), U.S. Representative Nathan Deal (GA–9t h District), U.S. Repres entative Jack Kingston (GA—1 st District), and Southeastern Legal Foundation Inc. (“SLF” ), hereby amend their Petition for Reconsideration of “Endangerment and Caus e or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, ” filed by Petitioners on December 23, 2009, and amended on December 24, 2009, to add the following petitioners: U.S. Representative Michele Bachmann (MN-6th District); U.S. Representative Kevin Brady (TX-8th District); U.S. Representative Joe Barton (TX-6th District); U.S. Representative John Shadegg (AZ-3rd District); U.S. Representative Marsha Blackburn (TN-7th District); The Langdale Company; Langdale Forest Products Company; Langdale Farms, LLC; Langdale Fuel Company; Langdale Chevrolet – Pontiac, Inc.; Langdale Ford Company; Langboard, Inc. – MDF; Langboard, Inc. – OSB;3 Georgia Motor Trucking Association, Inc.; Collins Industries, Inc.; Collins Trucking Company, Inc.; Kennesaw Transportation, Inc.; J&M Tank Lines, Inc.; Southeast Trailer Mart, Inc,; Horizon Freight System, Inc.; and Georgia Agribusiness Council, Inc. Respectfully submitted this 17th day of February 2010. Attorneys for Petitioners

Shannon L. Goessling Executive Director & Chief Legal Counsel Southeastern Legal Foundation Inc. Southeastern Legal Foundation Inc. 6100 Lake Forrest Drive, Suite 520 Atlanta, Georgia 30328 (404) 257-9667 Fax: (404) 257-0049

Edward A. Kazmarek Kazmarek Geiger & Laseter LLP 3490 Piedmont Road NE, Suite 201 Atlanta, GA 30305 (404) 812-0840 Fax: (404) 812-0845 E-mail: skazmarek@kglattorneys.com4 Harry W. MacDougald Caldwell & Watson LLP 5825 Glenridge Dr., N.E. Building Two, Suite 200 Atlanta, GA 30328-5579 (404) 843-1956 Fax: (404) 843-2737 E-mail: hmacdougald@cwlaw.orgBEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

I N R E : Endangerment and Cause or Contribute Fin d ings for Greenhouse Gases Under Section 202(a) of the Clean Air Act EPA Docket Number
EPA

- HQ

- OAR

- 2009

- 0171



### THIRD AMENDMENT TO P ETITION FOR RECON SIDERATION F ILED BY United States Representative John Linder (GA

– 7th District), U.S. Representative Dana Rohrabacher (CA
- 46th District), U.S. Representative John Shimkus (IL

– 19th District), U.S. Representative Phil Gingrey (GA

– 11th District), U.S. Represe ntative

Lynn Westmoreland (GA

– 3rd District), U.S. Representative Tom Price (GA

– 6th District), U.S. Representative Paul Broun (GA

– 10th District), U.S. Representative Steve King (IA

– 5th District), U.S. Representative Nathan Deal (GA

– 9th District) ,

Representa tive Jack Kingston (GA

–1 st District) , U.S. Representative Michele Bachmann (MN
- 6th District); U.S. Representative Kevin Brady (TX
- 8th District); U.S. Representative Joe Barton (TX
- 6th District); U.S. Representative John Sh a degg (AZ
- 3rd District); U.S. Re presentative Marsha Blackburn (TN
- 7th District); The Langdale Company; Langdale Forest Products Company; Langdale Farms, LLC; Langdale Fuel Company; Langdale Chevrolet

–Pontiac, Inc.; Langdale Ford Company; Langboard, Inc.

–MDF; Langboard, Inc.

–OSB; Ge orgia Motor Trucking A s sociation, Inc.; Collins Industries, Inc.; Collins Trucking Company, Inc.; Kennesaw Transportation, Inc.; J&M Tank Lines, Inc.; Southeast Trailer Mart, Inc,; Horizon Freight System, Inc.; Georgia Agribusiness Council, Inc . and So utheastern Legal Found a tion Inc.

Shannon L. Goessling Executive Director and Chief Legal Counsel Southeastern Legal Foundation 6100 Lake Forrest Drive, Suite 520 Atlanta, Georgia 30328 (404) 257

- 9667ii Edward A. Kazmarek Counsel to Southeastern Legal Found ation Kazmarek Geiger & Laseter LLP 3490 Piedmont Road, Suite 201 Atlanta, GA 30305 404

- 812

- 0840 skazmarek@kglattorneys.com
Harry W. MacDougald Counsel to Southeastern Legal Foundation Caldwell & Watson L LP 5825 Glenridge Dr., N.E. Building Two, Suite 200 Atlanta, GA 30328

- 5579 (404) 843

- 1956 hmacdougald@cwlaw.orgiii 

### T ABLE OF 

### C ONTENTS

I. I NTRODUCTION
................................ ................................ ................................ ......... 1 II. I NVALIDITY AND U NRELIABIL ITY OF S URFACE T EMPERATURE R ECORDS : D’A LEO & W ATTS
................................ ................................ ................................ ... 2 A. Station Drop Out

................................ ................................ ............................. 3 B. Improper Adjustment of Data

................................ ................................ ......... 6 C. Station Site Quality

................................ ................................ ....................... 10 D. Case Studies in Data Manipulation

................................ .............................. 11 E. Summary

................................ ................................ ................................ ....... 14 III. U NSUPPORTED OR F RAUDULENT C LAIMS R EGARDING A DVERSE E FFECTS OF G REENHOUSE G ASES
. ................................ ................................ ............................. 14 A. Extreme Events Fraud

................................ ................................ .................. 15 B. Himalayan Glacier Fraud

................................ ................................ .............. 19 C. Disappearing Mountain Ice Claim

................................ ................................ 22 D. African Crop Yields Claim

................................ ................................ ........... 22 E. Amazongate

................................ ................................ ................................ .. 27 IV. T HE EPA’ S F AITH I N T HE IPCC IS M ISPLACED
................................ ...................... 28 V. P HIL J ONES ’ BBC I NTERVIEW
................................ ................................ ................ 29 VI. P OTENTIAL C ONFLICTS O F I NTEREST O F IPCC C HAIR
................................ ........... 30 VII. T HE IPCC’ S CO2 C YCLE M ODELING S HOULD B E R E CONSIDERED I N L IGHT OF R ECENT E MPIRICAL O BSERVATIONS
................................ ................................ ...... 31 VIII. EPA S HOULD W ITHDRAW T HE E NDANGERMENT F INDING A ND L ET T HE O NGOING IPCC S CANDALS R UN T HEIR C OURSE B EFORE R EVALUATING T HE S CIENCE
. ................................ ................................ ................................ ................ 35I. I NTRODUCTION The Climategate e

- mails and documents on which Petitioners based their original Petition for Reconsideration have been followed by a series of revelations that have undermined the credibility of the Intergovernmental Panel on Climate Change (“IPCC”) and its conclusions. The purpose of this Third Amendment is to lay these developments before the Agency in support of the Petition for Reconsideration. The reliance by the Environmental Protection Agency ( “EPA”) on the IPCC’s work is so extensive that revelations that undermine the credibility of the IPCC also inevitably impeach the credibility of the EPA’s Endangerment Finding. As noted in our initial Petition for Reconsideration, under Section 307(d)(7)( B) of the Clean Air Ac,t EPA is required to convene a proceeding for reconsideration upon a showing of two conditions precedent: (1) the information arose after the period for public comment on the Endangerment Finding and (2) the objection is of “central relevance to the outcome of the rule. As shown below, the analyses presented below have all occurred after the close of the public comment period. In addition, the continuing litany of IPCC’s errors, and even fraud , as discussed in detail below, is “so ser ious” that there is a substantial likelihood that the Finding would have been significantly changed if such errors had not been made. See 42 U.S.C. 7607 (d)(8), (d)(9)(D)(iii). See e.g., NRDC v. Herrington, 768 F.2d 1355, 1421 (D.C.Cir. 1985) (holding th at agencies are obliged to produce substantial evidence for major assumptions in rulemaking). Accordingly, t he pace and significance of the recent disclosures concerning IPCC’s reporting are such that the EPA should stay the effective date of its Finding to provide it time to reconsider its Finding and re

- assess its reliance on the IPCC

.2 II. I NVALIDITY AND U NRELIABILITY OF S URFACE T EMPERATURE R ECORDS : D’A LEO & W ATTS On January 27, 2010, Joseph D’Aleo 1 and Anthony Watts 2 published, Surface Temperature Records: Policy Driven Deception ? 3 (hereinafter “D’Aleo & Watts). A copy of this report is filed with this Third Amendment. The scientific validity and reliability of the surface temperature record datasets are essential elements of the validity and reliability of the conclusions drawn by the IPCC and the EPA. The National Oceanic and Atmosphere Administration (“NOAA”), through the National Climate Data Center (“NCDC”), publishes the U.S. Historical Climate Network (USHCN) and Global Historical Climate Network (“G HCN”) datasets. The National Aeronautics and Space Administration (“NASA”), through the Goddard Institute for Space Studies (“GISS”) publishes the GIST dataset. The University of East Anglia’s (“UEA”) Climatic Research Unit (“CRU”) publishes the HADCRUT da tasets, now in

ve r sion 3. These datasets are not independent. To the contrary, the GISS dataset published by NASA and the HADCRUT dataset published by CRU use data supplied by NOAA through the GHCN. They differ in the adjustments and analysis applied to th e underlying data. D’Aleo & Watts identify at least three factors that significantly degrade the validity and reliability of these surface temperature records, all of which introduce a

1 Joseph D’Aleo is a meteorologist of 35 years experience. He co

- founded the Weather Channel and is currently the Executive Director of the International Climate and Environmental Change Assessment Project. 2 Anthony Watts has 25 years experience in broadcast meterology. He founded SurfaceSt a tions.org, a web site devoted to assessing the quality of weather stations across the U.S. He is also the founder of http://wattsupwiththat.c om/ , a top

- rated science blog. 3 Available at http://scienceandpublicpolicy.org/originals/policy_driven_deception.html (last v i sited Feb. 10, 2010).3 warm bias:
1. Station drop out, which introduces a significant sampling bias toward warmer temperatures, and invalid use of interpolation from warmer grid cells to fill thusly vacant grid cells without actual data; 2. Improper adjustments to data; and 3. Improper siting of temperature stations. D’Aleo & Watts offer many exam ples in support of each of these assertions. A. S TATION D ROP O UT “Station drop

- out” refers here to the precipitous decline in the number of temperature r e cords included in the GHCN dataset. In the 1970’s more than 6000 stations were active. Today the figure i s 1500 or less. D’Aleo & Watts, p. 10, n. 9. 4 The following graph, prepared by Ross McKitrick 5 shows the relationship b e tween station drop

- out and average temperature, where “Average T” is a mean of raw unprocessed temperature data, and No. of Stations :

4 Citing Peterson & Vose, An Overview of the Global Historical Climatology Network Temper a ture Database , Bulletin of the American Meteorological Society, Vol. 78, No. 12, p. 2837

- 2849 (1997); available at http://www.ncdc.noaa.gov/oa/climate/ghcn

monthly/images/ghcn_temp_overview.pdf (last visited Feb. 10, 2010) 5 Ross McKitrick is a Professor of Economics at The University of Guelph in Ontario, Canada. His website has a complete l ist of publications, which includes 14 peer

- reviewed papers in the field of economics, and 12 in climate science and statistics. Along with Steve McIntyre, he is primarily responsible for demonstrating errors in the “Hockey Stick” by Mann, Briffa and Hughe s (1998).4 D’Aleo & Watts, p. 11. See http://www.uoguelph.ca/~rmckitri/research/nvst.html (last visited Feb. 10, 2010) for a full explanation of this chart, and access to data it represents. This ch art shows that the station drop out coincides with a sharp and significant increase in average raw temper a ture, and thus suggests that the change in temperature is the result of sampling bias and not climate change. The stations that were dropped were disp roportionately rural. D’Aleo & Watts, p.
11

- 12. Further, the remaining stations were biased towards lower latitudes, lower elevations, and urban locations. Id. , citing E.M. Smith 6 , http://chiefio.wordpress.com/2009/11/03/ghcn

- the

- global

- analysis/ (last visited Feb. 10, 2010). All of these tende n cies away from random sampling impart a warm bias to the

6 E. M. Smith is a computer programmer who has made intensive study of statistical and pr o gramming methods used in climatology which are posted for discussion at his website, http://chiefio.wordpress.com . A Google search on “chiefio.wordpress.com ” yields “about 82,000 hits” on February 5, 2010.5 record. D’Aleo & Watts show that station drop out has occurred all over the world, but the greatest station drop

- out has occurred in Siberia and Canada, where these global temperature datasets purport to show the greatest warming has occurred. The Institute for Economic Analysis in Moscow prepared a report showing that selective use of only 25% of the available Russian stations in the HadCRUT dataset imparted a warming bias of .64 C o greater than the trend calculated using all available data. D ’ Aleo & Watts at p. 16. This results from the disproportionate use of more southern and urban stations, and from interpolating or “infilling” data from these warmer stations to colder areas for which actually available data was eschewed. Id. at 16

- 17. Russia repr e sents 11.5% of the Earth’s land mass, so this is a significant issue. In Canad a, the number of reporting stations dropped from 600 to less than 50, the percentage below 300 feet in elevation tripled, while those above 3000 feet were r e duced by half. Id. at 18. GHCN data, corrupted by this sampling bias and by inappropr i ately

warm - b iased infilling, shows warming in Canada, but unadjusted data shows coo l ing. Id.
at 17

- 18. Among other examples described in D’Aleo & Watts is that of Bolivia. GHCN has not collected any actual temperature data for Bolivia since 1990. Monthly anomaly chart s show substantial warming over Bolivia, but is purely an artifact of interpolation from di s tant warmer and lower altitude stations. Id. at 21. The USHCN has dropped 90% of its climate stations. Most of the remaining stations are at airports, and in the we st most of the higher elevation stations are gone. In California, the only remaining stations are in San Francisco, Santa Maria, Los Angeles and San Diego. Id. at 23.6 The station drop

- out results in sampling errors that introduce a warming bias in to the surface temperature record. Infilling from warmer temperature stations to colder grid cells for which no actual data is collected also imparts a spurious warming signal. D’Aleo & Watts conclude that the warming bias thusly introduced makes “any accurate

as sessment of warming impossible.” Id. at 10. B. I MPROPER A DJUSTMENT OF D ATA Prior naturally occurring episodes of warming and cooling present a problem of proof for the promoters of catastrophic anthropogenic global warming (“AGW”), namely how to explain that modern war m ing is caused by man when prior episodes of equal or greater warming self

- evidently were not. Part of their solution has been to airbrush out of climate history cycl i cal climate changes that impeach their claims. Thus, in Mann, Briffa and Huges (1998) strenuous efforts were undertaken to erase the medieval warm period and the little ice age by means of proxy reconstructions that were later proven to be invalid in the infamous “hockey stick” affair. 7 In the 20 th century there was warming from the 1910s to 1940, fo l lowed by cooling from 1940 to 1970, followed by warming from 1970 to 1998.

7 See McKitrick & Michaels, Corrections To The Mann Et. Al. (1998) Proxy Data Base And Northern Hemispheric Average Temperature Series , Energy & Enviro n ment Vol. 14, No. 6, p. 751 (2003); McKitrick & Michae ls , Hockey Sticks, principal components, and spurious signifi c ance , Geophysical Research Letters, Vol. 32 L.03710 (2005); McKitrick & Michaels, The M&M Critique Of The Mbh98 Northern Hemisphere Climate Index: Update And Implications , Energy & Enviro n ment V ol. 16 No. 1, p. 69 (2005); McKitrick & Michaels, Reply to comment by von Storch and Zorita on ‘‘ Hockey sticks, principal components, and spurious significance ,’’ Ge o physical Research Letters, Vol. 32, L20714 (2005); McKitrick & Michaels, Reply to comment by Huybers on ‘‘ Hockey sticks, principal components, and spurious significance ,’’ Geophysical R e search Letters, Vol 32 L20713 (2005); Ad Hoc Committee Report on the “hockey Stick” Global Climate Reconstruction” a/k/a the “Wegman Report” available at http://republicans.energycommerce.house.gov/108/home/07142006_Wegman_Report.pdf . (last visited Feb. 10, 2010)7 D’Aleo & Watts, p. 36. D’Aleo & Watts show that these 20 th century cycles were misr e presented in the temperature records in order to exaggerate a 20 th century wa rming trend and claim it was caused by AGW. USHCN version 1 showed that the 1930s were the warmest decade, and that the warming trend over the 20 th century “hardly exceeds year

- to

- year variability.” Id. Then USHCN version 2 was r e leased in 2007. Version 1 used an urban heat island adjustment, but that was dropped in version 2 in f a vor of a “change point algorithm.” Id. at 37

- 38. The differences between version 1 and version 2 are shown in the following chart, in which a zero value indicates no change from v ersion 1 to version 2, a negative value indicates version 2 is lower than version 1, and a positive value indicates version 2 is higher than version 1:8 D’Aleo & Watts, p. 38. The warming of the 1930’s has been minimized by negative adjustments, and the recent warming has been exaggerated by positive adjus t ments (or by failure to properly adjust for urban heat islands), thereby impar t ing to the 20 th century a warming trend that the raw data and rural stations do not show. Id. at 38

- 41. For

exa m ple, for C entral Park in New York City, USHCN version 1 gradually reduced the
UHI a d justment and version 2 eliminated it entirely. The notion that there is zero urban heat is l and effect in Manhattan is not valid.9 Id. at 86. The change point algorithm used in GHCN V2 was designed to detect “inomogeneities,” or abrupt changes in a temperature data series, as abrupt changes likely

r e flect something other than climate change, like an equipment change, a siting change, or an abrupt change in the local environment. Id. a t 37. Once such inhomogeneities are detected, they can be adjusted for and the data “homogenized.” Id. at 37

- 38; See also Petersen and Vose (2007). By its d e sign, the change point algorithm does not detect gradual changes such as actual climate change, and so cannot distinguish climate change from the gradual i n crease in the urban heat island effect resulting from the gradual transition of an area from rural to su b urban over a period of decades, a phenomenon that has occurred at many temperature stations wi th growing population. D’Aleo & Watts, pp.
37

- 41. Ther e fore, the design of the change point algorithm “cannot account for long term changes to the temperature record, such as UHI, making such signals indistinguishable from the climate change si g nal that is sought.” Id. at 41. The GISS temperature dataset maintained by NASA retains an urban heat island10 adjustment for the US, and for this reason diverges from USHCN. Between 1950

- 2008, the trend difference between GISS and USHCN is approximately 0.7 Fo/century

. See id.
at 42

- 43. The asserted warming trend over the 20 th century is 0.74 ± 0.18°C (TSD p. 27). However, for the rest of the world, the GISS UHI adjustments have the wrong sign

. Id. at 47

- 50. As summarized by D’Aleo & Watts, there is compelling evidence that the 20 th century surface temperature record has been improperly adjusted downward during the warming of the 1930’s, and improperly adjusted upward (or not adjusted for UHI) in the late 20 th century warming. These improper adjustments and failures to adjust impart a spurious warming signal to the 20 th century temperature record and render it scientifically invalid and unreliable for use in the EPA’s Endangerment Finding. C. S TATION S ITE Q UALITY Anthony Watts’ project, surfacestations.org, has surveyed 106 7 of 1221 (87.4%) surface stations in the USHCN network. Stations are evaluated for the quality of their location according to criteria developed by the Climate Reference Network (“CRN”) Site Inform a tion Handbook, which specifies the requirements for estab lishing and maintaining a weather instrument site. Id. at 32. 8 Deviations from the siting standards introduce a range of error in the measurements according to a scale set forth in the handbook. The error scale runs from less than 1o C for stations classif ied as CRN class 1 or 2, up to greater than 5o C for stations rated CRN class 5. Id. 28

- 33. For the stations surveyed the SurfaceStations.org volunteers determined that 90% were sited in ways that result in errors exceeding 1o C according to the handbook’s error scale. In the following chart,

8 See also Climate Reference Network Site Information H andbook (Dec. 2002) available at Cl i mate Reference Network Site Information Handbook (last visited Feb. 10, 2010).11 these stations are categorized by where they fall in the CRN han d book’s error scale:

Since the asserted warming trend over the 20 th century is 0.74 ± 0.18°C (TSD p. 27), the error swamps the signal. The data are inva lid and unreliable and cannot be relied upon for the Endangerment Fin d ing. D. C ASE S TUDIES IN D ATA M ANIPULATION At pp. 59

- 101 D’Aleo & Watts present 12 case studies of data manipulation in global surface temperature datasets. The first is the “Smoking Gun at Darwin Zero,” which Petitioners referred to in their original petition. The second 9 concerns assertions by New Zealand’s National Institute of Water and Atmospheric Research (“NIWA”) that the linear trend of warming from 1909 to 2008 was 0.92o C/century, d epicted in this chart of

9 D’Aleo & Watts cite and rely on the New Zealand Climate Science Coalition for this analysis. Their report is available at http://icecap.us/images/uploads/global_warming_nz_pdf.pdf (last v i sited Feb. 10, 2010)12 the temperature anomaly from the baseline between 1971

- 2000:

From NIWA ’ s web site

— Figure 7: Mean annual temperature over New Zealand, from 1853 to 2008 inclusive, based on between 2 (from 1853) and 7 (from 1908) long

- term stati on records. The blue and red bars show annual differences from the 1971

– 2000 ave r age, the solid black line is a smoothed time series, and the dotted [straight] line is the linear trend over 1909 to 2008 (0.92°C/100 years). D’Aleo & Watts, p. 67. In fac t, the raw data show no trend whatsoever:

Id. at 68. As with the USHCN version 2 and Darwin Zero, “ The shocking truth is that the oldest readings have been cranked way down and later readings artificially lifted to give a13 false impression of warming .” Id

. at 69. This pattern is clearly demonstrated by the charts at pp. 70

- 73 of D’Aleo & Watts.

Id. at 69. Their fifth case study is by Willis Eschenbach 10 recounting the attempts by Professor Wibjorn Karlen to replicate the IPCC’s temperature analysis for th e Nordic region. See Id. at 79; available at http://wattsupwiththat.com/2009/11/29/when

- results

go - bad/ (last visited Feb. 10, 2010). Eschenbach was drawn to the subject by the
in clusion in the Climategate e

- mails of co r respondence between Professor Karlen and Phil Jones, former Director of the CRU, which follows the now familiar pattern of Jones willfully obstruc t ing legitimate scientific inquiry. The IPCC shows substantial increa ses in temperature in the late 20 th century, to 0.5 C above the levels of the 1930s in the Nordic region. Karlen could not replicate the assertion by the IPCC that the recent warming exceeded that of the 1930s, either in the Nordic regions or in many other

10 Mr. Es chenbach is an engineer, and the author of Tuvalu Not Experiencing Increased Sea Level Rise , Willis Eschenbach , Energy & Environment , Volume 15 , Number 3 , 1 July 2004 , pp . 527

- 54314 regions of the world, and sought clarific a tion from Jones and Trenberth. They did little more than refer him back to the IPCC reports from which the question arose in the first place. Karlen’s analysis, replicated by Eschenbach, shows the same pattern of suppressing the warming of the 1930’s and inflating the warming of the late 20 th century that is seen in surface temperature r e cord discussed above. Eschenbach’s analysis of the Climategate e

- mails concludes that Karlen made legitimate inquiries and “ got i ncomplete, incorrect and very misleading a n swers .” Id. E. S UMMARY D’Aleo & Watts render a caustic conclusion on the validity and reliability of the global temperature datasets: Recent revelations from the Climategate emails, originating from the Climatic Rese arch Unit at the University of East Anglia showed how all the data centers, most notably NOAA and NASA, conspired in the manipulation of global temperature records to suggest that te m peratures in the 20th century rose faster than, in reality, they actually did.

... These factors all lead to significant uncertainty and a tendency for overestimation of century

- scale temperature trends. A conclusion from all findings suggest that global data bases are seriously flawed and can no longer be trusted to assess clima te trends or rankings or validate model forecasts. And, consequently, such surface data should be ignored for decision making. D’Aleo & Watts, p. 5. The EPA should reconsider the Endangerment Finding to address the whether surface temperature records have sufficient validity and reliability to support the conclusions the Agency has reached. III. U NSUPPORTED OR F RAUDULENT C LAIMS R EGARDING A DVERSE E FFECTS OF G REENHOUSE G ASES . Since the comment period closed, and particularly since the Climategate e

- mails15 were rele ased, a series of press reports have shown that the IPCC’s claims of impending climate catastrophe, which are also in the EPA’s Finding, are at best insufficiently supported and at worst knowingly false. The assertions that have been proven false or
unsupp orted include the fo l lowing:
1. That extreme weather events have increased in frequency and severity; 2. That Himalayan Glaciers would be melted by 2035; 3. That African crop yields would collapse by 50%; 4. That large swaths of the Amazon rain forest would become much drier s a vanna grassland. A. E XTREME E VENTS F RAUD The IPCC reported that global warming was causing an increase in losses from weather disasters of 2% per year, even after controlling for economic grown, citing a

non - peer reviewed study by Ro bert Muir

- Wood. 11 Yet the IPCC mischaracterized the study, which actually found no trend and expressly eschewed the proposition for which it was cited. 12 Muir

- Wood et al . expressly caveated that the exceptio n ally strong hurricane seasons in 2004 and 2005 acc ounted for almost all of the 2% i n crease from 1970

- 2005. Id. The IPCC knew from the comments of reviewers that their use of the study was wrong before the report was published. 13 The IPCC reviewer had asked “What does Pielke think about this?” The answer gi ven was a fabrication, according to Pielke, Jr. As

11 IPCC Fourth Assessment Report, WG II, Chapter 1, pp. 50

- 51, citing Muir

- Wood, et al. The Search for Trends in a Global Catalogue of Normalized Weather

- Related Catastrophe Losses , presented at Workshop on Climate Change and Disaster Losses: Understanding and Attribu t ing Trends and Projections Final Workshop Report, availab le at ( http://sciencepolicy.colorado.edu/sparc/research/projects/extreme_events/munich_workshop/mui rwood.pdf ) (last visited Feb. 10, 2010 ) 12 Id. at p. 1; See also “UN wrongly linked global warming to natural disaster,” TimesOnline, January 24, 2010 available at http://www.timesonl ine.co.uk/tol/news/environment/article7000063.ece?token=null&offset=0&p age=1 (last visited Feb. 10, 2010). 13 See IPCC WGII Fourth Assessment Report, Expert Review Comments, p. 121 available at ( http://ipcc

- wg2.gov/AR4/SOD_COMMS/Ch01_SOD_Expert.pdf ) (last visited Feb. 10, 2010)16 he commented on his blog, “[N] ot only did the IPCC AR4 WGII egregiously misrepresent the science of disasters and climate change, but when questions were raised about that section by at least one expert re viewer, it simply made up a misleading an d false response about my views.” 14 Pielke, Jr. summarized the treatment of the science of disasters and climate change by the IPCC, the Stern Report, and the US Climate Change Science Program (“CCSP”) as follows:
Th e information above documents a pattern of misrepresentation of the science of disasters and climate change in the Stern Review report, the reports of the IPCC, an the US CCSP. The pattern of misr e presentation has three common characteristics: 1. Reliance on non - peer reviewed, unsupportable studies rather than the relevant peer reviewed literature. 2. Reliance on and featuring non

- peer reviewed work conducted by the authors of the assessment reports. 3. Repeated reliance on a small number of secondary of te rtiary sources, repeatedly cited such that intellectual provenance is lost. 15 According Pielke, Jr. “ The IPCC treatment of the science of disasters and clim ate change is an even worse brea ch of scientific sta n dards than the errors associated with Himalayan glaciers. ” 16 The EPA Endangerment Finding relies heavily on the assertion that AGW will cause extreme weather events to become more frequent and more severe and thus

14 Roger Pielke, Jr., “What Does Pielke Think About This?” available at http://rogerpielkejr.blogspot.com/2010/01/what

- does

- pielke

- think

- about

- this.html (last visited Feb. 10, 2010) 15 Roger Pielke, Jr., “Systematic Misrepresentation of the Science of Disasters and Climatge Change,” available at http://rogerpielkejr.blogspot.com/2009/06/systematic

- misrepresentation

- of

science.html , (last visited Feb. 10, 2010) 16 Rober Pielke, Jr., “A Primer on Egregious Errors in IPCC WG2 on Disasters,” available at http://rogerpielkejr.blogspot.com/2010/01/primer

- on - egregious

- eroors - in

- ipcc

- wg2.html (last v i sited Feb. 10, 2010)17 constitute a danger to human health and welfare

–an essential element of the Finding. To support this assertion the Finding in turn relies heavily on the IPCC’s reports on weather di s asters. The errors and misrepresentations in the IPCC and CCSP reports on weather disasters issues were presented in detail to the Agency in comment 3303. See RT C 1

- 15. This comment showed that both the IPCC and especially the CCSP had fraudulently asserted that AGW was causing increased frequency and severity of extreme weather events. The comment stated: In 2007 the IPCC released its Fourth Assessment Report and it relied on the single non

- peer reviewed Muir

- Wood (2006) [9] study che r rypicked from the Hohenkammer workshop as the single study to highlight in its review of this topic. [12] The same critique of the Stern report’s reliance on this Muir

- Wood study above applies to the IPCC’s reliance on it as well. Further, the IPCC included a graph [13] attempting to show how closely temperature anomalies match up with disaster losses, using a scaling of the axes to suggest a relationship where none has been shown in the peer

- reviewed literature. Again it relies on Muir

- Wood (2005). Coincidentally, Ro b ert Muir

- Wood, of Risk Management Solutions, Inc., was an author of the chapter of the IPCC report that selectively highlighted his own non

- peer reviewed work. The US Climate Change Science Program systematically and repea t edly misrepresented the science of disasters and climate change. First, the CCSP US extremes report [14] miscited several of Roger Peilke ’ s papers in support of claims that they did not make and re lied on Mills 2005 as the definitive source on this topic. [16] The disa s ters and climate change section of this CCSP report is also a fact checker ’ s nightmare. Second the CCSP draft Synthesis report and f i nal Synthesis report [15] relied on non

- peer revie wed work by Evan Mills and ignored relevant peer reviewed research showing different results (in fact all peer reviewed research points in the same dire c tion on this subject). Coincidentally, Evan Mills was an author of the CCSP Synthesis Report that highl ights his own non

- peer reviewed work. Mills also apparently consults for companies with an interest in climate policies, and yet this was not dsclosed by the CCSP.18 Comment 3303 (notes omitted). 17 In response to this contention that IPCC relied on previously refuted non

- peer reviewed literature and that the CCSP had misrepresented the literature, the EPA began in
RTC 1

- 15 by reviewing the IPCC’s guidelines for citing non

- peer reviewed literature, and concluded that “These procedures establish that the IPCC re ly [sic] almost exclusively on peer

- reviewed literature. The procedures also provide a comprehensive, transparent and robust process in the rare circumstances where unpublished or non

- peer reviewed material is used.” The EPA then had this to say regarding the Munich Re and Muir Woods papers: The commenter describes two pieces of literature that were ref e renced by IPCC but not published in peer reviewed journals: 1) a natural catastrophes report by Munich Re (2000) that was cited in IPCC Third Assessment Rep ort (IPCC, 2001), and 2) a paper on trends in weather

- related catastrophes by Muir

- Wood et al. (2006). The identification of only two examples out of the thousands of references cited in the IPCC (2000) and (2007) reports provides more support for the rigo r of the IPCC process. Further, these specific studies were neither the central nor sole evidence used in forming the broader conclusions of the IPCC; such broader concl u sions are based on multiple lines of evidence and peer

reviewed lit e rature. RTC Respo nse 1

- 15, p. 16. (Emphasis added). It is a very peculiar logic that treats proof of what appears to be scientific fraud as demonstrating “the rigor of the IPCC’s process.” No response whatsoever is made to the substance of the comment concerning the CCSP’s misrepresentation of the literature and the central underlying point that there was no legitimate evidence that manmade climate change was causing an increase in weather disa s ters. The question naturally arises as to why the EPA avoided these points. One of

17 http://www.regulations.gov/search/Regs/home.html#documentDetail?R=09000064809d682a (last visited Feb. 11, 2010). The comment is far more legible if the html file is downloaded and viewed in a web browser.19 the lead authors of the CCSP report so vigorously attacked in Comment 3303 is Thomas Wilbanks, of the DOE Oak Ridge National Laboratory. The same Th o mas Wilbanks was a Federal expert reviewer for the TSD. TSD p. 2. Thus, the EPA ignored and avoided the substance of a comment that pointed out that a report of which one of its expert reviewers was a lead author had “ systematically and repeatedly misrepresented the science of disa s ters and climate change .” The IPCC is now reconsidering its position on extr eme weather events, 18 which leaves the EPA in the position of reposing more confidence in the IPCC than the IPCC does in itself. The EPA should fo l low the lead of the IPCC and reconsider its position on extreme weather events, and give due consider a tion the actual scientific consensus on this issue. B. H IMALAYAN G LACIER F RAUD The IPCC reported that Himalayan glaciers would melt by 2035. 19 The EPA adopted this claim. Table 16.1, at p. 162 of the TSD states: Glacier melt in the Himalayas is projected to increase flooding and rock avalanches from destabilized slopes and to affect water r e sources within the next two to three decades. This will be followed by decreased river flows as the glaciers recede. In late 2009, the Indian Government Ministry for Environment an d Forests released a comprehensive analysis of Himalayan glaciers by V.L, Raina, which showed that the

18 See “UN wrongly linked global warming to natural disaster,” TimesOnline, January 24, 2010 available at http://www.timesonline.co.uk/tol/news/environment/article7000063.ece?token=null&offset=0&p age=1 (last visited Feb. 10, 2010) (quoting Professor Jean

- Pascal van Ypersele, the vice

- chair of the IPCC, as saying “ We are reassessing the evidence and will p ublish a report on natural disa s ters and extreme weather with the latest findings. Despite recent events the IPCC process is still very rigorous and scientific. ” 19 See AR4 WG2 Chap 10 .6.2, pp 469

- 506 , available at http://www.ipcc.ch/publications_and_data/ar4/wg2/en/ch10s10

- 6

- 2.html (last visited Feb. 10, 2010)20 IPCC claim was incorrect. 20 IPCC Chairman Pachauri ridiculed the study as “e x tremely arrogant,” “schoolboy science,” “totally unsubstantiated,” and “vood oo sc i ence.” 21 Yet Raina was right, and Pachauri and the IPCC were wrong. Press reports indicate that the authors of this section of the IPCC report knew the claim was false, but included it anyway in order to provoke policy makers to action. The U.K. Daily Mail reported that: The scientist behind the bogus claim in a Nobel Prize

- winning UN report that Himalayan glaciers will have melted by 2035 last night admitted it was included purely to put political pressure on world leaders. Dr Murari Lal also said he was well aware the statement, in the 2007 report by the Intergovernmental Panel on Climate Change (IPCC), did not rest on peer

- reviewed scientific research. In an interview with The Mail on Sunday, Dr Lal, the co

- ordinating lead author of the report’s chap ter on Asia, said: “It related to se v eral countries in this region and their water sources. We thought that if we can highlight it, it will impact policy
- makers and politicians and encourage them to take some concrete action. “It had importance for the reg ion, so we thought we should put it in.” 22 (Emphasis added). The original source for the claim was not peer

- reviewed scientific lit e rature

–it was an interview in New Scientist Magazine with Syed Hasnain that was later cited in a World Wildlife Fund report that was in turn cited by the IPCC. Id. Mr.
Ha s nain is now employed at TERI, the company Mr. Pachauri founded. TERI, sought

20 Reprint available at http://scienceandpublicpolicy.org/images/stories/papers/reprint/Raina

Himalayan%20Glaciers%20Reprint.pdf (last visited Feb. 10, 2010) 21 Guardian.co.uk, “India ‘arrogant’ to deny global warming link to melting glaciers,” avail able at http://www.guardian.co.uk/environment/2009/nov/09/india

- pachauri

- climate

- glaciers (last visited Feb. 10, 2010) 22 UK Daily Mail, “ Glacier scientist: I knew data hadn ’ t been verified ” January24, 2010, available at http://www.dailymail.co.uk/news/article

- 1245636/Glacier

- scientists

- says - knew

- data

verified.html (last visited Feb. 10, 2010).21 research contracts based on the claim of Himalayan glacier melt

- $500,000 from the Carnegie Corporation and a large portion of $4 million in EU funding. 23 The Himalayan glacier melt claim was shown to be false by the foremost living scientific expert on mountains and the Himalayas, Professor Jack. D. Ives in 2005 in the Himalayan Journal of Science , a peer - reviewed scientific journal. In the article Ives states that for the glaciers to melt as claimed the mean temperature would have to increase by “about 12

- 18o C. 24 . As the Sunday Times put it, “ glaciologists find such figures inherently lud i crous. ” Yet the IPCC asserted the likelihood of the melting was “very high,” or more than 90%. The IPCC thus included a knowingly false and inherently implausible claim that had previously been demolished in peer

- reviewed literature in order to stim u late a response from policy

- makers. The scheme was successful with the EPA, which adopted the false claim and relied upon it in the Enda n germent Finding. The IPCC has now grudgingly retracted the claim of imminent Himalayan glacier melt, though it claims the overall conclusions regarding glacial melt are “ robust.” 25 How their conclusions can be fake but accurate is not evident. The EPA should follow the

23 TERI, “TERI Collaborates with Iceland in the fields of glaciology and soil science,” Jan. 15, 2010 http://www.teriin .org/index.php?option=com_pressrelease&task=details&sid=171 (last visited Feb. 10, 2010); TimesOnline, “UN climate chief Rajendra Pachauri ‘got grants through b o gus claims,’ January 24, 2010 available at http://www.timesonline.co.uk/tol/news/environment/article6999975.ece (last visited Feb. 10, 2010). The grant referred to in this TimesOnline article was suspended by the Carnegie Corporation prior to funding, at the requ est of the direct recipient, Ic e land’s Global Centre. See DNA, “Carnegie Corporation of New York denies funding TERI,” available at http://www .dnaindia.com/world/report_carnegie

- corporation

- of

- new - york

- denies

- funding

teri_1343008 (last visited Feb. 10, 2010). 24 Ives, J., Himalayan misconceptions and distortions: What are the facts? Himalayan Journal of Sciences, North America, Vol 3, No. 5, p. 15

- 25, at p. 21 (2005), available at http://www.nepjol.info/index.php/HJS/article/view/457/447 (last visited Feb. 10, 2010). 25 IPCC Statement on the melting of Himalayan glaciers. A vailable at http://www.ipcc.ch/pdf/presentations/himalaya

- statement

- 20january2010.pdf (last visited Feb. 10, 2010)22 IPCC’s lead and reconsider this issue by granting this Petition for Reconsi d eration. C. D ISAPPEARING M OUNTAIN I CE C LAIM The Sunday Telegraph reported on Januar y 30, 2010 that In its most recent report, [the IPCC] stated that observed reductions in mountain ice in the Andes, Alps and Africa was being caused by global warming, citing two papers as the source of the information. However, it can be revealed that on e of the sources quoted was a fe a ture article published in a popular magazine for climbers which was based on anecdotal evidence from mountaineers about the changes they were witnessing on the mountainsides around them. The other was a dissertation written by a geography student, stud y ing for the equivalent of a master’s degree, at the University of Berne in Switzerland that quoted interviews with mountain guides in the Alps. 26 The article from the climbing magazine was based on anecdotal reports from climbe rs. The master’s degree dissertation was written by a geography student and was based on interviews with approximately 80 mountain guides in the Bernina region of the Swiss Alps and appears to have actually concluded that “ In how far the changes observed ind i cate a global change of climate can only be guess ed and will show in the future.” 27 In this episode the IPCC relied on non

- peer - reviewed literature and in fact misrepresented that literature. The EPA should reconsider its reliance on the IPCC’s reportin g now that the IPCC’s co n clusion has been shown to be so poorly supported. D. A FRICAN C ROP Y IELDS C LAIM The TSD at Table 16.1, p. 162 states the following regarding an expected collapse

26 Telegraph.co.uk, “ UN climate change panel based claims on student dissertation and magazine article ,” January 30, 2010, available at h ttp://www.telegraph.co.uk/earth/environment/climatechange/7111525/UN

- climate

- change

panel

- based

- claims

- on - student

- dissertation

- and

- magazine

- article.html (last visited Feb. 10, 2010). 27 Climatequotes.com, “The story of the Geography Major’’ Dissertation,” available at http://climatequotes.com/2010/01/31/the

- story

- of

- the

- geography

- major

- dissertation/ (last visited Feb. 10, 2010).23 in African crop yields: Agricultural production, including access to food , in many countries and regions is projected to be severely compromised by climate v a riability and change. The area suitable for agriculture, the length of growing seasons, and yield potential, particularly along the margins of semi

- arid and arid areas, ar e expected to decrease. This would fu r ther adversely affect food security and exacerbate malnutrition in the continent. In some countries, yields from rain

- fed agriculture could be reduced by up to 50% by 2020. The EPA’s source is the IPCC, which said in i ts Synthesis Report that: By 2020, in some countries, yields from rain

- fed agriculture could be reduced by up to 50%. Agricultural production, including access to food, in many African countries is projected to be severely compr o mised. This would further a dversely affect food security and exace r bate malnutrition. AR4 Synthesis Report, § 3.2.2, p. 50. The Synthesis Report is the pinnacle of IPCC reporting. 28 This reference was based on the following statement from the report of
Wor k ing Group II: In other [Af rican] countries, additional risks that could be exace r bated by climate change include greater erosion, deficiencies in yields from rain

- fed agriculture of up to 50% during the 2000

- 2020 period, and redu c tions in crop growth period (Agoumi, 2003). IPCC WGII, Page 448. 9.4.4

. The Agoumi study 29 cited here by the IPCC very briefly stated that in three Afr i can countries there was a risk of erosion, soil degradation and a

28 The Foreword to the Synthes is Report describes it thusly: [The Synthesis Report] summarises the findings of the three Working Group reports and provides a synthesis that specifically addresses the issues of concern to policymakers in the domain of climate change: it confirms that cl imate change is occurring now, mostly as a result of human activities; it illustrates the impacts of global warming already under way and to be expected in future, and describes the potential for adaptation of society to reduce its vulnerability; finally i t presents an analysis of costs, policies and technologies intended to limit the extent of future changes in the climate sy s tem. http://www.ipcc.ch/publications_a nd_data/ar4/syr/en/frontmattersforeword.html (last visited Feb. 10, 2010). 29 Agoumi, A., 2003: Vulnerability of North African countries to climatic changes: adaptation and implementation strategies for climatic change. Developing Perspectives on Climate C hange: I s sues and Analysis from Developing Countries and Countries with Economies in Transition.24 decline in yields from rain

- based agr i culture of up to 50% by 2020. Agoumi’s paper was not peer

- reviewed, but was instead a review paper prepared by an advocacy group, The International Institute for Sustainable Development (IISD)

. 30 Agoumi’s paper in turn cited to two sources. Dr. Richard North 31 reports that upon examination, one of these two sources is not available on line, and the other, consisting of “initial national communications” by Alg e ria, Tunisia and Morocco to COP

- 7 in October 2001, do not support the p roposition for which they are cited. The Moroccan report lends some support, saying that by 2020 during drought conditions cereal yields would decline up to 50%. 32 Howe v er, Algeria’s report said their yields would double, and be trimmed only slightly by “cl imate change.” 33 Tunisia’s su b mission concluded the picture was mixed, but they could have an increase in rain and agricultural production. 34 North summarizes the level of support for the stat e ment in the Synthesis report thusly: the only support he has, on the basis of the primary references, is d a ta from one country

–singular, rather than plural, unsupported by peer reviewed research. And that is set against increased production
IISD/Climate Change Knowledge Network, 14 pp. ; available at http://www.cckn.net/pdf/north_africa.pdf (last visited Feb. 10, 2010). 30 See Ben Pile., “More Laundered Literature: A Guest Post by Ben Pile,” available at http://rogerpielkejr.blogspot.com/2010 /01/more

- laundered

- literature

- guest

- post

- by.html (last v i sited Feb. 10, 2010). 31 Dr. Richard North is a British author and commentator who was among the first to point out Rajenda Pachauri’s potential conflicts of interest. He blogs at eureferendum.blogsp ot.com 32 Richard North, “And Now for Africagate,” February 7, 2010, available at http://eureferendum.blogspot.com/2010/02/and

- now - for

- africagate.html (last visited Feb. 1 0, 2010) (hereinafter “North, Africagate”) citing Kingdom of Morocco, Executive Summary, First National Communic a tion, United Nations Framework Convention on Climate Change, October 2001, available at http://unfccc.int/resource/docs/natc/mornc1e.pdf , p. 11 (last visited Feb. 10, 2010). 33 North, Africagate, citing Republic of Algeria, Elaboration de la stratégie et du plan d’action national des chang e ments climatiques, Mars 2001, Communicati on Nationale Initiale available at http://unfccc.int/resource/docs/natc/algnc1.pdf , p. 85(last visited Feb. 10, 2010) (transl a tion by Richard North). 34 North, Africagate, citing “Initial Comm unication of Tunisia under the United Nations Fram e work Convention on Climate Change, http://unfccc.int/resource/docs/natc/tunnc1esum.pdf , p. 11. (last visited Feb. 10, 2010).25 in a neighbouring country

–albeit slightly trimmed

- while another could actu ally see rain

- fed yields increase overall. Then, the data a p ply to cereal yields only, not crops in general as is implied by the IPCC. 35 Ultimately there is no support for the IPCC’s dramatic pr o nouncement on African crop yields, a view shared by the former chairman of the IPCC, Robert Watson. 36 In contrast to the IPCC’s unsupported African horror stories, satellite photographs show the greening of the Sahel as reported by National Ge o graphic News 37 and several papers. 38 Yet the story does not end here. 39 The co

- chair of Working Group II (WGII), in which the African crop yields claim appeared, Martin Parry, had himself written a paper in October 2005 on the subject of the effect of climate change on crop yields. 40 He concluded from model runs that “ By the 2020s, s mall changes in cereal yield are evident

35 North, Af ricagate. 36 The Sunday Times, “ Africagate: top British scientist says UN panel is losing credibility ,” Fe b ruary 7, 2010 available at http://www.timesonline.co.uk/tol/news/ environment/article7017907.ece (last visited Feb. 10, 2010) quoting Robert Watson as saying “ Any such projection should be based on peer

- reviewed literature from computer modelling of how agricultural yields would respond to climate change. I can see no s uch data supporting the IPCC report.”) 37 National Geographic, Sahara Desert Greening Due to Climate Change? July 31, 2009, avail a ble at http://news.nationalgeographic. com/news/2009/07/090731

- green - sahara.html (last visited Feb. 10, 2010). 38 Seaquist1, et al., Disentangling the effects of climate and people on Sahel vegetation dynamics , Biogeosciences, 6, 469

– 477, 2009 , available at http://www.biogeosciences.net/6/469/2009/bg

- 6

- 469

- 2009.pdf (last visited Feb. 10, 2010); Anyamba, A. and Tucker, C.J. 2005. Analysis of S a helian vegetation dynamics using NOAA

- AVHRR NDVI data from 1981

- 2003. Journa l of Arid Environments 63: 596

- 614; Hutchinson, C.F., Herrmann, S.M., Maukonen, T. and Weber, J. 2005. Introduction: The “Greening” of the Sahel. Journal of Arid Environments 63: 535

- 537; Nicholson, S. 2005. On the question of the ‘recovery” of the ra ins in the West African Sahel. Journal of Arid Environments 63: 615

- 641; Olsson, L., Eklundh, L. and Ardo, J. 2005. A recent greening of the Sahel

- trends, patterns and potential causes. Journal of Arid Environments 63: 556

- 566. 39 See Richard North, “ A wolf in sheep’s clothing,” Feb. 10, 2010, available at http://eureferendum.blogspot.com/2010/02/wolf

- in

- sheeps

- clothing.html last visited Feb. 14, 2010. 40 M. Parry, et al., “ Climate change, global food supply and risk of hunger ,” Phil. Trans. R. Soc. B (2005) 360, 2125

– 2138 , available at http://ncsp.va

net work.org/UserFiles/File/PDFs/Resource%20Center/Agriculture/Food_supply_hunger.pdf , last visited Feb. 14, 2010.26 in all scenarios, but these fluctuations are within historical variations. ” 41 In the worst case scenario, Parry reported that by 2080 there would be losses in yield of “up to 30%” in Africa and parts of Asia. Parry’s 2005 paper was not mentioned anywhere in the Synthesis Report or the WGII report. Professor Mike Hulme, a coordinating lead chapter author in the IPCC Third Assessment Review on “Climate Scenario Development,” had also written a 2001 paper on African Clim ate Change. 42 Hulme was careful to note uncertainties: “the ultimate causes of the lower frequency decadal and multi

- decadal rainfall variability that affects some African climate regimes, especially in the Sahel region, remain uncertain.” 43 He further obser ved “the extent to which these rainfall variations are related to greenhouse gas induced global warming, however, remains undetermined.” 44 Both Parry’s own paper and Hulme’s paper were known to and available to Professor Parry in composing the WGII Report a nd the Synthesis Report. Yet, Parry’s WGII report ignored his own paper and that of Hulme, which did not predict disaster, and instead relied on one that did, the Agoumi paper, even though it did so incorrectly and improperly and was not peer

- reviewed. And it was Agoumi’s false report that was adopted in the Synthesis Report. Whether this was a deliberate misrepresentation in order to stimulate a policy response as in the case of the Himalayan glaciers has yet to be established, but the question reasonably arises from the circumstances. Mr. Pachauri has repeatedly raised the alarm of an imminent collapse in African

41 Id. at 2134. 42 Hulme, et al., “African Climate Change: 1900

- 2100,” Climate Research Vol. 17: 145

– 168, 2001 avalable at http://www.int

- res.com/articles/cr/17/c017p145.pdf , last visited Feb. 14, 2010. 43 Id. at 145. 44 Id. at 165.27 crop yields in his public speeches and presentations as head of the IPCC. 45 The African Crop Yields claim stands as another example of the IPCC m aking a claim of imminent disaster that inappropriately relied on non

- peer - reviewed literature, and ignored contrary peer

- reviewed literature, and of the EPA uncritically adopting the faulty conclusion. EPA should reconsider its p o sition. E. A MAZONGATE Table 16.1 at p. 162 of the TSD makes another claim that has been exposed as unsupported, that part of the rain forests of the Amazon will turn in to savanna: By mid

- century, increases in temperature and associated decreases in soil water are projected to lead t o gradual replacement of tropical forest by savanna in eastern Amazonia. Semi

- arid vegetation will tend to be replaced by arid

- land vegetation. There is a risk of signif i cant biodiversity loss through species extinction in many areas of tropical Latin Amer ica. This is adopted from Section 13.4.1, p. 596 of WGII of the IPCC 4 th AR, which asserts that up to 40% of the Amazon rain forest “could react drastically to even a slight redu c tion in precipitation.” 46 The IPCC discussion of this issue cites to Rowell an d Moore, 2000. This paper was published by the World Wildlife Federation and the International Union for the Conservation of Nature. Thus, the report is not peer

- reviewed and was pr e pared by two advocacy groups. The authors are a free

- lance journalist and a forest fire specialist. Upon examination, their report states that “ Up to 40% of the Brazilian forest is extremely sensitive to small reductions in the amount of rainfall ,” 47

45 Id. 46 IPCC Working Group 2 Assesment Report 4, Chapter 13, available at http://www.ipcc.ch/pdf/assessment

- report/ar4/wg2/ar4

- wg2

- chapter13.pdf (last vi s ited Feb. 10, 2010). 47 See Richard North, “The corruption of science,” January 26, 2010, available at http://eureferendum.blogspot.com/2010/01/corruption

- of

- science.html , (last visited Feb. 2010),28 which is somewhat supportive of the IPCC’s statement. However, Rowell and Moore in turn rely to a peer

- reviewed letter in N a ture which says only that “ Altho ugh logging and forest surface fi res usually do not kill all trees, they severely damage forests. Logging companie s in Amazonia kill or da m age 10

- 40% of the living biomass of fores ts thr ough the harvest process,” and that forests damaged by logging and fires are more susceptible to damage by drought. 48 The letter in Nature did not address climate change and thus the ultimate source does not support the IPCC’s assertion. It is a sim ple statement of fact that a blogger, Dr. R i chard North, has been more diligent in verifying the accuracy of the IPCC’s conclusions on this issue than either the IPCC itself or the EPA. IV. T HE EPA’ S F AITH I N T HE IPCC IS M ISPLACED The five incidents discussed above are a sample of the IPCC’s frequent and inappropriate reliance on lurid claims of catastrophe in non

- peer reviewed literature. Another diligent blogger 49 has shown that the IPCC relied 16 times on reports pu b lished by the World Wildlife Fund, a claim that is readily verified. 50 The same blogger identified eight papers published by Greenpeace that were relied on by the IPCC, and found that a host environmental activists from Greenpeace, the World Wildlife Fund, Friends of the Earth and the like served as expert reviewers for IPCC Working Group

citing Rowell & Moore, Global Review of Forest Fires, WWF/IUCN (2000), available at http://data.iucn.org/dbtw

- wpd/edocs/2000

- 047.pdf (last visited Feb. 10, 2010). 48 D. C. Nepstad, A. Veríssimo, A. Alencar, C. Nobre, E. Lima, P. Lefebvre, P. Schlesinger, C. Potter, P. Mountinho, E. Mendoza, M. Cochrane, V. Brooks, Large

- scale Impoverishment of Amazonian Forests by Logging and Fire, Nature, 1999, Vo l 398, 8 April, pp 505, available at http://www.ic.ucsc. edu/~wxcheng/envs23/lecture12/Fire_nature.pdf (last visited Feb. 10, 2010). 49 The blogger is Donna Lafrramboise, founder of NoConsensus.org, http://noconsensus.org/ 50 Donna Laframboise, “More Dodgy Citations in the Nobel

- Winning Climate Report, available at http://nofrakkingconsensus.blogspot.com/2010/01/more

- dodgy

- citations

- in

- nobel

winning.html (last visited Feb. 10, 2010). She reports that typing “WWF” into the search box at the IPCC’s AR4 website, http://www.ipcc.ch/publications_and_data/ar4/wg1/en/contents.html (last visited Feb. 10, 2010) yields many references t o WWF papers and publications)29 III. 51
The recent revelations described above make the EPA’s faith in the IPCC’s supposedly “robust” procedures unfounded and misplaced. EPA should reconsider, as even the IPCC itself has done in the case of the glac ier melting fraud and is currently doing in the case of African crop yields. If the EPA refuses it will find itself to be in the untenable position of refusing to reconsider its reliance on IPCC findings that the IPCC itself has withdrawn. V. P HIL J ONES ’ B B C I NTERVIEW On February 13, 2010, the BBC reported an interview with former Climate Research Unit director Phil Jones. 52 Jones made headlines with several candid admissions that run against the grain of AGW orthodoxy. First, he stated that the rates of

war ming in the per i ods from 1860

- 1880, 1910

- 1940 and 1975

- 1998 were “similar and not statistically diffe r ent from each other,” with the caveat that the 1860 period was less certain because of its shorter length and sparser data. Second, he agreed that there h as been no statist i cally significant warming since 1995. These points indicate that the 1975 to 1998 warming was not exce p tional but is instead within natural climate variability, and weaken the claim that it was caused by human emissions of GHG, though Dr . Jones does not acknowledge either of these implications. Third, Dr. Jones acknowledged that the medieval warm period is “under debate,” and that if it is shown to be global in extent, “then obv i ously the late 20 th century warmth would not be unprecedente d.” Fourth, he said it “is not my view” that the debate on climate change is over and that “there is still

51 Donna Laframboise, “Greenpeace and the Nobel

- Prize Winning Climate Report, available at http://nofrakkingconsensus .blogspot.com/2010/01/greenpeace

- and

- nobel

- winning

climate_28.html (last visited Feb. 10, 2010). 52 BBC News

– Q&AQ: Professor Phil Jones, Feb. 13, 2010, available at http://news.bbc.co. uk/2/hi/science/nature/8511670.stm last visited Feb. 14, 2010.30 much that needs to be undertaken to reduce uncertainties, not just for the future, but for the instrumental (and e s pecially the paleoclimatic) past a s well.” VI. P OTENTIAL C ONFLICTS O F I NTEREST O F IPCC C HAIR Since the comment period closed, it has been revealed in the press that the chairman of the IPCC, Rajendra K. Pachauri, has multiple potential conflicts of interest. As reported by the Telegraph: What has also almost entirely escaped attention, however, is how Dr Pachauri has established an astonishing worldwide portfolio of business interests with bodies which have been investing billions of dollars in organisations dependent on the IPCC’s policy recom mend a tions. These outfits include banks, oil and energy companies and inves t ment funds heavily involved in ‘carbon trading’ and ‘sustainable technologies’, which together make up the fastest

growing commo d ity market in the world, estimated soon to be worth trillions of do l lars a year. Today, in addition to his role as chairman of the IPCC, Dr Pachauri occupies more than a score of such posts, acting as director or adviser to many of the bodies which play a leading role in what has b e come known as the intern ational ‘climate industry’. It is remarkable how only very recently has the staggering scale of Dr Pachauri’s links to so many of these concerns come to light, i n evitably raising questions as to how the world’s leading ‘climate official’ can also be person ally involved in so many organisations which stand to benefit from the IPCC’s recommendations. 53 Pachauri vehemently denies any wrongdoing and makes counter

- accusations. 54 As noted above in the specific case of the melting glaciers fraud, Pachauri’s company TERI stood

53 Telegraph.co.uk, “ Questions over business deals of UN climate change guru Dr Rajendra P a chauri ,” December 20, 2009, available at http://www.telegraph.co.uk/news/6847227/Questions

- over - business

- deals

- of

- UN

- climate

change

- guru - Dr

- Rajendra

- Pachauri.html (last visited Feb. 10, 2010) 54 The Times of India, “ Pach auri slams cha rges about conflict of interest,” December 21, 2009, available at http://timesofindia.indiatimes.com/india/Pach auri

- slams

- charges

- about

- conflict

- of

interest/articleshow/5360077.cms (last visited Feb. 10, 2010). In this article, Pahcauri is quoted as saying “ The people who have flung these charges are part of the same vested interest group which31 to benefit from millions of dollars of contracts or grants to research the very problems the IPCC had exaggerated. 55 These potential conflicts of i n terest and the cascade of IPCC blunders have led to a loss of confidence in Pachauri and to deman ds for his resign a tion 56 by senior Canadian climate researcher Andrew Weaver, 57 the Times of London, and the director of Greenpeace in the UK. 58 India has launched its own climate change assessment in order to not be entirely dependent on an organization as b eset with difficu l ties as the IPCC. 59
VII. T HE IPCC’ S CO2 C YCLE M ODELING S HOULD B E R ECONSIDERED I N L IGHT OF R ECENT E MPIRICAL O BSERVATIONS EPA repeatedly asserts that CO2 is well

- mixed, taking its cues from the IPCC, which also makes this assertion. See , e.g. TSD p. 16. In response to comment 4

- 20, EPA rejected a commenter’s contention that GHG’s are not well mixed in the atmosphere as assumed in models, in part because no literature was cited by the commenter.

hacked the server o f UK’s East Anglia University.’’ In an interview with the New York Times, Pahcauri contended that all fees for his consulting work go to TERI, the non

- profit that he founded in 1982, and from which he apparently draws a modest salary. See The New York Tim es, “ Skeptics Find Fault With U.N. Climate Panel ,” February 8, 2010, available at http://www.nytimes.com/2010/02/09/science/earth/09climate.html (last visited Feb. 10, 2010). 55 See note 23 , supra . 56 Guardian.co.uk, “ Indian glaciologist criticised by IPCC chief joins calls for resignation ,” Jan u ary 29, 2010, available at http://www.guardian.co.uk/environment/2010/jan/29/ipcc

rajendra

- pachauri

- glaciers ;; Andrew Bolt, “ Pachauri lied about Himalayan warning ,” available at http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/pachauri_lied_ab out_himalayan_warning#66326 (last visited Feb. 10, 2010). 57 The Windsor Star, “ Canadian scientist says UN ’ s global warming panel ‘ crossing the line ’,” January 26, 2010, available at http://www.windsorstar.com/technology/Canadian+scientist +says+global+warming+panel+crossi ng+line/2487264/story.html (last visited Feb. 10, 2010). 58 The Sunday Times, “Bad science needs good scrutiny,” January 31, 2010, available at http://www.timesonline.co.uk/tol/comment/leading_article/article7009653.ece ; (last visited Feb. 10, 2010). 59 Telegraph.co.uk, “ India forms new climate change body ,” February 4, 2010, available at http://www.telegraph.co.uk/earth/environment/climatechange/7157590/India

- forms

- new - climate

change

- body.html (last visited Feb. 10, 2010).32 NASA has cured this deficiency. The AIRS satellite h as collected data refuting the well

- mixed assumption: AIRS research data have led to some key findings about mid

tropospheric carbon dioxide. For example, the data have shown that, contrary to prior assumptions, carbon dioxide is not well mixed in the trop osphere, but is rather “ lumpy. ” Until now, models of carbon dioxide transport have assumed its distribution was uniform. 60

. (Emphasis added). The following image 61 shows that CO2 is not well

- mixed in the
tr o posphere:

The same point is clear from the follo wing image 62 as well:

60 Jet Propulsion Lab, “ NASA Outlines Re cent Breakthroughs in Greenhouse Gas Research ,” D e cember 15, 2010 available at http://www.jpl.nasa.gov/news/news.cfm?release=2009

- 196 (last visited Feb. 10, 2010) 61 http://www.nasa.gov/images/content/411791main_slide5

- AIRS

- full.jpg (last visited Feb. 10, 2010). 62 http://w ww.nasa.gov/images/content/411773main_slide11

- AIRS

- full.jpg (last visited Feb. 10, 2010).33 NASA’s ca p tion for this image states “AIRS data show that carbon dioxide is not well mixed in Earth’s atmosphere, results that have been validated by direct measurements.” 63
These satellite measurements are from the mid

- troposphere. C O2 gradients at that

63 NASA, Recent breakthroughs in Greenhouse Gas Research: Multimedia, December 15, 2009, available at http://www.nasa.gov/topics/earth/agu/airs

- images20091214.html (last visited Feb. 10, 2010).34 altitude necessarily reflect some degree of mixing from the gradients at the surface, and yet are clearly not “well

- mixed” as stated by NASA. The well

- mixed assumption is indispensible to AGW model of the CO2 cycle. By assuming a unif orm or well

- mixed distribution of CO2, it paves the way for tacking modern measurements of CO2 taken at Mauna Loa onto those taken from ice core samples collected at Vostok and elsewhere. These observations, which show a meaningful difference in CO2 concen trations between these two locations, show that technique is flawed, and that the analysis should be revisited. The well

- mixed a s sumption flows from the assertion that CO2 is long

- lived in the atmosphere, as the long residence time allows sufficient time for the mixing to occur. The long residence time is based on the assertion that there is a bottleneck in uptake of anthropogenic CO2 emissions. This assertion is contradicted by a recently reported finding based on actual observational data that that the a irborne fraction of CO2 has not changed since 1850. Dr

. Wolfgang Knorr at the University of Bristol found that in fact the trend in the airborne fraction since 1850 has only been 0.7 ± 1.4% per decade, which is essentially zero. 64 The EPA assumes from model s that the airborne fraction will increase based on the belief that the CO2 sinks will become saturated, based on the IPCC’s carbon cycle model. See TSD p. 61. Yet Knorr’s study showed no change in the airborne fraction, and therefore no change in the capa city of CO2 sinks, since 1850 despite the fact that human CO2 emissions have gone from about 2 billion tons a year in 1850 to 35 billion tons a year now . These observations show that there is no bottleneck in

64 W. Knorr (2009), Is the airborne fraction of anthropogenic CO emissions increasing ?, Ge o phys. Res. Lett., 36, L21710, doi:10.1029/2009GL040613 ; Un iversity of Bristol press release, “ Controversial new climate change results ,” November 9, 2009 available at http://bristol.ac.uk/news/2009/6649.html (last visited Feb. 10, 2010).35 the uptake of anthrop o genic CO2 emissions. This gravely undermines the assumption that CO2 is long

- lived and well

- mixed and by the same token dovetails with NASA’s observations that CO2 is in fact not well

- mixed, and with the many experimental proofs that CO2 has a short res i dence time. 65
These results contradict the IPCC’s version of the carbon cycle, upon which the climate models and claims of catastrophic AGW are based. The EPA should reco n sider its responses to comments 2

- 2 and 2

- 3, its reliance on the IPCC’s version of the carbon cycle, and its reli ance on climate models that incorporate the IPCC’s version of the carbon cycle. Agreement between and among computer models is not empirical data and is not sufficient in science, logic or law to overcome contrary e m pirical observations. In other words, th e data invalidate the models, not the other way around. The EPA should grant this petition and reco n sider its position in light of these empirical observations. VIII. EPA S HOULD W ITHDRAW T HE E NDANGERMENT F INDING A ND L ET T HE O NGOING IPCC S CANDALS R UN T HEIR C OURS E B EFORE R EVALUATING T HE S CIENCE . Events have overtaken the EPA’s GHG Endangerment Finding. The ongoing and astonishing cascade of revelations concerning the IPCC is not yet complete. The cumulative effect is such that even its former chairman, Robert Wats on, has warned that it is on the verge of losing all cred i bility. 66 The EPA has relied upon the IPCC to such an extent and has adopted so many of the IPCC’s errors that it can be readily foreseen that

65 See Segalstad, T .V. (1997 ) “ “Carbon Cycle Modeling and the Residence Time of Natural and Anthropogenic Atmospheric CO2: On the Construction of the ‘ ‘Greenhouse Effect Global Warming ’ ’ Dogma, ” ” Global Warming: The Continuing Debate,” European Science and Env i ronment Forum ( ESEF) (Cambridge, England: 1998), http://folk.uio.no/tomvs/esef/ESEF3VO2.htm (last visited Feb. 11, 2010). 66 The Sunday Times, “ Africagate: top British scientist says UN panel is losing credibilit y ,” Fe b ruary 7, 2010 available at http://www.timesonline.co.uk/tol/news/environment/article7017907.ece (last visited Feb. 10, 2010).36 the fir e storm now surrounding the IPCC will also engulf the EPA. By itself , Table 16.1 at p. 162 of the TSD incorporates three improperly drawn conclusions of the IPCC

–the Himal a yan glacier claim, the African crop yield claim and the Amazonian drying claim. In each of the instances discussed above the IPCC ma de lurid claims of disaster that turned out to be unsupported at best or fraudulent at worst. The IPCC “supported” these claims with non

- peer - reviewed nightmare scenarios and ignored several peer

reviewed analyses that gave no cause for alarm. And in some instances, if even the non

peer r e viewed literature was not sufficiently frightening, then the IPCC embellished its claims by outright misrepr e sentation. This is not science; it is ideology unconstrained by the facts. It is not a proper foundation f or rulemaking. The Agency should grant this petition and convene a proceeding to r e consider its GHG Endangerment Finding. Respectfully submitted this 16 th day of February 2010. Attorneys for Petitioners

Shannon L. Goessling Executive Director an d Chief Legal Counsel Southeastern Legal Foundation Southeastern Legal Foundation 6100 Lake Forrest Drive, Suite 520 Atlanta, Georgia 30328 (404) 257

- 9667 Fax:(404) 257

- 0049

Edward A. Kazmarek37 Kazmarek Geiger & Laseter LLP 3490 Piedmont Road N E, Suite 201 Atlanta, GA 30305 404

- 812

- 0840 Fax: 404

- 812

- 0845 E

- mail: skazmarek@kglattorneys.com

Harry W. MacDougald

Caldwell & Watson LLP 5825 Glenridge Dr., N.E. Building Two, Suite 200 Atlanta, GA 30328

- 5579 (404) 843

- 1956 Fax: (404) 843

- 27 37 E

- mail: hmacdougald@cwlaw.orgBEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

I N R E : Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act EPA Docket Number EPA-HQ-OAR-2009-0171



### FOURTH AMENDMENT TO PETITION FOR RECONSIDERATION F ILED BY United States Representative John Linder (GA–7th District), U.S. Representative Dana Rohrabacher (CA-46th District), U. S. Representative John Shimkus (IL–19th District), U.S. Representative Phil Gingrey (GA–11th District), U.S. Representative

Lynn Westmoreland (GA–3rd District), U. S. Representative Tom Price (GA–6th District), U.S. Representative Paul Bro un (GA–10th District), U.S. Representative Steve King (IA–5th District), U.S. Repres entative Nathan Deal (GA–9th District),

Representative Jack Kingston (GA – 1 st District), U.S. Representative Michele Bachmann (MN-6th District); U.S. Repres entative Kevin Brad y (TX-8th District); U.S. Representative Joe Barton (TX-6th District); U.S. Representative John Shadegg (AZ-3rd District); U.S. Repres entative Marsha Blackburn (TN-7th District); The Langdale Company; Langda le Forest Products Company; Langdale Farms, LLC; Langdale Fuel Company; Langdale Chevrolet – Pontiac, Inc.; Langdale Ford Company; Langboard, Inc. – MDF; Langboard, Inc. – OSB; Georgia Motor Trucking Association, Inc.; Collins Industries, Inc.; Collins Trucking Company, Inc.; Kennesaw Transp ortation, Inc.; J&M Tank Lines, Inc.; Southeast Trailer Mart, Inc,; Georgia Intermodal Services, Inc.; Georgia Agribusiness Council, Inc., and Sout heastern Legal Foundation Inc. In Petitioners’ “Second Amendment to Petition for Reconsideration,” Petitioners inadvertently designated “Horizon Freight Sy stem, Inc.” (“Horizon”) as one of the Petitioners who was joining the Petition for Re consideration. Horizon was then named as one of the Petitioners in the “Third Amendment to Petition fo r Reconsideration.” In both filings, the party that should have been name d is “Georgia Intermodal Services, Inc.” The above-caption has been corrected to reflect this change.2 Respectfully submitted, this 18 th day of February, 2010. Attorneys for Petitioners

Shannon L. Goessling Executive Director and Chief Legal Counsel Southeastern Legal Foundation Southeastern Legal Foundation 6100 Lake Forrest Drive, Suite 520 Atlanta, Georgia 30328 (404) 257-9667 Fax:(404) 257-0049

Edward A. Kazmarek Kazmarek Geiger & Laseter LLP 3490 Piedmont Road NE, Suite 201 Atlanta, GA 30305 404-812-0840 Fax: 404-812-0845 E-mail: skazmarek@kglattorneys.com

Harry W. MacDougald

Caldwell & Watson LLP 5825 Glenridge Dr., N.E. Building Two, Suite 200 Atlanta, GA 30328-5579 (404) 843-1956 Fax: (404) 843-2737 E-mail: hmacdougald@cwlaw.orgBEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

I N R E : Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act EPA Docket Number EPA-HQ-OAR-2009-0171

FIFTH AMENDMENT TO PETITION FOR RECONSIDERATION F ILED BY United States Representative John Linder (GA–7th District), U.S. Representative Dana Rohrabacher (CA-46th District), U. S. Representative John Shimkus (IL–19th District), U.S. Representative Phil Gingrey (GA–11th District), U.S. Representative

Lynn Westmoreland (GA–3rd District), U. S. Representative Tom Price (GA–6th District), U.S. Representative Paul Bro un (GA–10th District), U.S. Representative Steve King (IA–5th District), U.S. Repres entative Nathan Deal (GA–9th District),

Representative Jack Kingston (GA – 1st District), U.S. Representative Michele Bachmann (MN-6th District); U.S. Repres entative Kevin Brad y (TX-8th District); U.S. Representative Joe Barton (TX-6t h District); U.S. Representative John Shadegg (AZ-3rd District); U.S. Repres entative Marsha Blackburn (TN-7th District); The Langdale Company; Langda le Forest Products Company; Langdale Farms, LLC; Langdale Fuel Company; Langdale Chevrolet – Pontiac, Inc.; Langdale Ford Company; Langboard, Inc. – MDF; Langboard, Inc. – OSB; Georgia Motor Trucking Association, Inc.; Collins Industries, Inc.; Collins Trucking Company, Inc.; Kennesaw Transp ortation, Inc.; J&M Tank Lines, Inc.; Southeast Trailer Mart, Inc,; Georgia Intermodal Services, Inc.; Georgia Agribusiness Council, Inc., and Sout heastern Legal Foundation Inc.

Shannon L. Goessling Executive Director and Chief Legal Counsel Southeastern Legal Foundation 6100 Lake Forrest Drive, Suite 520 Atlanta, Georgia 30328 (404) 257-9667ii Edward A. Kazmarek Counsel to Southeastern Legal Foundation Kazmarek Geiger & Laseter LLP 3490 Piedmont Road, Suite 201 Atlanta, GA 30305 404-812-0840 skazmarek@kglattorneys.com
Harry W. MacDougald Counsel to Southeastern Legal Foundation Caldwell & Watson LLP 5825 Glenridge Dr., N.E. Building Two, Suite 200 Atlanta, GA 30328-5579 (404) 843-1956 hmacdougald@cwlaw.orgiii T

ABLE OF C ONTENTS

I. I NTRODUCTION .................................................................................................. 1 II. T HREE P ROMINENT B RITISH S CIENTIFIC O RGANIZATIONS H AVE C ONDEMNED THE P RACTICES OF T OP IPCC C LIMATE S CIENTISTS AS R EVEALED BY THE C LIMATEGATE DOCUMENTS .................................................. 1 III. T HE U NITED N ATIONS E NVIRONMENTAL P ROGRAM HAS O RDERED AN I NDEPENDENT R EVIEW OF IPCC P ROCEDURES ................................................... 5 IV. T HE UK M ET O FFICE H AS A SKED F OR A “D O -O VER ” O N T HE S URFACE T EMPERATURE R ECORD ..................................................................................... 7 V. F URTHER E VIDENCE OF I MPROPER A DJUSTMENTS T O T HE S URFACE T EMPERATURE R ECORD ..................................................................................... 8 VI. T HERE IS NO A NTHROPOGENIC S IGNAL IN G LOBAL T ROPICAL C YCLONE F REQUENCY ....................................................................................................... 9 VII. T HE IPCC U NDERESTIMATED THE I NCREASE IN A NTARCTIC S EA I CE BY 50% .. 10 VIII. E MPIRICAL O BSERVATIONS C ONTRADICT M ODEL P ROJECTIONS OF N ORTH A MERICAN S NOW E XTENT ............................................................................... 13 IX. T HE E NDANGERMENT F INDING IS C ONTRARY TO THE C LEAN A IR A CT ............. 15 X. T HE EPA’ S G REENHOUSE G AS P OLICY I S A RBITRARY AND C APRICIOUS , AND AN A BUSE OF D ISCRETION ........................................................................ 17 XI. C ONCLUSION ................................................................................................... 19I. I NTRODUCTION The purpose of this Fifth Amendment to the Petition for Reconsideration of the above-referenced parties is to further s upport the Petition with a series of new developments that further impeach the reporting of the Intergovernmental Panel on Climate Change (“IPCC”) and hence the EPA’s Endangerment Finding as well. It is also to point out that when the Endangerment Fi nding and the Tailoring Rule are considered together, it is evident that the EPA’s gr eenhouse gas policy is illegal, administratively impossible and climatically pointless. These matte rs have come to light since the close of the comment period, have central relevan ce to the Endangerment Finding, and support the Petition for Reconsideration.
II. T HREE P ROMINENT B RITISH S CIENTIFIC O RGANIZATIONS H AVE C ONDEMNED THE P RACTICES OF T OP IPCC C LIMATE S CIENTISTS AS R EVEALED BY THE C LIMATEGATE DOCUMENTS An inquiry into Climategate 1 by the UK House of Commons Science and Technology Committee is currently underway. In connection with this inquiry, the Institute of Physics, the Royal Society of Chemistry, and the Royal Statistical Society have submitted statements to the investiga ting committee, offering their comments on the poor scientific practices of the IPCC scien tists exposed by the Climategate documents. The Institute of Physics is a scientific charity with a membership of over 36,000 that is a leading communicator of physics related science. On the question of “what are the implications of the [Climategate] disclosures for the integrity of scientific research?” the Institute of Physics said the following:

1 “Climategate” refers to the scandal in climate sc ience that ensued from th e release to the public on the internet of e-mails and documents from the Climatic Research Unit at the University of East Anglia, in Britain in November 2009.2 2. The CRU 2 e-mails as published on the internet provide prima facie evidence of determined a nd co-ordinated refusals to comply with honourable scientific traditions and freedom of information law. The principle that scientists should be willing to expose their ideas and results to independent testing and replication by others, whic h requires the open exchange of data, procedures and materials, is vital. Th e lack of compliance has been confirmed by the findings of the Information Co mmissioner. This extends well beyond the CRU itself - most of the e-mails were exchanged with researchers in a number of other international institu tions who are also involved in the formulation of the IPCC's c onclusions on climate change. 3. It is important to recognise that there are two completely different categories of data set that are i nvolved in the CRU e-mail exchanges: · those compiled from direct instrumental measurements of land and ocean surface temperatures such as the CRU, GISS and NOAA data sets; and · historic temperature re constructions from measurements of 'proxies', for example, tree-rings. 4. The second category relating to proxy reconstructions are the basis for the conclusion that 20th century warm ing is unprecedented. Published reconstructions may represent only a pa rt of the raw data available and may be sensitive to the choices made and th e statistical techniqu es used. Different choices, omissions or statistical processe s may lead to different conclusions. This possibility was evidently the reason behind some of the (rejected) requests for further information. 5. The e-mails reveal doubts as to the reliability of some of the reconstructions and raise questions as to the way in which they have been represented; for example, the apparent suppression, in graphics widely used by the IPCC, of proxy results for recent decades that do not agree with contemporary instrumental temperature measurements. 6. There is also reason for concern at th e intolerance to challenge displayed in the e-mails. This impedes the process of scientific 'self correction', which is vital to the integrity of the scientific process as a whole, and not just to the research itself. In that context, thos e CRU e-mails relating to the peer-review process suggest a need for a review of its adequacy and objectivity as practised in this field and its potential vulnerability to bi as or manipulation. 7. Fundamentally, we consider it should be inappropriate for the verification of the integrity of the scientific proc ess to depend on appeals to Freedom of Information legislation. Nevertheless, the right to such appeals has been

2 The “CRU” is the Climatic Research Unit at the University of East Anglia, in Britain.3 shown to be necessary. The e-mails illust rate the possibility of networks of like-minded researchers effectively ex cluding newcomers. Requiring data to be electronically accessible to all, at the time of publication, would remove this possibility. 3 The Royal Society of Chemistry (“RSC” ) has also opined on Climategate. The RSC is the UK professional body for chemical scientists and an international learned society for advancing the chemical sc iences. It has more than 46,000 members worldwide. Like the Institute of Physics, th e RSC concluded that the refusal of the CRU researchers to disclose their data and methods was contrary to the scientific method and cast doubt on the integrit y of their research: 4. The apparent resistance of research ers from the Climatic Research Unit (CRU) at the University of East Anglia (UEA) to disclose research data has been widely portrayed as an indication of a lack of integrity in scientific research. The true nature of science dict ates that research is transparent and robust enough to survive scrutiny. A lack of willingness to disseminate scientific information may infer that the scientific results or methods used are not robust enough to face scrutiny, even if this conjecture is not wellfounded. This has far-reaching consequen ces for the reputation of science as a whole, with the ability to undermine the public's confidence in science. 5. It is essential that th e public and all non- specialists remain truly confident in the scientific method to provide a sound scientific evidence-base on which strong decisions can be made. ... . 6. The dissemination of sc ientific information is central to progressing scientific developments, as it is based on a sound knowledge of preceding research. Access to reliable, up-to-dat e information is vital to advancing research and enabling the discovery or development of solutions to global issues. Sharing information is especially important in multi-disciplinary research, where progress is very mu ch dependent on willing and effective communication between diffe rent speciality areas. 7. It is also imperative that scientific information is made available to the wider community for scrutiny: the valid ity and essence of research relies upon its ability to stand up to review. In fact, advances in science frequently occur when the prevailing view is cha llenged by informed scepticism, this is

3 “Memorandum submitted by the Institute of Physics,” available at http://www.publications.parliament.uk/pa/c m200910/cmselect/cmsctech/memo/climateda ta/uc3902.htm , last visited March 3, 2010.4 fundamental to the scientific method and should be encouraged, even if controversial. The RSC firmly believes th at the benefits of scientific data being made available and thus open to scrutiny outweigh the perceived risks. To this end, scientific information s hould be made available on request as outlined in the Freedom of Information Act. Furthermore, research needs to be presented in an accurate and reliable manner in the correct context in order to optimise this process. It may also be necessary to incorporate an independent auditing system into peer review with the ability to demand access to raw data sets to ensure be st practices are being adhered to. 4 The RSC also recommended the investigati on be expanded to determine whether data have been manipulated or suppressed: 13. As has been set out in the review, it is necessary to investigate the email exchanges which were discovered along with other relevant CRU information to establish whether data have b een manipulated or suppressed . This is, not only needed in order to identify any unacceptable behaviour, but also to verify the results which have been pub lished. This is vital in clarifying the severity of the acts carried out by those scientists at the CRU involved, i.e. whether it was a misguided protection of their work or a malicious misrepresentation of data. (Emphasis added). A third British scientific society, the Royal Statistical Society (“RSS”) also submitted a memorandum to the House of Commons Science and Technology Committee. 5 The RSS was founded in 1834 and is one of the most influential and prestigious statistical societies in the worl d. Its conclusions carry considerable weight because of the pivotal importance of proper st atistical analysis to climate science, as proven to devastating effect in the Hockey Stick affair. The RSS joined the Institute of Physics and the Royal Society of Chemistry in calling for the data and methods of climate research to be made freely available as

4 “Memorandum submitted by the Royal Society of Chemistry,” available at http://www.publications.parliament.uk/pa/cm200910/cmselect/cmsctech/memo/climatedata/uc42 02.htm , last visited March 3, 2010. 5 “Memorandum submitted by the Royal Statistical Society,” available at http://www.publications.parliament.uk/pa/c m200910/cmselect/cmsctech/memo/climateda ta/uc4702.htm , last visited March 3, 2010.5 required by the canons of the scientific method. Their memorandum gives a pointed explanation of why this is necessary: 9. More widely, the basic case for public ation of data incl udes that science progresses as an ongoing debate and not by a series of authoritative and oracular pronouncements and that the quality of that debate is best served by ensuring that all parties have access to the facts. It is well understood, for example, that peer review cannot guarantee that what is published is ‘correct’. The best guarantor of scientific quality is that others are able to examine in detail the arguments that have been used and not just their published conclusions. It is important that experiments and calculations can be repeated to verify their conclusion s. If data, or the methods used, are withheld, it is impossible to do this. 10. The RSS believes that a crucial st ep in improving the quality of the debate on global warming will be to pl ace the data, the analysis methods and the models in the public domain. Three prominent British scie ntific societies have now gone on record with the UK Parliament saying that Climategate has grave im plications for the integrity of the science upon which the IPCC’s reporting is based. These implications necessarily apply as well to the Endangerment Finding because the EP A has irretrievably bound itself to the IPCC by relying so heavily on its findings. Th e EPA cannot dismiss the conclusions of institutions having the presti ge and reputation of the Inst itute of Physics, the Royal Society of Chemistry, and the Royal Statistical Society. The EPA is obligated instead to take heed of their critiques and reconsider the Endangerment Finding in its entirety.
III. T HE U NITED N ATIONS E NVIRONMENTAL P ROGRAM HAS O RDERED AN I NDEPENDENT R EVIEW OF IPCC P ROCEDURES On March 10, 2010, the IPCC announced th at the InterAcademy Council would conduct an independent review of the IPCC by. 6 The UN Secretary General, the Chair of

6 IPCC Press Release, “Scientific Academy to Conduct Independent Review of the Intergovernmental Panel on Climate Change’s Processes and Procedures at Request of United6 the IPCC, and the Executive Heads of the UN Environmental Program (“UNEP”) and the World Meteorological Organization (“WMO”) al l agreed that the review was necessary. The Terms of Reference for the review provide that it is completely independent and that it will examine, among other things, the following: 1. Review IPCC procedures for preparing reports including:

• Data quality assurance a nd data quality control;

• Guidelines for the types of literature appropriate for inclusion in IPCC assessments, with special attenti on to the use of non peer-reviewed literature;

• Procedures for expert and governme ntal review of IPCC material;

• Handling of the full range of scientific views; and

• Procedures for correcting errors identified after approval, adoption and acceptance of a report. 2. Analyze the overall IPCC proce ss, including the management and administrative functions within the IP CC, and the role of UNEP and WMO, the United Nations system and other rele vant stakeholders, with a view to strengthen and improve the efficiency of the assessment work and effectively ensure the consistent applic ation of the IPCC Procedures. 7 In plain terms, the IPCC itself is reconsidering its own work. Given the irrevocable depth and breadth of the EPA’s reliance on the IPCC, it is simply not tenable for the EPA to now disagree with the IPCC on the sole point of whether reconsideration is necessary.

Nations and IPCC,” available at http://www.ipcc.ch/pdf/press/press_release_1003210-UNhq.pdf , last visited March 10, 2010. 7 “Independent Review of the IPCC Assessment Process Terms of Reference,” available at http://www.ipcc.ch/pdf/press/to r-independent-re view-10032010.pdf , last visited Mar 10, 2010.7 IV. T HE UK M ET O FFICE H AS A SKED F OR A “D O -O VER ” O N T HE S URFACE T EMPERATURE R ECORD On or about February 19, 2010, the UK Met Office 8 proposed the creation of a new international analysis of land surface air temperature data. 9 While the Met Office claims it does not anticipate any substantial chan ges in any trends dete cted in the data, the obvious purpose of the reconstruction is to cure some of the gross deficiencies and departures from the scientific method that have been exposed in the existing global surface temperature datasets. Thus, they pr opose that the new dataset would provide: 1. verifiable datasets starting from a common databank of unrestricted data; 2. methods that are fully documented in the peer reviewed literature and open to scrutiny; 3. a set of independent assessments of surface temperature produced by independent groups using independent methods; 4. comprehensive audit trails to de liver confidence in the results; 5. robust assessment of uncerta inties associated with observational error, temporal and geographical in homogeneities. Id. at p. 2. The existing surface temperature datasets have virtually none of these qualities, which are clearly necessary for valid or reliable analysis of trends in global temperature. That the UK Met Office feels it necessary to start over and create a new valid and reliable surface temperature dataset necessarily implies a lack of confidence in the existing records. Indeed, the proposal wa s made for the very purpose of bringing the datasets “up to modern standard s and made fit for addressing 21 st century needs.” Id. This

8 The UK’s national weather service. 9 “Proposal for a new International Analysis of Land Surface Air Temperature Data,” submitted by the UK Met Office, available at ftp://ftp.wmo.int/Documents/SESSIONS/CClXV/English/DOCs/pdf/inf15_en.pdf , last visited March 4, 2010.8 is an admission that the datasets are not fit for present needs. This lack of confidence clearly results from the disorder and manipul ation evident in the Climategate documents and in the surface temperature record as s hown by the D’Aleo and Watts report discussed in Petitioners’ Third Amendment to the Peti tion for Reconsideration (hereinafter the “Third Amendment”). This proposal by the UK Met Office is an additional reason why the EPA should reconsider its reliance on the IPCC and the surface temperature datasets and reconsider its Endangerment Finding.
V. F URTHER E VIDENCE OF I MPROPER A DJUSTMENTS T O T HE S URFACE T EMPERATURE R ECORD On February 25, 2010, Edward R. Long, Ph.D. 10 published a paper through the Science and Public Policy Institute analyzing the effect of adjustments to the temperature record for the continental United States that are made in the NCDC temperature record for rural and urban stations. 11 For the rural stations in the study, the raw data showed a linear trend of 0.13o C per centu ry, while for urban stations the raw data showed a trend of 0.79o C per century. Id. at p. 8-9. The long term trends were very similar until about 1965, when the trend in the urban raw data in creases faster than in the rural data. Id. at 9- 10.
NCDC’s adjusted data for rural stations show a trend of 0.64 o C per century, compared to 0.13 o C per century for the raw da ta. In other words, the NCDC adjustment increased the rural trend by nearly five times. Id. at 11. The adjusted data for urban stations show a trend of 0.77o C per centur y, compared to a raw urban trend of 0.79o C

10 Dr. Long is a physicist who retired from NASA after leading their Advanced Materials Program, among other contributions. 11 Long, E.R, “Contiguous U.S. Temperature Tr ends Using NCDC Raw and Adjusted Data for One-Per-State Rural and Urban Station Sets,” available at http://scienceandpublicpolicy.org/originals/temperature_trends.htm , last visited March 2, 2010.9 per century. Id. “Thus, the adjustments to the data have increased the rural rate of increase by a factor of 5 and s lightly decreased the urban rate, from that of the raw data.” Id. This has the effect of hiding urban hea ting, and permitting the warming present in the adjusted data to be attributed not to ur ban warming, but to clim actic warming. As Long concludes, “The consequence, intended or not , is to report a false rate of temperature inrease for the Contiguous U.S.” Id. at 13. The EPA should not base economically devastating regulations, or a ny regulations, on false reports, and should reconsider the Endangerment Finding to make sure that it has not done so here.
VI. T HERE IS NO A NTHROPOGENIC S IGNAL IN G LOBAL T ROPICAL C YCLONE F REQUENCY Since the Third Amendment, claims by the IPCC and the EPA that Anthropogenic Global Warming (“AGW”) has caused and will in the future cause increasing severity and frequency of extreme weather events ha s suffered further disi ntegration. A team of researchers under the auspices of the Worl d Meteorological Organization (“WMO”), an organizational parent of the IPCC, announced in an article published March 1, 2010, that In terms of global tropical cyclone freque ncy, it was conclude d that there was no significant change in global tropical storm or hurricane numbers from 1970 to 2004, nor any significant change in hurricane numbers for any individual basin over that period, except for the Atlantic (discussed above). Landfall in various regions of East Asia during the past 60 years, and those in the Philippines during the past century, also do not show significant trends. 12 Regarding storm intensity, the authors also c oncluded that the increase in storm intensity predicted by climate models could not be reliably separated from natural variability: Uncertain relationships between tropi cal cyclones and internal climate variability, including factors related to the SST distribution, such as vertical wind shear, also reduce our ability to c onfidently attribute observed intensity

12 Knutson, et al., “Tropical Cyclones and Climate Change,” Nature Geoscience 3, 157– 163 (1 March 2010)10 changes to greenhouse warming. The most significant cyclone intensity increases are found for the Atlantic Ocean basin, but the relative contributions to this increase from multidecadal variability (whether internal or aerosol forced) versus greenhous e-forced warming cannot yet be confidently determined. Id. In conclusion, the authors st ated that “we cannot at this time conclusively identify anthropogenic signals in past tropical cyclone data.” While the EPA acknowledged in the TSD that there was no trend in tropical cyclone frequency, it stated that the observ ed increase in intensity was anthropogenic. See TSD § 4(l), pp. 45, 53. EPA further relies upon m odel projections of increased tropical cyclone frequency and intensity. TSD, pp. 74-75; Endangerment Finding, pp. 11, 168,
171. The EPA relies heavily on projections of frequent and intense storms, including tropical cyclones, to support its Endangerment Finding. Yet th e best evidence is that no positive trend in frequency can be detected and that any increase in intensity cannot be attributed to human influence. The validit y and reliability of these projections is necessarily called into question by their di vergence from reality. Accordingly, the EPA should reconsider its conclu sions that GHGs endanger human health and welfare by causing more frequent and intense tropical cyclones.
VII. T HE IPCC U NDERESTIMATED THE I NCREASE IN A NTARCTIC S EA I CE BY 50%
In the AR4 the IPCC said that while Arc tic sea ice extent was decreasing at a statistically significant rate, there was a statistically in significant increase in Antarctic sea ice extent: “There is a signifi cant decreasing trend in arctic sea ice extent of –33 ± 7.4 × 103 km2 yr–1 (equivalent to –2.7 ± 0.6% per deca de), whereas the Antarctic results show a small positive trend of 5.6 ± 9.2 × 103 km2 yr –1 (0.47 ± 0.8% per decade), which is not11 statistically significant.” 13 In the Summary for Policymakers the same point was made: “Antarctic sea ice extent con tinues to show interannual vari ability and localised changes but no statistically significant average tre nds, consistent with the lack of warming reflected in atmospheric temperat ures averaged across the region.” 14 At the time of AR4, there was an existing scientific debate over how to measure the trend in Antarctic sea ice and wh ether it was statistically significant. 15 The AR4 relied on a non-peer-reviewed chapter of a book by one of its contributing authors, Josefino Comiso, that showed the lowest rate of in crease and made no mention of peer-reviewed literature that showed a higher trend. 16 Comiso himself subsequently published a paper in 2008 in which he corrected his algorithm and found a statis tically significant increas e in Antarctic sea ice. 17 Thus, IPCC’s source changed his analysis, but th e IPCC did not. A chart comparing the IPCC trend (red) with Comiso’s revised trend (c yan) and with the “NASA Team” of Markus and Cavalieri (blue) is below and shows the IPCC trend is substantially lower:

13 IPCC AR4 WGI, Chapter 4, “Observations: Ch anges in Snow, Ice, and Frozen Ground” (p. 351). 14 IPCC AR4 Summary for Policymakers, § 3.2, 4.4. 15 That debate is reviewed in “Yet Another Incorrect IPCC Assessment: Antarctic Sea Ice Increase,” available at http://www.masterresource.org/2010/03/yet-another-incorrect-ipccassessment-antarctic-sea-ice-increase , by Knappenberger, last visited March 10, 2010.

. 16 Id. 17 Comiso, J. C., and F. Nishio, 2008. Trends in the sea ice cover using enhanced and compatible AMSR-E, SSM/I, and SMMR data. Journal of Geophysical Research, 113, C02S07, doi:10.1029/2007JC00425712 Figure 3. Annual Antarctic sea ice anom alies from three datasets: the one used by the IPCC (Comiso, 2003; red); anot her extant at the time of the IPCC production (Markus and Cavalieri, 2000; blue); and the update to the IPCC analysis (Comiso and Nishio, 2008; cyan). The trend in the latter two datasets are more than 2.5 times larger than th e IPCC trend and both are statistically significant (the IPCC trend is not). 18 Comiso published another paper in 2009 that co ncluded that “based on a new analysis of passive microwave satellite data , we demonstrate that the annual mean extent of Antarctic sea ice has increased at a statistically significant rate of 0.97% dec-1 since the late 1970s.” 19 (Emphasis added). The IPCC analysis of Antarctic sea ice trends is an outlier that is inconsistent with th e peer reviewed literature. In response to comment 2-111 EPA revised th e final TSD to read that “[f]or the period 1979- 2008, Antarctic sea ice underwent a not statistically significant increase of

18 S upra , at n. 15 Error! Bookmark not defined.

. 19 Turner, J., J. C. Comiso, G. J. Marshall, T. A. Lachlan-Cope, T. Bracegirdle, T. Maksym, M. P. Meredith, Z. Wang, and A. Orr, 2009. Non-annular atmospheric circulation change induced by stratospheric ozone depletion a nd its role in the recent increase of Antarctic sea ice extent. Geophysical Research Letters, 36, L08502, doi:10.1029/2009GL03752413 0.9% (about 100,000 km2; 42,000 mi2) per decad e (NSIDC, 2009).” TSD p. 39; RTC 2- 111 (emphasis added). While the EPA acknowledges the upward tr end, it errs to say this is not statistically significant, as Co miso clearly stated in his 2009 paper. If the increase is statistically significant, then it is yet anot her empirical refutation of the IPCC models, which predict a loss of sea ice in the Antarc tic. This was pointed out to EPA, which responded in RTC 4-11 that the observed in crease is statistically insignificant. EPA has contradicted the literature and mischaracterized the statistical significance of the trend in Antarctic sea ic e extent increase. It appears that this mischaracterization permits EPA to claim th at the model projections have not been refuted and remain “robust” even though any fair analysis shows they have been at best undermined and at worst falsified.
VIII. E MPIRICAL O BSERVATIONS C ONTRADICT M ODEL P ROJECTIONS OF N ORTH A MERICAN S NOW E XTENT The Endangerment Finding takes the positi on that AGW is causing and will cause less snow generally, and in the United States in particular, with a dverse consequences for human health and welfare. For example, the TSD states that In North America, from 1915 to 2004, snow-covered area increased in November, December, and January due to increases in precipitation. However, snow cover decreased during the latter half of the 20th century, especially during the spring over western North America (Lemke et al., 2007). Eight-day shifts towards earlier melt since the mid-1960s were also observed in northern Alaska (Lemke et al., 2007). Consis tent with these findings, Lettenmaier et al. (2008) note a trend toward reduced mountain snowpack, and earlier spring snowme lt runoff peaks across much of the western United States. TSD p. 42. “Reduced snowpack, earlier sp ring snowmelt, and increased likelihood of seasonal summer droughts are projec ted in the Northeast, Northwest, and Alaska.” ES-6.14 “In the Midwest in particular, heating oil demand and snow-related traffic accidents are expected to decrease.” TSD p. ES-9. “Snow s eason length and snow depth are very likely to decrease in most of North America as illustrated in Figure 6.10, except in the northernmost part of Canada where maxi mum snow depth is likely to increase (Christensen et al., 2007).” TSD § 6(d) p. 72. In fact, data from the Rutgers University Global Snow Lab show that winter snow extent in North America has been increasing in the 21 years since 1989 20 :

In the Northern Hemisphere the annual snow cover, there is vi rtually no trend since 1989. 21

20 “North American snow models miss the mark – observed trend opposite of the predictions,” by Steven Goddard, available at http://wattsupw iththat.com/2010/02/19/north-america-snow-modelsmiss-the-mark/, last visited March 3, 2010. 21 “Why is Winter Snow Extent Interesting,” by Steven Goddard, available at http://wattsupwiththat.com/2010/02/18/why -is-winter-snow-extent-interesting/ , last visited March 3, 2010.15 While there are a number of ways to interpre t these data, the essential point is that the IPCC and the EPA predicted reduced snow fall and reduced snow cover due to AGW, but the data show the winter snow extent trend is increasi ng over the last 21 years in North America. This is yet another instance of the failure of model predictions. The EPA should reconsider its reliance on models of such proven unreliability and invalidity. IX. T HE E NDANGERMENT F INDING IS C ONTRARY TO THE C LEAN A IR A CT Although the Endangerment Finding directly implicates only tailpipe emissions from light duty vehicles, regulating these em issions will as a matter of definition cause GHGs to be “subject to regulation” under the Clean Air Act (“CAA”), and therefore required to be regulated under the Act’s Prev ention of Significant Deterioration (“PSD”) and Title V permitting programs. Recognizing th is, after the close of the public comment period on the Endangerment Finding, EPA proposed its so-called “ta iloring rule,” which would “phase in” permitting requirements under the CAA, raising the permitting threshold from 250 tons per year to 25,000 tons per year for six years. See 74 Fed. Reg. 55292 (October 27, 2009). For the reasons stated below, the “Tailoring Rule” is of central relevance to the Endangerment Finding and th erefore Petitioners submit that EPA must re-open the Endangerment Finding docket to allow the public to comment on the implications of the Tailoring Rule” to the form and content of the Endangerment Finding.16 EPA’s reasons for “tailoring” the appli cable thresholds unde r the CAA are that

not doing so would lead to “absurd results.” Th erefore, “tailoring” the Act to fit EPA’s determination to issue an Endangerment Finding was required due to “administrative necessity.” This “tailoring” of the re quirements of the CAA is plainly contrary to the unambiguous terms of the CAA. CAA § 169 sp ecifies thresholds of 100 or 250 tpy for “major emitting facilities.” 42 U.S.C. § 7479(1). CAA § 302 specifies a threshold of 100 tpy for Title V permitting. 42 U.S.C. § 7602(j). Consequently, there is nothing for EPA to “tailor” in implementing these statutory em ission thresholds. EPA simply proposes to ignore them, at least for the pr esent. It is undisputable that EPA cannot exercise its discretion in a manner that is in consistent with the plain term s of the authorizing statute. See, e.g. , I.N.S. v. Cardoza-Fonseca , 480 U.S. 421 (1988); United States v. James , 478 U.S. 597 (1986); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984). Petitioners refer EPA to the many well-reasoned submissions made in the “tailoring rule” docket on this point, such as that made by the Competitive Enterprise Institute, among others. 22 (December 28, 2009). Furthermore, the Tailoring Rule is a patently unconstitutional attempt by the Executive Branch to unilaterally amend a statute. Clinton v. New York , 524 U.S. 417, 438 (1998); INS v. Chadha , 462 U.S. 919, 954 (1983 (“Amendment and repeal of statutes, no less than enactment, must conform with Art. I.”) To be valid an amendment of a statute must satisfy the bicameralism and presen tment clauses of Article I, Section 7. Terran v. Secretary of HHS , 195 F.3d 1302. 1312 (D.C. Cir. 2000).

22 See EPA-HQ-OAR-2009-0517-5129.117 Accordingly, Petitioners submit that EPA missed the obvious conclusion of its attempted regulatory machinations: if EP A could not regulate GHGs under the CAA without ignoring the permitting requirements of the CAA, then by the irresistible force of logic, EPA cannot regulate GHGs in a manner consistent with the CAA. Given the utter incompatibility of GHG regulati on with the rest of the CAA, EPA should have concluded that GHGs cannot possibly be made “subject to regulation” under the CAA. Therefore, whatever Congress may have intended in terms of making findings under the CAA regarding “endangerment” of human health and welfare, it could not possibly have intended for EPA to make endangerment finding s for substances that are administratively impossible to regulate under the CAA the way it is actually written. In short, by making the Endangerment Finding, EPA embarked on a course of conduct that is irretrievabl y inconsistent with the C AA and completely beyond EPA’s legal authority. Rather than compounding with one regulatory illegal ity with another, EPA should start over, reconsider the E ndangerment Finding, and determine a more lawful and logical way to conduct its affairs. X. T HE EPA’ S G REENHOUSE G AS P OLICY I S A RBITRARY AND C APRICIOUS , AND AN A BUSE OF D ISCRETION The Tailoring Rule demonstrates that EPA’s attempt to regulate GHG’s under the CAA is:

• administratively impossible w ithout rewriting the statute; 23

23 This point is acknowledged by the EPA in the proposed Tailoring Rule. See 74 Fed. Reg. 55292 (October 27, 2009). (“[A ] literal application would re nder it impossible for permitting authorities to meet the requirement in CAA secti on 165(c) to process permit applications within 12 months. During this initial period, the number of permit applications would increase by 150- fold, an unprecedented increase that would far exceed administrative resources.” Tailoring Rule Proposal, p. 65; “The extraordinary number of permit applications would render it impossible for18 • an unconstitutional attempt to fix the impossibility problem by rewriting the statute by means of a regulation 24 ;

• climatically pointless because it will not have any de tectable effect on either global CO2 levels or AGW 25

. There is also compelling evidence that the policy is economically destructive, EPA’s

permitting authorities to meet the requirements of section 503(c) to process title V permit applications within 18 months.” Id. , p. 68. 24 See discussion on page 16, supra. 25 EPA Administrator Lisa Jackson admitted in res ponse to questions from Sen. James Inhofe that the Lieberman-Warner Climate Security Act would have no effect on global CO2 levels. See Press release, "Jackson Confirms EPA Chart Showing No Effect on Climate Without China, India," U.S. Senate Committee on Environment and Public Works, July 7, 2009 at http://epw.senate.gov/public/index.cfm? FuseAction=Minority.PressRele ases&ContentRecord_id=564ed42f802a-23ad-4570-3399477b1393 (last vi sited March 16, 2010). The chart referred is the following:19 fanciful claims to the contrary notwithstanding. 26 The policy is therefore unconstitutional, impossible, pointless and destructive. As such it is patently irra tional, arbitrary and capricious, and an abuse of discretion. XI. C ONCLUSION The accumulation of extraordinary disclosures impeaching the work of the IPCC and of the EPA has been accompanied by a variet y of new studies that directly contradict the conclusions of the EPA and the IPCC in several material respects. The supposed “consensus” of “settled” scie nce in favor of EPA’s positi on on AGW is falling to pieces before our very eyes. The EPA should step back from its overzealous endorsement of catastrophic AGW, and reconsider its illegal and irrational policie s before it imposes ruinous and wrongheaded regulation. Respectfully submitted this 25 day of March 2010. Attorneys for Petitioners

Shannon L. Goessling Executive Director and Chief Legal Counsel Southeastern Legal Foundation Southeastern Legal Foundation 6100 Lake Forrest Drive, Suite 520 Atlanta, Georgia 30328 (404) 257-9667

26 See , e.g. Comment submitted by the National Association of Home Builders, EPA-HQ-OAR2009-141-11690.1; Comment submitted by Por tland Cement Association, EPA-HQ-OAR-2009- 0517-16411.1; Comment submitted by U.S. Ch amber of Commerce, EPA-HQ-OAR-2009-0517- 5110.1. EPA asserts in the Light Duty Vehicle Rule that the economic benefits of avoided CO2 emissions can be valued at $20 per ton. See “Proposed Rulemaking To Establish Light-Duty Vehicle Greenhouse Gas Emission Standards and Co rporate Average Fuel Economy Standards,” 74 Fed. Register 49454, at 49480. In the world of economic reality, the price of carbon credits is 10 cents per ton, 1/200 th of the value assumed by the EPA. See Chicago Climate Exchange, http://www.chicagoclimatex.com/index.jsf , last visited March 21 2010.20 Fax:(404) 257-0049

Edward A. Kazmarek Kazmarek Geiger & Laseter LLP 3490 Piedmont Road NE, Suite 201 Atlanta, GA 30305 404-812-0840 Fax: 404-812-0845 E-mail: skazmarek@kglattorneys.com

Harry W. MacDougald

Caldwell & Watson LLP 5825 Glenridge Dr., N.E. Building Two, Suite 200 Atlanta, GA 30328-5579 (404) 843-1956 Fax: (404) 843-2737 E-mail: hmacdougald@cwlaw.org