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 202(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–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 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) 843-1956 
ii

PETITION FOR RECONSIDERATION OF 

“ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR 

GREENHOUSE GASES UNDER SECTION 202(a) OF THE CLEAN AIR ACT” 

TABLE OF CONTENTS 

I. Introduction .............................................................................................................................. 1

II. Legal Standard.......................................................................................................................... 3

III. Manipulation Of The “Scientific” Basis For The Endangerment Finding............................... 5

A. 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 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 meaningful oversight or controls................................. 7

2. Climategate reveals the systematic manipulation of data as necessary 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 their data from researchers, especially 

those likely to reach contrary 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 and analyses that led to the Endangerment 

Finding. ............................................................................................................................. 18

1. Suppression of Dissenting Views. .............................................................................. 19

2. Persecution and black-balling of journals, editors, and reviewers.............................. 19

3. The contents of reports, including the IPCC reports, were altered to eliminate 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.............................................................................................................................. 25
I. 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. 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 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 petition 

the U.S. Environmental Protection Agency (“EPA” or “the Agency”) to convene a proceeding for 

reconsideration of the “Endangerment and Cause 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 

“Climategate1

,” indicates that the purportedly “scientific” information on which the Agency 

relied was the subject of a number of systematic manipulations, including collusion to withhold 

scientific information, deletion of e-mails and raw data to prevent discovery of key facts, 

 

1

 “Climategate” (some commentators refer to it as the “Watergate” of climate science) refers to the release of some 

1000 e-mails, 2000 documents, and some computer code, all 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 government 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 conducted 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 create 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, describing it variously as a “smear campaign” or “a 

tempest in a teapot” or “a misunderstanding 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 objections 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 gravely 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 convene a proceeding to consider the question. To 

refuse to do so would be irrational, arbitrary, and obstinate. 

The sections that follow further explain the basis for this Petition as follows: Section II 

sets out the legal standard governing consideration of this Petition; Section III details the nature 

and extent of the manipulation of the underlying climate data and “scientific” literature, and 

shows how these manipulations call into question 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 “Climategate” 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 demonstrate to the Administrator that it was 

impracticable to raise such an objection within such time or if the grounds for such 

objection arose after the period for public comment (but within the time specified 

for judicial review) and if such objection is of central relevance to the outcome of 

the rule, the Administrator shall convene a proceeding for reconsideration of the 

rule and provide the same procedural rights as would have been afforded had the 

information been available at the time the rule was proposed. 

Thus, 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.” 

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 common description of the incident 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 the release of revealing e-mails 

should be attributed to “hackers” or “whistleblowers,” 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 relevance to the Endangerment Finding because they go to the core 

requirements of Section 202, including the public’s opportunity to comment 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 analysis 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-network-analysis-shows-climategate-likely-to-be-a-leak/ (last 

visited Dec. 23, 2009) 
4

under 307(d)(3), and the consistency of those provisions with the Act and with fundamental 

standards of reasoned agency decisionmaking. This challenged error, as discussed in detail 

below, is “so serious” that there is a substantial 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 evidence 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 data. Under Section 307(d)(3), EPA is clearly required to include 

this information in the docket and receive public for comment prior to final promulgation of the 

rule. 

Since this new information is of “central relevance” 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 information. As stated above, Section 307(d)(3) 

requires that this information is published for public 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 documents upon which EPA intended to rely had 

been entered on the docket too late for any meaningful public comment such that the structure 

and the spirit of section 307 would have been violated). 

In summary, therefore, the central question for the Administrator’s determination in 

response to this Petition is whether the Climategate information is of central relevance to the 
5

“outcome” of the rule, i.e. its ultimate finding that “six greenhouse gases taken in combination 

endanger both the public health and the public welfare of current and future generations.” As 

shown in Section III, below, SLF submits that the answer is a resounding ”Yes.” 

III. MANIPULATION OF THE “SCIENTIFIC” BASIS FOR THE ENDANGERMENT 

FINDING 

As widely noted, the “global warming” debate 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 considering 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 Intergovernmental 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 Chavez 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 rulemaking 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 about 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 potential impacts; 2) have assessed 

numerous individual, peer-reviewed studies in order to draw 

general conclusions about the state 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 reflect and convey the consensus 

conclusions of expert authors. 

TSD, p.5. Throughout the TSD, the Agency expressly and impliedly assumes that the scientific 

data and reports on which the Endangerment Finding is based reflect impartial, reasoned 

analysis. For example, EPA relies on the IPCC “Climate Change 2007: Impacts, Adaptation and 

Vulnerability. Contribution of Working Group 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 1750 has been one of warming, with a radiative 

forcing of +1.6 (+0.6 to +2.4) W/m2

.” TSD p. 23. Other examples abound, as shown below. 

The Climategate scandal is relevant, therefore, 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 models are validated and their integrity assured. 

Second, Climategate shows that the processes of peer review, consensus building, and scientific 
7

evaluation were fundamentally corrupted to the point that EPA should reconsider its reliance on 

the reports and analyses that led to the Endangerment Finding. Third, Climategate reveals a 

disturbing, anti-scientific compulsion for mandatory orthodoxy. Each of these points is 

discussed below. 

A. 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 MODELS ARE 

VALIDATED AND THEIR INTEGRITY ASSURED.

By way of background, EPA should not underestimate the importance of the CRU data 

nor the extent to which Climategate reveals the deliberate manipulation of that data. 

The Climate Research Unit (“CRU”) at the University 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, the models used by CRU formed the 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. CLIMATEGATE 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 number of very revealing documents, but one 

in particular is very disturbing, 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 “ReadMe.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 the “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? Especially 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 - especially 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 codes 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 for CLIMAT bulletins, there being no metadata 

with which to form a new station. 

This still meant an awful lot of encounters with naughty Master stations, when really I 

suspect nobody else gives a hoot about. So with 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 CRU usually do. It will allow bad databases to 

pass unnoticed, and good databases to become bad, but I really don't think people care 

enough to fix 'em, and it's the main reason 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 less 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 have to stop. Each parameter has a tortuous 

history of manual and semi-automated interventions that I simply cannot just go back to 

early versions and run the update prog. 

I could be throwing away all kinds of corrections - 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 never finished it, I was diverted off to fight 

some other fire. Aarrgghhh. 

I - need - a - database - cleaner. What about the ones I used for the CRUTEM3 work with 

Phil Brohan? Can't find the bugger!! Looked everywhere, Matlab scripts 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 program to find potential duplicates. It can 

show me pairs of headers, and correlations between the data, and I can say 'yay' or 'nay'. 

There is the finddupes.for program, though I think the comment for *this* program sums 

it up nicely: 

' program postprocdupes2 

c Further post-processing of the duplicates file - just to show how crap the

c program that produced it was! Well - not so much that but that once it was 

c running, it took 2 days to finish so I couldn't really reset 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 segment 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 another 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 just 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 world'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 worried that our flagship gridded data product 

is produced by Delaunay triangulation - 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 that isn't documented sufficiently to say 

that. Why this wasn't coded up in Fortran I don't know - time pressures perhaps? 

Was too much effort expended on homogenisation, that there wasn't enough time to 

write a gridding procedure? Of course, it's too late for me to fix it too. Meh14

 (Emphasis added.) 

The entire HARRY_READ_ME.txt file is so riddled with such damning admissions that 

there’s really little point in highlighting them 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 standards 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.60 
11

findings and conclusions must be reconsidered. Put differently, there is zero chance that CRU’s 

work could survive a Daubert challenge15 that was armed with the Climategate documents. Since 

CRU’s work would be inadmissible in federal court as junk science, it should not be relied upon 

by the EPA as the foundation of the most far-reaching and consequential action in its history. 

2. CLIMATEGATE REVEALS THE SYSTEMATIC MANIPULATION OF DATA AS 

NECESSARY TO PRODUCE A PRE-DETERMINED RESULT. 

a. “Hide the Decline” 

A very disturbing revelation in the Climategate scandal is the degree to which 

participants were willing to manipulate data so as to exaggerate or create 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 adding 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 varied from claims that the text is being 

misinterpreted, to it reflects ordinary scientific “tricks of the trade” to supplement data, to the 

disturbing conclusion that the e-mail means what it says: an attempt to cook the books to conceal 

the fact that the famous “hockey stick” drawing is a manipulated, misleading 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 decline” 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 commencing in about 1960 instead of continuing the 

proxy reconstruction to the present with its full divergence. 

 The post-1960 decline in the proxy reconstructions while instrumental records showed an 

increase fatally impeached the validity and reliability of proxy reconstructions over all time 

periods.17 By “hiding the decline” the CRU scientists made their proxy reconstruction seem 

“more skilful than it really is.” The importance of these proxy reconstructions to the AGW 

conjecture can hardly be overstated. Since the 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 numerous 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 location, 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 Climategate’s Hidden Decline.” American Thinker (Dec. 6, 2009). Found at: 

http://www.americanthinker.com/2009/12/understanding climategates hid html (last visited Dec. 23, 2009). 

18 Eschenbach, Willis. “The Smoking Gun at Darwin Zero.” 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. But 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 fingerprints of someone messing with the data 

Egyptian style ... they are indisputable evidence that the “homogenized” data has 

been changed to fit someone’s preconceptions about whether the earth is warming. 

One thing is clear from this. People who say that “Climategate was only about 

scientists behaving badly, but the data [are] OK” are wrong. At least 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 reached the same conclusion. For example, this 

report came from a Russian source: 

Climategate has already affected Russia. On Tuesday, the Moscow-based Institute of 

Economic Analysis (IEA) issued a report claiming that the Hadley Center for Climate 

Change based at the headquarters of the British Meteorological Office in Exeter (Devon, 

England) had probably tampered with Russian-climate data. The IEA believes that 

Russian meteorological-station data did not substantiate the anthropogenic globalwarming theory. Analysts say Russian meteorological stations cover most of the 

country’s territory, and that the Hadley Center had used data submitted by only 25% of 

such stations in its reports. Over 40% of Russian territory was not included 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 (HadCRUT) survey often does not show any 

substantial warming in the late 20th 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 reexamine 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-center-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/news/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 20th century and upward adjustments from the middle of the 20th century onward.23 While 

the information on the New Zealand temperature adjustments 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 20th century and upward adjustments in the latter half - yielding a warming trend over the 

last century that is almost entirely fictitious. EPA should evaluate this controversy to determine 

whether these recently revealed “adjustments,” like those of Climategate, indicate more of the 

same collusion, manipulations, and chicanery.24

3. THE CLIMATEGATE 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-mail 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 sessions - one at a screen, to convince them 

otherwise showing them what CA was all about. Once they became aware of the 

types of people we were dealing with, everyone at UEA (in the registry and in the 

 

23 Treadgold, Richard (New Zealand Climate Science Coalition). “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 Final 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 adjustments 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 established 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 property rights issues, so it 

isn't clear how these sorts of things will play out ultimately in the U.S. 

... 

The two MMs have been after the CRU data for years. If they ever hear there is a 

Freedom of Information Act now in the U.K., I think I’ll delete the file rather than send to 

anyone. ... We also have a data protection 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, allegedly 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 irony, 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 Department 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/news/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 levels 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 skeptics something to amuse 

themselves with.31

In another now infamous e-mail, Phil Jones urged 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 Keith 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 claim they discovered the 1945 problem in the 

Nature paper!! 

Cheers 

Phil 

Prof. Phil Jones 

Climatic Research Unit Telephone +44 (0) **** 59209032

 

29 Id. 30 McIntyre, Steve. “Willis Eschenbach’s FOI Request.” 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, wrote 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 willingness of these parties to destroy evidence35 speaks volumes about their 

work should be relied upon by EPA. 

5. SUMMARY. 

Data integrity is the cornerstone of scientific method. As a result, evidence of sloppiness, 

ad hoc “adjustments,” concealment, and outright manipulation demand an immediate and 

complete reexamination of the CRU processes and all of the “scientific” analyses that depend 

thereon. 

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 AND ANALYSES THAT LED 

TO THE ENDANGERMENT FINDING. 

EPA relies heavily on its assumption that there 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 thousands 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. Jones. ““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 hold” 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 such consensus exists. The normal processes of 

peer review and objective scientific evaluation that might ordinarily lead to “consensus” have 

been shown to be so fundamentally degraded by collusion, intimidation, and deception that no 

one can seriously contend that any consensus exists at this time. To this point, SLF directs the 

Agency’s attention to the following specific items. 

1. SUPPRESSION OF DISSENTING VIEWS.

The Climategate participants established a concerted effort to purge dissenting views 

from the scientific literature: 

I think we have to stop considering ‘Climate 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 climate research community to no longer 

submit to, or cite papers in, this journal.38

2. PERSECUTION AND BLACK-BALLING OF JOURNALS, EDITORS, AND 

REVIEWERS.

The Climategate cabal manipulated the scientific literature to purge any and all contrary 

opinions. For example, this group orchestrated the ousting of a journal editor who sought to 

present a viewpoint that would have 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 the 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 direct to the publishers and point out the fact 

that their journal is perceived as being a medium for disseminating misinformation under 

the guise of refereed work. I use the word ‘perceived’ 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 highly credentialed scientists 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 members 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 have heard that the publishers 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 International Journal of 

Climatology (IJC), Glenn McGregor.”41

Note, this suppression of dissenting views affects not only the publications 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 likewise quickly apprehend the 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 Manufacture 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.americanthinker.com/2009/12/a climatology 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 listen to ‘skeptics’ (or 

even nonskeptics like me), because they didn’t publish enough in the peer-reviewed literature—

even as he and his friends sought to make it difficult or impossible to do so.”43

Dr. Michaels elsewhere makes a similar point in even more compelling terms: 

When scientists make putative compendia of that literature, such as is done by the U.N. 

climate change panel every six years, the writers assume that the peer-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 the 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 tactics of the East Anglia mob, 

the EPA has lost the basis for its finding.”45 (Emphasis added). 

3. THE 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 well – frequently as I see it. I 

can’t see either of these papers being in the next IPCC report. 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 Climate 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 geochemistry at Columbia University, 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 scientists were systematically excluded without 

persuasive explanation. The Climategate revelations explain exactly why that was happening, 

and why EPA should now reexamine the underlying 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 the 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 the more reason why EPA should. 

4. SUMMARY.

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 foreclosed at the outset. Thus, the conclusions of 

organizing bodies, especially IPCC, cannot be said to reflect scientific “consensus” in any 

 

47 Keleman, Peter. “What East Anglia's E-mails Really 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 relying 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, the 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 reflect a political movement that has commandeered 

science to the service of its agenda. This is “post-normal science”: 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 have 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. Disputes in post-normal science focus ... on 

the process of science – who 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 the EPA’s endangerment findings be based on real 

science, not the “post-normal science” laid bare by Climategate. 

C. THE CLIMATEGATE E-MAILS REVEAL A SYSTEMATIC EFFORT BY SELFPROCLAIMED “GATEKEEPERS” TO ENFORCE SCIENTIFIC ORTHODOXY. 

One of the reasons EPA should convene a proceeding 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 traditional 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 scenarios 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 Appliance 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 priesthood 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, reject, 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 think" 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 worse, how these establishment scientists act as 

gatekeepers for the "consensus" reports 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 manipulations to create a false sense 

of consensus, stifle scientific debate, and alter the content of the published literature, EPA really 

has only two options: ignore the controversy and 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 prominent accomplished, published and well-respected 

scientists have spoken out loud and clear to say that the Climategate 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 simple.” Quoted in: McCullagh, 

Declan. “Physicists Stick to Warming 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 scientists 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 data and reports are not reliable, 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 perpetuate 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-appalled-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 has 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.org 
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 ) 

 ) 

FIRST AMENDMENT TO: 

PETITION FOR RECONSIDERATION OF 

“ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR 

GREENHOUSE GASES UNDER SECTION 202(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–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 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) 843-1956 
2

Petitioners 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 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 Petition for Reconsideration of “Endangerment and 

Cause or Contribute Findings for Greenhouse Gases 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 – 1st District), 

also represented by and through Southeastern 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 LLP 
3

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 
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 ) 

 ) 

SECOND AMENDMENT TO: 

PETITION FOR RECONSIDERATION OF 

“ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR 

GREENHOUSE GASES UNDER SECTION 202(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–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), Representative Jack 

Kingston (GA – 1st District), and 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) 843-1956 
2

Petitioners 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 Broun (GA–10th District), U.S. Representative Steve King (IA–5th 

District), U.S. Representative Nathan Deal (GA–9th District), U.S. Representative Jack Kingston 

(GA—1st District), and Southeastern Legal Foundation Inc. (“SLF”), hereby amend their Petition 

for Reconsideration of “Endangerment and Cause 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.com 
4

 

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 
BEFORE THE UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

IN RE:

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

THIRD AMENDMENT TO PETITION FOR 

RECONSIDERATION

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–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), 

Representative Jack Kingston (GA – 1st 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 

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;

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.; Georgia Agribusiness 

Council, Inc. and Southeastern 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) 257-9667
ii

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.org
iii

TABLE OF CONTENTS

I. INTRODUCTION .........................................................................................................1

II. INVALIDITY AND UNRELIABILITY OF SURFACE TEMPERATURE RECORDS:

D’ALEO & WATTS ...................................................................................................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. UNSUPPORTED OR FRAUDULENT CLAIMS REGARDING ADVERSE EFFECTS OF 

GREENHOUSE GASES. .............................................................................................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. THE EPA’S FAITH IN THE IPCC IS MISPLACED......................................................28

V. PHIL JONES’ BBC INTERVIEW ................................................................................29

VI. POTENTIAL CONFLICTS OF INTEREST OF IPCC CHAIR...........................................30

VII. THE IPCC’S CO2 CYCLE MODELING SHOULD BE RECONSIDERED IN LIGHT OF 

RECENT EMPIRICAL OBSERVATIONS ......................................................................31

VIII. EPA SHOULD WITHDRAW THE ENDANGERMENT FINDING AND LET THE 

ONGOING IPCC SCANDALS RUN THEIR COURSE BEFORE REVALUATING THE 

SCIENCE. ................................................................................................................35
I. 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 serious” 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 that agencies are obliged to 

produce substantial evidence for major assumptions in rulemaking). 

Accordingly, the 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’Aleo1 and Anthony Watts2 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 (“GHCN”) 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 datasets, now in 

version 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 the 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 

SurfaceStations.org, a web site devoted to assessing the quality of weather stations across the 

U.S. He is also the founder of http://wattsupwiththat.com/, a top-rated science blog.

3 Available at http://scienceandpublicpolicy.org/originals/policy_driven_deception.html (last 

visited 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 examples in support of each of these assertions.

A. STATION DROP OUT

“Station drop-out” refers here to the precipitous decline in the number of 

temperature records included in the GHCN dataset. In the 1970’s more than 6000 stations 

were active. Today the figure is 1500 or less. D’Aleo & Watts, p. 10, n. 9.4

 The following 

graph, prepared by Ross McKitrick5 shows the relationship between 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 

Temperature Database, Bulletin of the American Meteorological Society, Vol. 78, No. 12, p. 

2837-2849 (1997); available at http://www.ncdc.noaa.gov/oa/climate/ghcnmonthly/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 list 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 Hughes 

(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 chart shows that the station drop out coincides with a sharp and significant increase 

in average raw temperature, and thus suggests that the change in temperature is the result 

of sampling bias and not climate change.

The stations that were dropped were disproportionately 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. Smith6

, 

http://chiefio.wordpress.com/2009/11/03/ghcn-the-global-analysis/ (last visited Feb. 10, 

2010). All of these tendencies 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 

programming 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 represents 11.5% of the Earth’s land mass, so this is a significant issue.

In Canada, 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 reduced 

by half. Id. at 18. GHCN data, corrupted by this sampling bias and by inappropriately 

warm-biased infilling, shows warming in Canada, but unadjusted data shows cooling. 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 

charts show substantial warming over Bolivia, but is purely an artifact of interpolation 

from distant 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 west 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 

assessment of warming impossible.” Id. at 10.

B. IMPROPER ADJUSTMENT OF DATA

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 warming 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 cyclical 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 20th century there was warming 

from the 1910s to 1940, followed 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 & Environment Vol. 14, No. 6, p. 

751 (2003); McKitrick & Michaels, Hockey Sticks, principal components, and spurious 

significance, 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 & Environment Vol. 16 No. 1, p. 69 (2005); McKitrick & Michaels, Reply to comment by 

von Storch and Zorita on ‘‘Hockey sticks, principal components, and spurious significance,’’ 

Geophysical Research Letters, Vol. 32, L20714 (2005); McKitrick & Michaels, Reply to comment 

by Huybers on ‘‘Hockey sticks, principal components, and spurious significance,’’ Geophysical 

Research 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 20th century cycles were 

misrepresented in the temperature records in order to exaggerate a 20th century warming 

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 20th century “hardly exceeds year-to-year variability.” Id. Then 

USHCN version 2 was released in 2007. Version 1 used an urban heat island adjustment, 

but that was dropped in version 2 in favor 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 version 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 adjustments (or by 

failure to properly adjust for urban heat islands), thereby imparting to the 20th century a 

warming trend that the raw data and rural stations do not show. Id. at 38-41. For 

example, for Central Park in New York City, USHCN version 1 gradually reduced the 

UHI adjustment and version 2 eliminated it entirely. The notion that there is zero urban 

heat island 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 

reflect something other than climate change, like an equipment change, a siting change, 

or an abrupt change in the local environment. Id. at 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 design, the change point algorithm does not detect 

gradual changes such as actual climate change, and so cannot distinguish climate change 

from the gradual increase in the urban heat island effect resulting from the gradual 

transition of an area from rural to suburban over a period of decades, a phenomenon that 

has occurred at many temperature stations with growing population. D’Aleo & Watts, pp. 

37-41. Therefore, 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 signal that is sought.” Id. at 41.

The GISS temperature dataset maintained by NASA retains an urban heat island 
10

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 20th 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 20th

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 20th century warming. These improper adjustments and failures to adjust impart a 

spurious warming signal to the 20th century temperature record and render it scientifically 

invalid and unreliable for use in the EPA’s Endangerment Finding.

C. STATION SITE QUALITY

Anthony Watts’ project, surfacestations.org, has surveyed 1067 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 

Information Handbook, which specifies the requirements for establishing 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 classified 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 Handbook (Dec. 2002) available at 

Climate Reference Network Site Information Handbook (last visited Feb. 10, 2010).
11

these stations are categorized by where they fall in the CRN handbook’s error scale:

Since the asserted warming trend over the 20th century is 0.74 ± 0.18°C (TSD p. 27), the 

error swamps the signal. The data are invalid and unreliable and cannot be relied upon for 

the Endangerment Finding.

D. CASE STUDIES IN DATA MANIPULATION

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 second9

 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, depicted 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 

visited 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 

station records. The blue and red bars show annual differences from the 1971 – 2000 

average, 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 fact, 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 a 
13

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 Eschenbach10 recounting the attempts by 

Professor Wibjorn Karlen to replicate the IPCC’s temperature analysis for the Nordic 

region. See Id. at 79; available at http://wattsupwiththat.com/2009/11/29/when-resultsgo-bad/ (last visited Feb. 10, 2010). Eschenbach was drawn to the subject by the 

inclusion in the Climategate e-mails of correspondence between Professor Karlen and 

Phil Jones, former Director of the CRU, which follows the now familiar pattern of Jones 

willfully obstructing legitimate scientific inquiry. The IPCC shows substantial increases 

in temperature in the late 20th 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. Eschenbach 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 . 

527-543
14

regions of the world, and sought clarification 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 20th century 

that is seen in surface temperature record discussed above. Eschenbach’s analysis of the 

Climategate e-mails concludes that Karlen made legitimate inquiries and “got 

incomplete, incorrect and very misleading answers.” Id.

E. SUMMARY

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 Research 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 

temperatures 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 climate 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-mails 
15

were released, 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 

unsupported include the following:

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 

savanna grassland.

A. EXTREME EVENTS FRAUD

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 Robert 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 exceptionally strong hurricane 

seasons in 2004 and 2005 accounted for almost all of the 2% increase 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 given 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 Attributing 

Trends and Projections Final Workshop Report, available 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.timesonline.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 reviewer, it simply made up a misleading and 

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:

The 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 

misrepresentation 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 tertiary 

sources, repeatedly cited such that intellectual provenance is 

lost.15

 According Pielke, Jr. “The IPCC treatment of the science of disasters and climate change 

is an even worse breach of scientific standards 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-ofscience.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 

visited 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 

disasters. 

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 RTC 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 

cherrypicked 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, 

Robert 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 

repeatedly 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 relied on Mills 2005 as the definitive source on this topic. [16] 

The disasters and climate change section of this CCSP report is also 

a fact checker’s nightmare. Second the CCSP draft Synthesis report 

and final Synthesis report [15] relied on non-peer reviewed work by 

Evan Mills and ignored relevant peer reviewed research showing 

different results (in fact all peer reviewed research points in the same 

direction on this subject). Coincidentally, Evan Mills was an author 

of the CCSP Synthesis Report that highlights 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-peerreviewed 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 rely [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 

referenced 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 Report (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 rigor 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 

conclusions are based on multiple lines of evidence and peerreviewed literature. 

RTC Response 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 

disasters. 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 Thomas 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 

disasters and climate change.”

The IPCC is now reconsidering its position on extreme 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 follow the lead of the IPCC and reconsider its position on 

extreme weather events, and give due consideration the actual scientific consensus on this 

issue.

B. HIMALAYAN GLACIER FRAUD

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 

resources 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 and 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 publish a report on natural 

disasters 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 “extremely 

arrogant,” “schoolboy science,” “totally unsubstantiated,” and “voodoo science.”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 chapter on Asia, said: “It related to several 

countries in this region and their water sources. We thought that if 

we can highlight it, it will impact policy-makers and politicians 

and encourage them to take some concrete action.

“It had importance for the region, so we thought we should put it 

in.”22

(Emphasis added). The original source for the claim was not peer-reviewed scientific 

literature – 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. 

Hasnain is now employed at TERI, the company Mr. Pachauri founded. TERI, sought 

 20 Reprint available at http://scienceandpublicpolicy.org/images/stories/papers/reprint/RainaHimalayan%20Glaciers%20Reprint.pdf (last visited Feb. 10, 2010)

21 Guardian.co.uk, “India ‘arrogant’ to deny global warming link to melting glaciers,” available at 

http://www.guardian.co.uk/environment/2009/nov/09/india-pachauri-climate-glaciers (last visited 

Feb. 10, 2010)

22UK 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-dataverified.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 ludicrous.” 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 stimulate a response from policy-makers.

The scheme was successful with the EPA, which adopted the false claim and 

relied upon it in the Endangerment 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 

bogus 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 request of the direct recipient, Iceland’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-fundingteri_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. Available 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 Reconsideration. 

C. DISAPPEARING MOUNTAIN ICE CLAIM

The Sunday Telegraph reported on January 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 one of the sources quoted was a 

feature 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, 

studying 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 climbers. 

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 

indicate a global change of climate can only be guessed 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 

reporting now that the IPCC’s conclusion has been shown to be so poorly supported.

D. AFRICAN CROP YIELDS CLAIM

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

http://www.telegraph.co.uk/earth/environment/climatechange/7111525/UN-climate-changepanel-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 

variability 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, are expected to decrease. This 

would further 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 its 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 

compromised. This would further adversely affect food security and 

exacerbate 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 

Working Group II:

In other [African] countries, additional risks that could be 

exacerbated by climate change include greater erosion, deficiencies 

in yields from rain-fed agriculture of up to 50% during the 2000-

2020 period, and reductions in crop growth period (Agoumi, 2003).

IPCC WGII, Page 448. 9.4.4. The Agoumi study29 cited here by the IPCC very briefly 

stated that in three African countries there was a risk of erosion, soil degradation and a 

 28 The Foreword to the Synthesis 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 climate 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 it presents an analysis of costs, policies and technologies 

intended to limit the extent of future changes in the climate system.

http://www.ipcc.ch/publications_and_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 Change: 

Issues and Analysis from Developing Countries and Countries with Economies in Transition. 
24

decline in yields from rain-based agriculture 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 North31 reports that upon examination, one of these two 

sources is not available on line, and the other, consisting of “initial national 

communications” by Algeria, Tunisia and Morocco to COP-7 in October 2001, do not 

support the proposition 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 However, Algeria’s report said their yields would double, and be trimmed only 

slightly by “climate change.”33 Tunisia’s submission 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 statement in the Synthesis report thusly:

the only support he has, on the basis of the primary references, is 

data 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 

visited 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.blogspot.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. 10, 

2010) (hereinafter “North, Africagate”) citing Kingdom of Morocco, Executive Summary, First 

National Communication, 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 changements climatiques, Mars 2001, Communication Nationale Initiale available 

at http://unfccc.int/resource/docs/natc/algnc1.pdf, p. 85(last visited Feb. 10, 2010) (translation by 

Richard North).

34 North, Africagate, citing “Initial Communication of Tunisia under the United Nations 

Framework 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 actually see rain-fed yields increase overall. Then, the data 

apply 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 pronouncement 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 Geographic News37 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, small changes in cereal yield are evident 

 35 North, Africagate.

36 The Sunday Times, “Africagate: top British scientist says UN panel is losing credibility,” 

February 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 such data supporting the IPCC report.”)

37 National Geographic, Sahara Desert Greening Due to Climate Change? July 31, 2009, 

available 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 

Sahelian vegetation dynamics using NOAA-AVHRR NDVI data from 1981-2003. Journal 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 rains 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.vanetwork.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 Climate 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 observed “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 and 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 making 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 position.

E. AMAZONGATE

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 to 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 

significant biodiversity loss through species extinction in many areas 

of tropical Latin America.

This is adopted from Section 13.4.1, p. 596 of WGII of the IPCC 4th AR, which asserts 

that up to 40% of the Amazon rain forest “could react drastically to even a slight 

reduction in precipitation.”46 The IPCC discussion of this issue cites to Rowell and 

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 prepared 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 visited 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 Nature which says only that “Although logging and 

forest surface fires usually do not kill all trees, they severely damage forests. Logging 

companies in Amazonia kill or damage 10-40% of the living biomass of forests through 

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 simple statement of fact that 

a blogger, Dr. Richard 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 blogger49 has shown that the IPCC relied 16 times on reports published 

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, pp505, 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-nobelwinning.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 to 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 glacier 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 

warming in the periods from 1860-1880, 1910-1940 and 1975-1998 were “similar and 

not statistically different 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 has 

been no statistically significant warming since 1995. These points indicate that the 1975 

to 1998 warming was not exceptional 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 obviously the late 20th century warmth would not be unprecedented.” 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-winningclimate_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 especially the paleoclimatic) past as 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 

recommendations.

These outfits include banks, oil and energy companies and 

investment funds heavily involved in ‘carbon trading’ and 

‘sustainable technologies’, which together make up the fastestgrowing commodity market in the world, estimated soon to be worth

trillions of dollars 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 

become known as the international ‘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, 

inevitably raising questions as to how the world’s leading ‘climate 

official’ can also be personally 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 

Pachauri,” December 20, 2009, available at

http://www.telegraph.co.uk/news/6847227/Questions-over-business-deals-of-UN-climatechange-guru-Dr-Rajendra-Pachauri.html (last visited Feb. 10, 2010)

54 The Times of India, “Pachauri slams charges about conflict of interest,” December 21, 2009, 

available at http://timesofindia.indiatimes.com/india/Pachauri-slams-charges-about-conflict-ofinterest/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 which 
31

to benefit from millions of dollars of contracts or grants to research the very problems the 

IPCC had exaggerated.55 These potential conflicts of interest and the cascade of IPCC 

blunders have led to a loss of confidence in Pachauri and to demands for his resignation56

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 beset with 

difficulties 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 of 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 

Times, “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,” 

January 29, 2010, available at http://www.guardian.co.uk/environment/2010/jan/29/ipccrajendra-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-climatechange-body.html (last visited Feb. 10, 2010).
32

NASA has cured this deficiency. The AIRS satellite has collected data refuting 

the well-mixed assumption:

AIRS research data have led to some key findings about midtropospheric carbon dioxide. For example, the data have shown that, 

contrary to prior assumptions, carbon dioxide is not well mixed in 

the troposphere, but is rather “lumpy.” Until now, models of carbon 

dioxide transport have assumed its distribution was uniform.60. 

(Emphasis added). The following image61 shows that CO2 is not well-mixed in the 

troposphere:

The same point is clear from the following image62 as well:

 60 Jet Propulsion Lab, “NASA Outlines Recent Breakthroughs in Greenhouse Gas Research,” 

December 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://www.nasa.gov/images/content/411773main_slide11-AIRS-full.jpg (last visited Feb. 10, 

2010).
33

NASA’s caption 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. CO2 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 uniform 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 concentrations between these two locations, show that 

technique is flawed, and that the analysis should be revisited. 

The well-mixed assumption 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 airborne 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 models 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 capacity 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?, 

Geophys. Res. Lett., 36, L21710, doi:10.1029/2009GL040613; University 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 anthropogenic 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 residence 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 reconsider 

its responses to comments 2-2 and 2-3, its reliance on the IPCC’s version of the carbon 

cycle, and its reliance 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 empirical observations. In 

other words, the data invalidate the models, not the other way around. The EPA should 

grant this petition and reconsider 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 Watson, has warned that 

it is on the verge of losing all credibility.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 

Environment 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 credibility,” 

February 7, 2010 available at

http://www.timesonline.co.uk/tol/news/environment/article7017907.ece (last visited Feb. 10, 

2010).
36

the firestorm 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 

Himalayan glacier claim, the African crop yield claim and the Amazonian drying claim.

In each of the instances discussed above the IPCC made 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 peerreviewed analyses that gave no cause for alarm. And in some instances, if even the nonpeer reviewed literature was not sufficiently frightening, then the IPCC embellished its 

claims by outright misrepresentation. This is not science; it is ideology unconstrained by 

the facts. It is not a proper foundation for rulemaking.

The Agency should grant this petition and convene a proceeding to reconsider its 

GHG Endangerment Finding.

Respectfully submitted this 16th 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
37

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
BEFORE THE UNITED STATES 

ENVIRONMENTAL PROTECTION AGENCY 

IN RE: 

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 

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–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), 

Representative Jack Kingston (GA – 1st 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 

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; 

Georgia Motor Trucking Association, Inc.; Collins Industries, Inc.; Collins 

Trucking Company, Inc.; Kennesaw Transportation, Inc.; J&M Tank Lines, Inc.; 

Southeast Trailer Mart, Inc,; Georgia Intermodal Services, Inc.; Georgia 

Agribusiness Council, Inc., and Southeastern Legal Foundation Inc. 

 In Petitioners’ “Second Amendment to Petition for Reconsideration,” Petitioners 

inadvertently designated “Horizon Freight System, Inc.” (“Horizon”) as one of the 

Petitioners who was joining the Petition for Reconsideration. Horizon was then named as 

one of the Petitioners in the “Third Amendment to Petition for Reconsideration.” In both 

filings, the party that should have been named is “Georgia Intermodal Services, Inc.” The 

above-caption has been corrected to reflect this change. 
2

 Respectfully submitted, this 18th 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.org 
BEFORE THE UNITED STATES 

ENVIRONMENTAL PROTECTION AGENCY 

IN RE: 

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 

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–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), 

Representative Jack Kingston (GA – 1st 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 

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; 

Georgia Motor Trucking Association, Inc.; Collins Industries, Inc.; Collins 

Trucking Company, Inc.; Kennesaw Transportation, Inc.; J&M Tank Lines, Inc.; 

Southeast Trailer Mart, Inc,; Georgia Intermodal Services, Inc.; Georgia 

Agribusiness Council, Inc., and Southeastern 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) 257-9667 
ii

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.org
iii

TABLE OF CONTENTS

I. INTRODUCTION .................................................................................................. 1

II. THREE PROMINENT BRITISH SCIENTIFIC ORGANIZATIONS HAVE 

CONDEMNED THE PRACTICES OF TOP IPCC CLIMATE SCIENTISTS AS 

REVEALED BY THE CLIMATEGATE DOCUMENTS .................................................. 1

III. THE UNITED NATIONS ENVIRONMENTAL PROGRAM HAS ORDERED AN 

INDEPENDENT REVIEW OF IPCC PROCEDURES ................................................... 5

IV. THE UK MET OFFICE HAS ASKED FOR A “DO-OVER” ON THE SURFACE 

TEMPERATURE RECORD ..................................................................................... 7

V. FURTHER EVIDENCE OF IMPROPER ADJUSTMENTS TO THE SURFACE 

TEMPERATURE RECORD ..................................................................................... 8

VI. THERE IS NO ANTHROPOGENIC SIGNAL IN GLOBAL TROPICAL CYCLONE 

FREQUENCY ....................................................................................................... 9

VII. THE IPCC UNDERESTIMATED THE INCREASE IN ANTARCTIC SEA ICE BY 50% .. 10

VIII. EMPIRICAL OBSERVATIONS CONTRADICT MODEL PROJECTIONS OF NORTH 

AMERICAN SNOW EXTENT ............................................................................... 13

IX. THE ENDANGERMENT FINDING IS CONTRARY TO THE CLEAN AIR ACT ............. 15

X. THE EPA’S GREENHOUSE GAS POLICY IS ARBITRARY AND CAPRICIOUS,

AND AN ABUSE OF DISCRETION ........................................................................ 17

XI. CONCLUSION ................................................................................................... 19
I. INTRODUCTION

The purpose of this Fifth Amendment to the Petition for Reconsideration of the 

above-referenced parties is to further support 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 Finding and the Tailoring Rule are considered 

together, it is evident that the EPA’s greenhouse gas policy is illegal, administratively 

impossible and climatically pointless. These matters have come to light since the close of 

the comment period, have central relevance to the Endangerment Finding, and support 

the Petition for Reconsideration. 

II. THREE PROMINENT BRITISH SCIENTIFIC ORGANIZATIONS HAVE 

CONDEMNED THE PRACTICES OF TOP IPCC CLIMATE SCIENTISTS AS 

REVEALED BY THE CLIMATEGATE DOCUMENTS

An inquiry into Climategate1 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 investigating committee, offering their comments on the 

poor scientific practices of the IPCC scientists 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 science that ensued from the 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 CRU2

 e-mails as published on the internet provide prima facie 

evidence of determined and 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, which requires the open exchange of data, 

procedures and materials, is vital. The lack of compliance has been confirmed 

by the findings of the Information Commissioner. This extends well beyond 

the CRU itself - most of the e-mails were exchanged with researchers in a 

number of other international institutions who are also involved in the 

formulation of the IPCC's conclusions on climate change. 

3. It is important to recognise that there are two completely different 

categories of data set that are involved 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 reconstructions 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 warming is unprecedented. Published 

reconstructions may represent only a part of the raw data available and may 

be sensitive to the choices made and the statistical techniques used. Different 

choices, omissions or statistical processes 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 the 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, those 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 bias or manipulation. 

7. Fundamentally, we consider it should be inappropriate for the verification 

of the integrity of the scientific process 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 illustrate the possibility of networks of 

like-minded researchers effectively excluding 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 sciences. It has more than 46,000 members 

worldwide. Like the Institute of Physics, the 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 integrity of their research: 

4. The apparent resistance of researchers 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 dictates 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 consequences for the reputation of science as 

a whole, with the ability to undermine the public's confidence in science. 

5. It is essential that the 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 scientific information is central to progressing 

scientific developments, as it is based on a sound knowledge of preceding 

research. Access to reliable, up-to-date 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 much dependent on willing and effective 

communication between different speciality areas. 

7. It is also imperative that scientific information is made available to the 

wider community for scrutiny: the validity 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 challenged by informed scepticism, this is 

 

3

 “Memorandum submitted by the Institute of Physics,” available at 

http://www.publications.parliament.uk/pa/cm200910/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 that the benefits of scientific data 

being made available and thus open to scrutiny outweigh the perceived risks. 

To this end, scientific information should 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 best practices are being adhered to.4

The RSC also recommended the investigation 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 been manipulated or suppressed. This is, not 

only needed in order to identify any unacceptable behaviour, but also to 

verify the results which have been published. 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 world. Its conclusions carry considerable weight 

because of the pivotal importance of proper statistical 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/cm200910/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 publication of data includes 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 conclusions. If data, or the methods used, are 

withheld, it is impossible to do this. 

10. The RSS believes that a crucial step in improving the quality of the 

debate on global warming will be to place the data, the analysis methods and 

the models in the public domain. 

Three prominent British scientific societies have now gone on record with the UK 

Parliament saying that Climategate has grave implications 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 EPA has irretrievably bound itself to the IPCC 

by relying so heavily on its findings. The EPA cannot dismiss the conclusions of 

institutions having the prestige and reputation of the Institute 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. THE UNITED NATIONS ENVIRONMENTAL PROGRAM HAS ORDERED 

AN INDEPENDENT REVIEW OF IPCC PROCEDURES

On March 10, 2010, the IPCC announced that 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 United 
6

the IPCC, and the Executive Heads of the UN Environmental Program (“UNEP”) and the 

World Meteorological Organization (“WMO”) all 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 and data quality control; 

• Guidelines for the types of literature appropriate for inclusion in IPCC 

assessments, with special attention to the use of non peer-reviewed 

literature; 

• Procedures for expert and governmental 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 process, including the management and 

administrative functions within the IPCC, and the role of UNEP and WMO, 

the United Nations system and other relevant stakeholders, with a view to 

strengthen and improve the efficiency of the assessment work and effectively 

ensure the consistent application 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/tor-independent-review-10032010.pdf, last visited Mar 10, 2010. 
7

IV. THE UK MET OFFICE HAS ASKED FOR A “DO-OVER” ON THE 

SURFACE TEMPERATURE RECORD

On or about February 19, 2010, the UK Met Office8 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 changes in any trends detected 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 propose 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 deliver confidence in the results; 

5. robust assessment of uncertainties 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 was made for the very purpose of bringing the 

datasets “up to modern standards and made fit for addressing 21st 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 manipulation evident in the Climategate documents 

and in the surface temperature record as shown by the D’Aleo and Watts report discussed 

in Petitioners’ Third Amendment to the Petition 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. FURTHER EVIDENCE OF IMPROPER ADJUSTMENTS TO THE SURFACE 

TEMPERATURE RECORD

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 century, 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 increases 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 data. 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 century, 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 Trends 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 slightly decreased the urban rate, from that of the raw data.” 

Id. This has the effect of hiding urban heating, and permitting the warming present in the 

adjusted data to be attributed not to urban warming, but to climactic 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 any regulations, on false reports, and should reconsider the 

Endangerment Finding to make sure that it has not done so here. 

VI. THERE IS NO ANTHROPOGENIC SIGNAL IN GLOBAL TROPICAL 

CYCLONE FREQUENCY

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 has suffered further disintegration. A team of 

researchers under the auspices of the World Meteorological Organization (“WMO”), an 

organizational parent of the IPCC, announced in an article published March 1, 2010, that 

In terms of global tropical cyclone frequency, it was concluded 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 concluded that the increase in storm intensity 

predicted by climate models could not be reliably separated from natural variability: 

Uncertain relationships between tropical cyclones and internal climate 

variability, including factors related to the SST distribution, such as vertical 

wind shear, also reduce our ability to confidently 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 greenhouse-forced warming cannot yet be 

confidently determined. 

Id. In conclusion, the authors stated 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 observed increase in intensity was anthropogenic. See

TSD § 4(l), pp. 45, 53. EPA further relies upon model 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 the 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 validity and reliability of these projections is 

necessarily called into question by their divergence from reality. Accordingly, the EPA 

should reconsider its conclusions that GHGs endanger human health and welfare by 

causing more frequent and intense tropical cyclones. 

VII. THE IPCC UNDERESTIMATED THE INCREASE IN ANTARCTIC SEA ICE 

BY 50% 

In the AR4 the IPCC said that while Arctic sea ice extent was decreasing at a 

statistically significant rate, there was a statistically insignificant increase in Antarctic sea 

ice extent: “There is a significant decreasing trend in arctic sea ice extent of –33 ± 7.4 × 

103 km2 yr–1 (equivalent to –2.7 ± 0.6% per decade), 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 not 
11

statistically significant.”13 In the Summary for Policymakers the same point was made: 

“Antarctic sea ice extent continues to show interannual variability and localised changes 

but no statistically significant average trends, consistent with the lack of warming 

reflected in atmospheric temperatures 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 whether 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 increase 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 statistically significant increase in Antarctic sea ice.17 Thus, 

IPCC’s source changed his analysis, but the IPCC did not. A chart comparing the IPCC 

trend (red) with Comiso’s revised trend (cyan) 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: Changes 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:10.1029/2007JC004257 
12

Figure 3. Annual Antarctic sea ice anomalies from three datasets: the one 

used by the IPCC (Comiso, 2003; red); another 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 the IPCC trend and both are statistically 

significant (the IPCC trend is not).18

Comiso published another paper in 2009 that concluded 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 the peer reviewed literature. 

In response to comment 2-111 EPA revised the final TSD to read that “[f]or the 

period 1979- 2008, Antarctic sea ice underwent a not statistically significant increase of 

 

18 Supra, at n. 15Error! 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 and its role in the recent increase of Antarctic sea ice extent. 

Geophysical Research Letters, 36, L08502, doi:10.1029/2009GL037524 
13

0.9% (about 100,000 km2; 42,000 mi2) per decade (NSIDC, 2009).” TSD p. 39; RTC 2-

111 (emphasis added). 

While the EPA acknowledges the upward trend, it errs to say this is not 

statistically significant, as Comiso clearly stated in his 2009 paper. If the increase is 

statistically significant, then it is yet another empirical refutation of the IPCC models, 

which predict a loss of sea ice in the Antarctic. This was pointed out to EPA, which 

responded in RTC 4-11 that the observed increase is statistically insignificant. 

EPA has contradicted the literature and mischaracterized the statistical 

significance of the trend in Antarctic sea ice extent increase. It appears that this 

mischaracterization permits EPA to claim that 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. EMPIRICAL OBSERVATIONS CONTRADICT MODEL PROJECTIONS OF 

NORTH AMERICAN SNOW EXTENT

The Endangerment Finding takes the position that AGW is causing and will cause 

less snow generally, and in the United States in particular, with adverse 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). Consistent with these 

findings, Lettenmaier et al. (2008) note a trend toward reduced mountain 

snowpack, and earlier spring snowmelt runoff peaks across much of the 

western United States. 

TSD p. 42. “Reduced snowpack, earlier spring snowmelt, and increased likelihood of 

seasonal summer droughts are projected 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 season 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 maximum 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 198920: 

In the Northern Hemisphere the annual snow cover, there is virtually 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://wattsupwiththat.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 interpret 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 increasing 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. THE ENDANGERMENT FINDING IS CONTRARY TO THE CLEAN AIR 

ACT

Although the Endangerment Finding directly implicates only tailpipe emissions 

from light duty vehicles, regulating these emissions 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 Prevention of Significant Deterioration (“PSD”) 

and Title V permitting programs. Recognizing this, after the close of the public comment 

period on the Endangerment Finding, EPA proposed its so-called “tailoring 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 therefore 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 applicable thresholds under the CAA are that 

not doing so would lead to “absurd results.” Therefore, “tailoring” the Act to fit EPA’s 

determination to issue an Endangerment Finding was required due to “administrative 

necessity.” 

This “tailoring” of the requirements of the CAA is plainly contrary to the 

unambiguous terms of the CAA. CAA § 169 specifies 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 emission thresholds. EPA simply proposes to 

ignore them, at least for the present. It is undisputable that EPA cannot exercise its 

discretion in a manner that is inconsistent with the plain terms 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 presentment 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-2009-0517-5129.1 
17

Accordingly, Petitioners submit that EPA missed the obvious conclusion of its 

attempted regulatory machinations: if EPA 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 regulation 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 findings 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 irretrievably inconsistent with the CAA and completely beyond EPA’s 

legal authority. Rather than compounding with one regulatory illegality with another, 

EPA should start over, reconsider the Endangerment Finding, and determine a more 

lawful and logical way to conduct its affairs. 

X. THE EPA’S GREENHOUSE GAS POLICY IS ARBITRARY AND 

CAPRICIOUS, AND AN ABUSE OF DISCRETION

The Tailoring Rule demonstrates that EPA’s attempt to regulate GHG’s under the 

CAA is: 

• administratively impossible without 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 render it impossible for permitting 

authorities to meet the requirement in CAA section 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 for 
18

• an unconstitutional attempt to fix the impossibility problem by rewriting the 

statute by means of a regulation24; 

• climatically pointless because it will not have any detectable effect on either 

global CO2 levels or AGW25. 

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 response 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.PressReleases&ContentRecord_id=564ed42f802a-23ad-4570-3399477b1393 (last visited 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 irrational, arbitrary and 

capricious, and an abuse of discretion. 

XI. CONCLUSION

The accumulation of extraordinary disclosures impeaching the work of the IPCC 

and of the EPA has been accompanied by a variety of new studies that directly contradict 

the conclusions of the EPA and the IPCC in several material respects. The supposed 

“consensus” of “settled” science in favor of EPA’s position 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 policies 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 Portland Cement Association, EPA-HQ-OAR-2009-

0517-16411.1; Comment submitted by U.S. Chamber 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 Corporate 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, 1/200th 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