### COMMENTS OF THE UTILITY AIR REGULATORY GROUP on the PROPOSED ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR GREENHOUSE GASES UNDER SECTION 202( a ) OF THE CLEAN AIR ACT Docket ID No. EPA - HQ - OAR - 2009 - 0171

HUNTON & WILLIAMS LLP Norman W. Fichthorn Allison D. Wood Aaron M. Flynn E. Carter Chandler Clements 1900 K Street, N.W. Washington, D.C. 20006 (202) 955 - 1500 Counsel for the Utility Air Regulatory Group
June 23, 2009i 

### TABLE OF CONTENTS

I. Execut ive Summary
................................ ................................ ................................ ........ 3 II. Commenters’ Abilit y To Obtain a Fair Hearing on the Merits of the E ndangerment Issue Is Undermined by the President’s Announcement of a New “Nat io nal Po licy” that Compels an Affirmative Endangerment Finding Under CAA Sect io n 202(a)(1).
................................ ................................ ................................ .. 9 III. EPA’s Stated Rationale Regarding the Statutory Fra mework and Legal Basis for an Affirmative Endangerment Finding Is Inadequate and Fails To Address Crit ical Issues Concerning the Endangerment Criterion’s Preventative Purpose.
........................ 11 IV. EPA Must Address the Fundamental Thresho ld Issue of Whether EPA May Properly Consider Condit io ns Caused Largely by Emissio ns from Outside the United States in Making Endangerment and Contribut io n Findings Under the CAA.
................................ ................................ ................................ ............................ 21 V. EPA’s “Technical Support Document for Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act” Cannot Support a Finding of Endangerment.
................................ ................................ . 22 A. The TSD Reflects Fundamentally Flawed Policy Determinat io ns About th e Inf ormation Relevant to an Endangerment Assessment that Skew EPA’s Presentation of and Conclusio ns Regarding the Science.
......................... 23 1. Exclusio n of Adaptation Considerat io ns ................................ ................. 23 2. Commingling GHG Effects and Non

- GHG Effects
................................ 28 B. The TSD and the Proposed Endangerment Finding Rely on Sources of Sci ent ific I nformat io n t hat Do Not Adequately Address the Issues Relevant Under the CAA.
................................ ................................ .................. 30 C. Concl

usion s in t he Proposed Endangerment Finding Are Unclear and Must Be Revised.
................................ ................................ .............................. 38 D. Sci ent ific Conclusio ns Stated in the TSD and Relied on by the Ad ministrator Are Incorrect.
................................ ................................ .............. 42 1. GHG Emissio ns ................................ ................................ ..................... 43 2. Observed and Projected Effects of GHG Concentrations
........................ 50 a. Tem

perature Trends and Modeling
................................ ............. 50 b. Preci

pi tation ................................ ................................ ............... 58 c. Sea Level Rise and Sea Ice
................................ ......................... 59 d. Ocean Acidificat io n ................................ ................................ .... 62ii e. Physical and Bio lo gical Sy stems
................................ ................ 6 2 f. Extreme Events
................................ ................................ .......... 66 g. “Abrupt” Climate Change
................................ ........................... 69 h. Ozone and Air Pollut io n ................................ ............................. 70 3. Effects on Public Healt h and Welfare
................................ ..................... 73 a. Human Healt h
................................ ................................ ............ 73 b. Ozone and Air Qualit y ................................ ................................ 80 c. Food Production and Agriculture
................................ ................ 81 d. Forestry
................................ ................................ ...................... 83 e. Water Resources
................................ ................................ ......... 86 f. Sea Level Rise and Coastal Areas
................................ ............... 88 g. Energy, Infrastruc tu re, and Settlements
................................ ...... 89 h. Ecosystems and Wildlife
................................ ............................ 92 4. International Impacts
................................ ................................ ............. 94 VI. The Proposed Endangerment Finding and the TSD Fail To Comply with the Data Qual it y Act.
................................ ................................ ................................ .................. 96 A. Inadequate Peer Review
................................ ................................ .................. 100 B. Lack of Transparency
................................ ................................ ...................... 101 C. Failure To Use Best Available Science
................................ ............................ 104 VII. EPA Has Not Pres ented a Proper Contribut io n Analysis for Public Comment.
............ 106 VIII. If EPA Decides To Promulgate Final Motor Vehicle GHG Rules, Regulat io n of Many Previ ously Unregulated Sources Will Result
. ................................ .................... 107 IX
. A Final Endangerment Finding wit h Respect to GHGs Under Sect io n 202(a) of th e CAA Would Not Satisfy the Prerequisites for List ing GHGs as Criteria Air Pollutants Under Section 108 of the Act.
................................ ................................ ..... 113 X. A Final Endangerment Find ing for GHGs Under Section 202(a) of the CAA Wo uld Not Sati sfy th e Cri teria Necessary To Take Any Act io n Under Section 115 of th e Act.
................................ ................................ ................................ ................... 117 XI. Concl

usion ................................ ................................ ................................ .................. 1181 COMMENTS OF THE UTILITY AIR REGULAT ORY GROUP on the PROPOSED ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR GREENHOUSE GASES UNDER SECTION 202( a ) OF THE CLEAN AIR ACT Docket ID No. EPA - HQ - OAR- 2009 - 0171

June 23, 2009

______________________________________________________________________ ________ The Utilit y Air Regulatory Group (“UARG”) submi t s the fo llo wing comments on the Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act (“Proposed Endangerment Finding ”), which the U. S. Environmental Protection Agency (“EPA” or “Agency”) publish ed f or public co mment on April 24 , 200 9
. 74 Fed. Reg. 18886 (April 24, 2009). UARG is a vo luntary, not
- fo r - profit group of electric generat ing co mpanies and organizations and four national tra de associat io ns (the Edison Electric Inst it ute, the National Rural Electric Cooperative Associat io n, the American Public Power Associ at io n, and the National Mining Associat io n). UARG’s purpose is to participate collect ively on behalf of its members in EPA ’s rulemakings and other proceedings under the Clean Air Act (“CAA” or “Act” ) that affect the interests of electric generators and in lit ig ation ari sing fro m t hose proceedings. UARG members would be significant ly affected by any decisio n s EPA may make concerning the regulat io n of greenhouse gases (“GHG s ”) under the exist ing provisio ns of the CAA. UARG appreciates the opportunit y t o c omment on the Proposed Endangerment Finding and emphasiz es that the issues raised by t he potential regulat io n of GHGs under th e Act are crit ical to its members as well as to th e public and the business co mmunit y generally
. UARG previously submitted extensive co mments to EPA on its Advance Notice of Proposed Rulemaking Regarding Regulat ing Greenhouse Gas Emissions Under the Cle an Air2

Act (“ANPR”), which the Agency published on July 30, 2008. 73 Fed. Reg. 44354. In the ANPR, EPA sought co mment on a broad array of issues relevant to EPA’s possible regulat io n of GHGs under the CAA. In particular, EPA noted that “[t]he potential regulat io n of greenhouse gases under any portion of the Clean Air Act could result in an unprecedented expansio n of EPA authori ty th at would have a profound effect on virtually every sector of the economy and touch every househo ld in t he land.” Id. at 443 55 /1
. In the Proposed Endangerment Finding, EPA specifically requested that commenters “submit to the docket for today’s act io n any co mments th ey want EPA to consider as it makes a decisio n on this proposed determinat io n.” 74 Fed. Reg. at 18893 n.15. As a result, UARG ’s ANPR co mments are attached to the present comments as At tachment A and should be treated as part of these comments. For convenience, UARG’s comments are here referred to as “UARG ANPR Comments.” UARG notes that, on June 9, 2009, it submit ted, through i ts counsel, a request for a 60

- day extensio n of the public co mment period in this rulemaking. See EPA
- HQ
- OAR
- 2009
- 0171
- 2643 (June 9, 2009) (“UARG Letter”) . UARG’s letter requested an extensio n “ [b ]ecause of the importance of this rulemaking and the complex nature of many o f t he issues addressed in the Endangerment Proposal and the accompanying Technical Support Document.” Id. UARG observed that “[t]he additional t ime would allow commenters to submit more detailed informat io n t hat should assist EPA in its decisio n in this important matter.” Id. UARG added th at no deadline or other specific t ime constraints would preclude an extensio n: [A]s EPA has acknowledged, no legal deadline applies to this rulemaking, and EPA has not announced an in tended date for final action. See, e.g. , EPA, Spring 2009 Regulatory Agenda, at 44 (May 11, 2009). In addit io n, the Agency has not yet proposed for public co mment any motor vehicle emission standards that would be based on any final findings of endangerment and contribut io n. Thus, a 60
- day extensio n of the comment period on the Endangerment Proposal would neit her interfere with any deadline nor delay any standard

- setting.3

Id. EPA responded to UARG’s letter on June 18, 2009, by denying an extensio n of a ny length , despite the absence of any rulemaking deadline or other timing constraint and without addressing UARG’s argument on that point. In the fo llo wing comments, UARG describe s what it believes to be the most crit ical deficiencies in the Proposed Endangerment Finding and in EPA’s

“ Technical Support Document for Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act ” (“TSD”) . EPA’s un warranted refusal to extend the comment deadline , however, has lim it ed th e abilit y of UARG (and others) to submit addi

tional comments and other information th at would assist in th e development of an appropriate outcome in this proceeding
. I. Executive Summary UARG has great concern about the Proposed Endangerment Finding and the prospect that GHG emissio n s will be regulated under the CAA. Our comments on the Proposed Endangerment Finding focus on the following key issues:

· This action is unlawful because the outcome is preordained. The integrit y o f t his proposed action is com

promised by the apparent fact that the President and EPA already have definit ively concluded that th e Agency must make an affirmat ive endangerment finding under sect io n 202(a)(1) for GHG emissio ns to allo w implementation o f a new national po licy announc ed by the President on May 19, 2009
.
· The asserted legal basis is insufficient. EPA provides a who lly inadequate explanation and assessment of the key CAA provisio ns that purportedly authorize and just ify the Proposed Endangerment Finding
.
· The scientific and factual basis that EPA has presented for the Proposed Endangerment Finding is inadequate and incomplete. For example, the Administrator unlawfully defers to the judgment of the Intergovernmental Panel on Climate Change (“ IPCC ”) rather than fo rm ulat ing her own assessment of the facts.

· The contribution analysis is misdirected. Among other things, EPA’s analysis incorrectly ass ume s that GHG emissio ns from all motor vehicles are a suitable surrogate for emissions fro m new mo tor vehicles, which are the o nly vehic les th at EPA is potentially authorized to regulate under section 202(a)(1).4

· The A gency has unreasonably failed to consider the full consequences of making an endangerment finding and of regulating new motor vehicle ’s GHG emissions. EPA cannot pu t on blinders and willfully ignore such compelling issues as the potenti al applicabilit y o f t he Act’s Prevention o f S ig nificant Deterioration (“PSD”) requi rements to G HGs and arguments that may be raised based on a section 202(a)(1) endangerment finding in th e context of other CAA provisio ns , such as sections 108 and 115 , that i ncl ude an endangerment criterion
. As sect io n II of these comments discusses, less than a month after EPA published the Proposed Endangerment Finding , the President on May 19, 2009, announced what the White House called “a new nat io nal po licy” to “reduc[e] greenhouse gas pollut io n fo r all new cars and trucks sold in the United States.” White House Press Release, “President Obama Announces National Fuel Ef

ficiency Policy” (May 19, 20 09). The President’s new nat io nal po licy requires th e promulgat io n by EPA o f GHG emissio n standards under sect io n 202 of the CAA in conj unct io n with the establishment by the Depart ment of Transportation (“DOT”) of co mparable nat io nal fuel econo my st andard s fo r vehicles under the Energy Policy and Conservation Act (“EPCA”)
. This Presidential announcement effect ively set the course for EPA with respect to its decisio n whether to control GHG emissio ns fro m vehicles under sect io n 202. The only real questions le ft to EPA concern certain details o f how

– but not whether

– to control those emissio ns under sect io n 202. See generally EPA and DOT, Notice o f Upcoming Jo int Rulemaking To Establish Vehicle GHG Emissio ns and CAFE Standards, 74 Fed. Reg. 24 007 (May 22, 2009) (“Joint Rulemaking Notice”). Promulgat io n by EPA of a final affirmative endangerment finding, of course, is a necessary step for EPA to regulate under section 202 in fulfillment of the President’s po licy . These circumstances undermine EPA’s abilit y t o provide anyt hing remotely approaching an object ive consideration of, and legally adequate response to,5

rulemaking comments on the Proposed Endangerment Finding th at question or rebut the Agency’s asserted basis for an affirmative endangerment finding. Section III of these comments addresses the inadequacy o f E PA’s rationale for its Proposed Endangerment Finding and its failure to address crit ical issues concerning the endangerment criterion’s purpose of preventing harm. T he CAA and its endangerment p rovi sion s do not call for “regulat io n fo r regulat io n’s sake” but for regulat io n where it can be shown to achieve the statutory objective of preventing damage . As stated in 1977 legislat ive history quoted by EPA, the effect of the CAA’s endangerment criter io n is “[t]o emphasize the prevent ive or precautionary nature of the Act, i.e., to assure that regulatory action can effectively prevent harm bef

ore i t o ccurs.” 74 Fed. Reg. at 18891 n.8 (emphasis added). The Agency inexplicably (and inadequately) attemp ts to refute this fundamental point in the Proposed Endangerment Finding
. In particular, EPA states its disagreement wi th comments that argue the Administrator cannot make a posit ive endangerment or contribut io n determinat io n unless the emissio ns reduct io ns requi red by the result ing standards would “effect ively mit igate” or “fruit fu lly attack” the impacts underlying the endangerment determinat io n. . . . [S]uch an approach fails to appreciate the ho list ic approach that Congress adopted in [the] 1977 [amend ments to the CAA]. Id. at 18893/1. EPA does not dispute that the “fruit fu lly attack” phrase co me s di rect ly fro m t he decisio n of th e U.S. Court of Appeals for the District of Columbia Circuit in the seminal case addressing th e CAA endangerment criteria, Ethyl Co. v. EPA , 541 F.2d 1, 31 n.62 (D.C. Cir. 1976) ( en banc ). Indeed, EPA characterizes Ethyl as providing the conceptual foundat io n fo r the 1977 statutory amendments to the endangerment provisions that the Agency cites. 74 Fed. Reg. at 18891/2. The poi

nt of th e “fruit fu lly attack” language and other quoted passages fro m Ethyl , of course, is that “the preventive or precautionary nature of the CAA” that EPA ostensibly6

recognizes in the CAA’s endangerment provisio ns, id. at 18891 /3 n.8 , calls for regul atory act io n where that action promises to avert the threatened harm. Yet, while failing to provide any meaningful explanation o f it s “ho list ic approach” theory, EPA fails to show that the contem plated regulation resul

ting fro m it s Proposed Endangerment F inding would prevent at least a substant ia l part of the danger fro m t he global climate change at which the regulat io n
ostensibly is aimed. As Section IV of these comments discusses, EPA also has failed to address the thresho ld issue of whether EPA, in mak ing its proposed findings, properly may consider condit io ns caused largely by emissio ns fro m no n - U.S. sources that are inherently beyo nd the scope of U.S. regulatory authori

ty . This failure to address a central issue in the proceeding const it ut es a crit ic al procedural flaw. On the merits, EPA lacks authority to base an endangerment and cause or contribute finding on conditions predominant ly attributed to non

- U.S. sources. Section V below addresses EPA’s discussio n of the science. EPA bases th e Proposed Endangerment Finding on numerous alleged scientific grounds. The di scussio n of the science in th e Proposed Endangerment Finding , however, is woefully inco mp lete and the Agency ’s concl usion s are simultaneously overbroad and, at times, impenetrably vague. These shortcomings render the basis for EPA ’s po licy judgments unsound and require significant revisio ns and enhancement s bef ore EPA could proceed in this rulemaking
. Further, EPA bases it s proposed scient ific judgments on the TSD, which is an inaccurate and inadequate assessment of the current state of climate

- related science. This document also would have to be substant ia lly revised if EPA is to proceed further with its proposal to make an endangerment finding. T he TSD: (1) reflects fundamentally flaw ed policy determinat io ns about th e relevant informat io n t hat skew EPA’s presentatio n of the science; (2) relies on sources of7

informat io n t hat do not adequately address the scient ific issues relevant under the CAA; (3) co nt ains improper and inaccurate char acterizations of the conclusio ns that can reasonably be drawn fro m t he scient ific studies and assessments it cites; and (4) ignores important scient ific informat io n t hat undermines EPA’s stated conclusions regarding the negat ive and posit ive impacts of cli mate change, including representations concerning th e import of substant ia l uncertaint ies in the scientific record. A wid e range of flaws ident ified in these comments on the TSD are reflected in the Proposed Endangerment Finding as well. Moreover, as Section VI of th ese comments details, the serious shortcomings of the Proposed Endangerment Finding and the TSD constitute vio lat io ns of the Data Qualit y Act. Section VII of the comments discusses elements of EPA’s “contribut io n” analysis under sect io n 202(a)(1) of the Act . That analysis should address the contribution o f e missio ns fro m t he relevant U.S. sources to total worldwide GHG emissio ns and atmospheric concentrations. Because the stated purpose of this proceeding is to address contribut io ns to what EPA characterizes as air po llut io n t hat consists of global at mo spheric concentrations of certain gases, it mak es no sense to assess U.S. emissio ns o f t he sources to be regulated in relat io n to all U.S. emissio ns, with respect to either a single GHG or all six GHGs in the aggregate. Moreover, the relevant emissio ns to be assessed in the contribution analysis are those fro m new U.S. motor vehicles only, not from all U.S. motor vehicles. The emission percentage that EPA cites (4.3%) , 74 Fed. Reg. at 18 90 6/ 3 , reflects emissio ns fro m a ll sect io n 202(a)(1) sources, not emissio ns fro m t hat subset of section 202(a)(1) sources, i.e. , new vehicles, that EPA is authorized to regulate. Moreover, EPA should further refine the contribut io n assessment to address th at su bset of new sect io n 202(a)(1) sources whose GHG emissions it plans to address through regulat io n.8

Section VIII of the comments discusses implicat io ns o f t his proceeding for the PSD and Ti tle V programs under the Act. As EPA recognized in the ANPR, “if EP A were to regulate greenhouse gas emissio ns fro m mo tor vehicles under the Clean Air Act, then regulat io n of smaller stationary sources that also emit GHGs

– such as apart me nt buildings, large ho mes, school s and hospitals

– could also be triggered” through th e Act’s PSD program. 73 Fed. Reg. at 44355/1. The potential for regulation o f GHGs under the PSD program presents an enormous challenge for EPA and the nat io n. Similar challenges would be posed under the Tit le V program. S ections IX and X address pos sible arguments that could arise under two CAA provisio ns concerning stationary sources

-- sections 108 and 115, respectively

-- if EPA makes an affirmat ive endangerment finding for GHGs under section 202(a)(1). S hould EPA decide to make final th e Propose d Endangerment Finding , that finding would not be disposit ive with regard to section 108, which governs the list ing of cri teria ai r pollutants. Section 108 contains different language fro m t hat in sect io n 202. Unlike section 202(a), sections 108 and 109 of th e CAA authorize list ing of a pollutant as a criteria air pollutant, and regulat io n of that pollutant th rough NAAQS , f

or the purpose of addressing any endangerment of the public health or welfare th at may reasonably be ant ic ipated due to the quantit ies of th e pollutant in the ambient air , i. e., th e relat ively limited portion o f t he atmosphere to which the general public has access. Thus, before the Agency could list any GHGs as cri teria ai r pollutants under sect io n 108 of the Act, it would have to dete rmine what, if any, effects on U.S. public healt h or welfare occur due to the presence of GHGs in t he ambient air in t he United States. The Proposed Endangerment Finding and TSD do not address this matter . Indeed , the absence of informat io n regarding the effects of GHGs on public health and welfare due to their presence in the U.S. ambient air could, in fact, provide at least one reason for th e Administrator to conclude that she has no “plans to issue air9

qualit y cr it eri a” for GHGs

– which also is a prere qui si te f or list ing under sect io n 108. CAA § 108(a)(1)(C). Lik ewise, for reasons discussed in Section X below, if the Administrator makes a final endangerment finding in the present proceeding, that finding would not sati sfy th e requi rements of sect io n 1 15 , the Act’s provisio n addressing internat io nal po llut io n . II. Commenters’ Ability To Obtain a Fair Hearing on the Merits of the Endangerment Issue Is Undermined by the President’s Announcement of a New “National Policy” that Compels an Affirmative Endangerme nt Finding Under CAA Section 202(a)(1). Less than a month after EPA published the P roposed E ndangerment F inding, the President on May 19, 2009, announced what the White House called “a new national po licy” to “reduc[e] greenhouse gas pollut io n fo r all new cars and trucks sold in the United States.” White House Office of the Press Secretary, Press Release, “President Obama Announces National Fuel Efficiency Policy” (May 19, 2009). The President’s new national po licy requires the prom ulgation by EPA of GHG emissio n standards under sect io n 202 of the CAA in conjunct io n wi th th e establishment by DOT of comparable nat ional fuel econo my standards for vehicles under EPCA . The White House and Administrator Jackson, who appeared with the President at his anno uncement of the new policy, presented the decisio n as the resolut io n of controversies

-- a resol ut io n , brokered by th e President and his staff, to which certain “stakeho ld ers” reportedly had agreed af

ter closed

- door discussio ns -- about whether and how to co nt rol new motor vehicles’ GHG emissio ns. The White House and the Ad ministrator made the announcement of thi s “nat io nal po licy on fuel econo my st andards and greenhouse gas emissio ns” in terms that indicate that the Executive Branch deems the present endangerment rulemaking litt le mo re than a fo rmali ty and a final endangerment finding essent ially a fait accompli : This groundbreaking policy delivers on the President’s co mmit ment to enact more stringent fuel econo my st andards and represents an unprecedented collaboration between the Department of Transportation (DOT), the Environmental Protection Agency (EPA), the world’s largest auto manufacturers, the United Auto Workers,10

leaders in the environmental communit y, th e State of California, and other state governments.

“ The President brought all stakeholders to the table and came up w ith a plan to help the auto industry, safeguard consumers, and protect human healt h and the environment for all Americans,” said EPA Administrator Lisa P. Jackson. “ A supposedly ‘un solvable’ problem was solved by unprecedented partnerships. As a resul t, we will keep Americans healt hier, cut tons of pollut io n from the air we breathe, and make a last ing down payment on cutting our greenhouse gas emissio ns .” Id. (emphas e s added). The President himself referred to “this rule”

-- “t his new nat io nal standard”

-- as an accomplished fact; he stated, for example, that “the Department of Transportation and EPA will adopt the same rule .” 1 The White House Office of the Press Secretary, “Remark s by the President on National Fuel Efficiency Standards,” Rose Garden, May 19, 2009 (emphasis added). In short, t he President’s Rose Garden announcement

-- a major news event that commanded front

- page headlines and led televisio n news programs throughout th e country
-- establishes a new nat io nal po licy that requires EPA to adopt section 202 GHG standards. Thus, th e outcome of th e present proceeding appears to be preordained and th erefore, necessarily, th e merits of the endangerment issue to be prejudged. Whatever the arguments may be for this new nat io nal polic y, it s announcement by the President effect ively sets the course for EPA with respect to its decisio n whether to control GHG
1 The fact that, as the President stated, DOT “will” adopt “the same rule” as EPA will adopt makes EPA’s prospective sect io n 202 emissio n standards

-- and its sect io n 202(a)(1) endangerment finding

-- unnecessary to the achievement of the GHG emissio n reductions that would be based on that finding. As discussed in section III o f t hese comments, this fact undermines any claim that the Proposed Endangerment Finding is grounded in the preventative principle on which sect io n 202(a)(1) is based. In other words, even assuming that the emission reductions that would occur under the co nt emp lated section 202 standards would prevent any appreci able part of the endangerment EPA proposes to find (an implausible assumpt io n t hat EPA has not even attempted to support), those emissio n reductions would, due to the DOT standards, occur even in the absence of any section 202 regulation.11

emissio ns fro m vehicles under sect io n 202. In essence, the only real questions lef t to EPA concern certain details o f how

-- but not whether

-- to regulate those emissio ns under sect io n 202. See generally Joint Rulemaking Notice , 74 Fed. Reg. 24007 (di scussing details of ways to structure section 202 standards in conjunct ion wi th f uel efficiency standards )
. Promulgat io n by EPA of a final affirmat ive endangerment finding, of course, is a necessary step fo r EPA to take in order to regulate under section 202 in fu lfillment of the President’s po licy . These ci rcumstances serio us ly undermine EPA’s abilit y t o provide anyt hing remotely approaching an obj ect ive considerat io n of , and a legally adequate response to , rulemaking co mments that question or rebut the Agency’s asserted basis for an affirmative endangerment finding. 2 III. EP A’s Stated Rationale Regarding the Statutory Framework and Legal Basis for an Affirmative Endangerment Finding Is Inadequate and Fails To Address Critical Issues Concerning the Endangerment Criterion’s Preventative Purpose . Given the vo lu me and range of comments that EPA received on legal issues raised by the ANPR, 3 and given the enormous importance of the present proposal, UARG expected a much
mo re substant ia l treatment by EPA of the legal issues implicated by the Proposed Endangerment Finding th an ap pears in the proposed rule . Perhaps the limited nature of EPA’s discussio n of relevant legal issues here is explained by its implicit reliance on the ANPR to supplement EPA’s present statement of basis for purposes of public notice. See 74 Fed. Reg. at 1 8893 n.15. EPA has, however, only attem

pted “to respond to a few key [ANPR] comments related to the test that

2 See 74 Fed. Reg. at 18889 n.4 (applying the procedural requirements of CAA section 307(d) to thi s proceeding). If EPA now believes, notwithstanding the President’s directive that the Agency regulate GHG emissio ns under sect io n 202, that it can provide fully object ive considerat io n, on th e merits, of all co mments in this proceeding, the Agency should explain the basis for that belief in a supplemental notice of proposed rulemaking. 3 As noted above, UARG inclu des here its comments on the ANPR, filing them in this rulemaking docket for EPA’s review and response.12

some stakeho lders believe guides the Administrator when undertaking an endangerment analysis and cause or contribute evaluat io n.” Id. EPA’s att em pted response is not only limited but also inadequate in key respects. EPA expresses its disagreement with ANPR co mments, presumably including UARG’s (see UARG ANPR Co mments at 32
- 33), that address the preventative, or precautionary, test established by CAA provisio ns suc h as sect io n 202(a)(1). EPA states its disagreement wi th comments that argue the Administrator cannot make a posit ive endangerment or contribut io n determinat io n unless the emissio ns reduct io ns requi red by the result ing standards would “ effect ively mit igate” or “fruit fu lly attack” the impacts underlying the endangerment determinat io n. . . . [S]uch an approach fails to appreciate the ho list ic approach that Congress adopted in [the] 1977 [amendments to the CAA]. Id. at 18893 /1
. Yet EPA does not dispute that the “fruit fu lly attack” phrase quoted in UARG’s ANPR comments comes direct ly fro m t he decisio n of the U.S. Court of Appeals for the District of Col umbia Circuit in the seminal case addressing the CAA endangerment criteria, Ethyl Co. v. EPA , 541 F.2d 1, 31 n.62 (D.C. Cir. 1976) ( en banc ). Indeed, EPA characterizes the Ethyl decisio n as providing the conceptual foundation for the 1977 statutory amendments to the endangerment provisio ns that the Agency cites. 74 Fed. Reg. at 18891 /2
. The point of the “fruit fully attack” language and other quoted passages from Ethyl , of course, i s that “the prevent ive or precautionary nature of the CAA” that EPA ostensibly recognizes in the CAA’s endangerment provisio ns, id. at 18891/3 & n.8 , calls for regulatory act io n where that action promises to avert the threatened harm. See also id. at 18890/2 (statutory purpose is to “prevent harm”); id. at 18890/3 (same); id. at 18891/1 (same). In other words, t he CAA and its endangerment provisio ns do not call fo r “regulat io n fo r regulat io n’s sake” but for regulat io n wh ere it can be show

n to achieve the statutory objective of preventing damage . As stated in13

1977 legislat ive history quoted by EPA here , the effect of the CAA’s endangerment criterion is “[t]o emp hasize the prevent ive or precautionary nature of the Act, i.e., to assure that regulatory action can effectively prevent harm before it occurs.” Id. at 18891 n.8 (emphasis added). EPA never explains what it means by the “ho list ic approach” th at it says C ongress adopted in the 1977 CAA amendments and how that supposed approach should apply here; it says litt le mo re on th at point than that Congress directed EPA to “consider the who le p icture.” 4 Id. at 18893 /2. Instead, EPA sets up a strawman: The Agency implies that commenters such as UARG suggest that regulatory action under the endangerment criterion can be just ified only if th at action “ alone can solve th e problem.” Id. (emphases added). As EPA characterizes this putative “all or nothing” posit io n , c ommenters’ “various narrow approaches to the endangerment and cause or contribute criteria
. . . wo uld preclude the Administrator from making a posit ive finding for any complex po llut io n problem that cannot be solved by one regulatory action alo ne.” Id. But that does not represent at all the view advanced in UARG’s co mments. To the contrary, as explained in it s ANPR co mments (included here as Attachment A), UARG observes that the facts that ju stified “endangerment” regulation in Ethyl illustrate the principle that must guide EPA here: In the case of the lead in motor vehicle fuels addressed in Ethyl , . . . th ere were strong reasons for EPA to believe that regulat io n of the lead in fuels would prevent at least a substantial part of the danger to public hea lt h posed by human exposure to that air pollutant. See, e.g., Ethyl , 541 F.2d at 31 (The Administrator “determined that absorption of lead automobile emissio ns, when added to all other human exposure to lead, raises the body lead burden to a level that wi ll endanger healt h. He realized that lead automobile emissio ns were, far and away, the most readily reduced significant source of environmental lead.”).

4 Resort to the dictionary is of limited help here. See, e.g. , Funk & Wagnalls Standard Co llege Dict io nary (1977) (defining “ho lism” as “[t]he theory th at a material object, especially a living organi sm, has a realit y o th er and greater than the sum of its const it uent parts”).14

UARG ANPR Comments at 32 (emphasis added). It was for this reason that the Ethyl co urt said th e emissio n control regulat io n t hat would be based on EPA’s endangerment finding can “fruit fully ... attack”

-- not necessarily solve by it self, but meaningfully and substant ia lly reduce

-- th e environmental and public healt h danger at hand. See, e.g. , Ethyl , 54 1 F.2d at 8, 9 (“lead particulate emissio ns from gaso line engines [i.e., the emissions that would be regulated] account fo r approximately 90 percent of the lead in our air”; these “easily . . . controllable” emissio ns “can be simply eliminated by remo ving lead from gaso line”). Thus, it is not a valid defense of th e Proposed Endangerment Finding fo r EPA to make th e (presumably) undisputed point that no single section 202 GHG emissio n standard ( and no other individual CAA emissio n standard) can, on its own, “so lve” global climate change or “so lve” the array of problems EPA says are associated with that glo bal change. 74 Fed. Reg. at 18 893 /2. The CAA does not necessarily set the bar so high. But EPA here has fallen short of a much lower hurdle th at i

t m ust clear to produce a defensible rat io nale for an affirmat ive endangerment finding : It has failed to show

-- indeed, it has failed even to attempt to show

-- th at the contemplated regulat io n result ing fro m such a finding would prevent at least a substant ia l part of th e danger fro m t he global climate change at which the regulation ostensibly is aimed. 5 Given the importance of this issue in administration of the CAA’s endangerment provi sion s, if EPA believes that a basis exists to conclude that regulat io n of G HG emissio ns from

5 EPA acknowledges in the Proposed Endangerment Finding that, in applying the endangerment and contribut io n criteria in sect io n 202(a)(1), it is appropriate to consider whether meaningful emissio n reductions would occur as a result of making a finding under that provisio n. See, e.g. , 74 Fed. Reg. at 18908/1 (citing the asserted availabilit y o f “valuable reductions” in methane emissio n le vels as a “primary” reason that methane emissio ns should be the subject of a sect io n 202(a)(1) finding).15

new U.S. motor vehicles would meaningfully reduce th e endangerment it proposes to find, then EPA should publish for public co mment a supplemental notice providing that basis. Any assessment of this issue, however, would have to take into account the degree of contribut io n to th e asserted endangerment that section 202 regulatio n actually would address. In that regard, EPA would need to begin by refining its “contributio n” analysis in the Proposed Endangerment Finding to address issues suc h as those described below. In the Proposed Endangerment Finding , EPA presents informat io n on the contribut io n to total GHG emissio ns 6 of “all of the sect io n 202(a) source categories,” meaning passenger cars, light

- duty trucks, motorcycles, buses, and m edium/heavy

- dut y t rucks. Id. at 18905 / 3. EPA has failed to present informat io n, however, on the part of the contribut io n th at i s attri butable to the statutorily covered sources , i.e. , the contribut io n of emissio ns from that portion of “t he sect io n 202(a) so urce categories ” th at constitutes “new” motor vehicles wi thin those source categories
. CAA § 202(a)(1). Section 202(a)(1) plainly gives EPA no authorit y t o impose addit io nal emissio n control regulat io ns on , or to make an endangerment finding concerning , exist ing vehicles. Thus, fo r example, th e maximum degree of any glo bal climate change endangerment th at might be removed or prevented by sect io n 202(a)(1) standards would be far less than that represented by the 4.3% of global GHG emissio ns that EPA attributes to all section 202(a) sources, both exist ing and new. See 74 Fed. Reg. at 18906/3
. Moreover, since publicat io n of the Proposed Endangerment F inding, EPA has explained th at only a subset of even the new

- source subcategory of sect io n 202(a) source s would in fact be
6 As discussed in sect io n VII below, the contribut io n to total emissio ns must be assessed in terms of contribut io n to total global emissio ns, not i n t erms of contribution to total U.S. emissio ns. That is because any glo bal climate change endangerment found by EPA would result, in the aggregate, from glo bal atmospheric concentrations of GHGs, which are influenced in an undifferent iat ed way by em issio ns fro m a ll sources of all t ypes in all parts of the world.16

regulated under section 202(a) as a result of a final endangerment finding. In the May 22 Jo int Rulemaking Notice, EPA states that it intends, based on its ant ic ipated section 202(a)(1) endangerment finding, to propose GHG emissio n standards under sect io n 202(a) for “passenger cars, light

- duty trucks, and medium

- dut y passenger vehicles (light

- duty vehicles) built in model years 2012 thr ough 2016.” 74 Fed. Reg. at 24 007 /3. Thus, the subcategory of new sect io n 202(a) sources that EPA is target ing fo r regulation includes some , but not all, ty pes of U.S. vehicles built in five specified model years but excludes certain classes of “sect io n 202(a) source categori es ” al

together, including motorcycles, buses, and medium/heavy

- dut y t rucks. Comp are 74 Fed. Reg. at 18905 / 3 (list ing, in the Proposed Endangerment Finding , “Sect io n 202(a) source categori es”) wi th 74 Fed. Reg. at 24 007 / 3 (describing , in the Joint Rulemaking Notice, th e sect io n 202(a) source categories EPA plans to regulate under sect ion 202(a) ). From the informat io n EPA has presented, it is unclear what portion of a projected 4.3% total contribut io n to GHG emissio ns can be attributed to new U.S. “passenger cars, light

- duty trucks, and medium

duty passenger vehicles (light

- duty vehicle s) built in model years 2012 through 2016”

-- as opposed to the far larger collect io n of sources, including exist ing motor vehicles of all sorts and new medium

- and heavy

- dut y t rucks, buses, and motorcycles, that EPA’s Proposed Endangerment Finding charact erizes as th e “sect io n 202(a) source categori e s.” 74 Fed. Reg. at 18905/3. Thus, the 4.3% contribut io n percentage cited by EPA greatly overstates the contribution to total GHG atmospheric concentrations that section 202(a) regulat io n would address. Furthermore, even if one determine d what part of the asserted 4.3% contribut io n reflects emissio ns fro m t he limited subset of section 202(a) sources that EPA plans to regulate, th at lower
amount would still be far higher than the emissio ns that would be controlled by t he sect io n17

202(a) regulat io n -- which is the legally relevant portion of the emissions
. EPA’s sect io n 202(a) emissio n standards obviously will not eliminate anyt hing remotely approaching all GHG emissio ns fro m t he subset of vehicles that are regulated under those standards. EPA intends to adopt a “generally linear phase

- in from [model year] 2012 through to
mo del year 2016,” leading to an average limit of 250 grams of carbon dio xide (“ CO 2 ”) per mile in t he last of those five m odel years. 74 Fed. Reg. at 24 008 / 3. Given this phase

- in approach, emissio ns fro m r egulated vehicles built in the earlier years will have higher CO 2 emissio ns than those built in the later years. EPA’s planned approach invo lves a gradual reduct io n from what might b e considered an emissio n baseline o f 325.5 grams per mile in model year 2011. See 74 Fed. Reg. 14196, 14412 /2 (Mar. 30, 2009) (final fuel econo my st andards for model year 2011 passenger cars and light trucks). That amounts to approximately an eventual 23 % reduction in th e emissio n rate, phased in slowly over a period of six model years and, of course, still leaving 77% of the baseline emissio ns . The abilit y o f t he Proposed Endangerment Finding to prevent or reduce asserted harms should be evaluated in re spect to the emissio n reduct io n actually contem plated, which is far less than all emissio ns from the subcategories of new sources to be regulated. In evaluating the potential of the sect io n 202(a) regulat io ns to prevent or reduce th e asserted endanger ment, moreover, EPA would need to address the fact that individual consumers, businesses, and other vehicle purchasers can be expected to co nt inue to operate exist ing vehicles to a greater extent than would otherwise be the case in order to avo id or defer paying the increased price s fo r new vehicles that will have to be manufactured, at greater cost, to meet more demanding emissio n and fuel econo my st andards. As a result of the expected emissio n and fuel economy standards, “EPA est imates an average increas ed cost of about $1,30018

per vehicle in 2016 compared to today’s vehicle s .” EPA Office of Transportation and Air Qualit y, “Regulatory Announcement: EPA Will Propose Historic Greenhouse Gas Emissio ns Standards for Light

- Duty Vehicles,” at 1, EPA

- 420
- F
- 09
- 0 28 (May 2009). Although EPA believes fuel savings over time would offset the higher cost, see id. at 1
- 2, it is unclear that that fact, even if correct, would overcome vehicle purchasers’ reluctance to pay

-- or, in many cases, th ei r inabilit y t o afford

- - a higher upfront vehicle price. The disincent ive of higher vehicle prices, and the result ing retention of exist ing vehicles that are not subject to GHG emission control s and are less fuel efficient, would further limit the emission reduct io ns that would resul t fro m EPA’s prom

ulgat io n of a final endangerment finding. See, e.g. , Elizabeth Shogren, “E nvironmentalists Say Obama’s Auto Plan Is a Start,” National Public Radio Transcript (May 20, 2009) (“NPR Transcript”) (“Some experts say Obama’s proposal wou ld drive up the cost of
new cars -- by $1,300, according to the White House

-- and make people more likely to hold on to thei r old cars. ‘Those older cars tend to be of lower fuel efficiency and significant ly mo re pollut ing, so there’s a counterproductive effect,’ says Robert Stavins, director of Harvard Universit y’s enviro nmental econo mics program. ”); see also National Research Council, Effectiveness and Impact of Corporate Fuel Economy ( CAFE ) Standards , National Academy Press (2002) (finding increased fu el efficiency leads to addit io nal driving, which increases vehicle emissio ns, and substantially adds to traffic

- related mortali ty ). Moreover, any assumpt io n t hat overall GHG emissio n reductions will result from a ny shift th at might occur to vehicles with lo wer GHG emissio ns per mile rests on the implausible premise that total vehicle miles traveled will not increase due to consumers’ recognit io n of the per - mile fuel

- cost reduction that the White House argue s will o ffset higher vehicle prices. N ational Pub lic Radio (“NPR”) reports that Harvard Professor Robert N. Stavins “po int s to19

another shortcoming of the fuel econo my [and the tandem GHG] standards. ‘Once you’ve bought the car, it doesn’t provide an incent ive to drive it any less,’ he says. ‘In fact, b y increasing fuel efficiency, it actually provides an incent ive to use the car more because it lowers th e operating cost.’” NPR Transcript. Similarly, according to NPR, David Friedman, the Research Director of the Union o f Concerned Scient ist s’ Clean Veh icles Program and a supporter of the President’s plan to impose GHG vehicle emissio n controls, “concedes that total greenhouse gas pollut io n from vehicles might not be any less 10 years from now because of
mo re motorists on the road driving more miles.” I d. The factors described above call int o question any concl usion th at EPA might make that an affirmat ive endangerment finding and result ing sect io n 202(a) standards would have any appreci able effect, let alone a substant ia l effect, in prevent ing or reducing any danger from global climate change. Yet these factors are among those that EPA fails to examine in the Proposed Endangerment Finding
. If EPA intends to proceed with this rulemaking, it mu st assess th ese factors object ively, and not merely to support a predetermined regulatory outcome, and must then provide a discussio n of th em in a supplemental proposal for public review and comment. EPA, however, may already have c oncluded that making final the Proposed E ndangerment F inding would, in fact, have no meaningful effect in prevent ing or reducing any endangerment fro m t he sect io n 202(a) sources that it int end s to regulate. Fo r example, in an int erview broadcast on May 20, 2009, the day af ter announcement of the President’s new nat io nal policy, Administrator Jackson said, referring to the planned sect io n 202(a) standards,20

th at “[t]his act io n alone

-- I don’t want to mislead anyo ne -- is not going to change global temperatures . ” 7 Id. (emphasis added). Even if sect io n 202(a) standards would produ ce emissio n reductions that would meaningfully reduce the threat EPA wou ld purport to address through a final endangermen t finding, the Agency’s Proposed Endangerment Finding fa ils to address questions concerning whether so me (or all) of such emission redu ct io ns would occur anyway. O ne of the central tenets of the new nat io nal po licy announced on May 19 is that EPA and DOT will establish “a harmo nized and consistent” set of regulat io ns fo r vehicle GHG emissions and fuel efficiency, leading to “a single lig ht

- duty national fleet that would sat is fy all requirements under both programs.” 74 Fed. Reg. at 24007 /3 ; see also id. at 24009 / 3 (stating the program’s goal of “providing regulatory com pat ibilit y t hat allows auto manufacturers to build a single nat io nal light

- duty fleet that would comply wit h both the GHG and the CAF E standards”). Accordingly, th ere is no reason to believe that section 202(a) regulat io n -- or the accompanying EPA endangerment finding

-- is needed to accomplish any emissio n reduct io ns that th e coordinated program may yield. For all pract ical purposes, any such reduc tions will occur due to the CAFE standards even in the absence of any EPA act io n under sect io n 202(a) of the CAA
. Thus, the Proposed Endangerment Finding is not necessary

-- e ven if it were otherwise just ified

-- because any contribut io n to global atmospheric concentrations of GHGs that would be addressed by sect io n 202(a) standards will be addressed outside the CAA, by DOT under EPCA.

7 Ad ministrator Jackson is not alone in espousing that view. For instance, Professor Ken Caldei ra, a climate scient ist at Stanford Universit y’s School of Earth Sciences and the Carnegie Inst it ution’s Department of Global Eco lo gy, was quoted by NPR as saying that “‘[t]hese [emission] cuts are important as an act of polit ic al leadership, but these cuts in themselves will not produce any significant climate effect .’” NPR Transcript (emphasis ad ded).21

In sum, EPA’s Proposed Endangerment Finding provides no basis for concluding that the purpose of the section 202(a)(1) endangerment criterion would be served by making a final endangerment finding. Accordingly, i f t he Agency int ends to proceed to final affirmat ive act io n on th e Proposed Endanger me nt F inding, it would, at a minimum, first have to prepare and publish a supplemental notice for public comment that explains what, if any, basis exists for a final endangerment finding in light of the preventative purpose of the sect io n 202(a)( 1) criterion. IV. EPA Must Address the Fundamental Threshold Issue of Whether EPA May Properly Consider Conditions Caused Largely by Emissions from Outside the United States in Making Endangerment and Contribution Findings Under the CAA. EPA has failed to address one o f t he mo st fundamental thresho ld legal issues underlying th e Proposed Endangerment Finding

-- whether the Agency may consider air emissio ns and the resul ting air po llut io n fro m so urces outside the sovereign authorit y o f t he United States in making endanger ment and contribut io n findings that establish legally binding obligat io ns fo r the Agency and ent it ies under the CAA . Thi s is a question of first impressio n t hat EPA has not answered (indeed, has not had to answer) in making any pr evious CAA endangerment f inding. As a procedural matter, EPA’s failure to address this key legal issue is a fatal flaw in the proposal because it obviously is a question of central relevance to the outcome of this action and th e public has been deprived of the right to understand EPA’s views on the issue and to provide meaningful co mments in t he context of an Agency articulat io n of its posit io n . O n t he substance of thi s issue , i t i s clear that EPA does not have authorit y under the Act to establish do mest ic r ig ht s and legally bind ing obligat io ns based on environmental condit io ns th at are largely attributed to fo reign nat io ns and enti ti es that are under the author it y o f such nat io ns (and outside the authorit y a nd jur isdict io n of EPA and the CAA). To construe the CAA otherwi se would create the ano ma lo us result that the bulk of the emissio ns that would cause mandatory emissio ns controls to be prescribed under the CAA would not (and could not) be22

subject to those controls because the emissio ns emanate from foreign sources

– which, of c ourse, is the very situat io n presented by GHG emissio ns and their potential effect on th e global climate. Just as CAA requirements cannot be enforced against foreign sources of air pollut io n, domestic obligat io ns under the CAA cannot be caused by fo reign emissio ns that are outside CAA jurisdict io n. V. EPA’s “Technical Support Document for Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act” Cannot Support a Finding of Endangerment. EPA base s th e Propos ed Endangerment Finding on numerous alleged scientific grounds. EPA’s di scussio n o f t he sci ence in th e P ropos ed Endangerment Finding , however, is woefully inco mp lete , and EPA ’s conclusions related to the available scient ific evidence are both overbroad and, at times, impenetrably vague. Given t hese shortcomings , EPA has not provided an adequate basis for an aff ir mat ive endangerment finding. T he Admin istrator bases her proposed sci ent ific judgments on th e TSD , which EPA staff prepared and is it self an ina ccurate and inadequate assessment of the current state of climate

related sci ence. Thi s document wo uld requi re substanti al revisio n before the Administrator could rely on it fo r reaching endangerment

- related policy conclusio ns. T he TSD: (1) reflects fu ndamentally flawed po licy determinat io ns about the relevant informat io n , determinat io ns th at skew EPA’s presentation of the science; (2) relies on sources of informat io n t hat do not adequately address the scient ific issues relevant under the CAA; (3) conta ins improper and inaccurate characterizat io ns of the conclusio ns that can reasonably be drawn fro m t he scient ific studies and assessments it cites; and (4) ignores important scient ific informat io n t hat undermines EPA’s stated conclusions regarding the negative and posit ive impacts of climate change, including representations concerning th e import of substant ia l23

uncertaint ies in the scientific record. The various flaws ident ified in the fo llo wing comments on th e TSD are reflected in th e Proposed Endangermen t Finding as well. A. The TSD Reflects Fundamentally Flawed Policy Det erminations About the Information Relevant to an Endangerment Assessment t hat Skew EPA’s Presentation of and Conclusions Regarding the Science. EPA states that the TSD’s purpose is “to provide sci ent ific and technical informat io n fo r an endangerment analysis regarding greenhouse gas (GHG) emissio ns fro m new motor vehicles and engines under sect io n 202(a) of the Clean Air Act. ” TSD at 1. The scient ific and technical informat io n provided in t he document, however, is wholly inadequate to support an affirmat ive endangerment finding under the provisio ns of the Act. This failing results from numerous problems detailed in these co mments. Some of these flaws stem fro m u nscient ific policy determinat io ns that , in t urn , improper ly in fluence the scope of th e informat io n considered in the document. These determinat io ns di stort EPA’s analysis , resul ting in an assessment that is biased in favor of a positive endangerment determination. Accordingly, th e Administrator’s proposed finding is likewise improper, as it is based on incomplete and inaccurate science. F undamental flaws in t he TSD and Proposed Endangerment Finding include: (1) exclusio n of information relevant to adaptation; and (2) failure t o distinguish between GHG

- and non

- GHG
- related climate effects. 1. Exclusi on of Adaptation Considerations Both the TSD and the Proposed Endangerment Finding reflect a proposed conclusio n th at consideration of the effects of adaptation are not appropriate in conducting an endangerment analysis. The TSD, for instance, states: Adaptation to climate change is a key focus area of the climate change research communit y. This document, however, does not focus on adaptation because adaptation is essent ia lly a respon se to any known and/or perceived risks due to climate change. Li

kewise, mit ig ation measures to reduce GHGs, which could also reduce long

- term ri sks, are not addressed. The purpose of this document is to24

review the effects of climate change and not to ass ess any speculat ive po licy or soci etal response to climate change. Adaptation will be ment io ned to the extent th at the impacts project io ns themselves contain some embedded assumpt io ns about future adaptation. Id. at 2. Thus, the Agency has determin ed, as a matter of policy, to exclude “ a key fo cus area of th e climate change research communit y” because it is essentially only a response to climate change. 8 Id
. EPA’s position on this issue is illogical and internally inconsistent. A lmo st every impac t assessed in the TSD is a response to climate change. Animal migrat io ns, addit io nal expenditures for energy infrastructure, and even changes in air po llution levels are, at their most basic levels, responses to changing climate. Moreover, it is simply unsupportable fo r EPA to assert th at adaptation is irrelevant to determining whether endangerment exists or will exist. Unless one mad e an assum ption (which would be without foundat io n) th at all changes are negat ive

-- and EPA says it has made no such assu mpt io n 9

-- th e fundamental inquiry of an endangerment analysis concerns the ty pe and extent of harm th at are believed likely to occur. This inquiry cannot proceed in the absence of an examinat io n of th e likely impacts of climate change, a mat ter that simp ly cannot be engaged ratio nally if the role of adaptation is ignored . In

8 EPA’s posited reasons for dist inguishing between “acceptable” and “unacceptable” fields of scientific inquiry are particularly unconvincing given that the IPCC deemed it appropriate to devote an entire Working Group Report to adaptation and mit igat io n, who lly ignored in the TSD, even as EPA relies almost exclusively on the other IPCC Working Group Reports for the bulk of it s analysis. Moreover, in a remarkable example of analyt ical select ivit y, EPA states in the Proposed Endangerment Finding that “th e IPCC North American chapter ... on ... adaptation and vulnerabilit y covers the U.S. and Canada (not Mexico) and ... the general findings in that chapter (drawn fro m ma ny individual studies for the U.S.) are indeed applicable to U.S. conditions .” 74 Fed. Re g. at 18894/2 (emphases added).
9 See, e.g. , id. at 18904/1 (“The Administrator’s proposed endangerment finding is based on weighing the scient ific evidence, considering the uncertaint ies, and balancing any benefit s to human healt h, societ y, and the envir onment that may also occur.”).25

fact , EPA seems to admit this in it s statement that “[a] daptation will be ment io ned to the extent that the impacts projections themselves contain some embedded assumptions about future adaptation .” 10 Id. (emphasis added) . It is irrational and unscient ific fo r EPA to consider a factor it acknowledges is relevant only when others , on which the Agency relies , have embedded assumpt io ns about this factor in their project io ns. If adaptation is relevant in that context, it is equally relevant where EPA itself must perform the assessment. Further, adaptation assessment is central to the statutory requirements gover ning EPA’s endangerment inquiry and is not some peri pheral or minor conside ration that the Agency may reasonably disregard
. Indeed , the TSD quotes a significant conclusio n of the U.S. Climate Change Science Program (“ CCSP ”) indicat ing that “[t] he United States is certainly capable of adapting to the collective impacts of climate change .” Id. at 69 (quoting CCSP (2008b) (em phasis added)). Thi s conclusio n illustrat es the fact that adaptation alo ne could avert what might otherwi se consti

tute endangerment in a hypothetical world in which adaptation does not occur. EPA’s decisio n t o exclude adaptation considerations fro m it s endangerment assessment
10 Indeed, in a number of instances, the TSD states that adaptation is a cruci al factor in determining whether and when negat ive impacts, and thus (potentially) endangerment, will occur. See, e.g. , TSD at 69 (“ In the absence of effective adaptation, these [ mo rtalit y and mo rbidi ty ] effects are likely to increase with climate change. Depending on progress in health care and access, infrastructure, and techno lo gy, climate change could increase the risk of heat wave deaths, respi

ratory illness through exposure to aeroallergens and ozone
... and certain di seases .”) (internal citations omitted); id. at 70 (“ Estimates of heat

- related mortali ty attributable to climate change are reduced but not eliminated when assumptions about acclimat ization and adaptation are included in mo dels
.... In other words, non

- climat ic fa ctors related to demographics will have a significant influence on future heat

- related mortali ty
. ”) (em phasis added); id. at 141 (“ Current scient ific informat io n does not provid e sufficient informat io n to assess how effect ive current and future adaptation options will be at reducing vulnerabilit y to the impacts of climate change. ”); id. at 142 (“More adaptation will be required to reduce vulnerabili

ty to climate change. Addit io nal adaptation can potentially reduce, but is never expected to completely eliminate [,] vulnerabilit y t o current and future climate change. ”) (internal ci tations o mit ted); id. (“A portfo lio of adaptation and mit igat io n measures can diminish the risks associ ated wi

th climate change. ”).26

is, in essence, an arbitrary and unsupportable policy preference for an imagined scenario over reasonable scient ific project io ns of actual future condit io ns. EPA should, therefore, rever se its decisio n to exclude these considerat io ns fro m t he endangerment assessment. Moreover, at the very least, i

t is inappropriate for EPA to omit assessment of adaptation fro m it s analysis of climate change impacts in the TSD. See id. at 2 (“This docume nt , however, does not focus on adaptation because adaptation is essent ia lly a response to any known and/or perceived risks due to climate change.”). A technical support document in t his context should present all o f t he informat io n t hat may be relevant to th e question whether public healt h and welfare will be endangered wi

thout prej udging what scien tific info rmat io n will be used in making the ul timate policy decision . See id. at 1 (“This document itself does not convey any judgment or conclusio ns regarding the two steps of the endangerment finding, as these decisio ns are ult imately left to the Ad ministrator.”). The Proposed Endangerment Finding itself reflects the TSD’s mistaken approach
. See 74 Fed. Reg. at 18894/2

- 3 (“[C]limate policy or societal resp onses to any known or perceived risks and impacts to public healt h or welfare, which may or may not be implemented in the future

— whether through planned adaptation or greenhouse gas mit igat io n measures
— were not explicit ly assessed in the endangerment analy sis.”). EPA says it decided against assessing adaptation because th e purpose of the endangerment analysis is to assess the risks posed to public healt h and welfare, rather than to estimate how various adaptation and greenhouse gas mit igat io n policies may ameliorate or exacerbate any endangerment that exists. Indeed, the presumed need for adaptation and greenhouse gas mit ig ation to occur to avoid, lessen or delay the risks and impacts associated with human

induced climate change presupposes that there is e ndangerment to public health or w elfare
. Id. at 18894/3 (emphasis added).27

EPA ’s facile rationale that adaptation necessarily presupposes endangerment and thus should be excluded fro m assessment cannot wit hstand scrut iny. Adaptation to changing ci rcum stances occurs constantly in the natural and human environment as a response to any number of condit io ns, as we have known since the time of Darwin, and certainly not all o f t hose ci rcumstances have const it uted an “endangerment to public healt h or welfare. ” The Ad ministrator’s addit io nal argument that she “would not consider, for example, the availabilit y of asthma medication in determining whether criteria air pollutants endanger public health , ” id. , while factually accurate, is not a relevant analogy to adaptation in the context of climate change. The availabilit y of medicat io n to treat the symptoms of a lung funct io n response , and the need to medicate to prevent them, is no t c om parable to evolut io nary responses in natural ecosystems or to changes in hum an behavior that ma y prevent welfare or indirect healt h impacts from ever occurring at all
. Indeed, in a variet y o f other settings, EPA has promulgated regulations and implemented policies to encourage adaptive responses to what might have otherwise developed int o adverse public healt h and welfare impacts. 11 Further, the Administrator’s rationale is flat ly inconsistent with her consideration of “embedded
. . . assumpt io ns” regarding adaptation in specific instances. See id. In sum, EPA fail s to provide a reasoned analysis for excluding a ny assessment of adaptation effects. The Agency ’s notion th at the existence of adaptation “presupposes”
11 For instance, EPA’s guidance related to its Air Qualit y I ndex reco mmends that individuals refrain fro m st renuous activit ies when air pollut io n reaches certain levels in order to avoid public healt h r isks. See AirNow Partner Agencies, TV Weather

- Air Quality Guide for Particle Pollution

-

Air Quality Index (AQI) At

- A

- Glance Messages , available at http://airnow.gov/index. cfm?act io n=tvweather.ataglance. Similarly, EPA’s Sunwise Program recommends a variet y o f behavioral response s to limit or avoid public healt h r isk s associ ated wi th sun exposure, including limit ing t ime spent outdoors and use of sunscreen. See EPA, Sun Exposure: What You Can Do to Protect Yourself

, available at http://www.epa.gov/radtown/sun

- exposure.html#prote ct_ yo urself.28

endangerment is unsupported and suggests instead that it is EPA itself that is engaging in presupposi

tion. EPA sho uld analyze th e science, not mak e assumpt io ns that arbitrarily truncate it s analysis in order to reach preordained conclusio ns .

2. Comm ingling GHG Effects and Non - GHG Effects The Proposed Endangerment Finding includes s tatements that i ndicate that EPA is
r elying on effects of climate change in general. For instance, EPA says “t he analysis was not restricted to only those climate and public healt h or welfare effects which may be attributable solely to greenhouse gas emissio ns from sect io n 202(a) sources und er the Act.” Id. at 18894/2. In addit io n to examining sources of GHG emissio ns that cannot be regulated under section 202 (a) , the Administrator states: There are other greenhouse gases and aerosols that have warming (and cooling) effects but are not being included in the proposed definit io n o f a ir pollut io n. These include water vapor, chlorofluorocarbons (CFCs), hydrochlorofluorocarbons (HCFCs), halo ns, tropospheric ozone (O 3 ), black carbon, and other short

- lived precursor gases. For each of these substances, there are different scient ific and policy reasons why these substances are not being included in the proposed definit io n of air pollut io n for purposes of section 202(a). Id. at 18896/3

- 18897/1. The effects of these various causes o f radiat ive fo rcing are not relevant to the question of whether the six GHGs EPA address ed in t h e Proposed Endangerment Finding endanger public healt h or welfare. Nevertheless , al though EPA notes th at th e “water vapor feedback mechanism in response to human

- induced war ming [is included] in all modeling scenarios of future climate change , ” it fa ils to explain th e extent to which these other causes of radiat ive forcing are included in the modeling results on which EPA relies. Id. at 18897/ 1 , 18898/1. E xaminat io n o f t he TSD reveals that EPA improperly co mmingle s th e effects on climate of th e six GHGs for which it proposes to find endangerment with the effects of all other sources of climate change, both anthropogenic and biogenic. Accordingly, the TSD’s analysis is who lly29

unsuitable for the task of assessing endangerment for the group of GHGs that is the subject of thi s act io n . T he Administrator’s proposed judgments based on the TSD are, therefore , i nherent ly inaccurate. Th is fundamental flaw in th e TSD is illustrated by many of the document’s specific descript io ns of it s purpose and con tent. For instance, EPA states that the TSD is intended to serve as an assessment of the extent to which observed climate change can be attributed to anthropogenic GHG emissio ns . . . . The term “climate change” in this document generally refers to climate change induced by human act ivit ie s, including activities that emit GHGs
. Future project io ns of climate change, based primarily on future scenarios of anthropogenic GHG emissio ns, ar e shown for th e global and nat io nal scale. TSD at 1 (emphas e s added)
. As thi s quotation demonstrates, at the outset of its endangerment analysis, EPA simultaneously claim s th at it is assessing climate change associ ated wi th anthropogenic GHG emissio ns and that i

t i s also addressing, in an unspecified manner, climate change that is not related to anthropogenic GHG emissio ns ( or to GHG emissio ns of any sort )
. F urther , as th e Prop osed Endangerment Finding does , th e TSD describes the climate

- related eff ects of changes in t ropospheri c ozone, anthropogenic emissio ns of aerosols, increases in stratospheric and tropospheri c water vapor, changes in land cover, and changes in so lar irradiance

-- none of which are related to GHG emissio ns . 12 Id. at 20
- 22
. Ad dressing the impacts that may result fro m c limate change in general is not a proper purpose of the TSD, and informat io n on these impacts fails to support an endangerment finding. The proper purpose of the document is to assess whether anthropogenic emission s of the six

12 Indeed, the Proposed Endangerment Finding makes clear that it is not seeking to regulate other sources of radiat ive forcing apart from the six GHGs. 74 Fed. Reg. at 18896/3

- 18898/1.30

GHG s th emselves contribute to an endangerment of public healt h or welfare. The TSD’s failure to limit the scope of its assessment to the effects of anthropogenic emissio ns of the six GHGs makes it impossible to determine fro m t hat document whether the effects described , and any asserted endangerment , resul t from anthropogenic emissio ns of th e six GHGs or some combinat io n of those emissio ns and other possible causes ( e.g. , anthropogenic emissio ns o f other substances, biogenic emissio ns of GHG s or other substances, non - anthropogenic processes of various kinds such as natural climate variabilit y, and human act ivit ies th at do not invo lve emissio ns, such as land

- cover practices )
. Thi s hopelessly confounded analysis therefore cannot serve as a bas is for an endangerment finding. Consequent ly, if it is t o proceed further in this rulemaking, EPA must revise this document to address only those effects that are relevant to th e proposed endangerment finding. B. The TSD and the Proposed Endangerment Finding Rely on Sources of Scientific Information t hat Do Not Adequately Address the Issues Relevant Under the CAA. The TSD and the Proposed Endangerment Finding rely on a number of sources of scientific informat io n as the basis for their analysis and proposed c oncl usion s regarding asserted public healt h and welfare endangerment fro m GHG
- related climate change. Careful review of both the TSD and the Proposed Endangerment Finding indicate s th at EPA has relied almo st exclusively on the IPCC’s Fourth Assessment Rep ort and the Synthesis and Assessment Products prepared by th e CCSP. See id. at ES
- 1 (“ The conclusio ns here and the informat io n t hroughout thi s document are primarily drawn fro m t he assessment reports of the Intergovernmental Panel on Climate Change and the U.S. Climate Change Science Program. ”). Nearly who lesale reliance on the IPCC and CCSP assessments is not consistent with EPA’s dut ies under the law or with sound scientific practice. EPA must conduct its own assessment of the science and cannot avoid thi s obligation for the sake of convenience.31

Reliance on the IPCC is part icu larly problematic, as UARG explain s in it s comments on th e D raft TSD released in conjunct io n wit h EPA’s ANPR . In those comments, UARG explain s th at the IPCC Fourth Assessment Rep ort does not contain the specific assessment of U.S. effects th at would be required to support an endangerment finding. Instead, the IPCC Assessments are devoted primarily to global effects and global emissions. Further, UARG ’s ANPR co mments argue that EPA’s adoption of the IPCC’s regio nal analysis of North American effe cts, including proj ect io ns of changes in temperature, precipitat io n, and sea level rise , is improper; analysis o f such effects c annot substitute for a U.S.

- specific analysis, particularly in light of the fact th at the IPCC analysis and EPA’s discussio n of that analysis fail to distinguish adequately between U.S. and Canadian effects. None of these shortcomings have been remedied, and EPA’s alter ed rationale for continuing to rely on the I PCC analysis is as insufficient as its original rationale
. On the one hand, EPA has removed a reference to the opinio ns of two IPCC authors who state d th at the “ ma

jo r conclusio ns ” of th e North America n chapter “all apply to the United States” and that the topics and impacts discussed are “relevant to at least some lo cations in the United States
. ” Draft TSD , Doc. ID EPA
- HQ
- OAR
- 2008
- 0318
- 0082 at 63 (June 21, 2008) (em phasis added)
. Removal of this attem pted ju stificat io n is appropriate because those opinio n s were in no way disposit ive, the exact meaning of the referenced statements was unclear, and reliance on the opinions of two individuals was inconsistent with the principles governing the IPCC’s work. Yet EPA now argues that the results of the North American assessment apply to the United States because “the IPCC North American chapter (of the Working Group II volume) on impacts, adaptation and vulnerabilit y covers the U.S. and Canada (not Mexico) and
. . . th e general findings in that chapter (drawn f rom ma ny individual studies for the U.S.) are indeed32

applicable to U.S. condit io ns.” 74 Fed. Reg. at 18894/2. C ertain statements within the North American chapter ma y indeed apply to the Uni ted States; it would be remarkable if the IPCC had who lly ignore d the United States. EPA fails , however, to address the crit ical issue, which is adequate delineat io n between U.S. and non

- U.S. impacts , even though th e Agency acknowledges th at “th e IPCC Working Group II report
. . . ma y not provide as much regional deta il w it hin the U.S. as did the 2000 report, Climate Change Impacts on the United States: The Potential Consequences of Climate Variabilit y a nd Change (NAST, 2000). ” TSD at 5. The problems wit h reliance on the IPCC, however, extend beyo nd issues o f th e level o f geographi c detail . For instance, in describing the effects of climate change on

-- in a section of th e TSD ti

tled “U.S. Precipitat io n”
-- EPA cites the IPCC as the basis for its conclusio ns regarding changes to precipitat io n le vels in Canada
. Id

. at 59; see also id. a

t 60 (discussing sea level rise in Canada under the heading “U.S. Sea Level Rise”). In the same sect io n , and despite th e Administrator’s assurances to the contrary, the TSD describes decreases in precipitation that may occur in Mexi co . Id. at 59 (“ mo re than 90% of the models project [] drying in northern and particularly western Mexico ”). It should be obvio us that Canadian and Mexican impacts are not U.S. impacts and do not belong in sections of the TSD th at purport to address the e ffects of climate change in the United States. Moreover, this sort of confu sion rai ses substantial question s about all o f t he TSD’s analyse s. When EPA cites effects in “western North America,” based on IPCC analysis, to which nat io n is the Agency referring? Indeed, given that th e Agency blatant ly describes non - U.S. imp acts in sect io ns that are ostensibly int ended to address the U.S. , there is no reason to assume that EPA has not made similar, though perhaps mo re subtle, errors elsewhere. In short, the I PCC by and large does not provide U.S.

- specific informat io n , and EPA33

has not successfully extrapolated such informat io n fro m th e IPCC material. Reliance on the IPCC’s conclusio ns, therefore, is misplaced. In addit io n , th e IPCC Assessment Reports are not prepared in accordance with U.S. standards for scient ific assessments. The IPCC is governed by its own official “Principles Governing IPCC Work,” available at http://www.ipcc.ch/pdf/ipcc

- principles/ipcc

- principles.pdf
. These Principles emphasize that app roval of the contents of IPCC Assessment Reports is obtained on the basis o f consensus amo ng IPCC member governments. Id. at 2. EPA’s TSD is subject not only to the CAA’s principles but also to the Data Qualit y Act (“DQA”) , as discussed further in sect io n VI of th ese co mments, and to guidelines establishing standards for the qualit y, obj ect ivit y, int egri

ty, and ut ilit y of informat io n disseminated by federal agencies. Pub. L. No. 106
- 554 , § 515; 67 Fed. Reg. 8452 (Feb. 22, 2002). Adopting scient ific conc lusio ns of a body not subject to these United States statutory requi rements and principles

-- and “generalizing” such conclusio ns to make them stand for proposit ions th ey were not designed to support

-- undercut EPA’s claim that it has co mp lied with th e DQ A ’s requi rements. Indeed, EPA it self highlights this issue when it describ es th e process for approving IPCC Assessment Report s and th e DQA procedures used during review and approval of U.S. CCSP Synthesis and Assessment Products. See TSD at 3. According ly, EPA cannot con tinue to rely in t his proceeding on the IPCC informat io n and conclusions in the absence of an independent assessment by t he Agency and establishment and applicat io n of transparent procedures to ensure compliance with U.S. standards. Th ere are additional reasons why EPA’s heavy reliance on IPCC documents, as well as CCSP reports , is improper . As EPA acknowledges, “scient ific research is very act ive in many areas addressed in [the TSD] (e.g. aerosol effects on climate, climate feedbacks such as water34

vapor, and internal and external climate forcing mechanisms) as well as for some emerging issues (e.g. ocean acidificat io n, and climate change effects on water qualit y). ” Id. at 6
- 7. The Agency acknowledges that it received numerous comment s on the draft TSD registering concern th at the IPCC Fourth Assessment Report was “not current enough.” 74 Fed. Reg. at 18894/2. EPA has attempted to rectify this problem by including references to additional CCSP reports published since release of the draf t TSD. Id
. EPA thus acknowledge s th e importance of including the most recent scient ific studies available . Unaccountably , however, EPA in mo st instances st ill fail s to incorporate the results of important, peer

- reviewed studies, studies of the
same s ort and caliber as those assessed by the IPCC and CCSP. 13 The Agency cannot escape its obligat io n to review the current state of the science by suggest ing that IPCC and CCSP reports are more valid than a n independent Agency review wo uld be, based on the broad assertion that those bodies have “ assessed numerous individual studies in order to draw general conclusio ns about the state of science .” TSD at 5. Moreover, it is hardly disposi tive that the IPCC and CCSP findings may be characterized as relatively “recent,” that they “ have been reviewed and formally accepted by, commissio ned by, or in some cases authored by, U.S. government agencies and individual government scient ist s ,” or that “in ma ny cases, they reflect and convey the consensus concl usion s of ex

pert authors. ” Id
. On an issue to which it ascribes such importance, EPA surely is capable of undertaking an analysis o f it s own that will address the current science in a responsible way.

13 Li kewise, EPA’s assert io n t hat “[e] ven wit h mo re recent informat io n available, the IPCC Fourth Assessment Report remains a standard reference, essent ia lly serving as the benchmark against which new findings over the next few years will be co mpared ,” is not a valid reason for EPA to con

tinue to fail

-- or refus e -- to make such comparisons in this proceeding. 74 Fed. Reg. at 18894/2.35

Indeed, it is remarkable th at, despite having had before it fo r mo nt hs numerous comments on the ANPR alert ing it to the need for independent Agency analysis to support any endangerment finding it may seek to make , EPA has flat ly refused to co nduct such an analysis
. EPA’s posit io n th at i

t need not bother here, on suc h a mo me nt ous i ssue, wi th any independent scientific analysis

-- th e sort of scient ific analysis EPA traditionally , and routinely , undertakes under the CAA when, for example, it reviews NAAQS
-- is astonishing and plainly indefensible. It can be explained only by a n Agency view that EPA “knows what the answer is” and need not investigate the facts. That is not an acceptable way for the Agency to discharge its responsibilit ies under the Act
. T hat the IPCC and CCSP reports were prepared under condit io ns and for reasons substant ia lly different fro m those related to an assessment of possible endangerment to U.S. public healt h and welfare in contemplat io n of regulat io n under th e CAA reinforces the concl usion th at EPA’s who lesale reliance on these reports is improper . As EPA notes, the IPCC has established rules and procedures for producing its assessment reports. Report outlines are agreed to by government representatives in consultation w ith the IPCC bureau
. Lead authors are nominated by governments and are selected by t he respect ive IPCC Working Groups on the basis of their scient ific credent ia ls and wit h d

ue consideration for broad geographic representation
. . . . Drafts prepared by th e authors are subject to two rounds of review; the second round includes government review
. For the IPCC Working Group I report, over 30,000 wri tten comments were submitted by over 650 individual experts, governments and international organization s. . . . Each Summary fo r Policymakers is approved line

- by

- line, and the un derlying chapters are then accepted, by government delegations in formal plenary sessions
. Id. at 3 (emphases added)
. Thus, the IPCC Assessment development process is marked by pervasive int ergovernmental negotiat io ns , including negotiatio ns between t he United States and other governments and among many non

- U.S. governments, and by the influence of various forces that36

would have no sway in an independent analysis conducted by a U.S. government agency. In other words, as illustrated by EPA’s ow n descri ption , in the TSD, of IPCC processes , IPCC products are at least as much a product of internat ional diplo macy as they are of scient ific inquiry. W it h regard to the CCSP Synthesis and Assessment Products, EPA notes that “[d] ifferent agencies have been des ignated the lead for different [synthesis and assessment products (“SAPs”)] ; EPA is the designated lead for three of the six SAPs addressing impacts and adaptation. ” Id
. Accordingly, very few of the CCSP products have been developed consistent wi th EPA’s policies governing the preparation of influential scient ific analyses or with the Agency’s part icu lar expert is e brought fu lly to bear
. Furth er, the development of these p roducts is governed by the U.S. Global Change Research Act of 1990 (“GCRA”) , which e stablishes standards for the preparation of scientific assessment s th at are wholly divorced fro m E PA’s obligat io ns under the CAA . 15 U.S.C. §§ 2921
- 2961. The primary purpose of the GCRA is the establishment and coordination of a nat io nal Glo bal Change Re search Program implemented by numerous federal agencies and overseen by the National Science and Techno lo gy Council , a cabinet

- le vel ent it y c haired by the President and his Science Advisor. Id. §§ 2932, 2933; Execut ive Order 12881. The CCSP Reports were prepared to satisfy the requirements of sect io n 106 of the GCRA, which calls for an integrative evaluat io n of the federal government’s Global Change Research Program. 15 U.S.C. § 2936. This assessment is then used in the evaluat io n and refinement of the overall research program as new research areas are identified and funding priorit ie s are established. Id. §§ 2934, 2935. EPA’s analysis of endangerment under the CAA is who lly unrelated to37

evaluat io n and coordinat io n of federal research programs and shou ld be properly focused on the state of climate

- related sci ent ific understanding, whether publicly or privately conducted. Indeed, EPA tacit ly acknowledges the flaws in its approach when it discusses it s chosen method of assessing the science related to oz one. Specifically, EPA states that i t h as “just recent ly co mp leted and published an assessment of the literature on the effect of climate change on ai r qualit y ( EPA, 2009). Therefore, because EPA evaluated the literature itself in the preparation of th at assessment, EPA does cite some individual studies it reviewed in its summary of thi s topic in Sect io n 8.” TSD at 6. Thus, with respect to ozone, EPA has itself evaluated the relevant studi es, not simply adopted the conclusio ns of others. 14 This approa ch allows the Agency to incorporate the most recent science and to decide for itself what is and is not relevant to an endangerme nt analysis . Moreover , alt hough UARG does not necessarily agree wit h EPA’s statements on the ozone issue, the Agency’s discuss io n of that issue shows that it is capable of di scharging its analyt ical responsibilit ies under the Act rather than outsourcing the job to other domestic and internat io nal e nt it ie s that do not operate under , and are not bound by, th e standards of th e CAA a nd U.S. administrative law
. In sum, the analysis and conclusio ns of the IPCC, as contained in it s Fourth Assessment Report, are th e primary basis for many of EPA ’s proposed co nclusio ns, including its most important determinat io ns as to purported climate c hange

- related effects in the United States. This is an inappropriate use of this informat io n. Most of th e IPCC conclusio ns concern global

14 In many cases, EPA simply reports IPCC and CCSP conclusio ns wit h respect to projected effects and the likelihood of the effects’ occurrence. See, e.g. , 74 Fed. Reg. at 18888/2 & n.2 (indicat ing that the IPCC believes the heat ing effects caused by GHGs are the likely cause of mo st observed glo bal warming and that the IPCC believes this conclusio n is characterized by 90 to 99 percent confidence levels). As discussed above, EPA is obligated to provide its own judgments on these matters.38

effects and emissio ns, informat io n t hat , as used by EPA here, cloud s th e state of scientific knowled ge wi

th respect to whether GHG emissio ns from new U.S. motor vehicles will endanger U.S. public healt h or welfare. Further, adoption of the IPCC’s North America conclusio ns as generally applicable to the United States is not scient ifically just ifiable. It is unclear pre ci sely which effects cited in the TSD are relevant to the United States, and EPA’s failure to provide any addi tional analysis o f t his issue renders its conclusions unreliable. Further, the reports of both th e IPCC and the CCSP fail to analyze the most rec ent relevant science and convey biases and irrelevant informat io n t hat skew an assessment of the endangerment issue under the CAA. EPA may not proceed in this rulemaking on the basis of borrowed analys e s that do not reflect the Ad ministrator’s independent exercise of her statutory responsibilit ies
. C. Conclusions in the Proposed Endangerment Finding A re Unclear and Must B e Revised. The Proposed Endangerment Finding contains a number of statements whose meanings
are unclear. Given the importance of the iss ues addressed in this p roposal , i t i s necessary that concl usion s reached by the Administrator be clearly stated, precise, and accurate. This section of th ese comments ident ifies a number of statements in the Proposed Endangerment Finding th at requi re greater explanat io n. The Administrator states that the “at mo spheric concentrations of greenhouse gases endanger public health and welfare wit hin the meaning of Section 202(a) of the Clean Air Act. She proposes to make this finding specifically with respect t o six greenhouse gases that together constitute the root of the climate change problem.
. . . ” 74 Fed. Reg. at 18886/1. Precisely what EPA means by th e “root ” cause requires explanat ion ; EPA gives none . As the Administrator notes elsewhere, several fact ors other than anthropogenic emissio ns of the six EPA

- targeted GHGs are believed to be sources of radiat ive forcing and climate change, and recent science39

indicates that so me o f t hese other factors may play a substant ia l role indeed
. 15 Similarly, the Propo sed Endangerment Finding states that “most of th e observed glo bal and cont inental warming can be attributed to this anthropogenic rise in greenhouse gases.” Id. at 18898/2 (em phasis added). EPA cannot support an endangerment finding with such vague assertions. S ome greater degree of s cient ific precisio n is required. Elsewhere in the Proposed Endangerment Finding , the Administrator states that “[i]t is [her] judgment that the total b ody of scientific evidence compellingly supports a posit ive endangerment finding for both public health and welfare. ” Id. at 18888/1. The Administrator adds that she “reached this judgment by considering both observed and projected future effects, and by considering the full range o f r isk s and impacts to public healt h and we lfare occurring wi thin the U.S., which by itself warrants this judgment.” Id. Alt hough thi s may, in fact, be the Ad mini strator’s judgment, the Proposed Endangerment Finding mu st set out in significant ly
mo re detail which of the various effects the Admini strator vi ews to be adverse, which she believes are beneficial, and which may be neutral or characterized by such significant uncertaint ies as to frustrate development of an info rmed judgment as to their adversit y or beneficence . Further, she must explain her specific assessment of the risks associated with each effect on which she bases any finding o f endangerment. Instead, EPA states evasively th at “[ b]eneficial effects can coexist with harmful effects, and it is not necessary to reach a firm

15 A recent study, for instance, demonstrates that global climate models consistent ly underest imate the percentage of climate forcing that is attributable to black carbon, a non

- GHG. Further, thi s st udy fo und that a number of impacts associated with black carbon, including reduction of sea ice and snow albedo, dwarf similar effects that had been attributed to CO 2 . Ramanthan and Carmichael, Global and Regional Climate Changes Due to Black Carbon , 1 N A TURE G EOSCIENCE 221
- 27 (Apr. 2008).40

concl usion , f or particular domains and sectors, about the net result in order to reach an overall concl usion in favo r of endangerment.” Id . at 18903/1. Similarly, EPA states that it “believes . . . that serious risks and potential impacts to public healt h and welf

are have been clearly ident ified, even if they cannot always be quant ified wi th confidence.” 16 Id. at 18904/1. EPA may belie ve these things , but the Proposed Endangerment Finding fails to demonstrate that any o f t hem is true. Indeed, EPA notes that when exercising her judgment the Administrator balances the likelihood and severit y o f e ffects. This balance invo lves a sliding scale; on one end the severit y of th e effects may be significant, but the likelihood low, while on the other end th e severit y ma y be less significant, but the likelihood high. Under either scenario, the Administrator is permitted to find endangerment. Id. at 18890/2. There is , however, no indicat io n in the Proposed Endangerment Finding th at EPA has conducted this sort of balancing and assessment of severit y a nd likelihood. The Proposed Endangerment Finding should explain EPA’s conclusio ns as to each of th ese factors for every climate

- related effect that EPA evaluates. The current approach taken is insufficient ly t ransparent and fai ls to provide an adequate scient ific basis for the Proposed Endangerment Finding. The Administrator’s further descript io ns o f var io us effects similarly fail to fulfill th e obligat io n to explain clearly th e Agency’s rationale fo r an endangerment finding
. In many cases, th e Administrator simply quotes findings of other ent it ies, such as the IPCC, articulat ing nothing about her own judgment s as to the accuracy of th e descript io ns, or th e project io ns o f t he

16 EPA also states that the Proposed Endangerment Finding “is based on weighing the scient ific evidence, considering the uncertaint ies, and balancing any benefits to human healt h, societ y and th e environment that may also occur.” 74 Fed. Reg. at 18904/1. The Proposed Endangerment Finding does not, however, demonstrate or describe EPA’s attempt to weigh evidence, consider uncertaint ies, or balance posit ive and negative impacts. All relevant details o f any such assessment and rationale are completely missing.41

probabilit y , of th e climate change

- related effects t hat other s have ident ified. See, e.g. , id. at 18888/2, 18896/2
- 3; see also id. at 18899/1

- 2 (providing a similar description o f CCSP concl usion s wi thout providing any indication as to EPA’s assessment of these conclusio ns). For instance, in discussing in

ternational effects, EPA does nothing more than recite IPCC concl usion s. Id. at 18903/2. My ri ad quest io ns remain unanswered: Does the Administrator agree with these assessments? Has she examined the basis for the IPCC’s conclusio ns? Has she examined r elevant new science? Or are these statements simply informat io n t hat the Ad ministrator has considered but not fully adopted as accurate? These sorts of statements need to be placed in context. Likewise, EPA states: War ming of the climate system is now unequivocal, as is evident fro m observat io ns of increases in global average air and ocean temperatures, widespread melt ing of snow and ice, and rising global average sea level. Global mean surface temperatures have risen by 0.74°C (1.3°F) over the last 100 years. Eight of th e ten warmest years on record have occurred since 2001. Id. at 18896/2. This statement, as with the one noted above, simply raises addit io nal quest io ns. Does the Administrator view these changes as wholly negative? Ha s EPA evaluated posi tive effects of such changes? Unt il greater explanat io n is given for these types o f assert io ns and concl usion s, the overall import of these statements is unclear. In sum, the Proposed Endangerment Finding does not adequately explain the basis for th e Ad ministrator’s proposed conclusion that anthropogenic emission s of six GHGs cause or contribute to air pollution that endanger s th e public healt h and welfare. For example, s pecific effects are not clearly ident ified by EPA as eit her posit ive or negativ e (or neutral)
. EPA also does not clearly express its determinat io ns on ma ny issues, instead uncrit ically quoting or citing concl usion s of others. Thus, the Proposed Endangerment Finding does not provide a sufficient basis for proceeding to a final finding o f endangerment under section 202(a) of the CAA
.42

D. Scientific Conclusions Stat ed in the TSD and Relied on by the Administrator A re Incorrect. The TSD fails to take into account a number of recent scient ific studies that present serious challenges to ma ny of the specific conclusions stat ed in the document and that undermine certain key assumpt io ns adopted in th e IPCC and CCSP reports on which EPA relies. Accordingly, conclusions stat ed by EPA in t he Proposed Endangerment F inding do not rest on a sound f oundat io n . The fo llo wing sect io n describes material fro m I PCC and CCSP reports on which EPA has chosen to rely, argues that addit io nal sources should be assessed and included, and highlights major recent findings of significance to any endangerment analysis. The TSD itself has an elaborate and complicated system o f o rganizat io n. It begins by di scussing GHG emissio ns and atmospheric concentrations. It then describes observed climate change effects, such as temperature changes, precipitation changes , sea level changes, ocean acidificat io n, changes in physical and bio lo gical systems, and extreme event impacts. The TSD th en addresses attribut io n of observed climate change to anthropogenic GHG emissio ns. Next , it addresses p roj ected GHG concentrations and future climate change effects, including emissio ns scenarios, changes in temperature, precipitation, sea level rise, ocean acidi ty, snow and ice, extreme events, and air pollut io n. Finally, the TSD assesses the impact th at these various effects are p roj ected to have on public health and welfare interests, including human healt h, air qualit y, fo od producti on and agriculture, forestry, water resources, sea level and coastal areas, energy , infrastructure, settlements, and e cosystems and wildlife, as well as int ernat io nal impacts. T he Ad ministrator’s assessment in t he Proposed Endangerment Finding is less detailed and addresses only certain o f t hese issues.43

The comments on the fo llo wing pages reflect th e TSD’s basic structure and address the scientific infirmi

ti es th at afflict th at document’ s sections in order, add ing reference s to the Proposed Endangerment Finding where relevant . It should be noted at the outset, however, that certain of the flaws ident ified in one sect io n of the TSD are relevant to concl usion s presented elsewhere in the document. Deficiencie s in the TSD’s assessment of climate models or in its analysis of temperature trends , fo r instance , undermine all o f t he TSD’s stated co nclusio ns derived fro m t hose mo del s’ proj ections of future tem peratures. Similarly, inaccuracies in descript io ns of effects such as sea level rise or extreme events influence th e TSD’s and the Proposed Endangerment Finding ’s conclusio ns wi th respect to nearly all of the healt h and welfare impact assessments. These overarching issues are noted throughout these comments. Addit io nal problems result fro m t he TSD’s structure. In particular, the document di scusses the science addressing attempted attributio n of potentially climate

- related impacts to GHG emissio ns separately fro m it s assessment of the severit y a nd potential adversit y o f those impacts. In effect, this results in an assessment of healt h and welfare impacts that ignores uncertaint ies and conflict ing evidence by relegat ing all such discussion to earlier chap ters that do not themselves address issues (such as severit y, adversit y, or beneficial effects) that may be ul timately determinat ive of the endangerment question. The Agency’s approach produces a misleading and inaccurate set of conclusio ns on questions o f fu ndamental significance to the Agency’s endangerment inquiry. A resul t i s overstatement of th e certaint y t hat various proj ected effects will occur.

1. GHG Emissions The TSD describes both current and projected U.S. and global anthropogenic GHG emissio ns. The accuracy o f t his informat io n is critical because it fo rms the basis for linking specific effects of climate change to current and future GHG concentrations. Inaccuracies will44

di stort assessment of risks. In almo st every case, inaccuracies and flaws in EPA’s assessment of th e science in this area lead to overstate ment of ri sks. Co rrect ing these inaccuracies is crucial , as it is clear that EPA has based th e proposed endangerment and cause or contribute findings on this informat io n. See 74 Fed. Reg. at 18886/1

- 3 (stating that emissio ns levels of six GHGs are part of th e basis for the proposed endangerment and cause or contribute findings). Fi rst, the TSD rel ies on EPA’s annual Inventory of U.S. Greenhouse Gas Emissio ns and Sinks (“U.S. Inventory

”) fo r information regarding the primary GHGs of interest and indicates th at this informat io n is used to project effects of climate change. TSD at 1. As UARG note s in it s co mments on the draft TSD, th e U.S. Inventory does not account for emissio ns and sinks
r esul ting fro m la nd use changes and the forestry sector
. Thi s is important given the significance of U.S. land use changes and the TSD’s statement that , in t he United States, the forestry sector is

“ a significant net sink, while in so me developing countrie s it is a sign ificant net source of emissio ns .” Id. at 10
. EPA describes the nature of U.S. sinks ex cl uded from the inventory as fo llo ws : Removals of carbon through land use, land

- use change and forestry act ivit ies are not included in Figure 2.2, but are sig nificant; net sequestration is est imated to be 883.7 TgCO 2 eq in 2006, offsetting 12.5% of total emissio ns (EPA, 2008). Id
. As noted in the above

- quoted language, however, the TSD does not include this informat io n in t he primary F igure stating th e purported level o f U.S. GHG emissio ns. Likewise, it ig nores these important sinks in various other descript io ns o f U.S. emissio n levels. See, e.g. , id. at 12 (“ Excluding land use, land

- use change, and forestry, U.S. emissio ns were 19% of the total year 2 005 global emissio ns .”). While the TSD notes in passing the nature and significance of U.S. sinks, it fa ils to incorporate this information properly in all relevant sections of the TSD,45

including the key Figures, which EPA can be expected to use in its de cisionmaking. Excl usion of thi s informat io n results in a bias toward a finding that U.S. emissio ns contribute to endangerment. This problem is exacerbated by the fact that EPA’s global emissio ns est imates may indeed include oth er countries’ fo restry
- related emissio ns and sinks, thereby skewing the Agency’s assessment of the relat ive importance of U.S. emissio ns. The significant deficiencies in EPA ’s analysis include its fa ilure to clar ify what sources and sinks, both in the U.S. and int ernat io nally, are taken into account in its endangerment assessment and , in particular, it s failure to represent fully and accurately U.S. carbon sinks. Similarly, the TSD does not accurately reflect the state of scientific knowledge of emissio ns of specific GHGs. For ins tance, regarding hydro fluorocarbons (“HFCs”), perfluorocarbons (“PFCs”), and sulf ur hexafluoride (“SF 6 ”), the TSD states: Concentrations of many o f t hese gases have increased by large factors (between 1.3 and 4.3) between 1998 and 2005. Their total radiative forcing in 2005 was +0.017 [±0.002] W m - 2 and is rapidly increasing by roughly 10% per year. These gases are almo st enti

rely anthropogenic in origin (Forster et al., 2007). Industri al fluorinated gases . . . have relat ively low atmospheric concentr at io ns. Concentrations of many o f t hese gases have increased by large factors (between 1.3 and 4.3) between 1998 and 2005. Id. at 15. The TSD cites the IPCC for these conclusions but misrepresents the conclusio ns reached in the Fourth Assessment Repor t. The IPCC states that these fluorinated gases come fro m “a nt hropogeni c and natural sources.” IPCC Working Group I, Ch II at 145, Forster, P. et al ., 2007 (emphasis added) . Perhaps more significant, the above

- quoted passage in the TSD implies that emis sion s o f t hese gases are “rapidly increasing,” even though the IPCC Working Group I report on which EPA relies says th at emis sions of so me of th em have decreased or
remained at relat ively constant levels over th e past 10 to 20 years. TSD at 15, see also i d. at ES
1 ; IPCC Working Group I, Ch. II at 145, Forster, P. et al., 2007 (describing decreases in46

fluorinated gases) . Further, as the IPCC notes, concentration levels of so me PFCs have not been updated “since 1997.” IPCC Working Group I, Ch II at 145, F orster, P. et al., 2007. EPA cannot overlook these important discrepancies . An endangerment determinat io n mu st be based on a thorough assessment of all relevant facts, not on an oversimplified summary o f t he relevant informat io n. Information on d ecreasing or stabilized emission levels in particular may warrant against a finding of endangerment and should be prominently reported , not hidden or muddled in confusing and internally contradictory statements
. Similar misrepresentations exist with respect to the TSD’s discussio n of methane concentrations. The TSD state s , fo r instance, that the glo bal at mo spheric concentration of methane (“ CH 4 ”) has “ increased by 149% since pre

- industrial levels (through 2007) .” TSD at ES
- 1. Elsewhere, the TSD notes that glob al CH 4 growth rates “declined between the early 1990s and mid

- 2000s” and further notes that concentrations grew between 2006 and 2007, “the first year - to
- ye ar increase since 1998.” Id. at 14. These conclusio ns are based primarily on the findings of the I PCC, which states that since the 1990s the emissio ns growth rate for CH 4 has been “clo se to zero” and “below zero in 2001, 2004, and 2005,” the most recent years for which th e IPCC examined emissio ns and concentration data. IPCC Working Group I, Ch II at 140, 143, Forster, P. et al., 2007. As the IPCC notes, the result of these reductions is that what EPA believes is th e second largest source of GHG radiative forcing (at least among the six GHGs targeted by the proposed EPA finding) has been significant ly reduced. EPA fails to incorporate thi s significant information in any meaningful way in its analysis or to explain it s relevance. EPA does note that the reasons for the single recent year of increase “are not yet known” and admits that the overall “decr ease in the at mo spheric CH 4 growth rate and the implicat io ns fo r future changes in its atmospheric burden are not well

- understood. ” TSD at 14. EPA does not ,47

however, explain how these uncertainties or the general trend toward lower CH 4 at mo sphe ri c
concen trations affect its analysis of endangerment. The TSD cannot provide a basis for an endangerment finding without an adequate explanation of this matter
. The TSD also fails to address CO 2 emissio ns adequately. It notes in passing that there is

“ year - to
- year variabilit y” in the annual CO 2 concentration growth rate and that th e growth rate is characterized by uncertaint y est imated at 0.11 ppm/yr. Id. at 13 & n.9 . The Agency fails to describe the implications of this variabilit y a nd the related uncertain ty . Does this have, for instance, any effect on attributing current observat ions to CO 2 emissio n le vels? Does it have any relevance to project ing future CO 2 co ncentrations? EPA must explain the import of these facts and how they relate to it s endangerme nt analysis. In addit io n, the TSD inaccurately reports that “[t] he present atmospheric concentration of CO 2 exceeds by far the natural range over the last 650,000 years (180 to 300 ppm) as determined from ice cores (Jansen et al., 2007). ” Id. at 13. It ci tes Chapter 2 of the IPCC’s Working Group I Report for this conclusio n. This informat io n, however, does not appear in th at chapter , and any basis th at may exist fo r thi s statement is unclear. 17 Further, the TSD misleadingly describes certain CO 2 - relat ed effects that, while th eoretically possible, are in no way likely to occur under any projected emissio ns scenario. Specifically, the document states that “[c] arbon dioxide concentrations above 5% may be dangerous for vegetation and as concentrations app roach 20%, CO 2 becomes phytotoxic. Carbon
17 A similarly inaccurate citation to the IPCC appears on page 14 of the TSD with respect to methane concentrations. Further, the TSD states that “[i] ce core data show that the present atmospheri c concentration of N 2 O is higher than ever measured in the ice core record of the past 650,000 years (Jansen et al., 2007) .” TSD at 15. This information does not appear in the IPCC Assessment that the TSD cites as its source. Indeed, the cited chapter of the IPCC report indi cates that ice core data for N 2 O cover only 2,000 years. See IPCC Working Group I, Ch II at 143, Forster, P. et al., 2007.48

dioxide can cause death of plants through ‘root anoxia’, together with low oxygen concentration (IPCC, 2005) .” Id. at 17. The Agency fails to ment io n, however, that these concentrations and th ese particular effec ts have been observed in , and are relevant to , only those areas that are exposed to massive ly high CO 2 concentrations, such as those that result fro m large vo lcanic eruptions. Indeed, the IPCC report cited in the TSD for this proposit io n addresses the ris k of this particular ty

pe of harm in the context of hypothetical massive CO 2 releases. IPCC , Speci al Report on Carbon Dioxide Capture and Storage at 248 (2005). The TSD instead impli es that such effects could so me how result from at mo spheric concentration s and other anthropogenic emissio ns in a manner that is plainly inconsistent with the informat io n contained in th e ci ted source for thi s statement . TSD at 17. The TSD’s misrepresentation on this issue is not only troubl ing but ironic, given that increase d CO 2 concentrations th at may occur at mo re modest levels in t he atmosphere generally are very likely to have positive effects on plant growth and healt h, as described below in t hese co mments. In addit io n , in discussing projected future emissio ns scenario s, the TSD states th at “[a] ll future GHG emission scenarios described in this section assume no new explicit GHG mit igat io n policies

-- neit her in the U.S. nor in other countries

-- beyond those which were already enacted at the time the scenarios were dev eloped. ” Id. at 45. With regard to the scenarios developed by th e CCSP and presented in the TSD, EPA further notes that “[t] he CCSP scenarios, because they were developed more recent ly t han the IPCC SRES [Special Report on Emissio ns Scenarios] scenarios, do account for the implementation of the Kyoto Protocol for participat ing countries, but no explicit GHG mit igat io n policies beyo nd the Kyoto Protocol. ” Id. at 47. Elsewhere, the TSD states that “ mit igat io n measures to reduce GHGs, which could also redu ce long

- term ri sks, are not addressed. The purpose of this document is to review the effects of climate change and49

not to assess any speculat ive policy or societal response to climate change. ” Id. at 2. Further, “it is the Administrator’s posit io n t hat t he purpose of the endangerment analysis is to assess the ri sks posed to public healt h and welfare, rather th an to estimate how various . . . greenhouse gas mit igat io n policies may ameliorate or exacerbate any endangerment that exists.” 74 Fed. Reg. at 188 94/3. Even assuming for the sake of argument that it is appropri ate to excl ude “ speculative ” mit igat io n measures fro m E PA’s assessment of endangerment, it is indefensible to exclude exist ing and virtually certain mit ig ation measures from th at assessment
. Emissio n reduct io ns th at are planned or expected in foreign nat io ns and at the federal, regional, state, and local levels in t he United States should not be excluded from EPA’s project io ns simply because they are not in all cases guaranteed. Indeed, not hing addressed in the TSD is abso lut ely certain to occur; the Agency should attempt to base its projections on what is most likely to occur, not on arbitrary rules designed to evade difficult questions. EPA is willing to speculate as to large GHG emissio n increases; purposeful exclusio n of likely mit igat io n measures is arbitrary and reflect s a significant lack of balance in EPA’s analyt ical approach. Finally, EPA notes in passing that there are considerable uncertainties associated with future GHG emissions proj ect io ns. TSD at 48 (“ The broad ranges of EMF

- 21 emissio ns proj ect io ns in Figure 6.3, especially for N 2 O and the F

- gases, illustrate the uncertaint ie s in proj ect ing these future emissio ns, which is generally consistent with the range found in SRES. ”). Further, the TSD states : Scenarios are story lines regarding possible futures. These storylines are designed to be internally consistent in their assumpt io ns regarding populat io n and economic growth, implementation of po licies, techno lo gy change and adoption, and other factors that will influence emissio ns. Scenarios are not projections of the future , but are used to illustrate how the future might look if a given set of events occurred and policies [are] implemented. Id. at 45 (emphas e s added).50

Because these scenarios are “not project io ns of the future,” EPA does not assign probabilit ies to specific outcomes. On the one hand, because of the significant uncertaint ies inherent in such an endeavor, it is perhaps understandable that EPA wo uld avo id undertaking this task. On the other hand, however, the Agency fails to address or resolve the fundamental problems th at i

ts approach creates . The bulk of the TSD describes possible effects associated wi th th ese projected scenarios, th ereby implying that th ese effects will in fact occur in the future. Further, the Administrator proposes to base her endangerment and cause or contribute findings on these projected effects. 74 Fed. Reg. at 18898/2 (“Based on the total weight of evidence, ... it is the Adminis trator’s j udgment that current and projected le vels o f t he mix o f t he six greenhouse gases endanger the public healt h and welfare of current and future generations. The Ad ministrator’s proposed endangerment finding is based on the entire range of observed ri sks and potential harms to public health and welfare.”) (emphas e s added). The scient ific basis for reaching endangerment and cause or contribute finding s is not adequately established due to th e serious limitat io ns on the Agency’s assessment of the s ub stantial uncertaint ies associated with th ese issues. EPA would have to describe the relative probabilit ies o f var io us future emissions proj ect io ns before it co uld determin e th at the proj ected effects of those emissions endanger public healt h or welfare.

2. O bserved and Projected Effects of GHG Concentrations
a. Temperature Trends and Modeling The science addressing temperature trends and their historical record has overarching and significant implicat io ns, similar to those related to project io ns of future GHG concentrations, for all o f t he various healt h and welfare impacts that EPA assesses in the TSD and Proposed Endangerment Finding . Fi rst, wi th regard to observed temperature trends, providing accurate51

informat io n can guard against unfounded attribution of various pheno mena to climate change. The TSD , however, does not assess adequately current temperature trends and often engages in broad generalizations while failing to explain the import of various conclusio ns and facts th at are presented. For instan ce, the Proposed Endangerment Finding states : 2005

–2007 were exceptionally warm years (among the top 10 warmest on record), while 2008 was slight ly war mer than average (the 39th warmest year on record), 0.2 °F (0.1 °C) above the 20th century (1901

–2000) me an. The last ten 5

- year periods (2004

–2008, 2003

–2007, 2002

–2006, 2001

–2005, 2000

–2004, 1999

–2003, 1998

–2002, 1997

–2001, 1996

–2000, and 1995

– 1999), were the warmest 5

- year periods in the 114 years of nat io nal records, demonstrating the ano ma lo us warm th of th e last 15 years. Id . at 18899/1; see also TSD at 27. Neith er the Proposed Endangerment Finding nor the TSD , however, provides any insight into the significance of th ese facts. T he TSD notes that 2008 was significant ly co oler than recent pre ceding years but th at i t “ti ed wi th 2001 as the eighth warmest year on record for the Earth. ” TSD at 24. The TSD also notes that “ 1998 and 2005 remain the two warmest years on record. ” Id. Further, EPA reports without comment that the addition of data from 2006 th

rough 2008 to tem

perature trend analysis perf ormed by the IPCC al

ters trends

“ fro m + 0.11°C to + 0.15°C per decade compared to the estimate of + 0.12°C to + 0.19°C per decade given in IPCC (2007a). ” Id. at 25. It may be arguable that year

- to
- year variation does not significantly alter overall trends and that the ye ar s selected and five

- year bins that EPA has reported are in so me way significant ly revealing as to overall temperature trends. Yet EPA neit her attem

pt s to make such arguments nor to explain the significance and reliabilit y of the data i t includes in the TSD and the Proposed Endangerment Finding . Similarly, EPA offers no di scussio n of uncertaint ies related to the relevance of this informat io n or a description of the role th at inter

- annual var iabilit y ma y p lay in assessing the robustness of any trends. Accurate52

representation of this informat io n is crucial, especially given that, as EPA points out, a variet y o f short

- term factors

-- such as radiat ive forcing resulting from so lar

- mo dulated cosmic ray io nizat io n, surface albedo changes, water vapor, and black carbon

-- are likely to play a significant role in temperature changes and d o s o over short timescales. Id. at 22. These same problems are also evident in EPA’s discussion o f warming tre nds over various geographic regions. For instance, the TSD states : Between 1901 and 2005, warming is statist ic ally significant over most of the world’s surface with the exception of an area south of Greenland and three smaller regions over the southeastern U.S. and parts of Bolivia and the Congo basin. The lack of significant warming at about 20% of the locations, and the enhanced warming in other places, is likely to be a result of changes in atmospheri c circ ulat io n . Id. at 24; see also id. at 28 (“Reg io nal data
. . . indicate warming has occurred throughout most of th e U.S., with all but three of the eleven climate regions showing an increase of more than 1oF since 1901 through 2006 (NOAA, 2007).
. . . [T] he greatest temperature increase occurred in A laska (3.3°F per century). The Southeast show s essentially no trend over the entire period, but has warmed since 1979. ”) (emphasis added)
. EPA states th at 20 percent of th e globe, including portions of the United States, has shown no statis tically signif icant warming, but suggests th at thi s ano ma ly is not compelling and should be ignored . But EPA does not assess the uncertaint ies in it s hypothesis or discuss any evidence that may support or refute its concl usions . Li

kewise, EPA provides no discussio n of th e basis for its conclusio n th at “ stati st ically significant ” warming has occurred or the relat ive confidence it has in that co nclusio n . Similar vagueness plagues EPA’s general co mpar isons of recent temperature s to tem peratures in the past. EPA states , f or instance, that “glo bal mean surface temperature was higher during the last few decades o f t he 20th century than during any comparable period during53

th e preceding four centuries.” Id. at 26. Yet the Agency also notes that “[l]arge

- scale surfac e tem p erature reconstructions . . . yield a generally consistent picture of temperature trends during th e preceding millennium, including relat ively warm condit io ns centered around A.D. 1000 (identified by so me as the “Medieval Warm Period”) and a relatively co ld period (or “Li ttle Ice Age”) centered around 1700.” Id
. T he Medieval Warm Period , of course, fa lls outside the four

century period EPA select ively ident ifies as the baseline period fo r comparing historic tem peratures to those in recent decades. Th is s ort of general and imprecise d iscussio n is not a sufficient basis on which to evaluate th e endangerment question
. Another instance of selective and misleading timescale cho ice is found in EPA ’s use of th e year 1750 as the pre

- industrial bas e point fro m wh ich subsequent radiat ive forcing, i.e. , warming or cooling effects, is measured. See, e.g. , id. at ES
- 2, 19, 22, 31; 74 Fed. Reg. at 18896/2. The IPCC, which the Agency cites for this informat io n, indicates that in the period between the years 1600 and 1 800, CO 2 mixing ratios actually dropped by 5 to 10 ppm and that using 1750 as the pre

- industrial index “may slight ly o verest imate the RF [radiat ive forcing], as th e changes in the mixing ratios of CO 2 , CH 4 and N 2 O after the end of this naturally cooler per io d may not be solely attributable to anthropogenic emissio ns.” IPCC Working Group I, Ch II at 140, Forster, P. et al., 2007. EPA fa ils to acknowledge this import ant caveat. While relying on vague ly state d conclusio ns regarding observed temperature trends, the TSD further suffers fro m fa ilure to evaluate thoroughly th e implicat io ns of errors and flaws in th e historical climate record. This information, for instance, is crucial for evaluat ing the reliabilit y of climate change

- related modeling results, wh ich are compared to climate records to assess their abilit y t o replicate accurately past climatic condi tions. Moreover, the tem perature record is used as an input in climate models and thus influenc es how those models perf orm and54

th e project io ns they gene rate. A number of studies address flaws of this sort
. EPA largely ignore s them
. Similarly , the TSD notes that “[s] urface temperature is calculated by processing data from thousands o f world

- wide observat io n sit es on land and sea. Parts of the globe ha ve no data, although data coverage has improved with t ime. The long

- term me an tem peratures are calculated by interpolat ing within areas wit h no measurements using the collected data available. ” TSD at 22. This is significant information noting shortcomings in the available data. Yet, while the TSD notes that other issues may result in biases or inaccuracies (only to reject th e biases and inaccuracies as inconsequent ia l) , it fails even to me nt io n , let alone analyze, th e possible distortions introduced by int erpolat io n of temperature data. The TSD also does not explain in any useful detail what parts of the globe continue to lack data , and it likewise presents no meaningful assessment of the nature of the data improvements that EPA believes have occurred. These yawning gaps in EPA’s analysis almost inevitably heighten uncertaint y and int roduce further bias to the endangerment assessment , but, again, EPA is silent on such mat ter s. F urther, addit io nal studies have uncovered signif i cant flaws in the temperature record

-- flaws EPA who lly ignores. Regarding ocean temperatures, one study recent ly u ncovered previously undocumented biases that have resulted in significant overest imat io n of long

- term tem perature changes in the glo bal ocean. Gouretski and Ko lt er ma nn, How Much is the Ocean Really Warming? , 34 G EOPHYSICAL RESEARCH L ETTERS L01610 ( 2007 ) . The significance of the ocean temperature record was recent ly reinforc ed by the investigations of Keenlyside et al., Advancing Decadal

- S

cale Climate Prediction in the North Atlantic Sector , 45 N ATURE 84
- 88 (May 2008 ) , which found that use of more accurate sea surface temperatures resulted in glo bal surface temperature project io ns that, over the next several decades, would fall wit hin natural climate variabilit y. Similarly, a number of recent studies have uncovered co mparable flaws,55

uncertaint ies, and biases in the mult i

- decadal surface ai r tem perature record. Thom

pson et al., A Large Discontinuity in the Mi d

- T we ntieth Century in Observed Global

-Mean Surface Tempera ture , 453 N ATURE 646
- 49 (May 29, 2008) ; P ie lke et al., Unresolved Issues With the Assessment of Multidecadal Global Land Surface Temperature Trends , 112 J. OF G EOPHYSICAL RESEARCH D24508 (Dec. 29, 2007) ; Pielke et al., Documentation of Uncertainties and Bi ases Associated w

ith Surface Temperature Measurement Sites for Climate Change Assessment , AMERICAN M ETEOROLOGICAL S OCIETY 913
- 28 (June 2007) ; Lin et al., An Examination of 1997

- 2007 Surface Layer Temperature Trends at Tw o Heights in Oklahoma , 34 G EOPHYSICA L RESEARCH L ETTERS L24705 (Dec. 22, 2007)
. These findings requi re reanalysis o f mo deling resul ts previously relied on by the IPCC and the other synt hesis reports cited by EPA , as they are likely to h ave substantial effects on climate projectio ns. Such re analysis could , in turn, fundamentally al

ter proj ect io ns wi

th respect to all other purported cli m ate change

- related impacts. Findings of this sort demonstrate the need for EPA to perform its own com prehensive literature search and scient ific assessment. Other studi es , unrelated to discrepancies and flaws in t he tem perature record, also indicate th at similarly pervasive inaccuracies may affect past climate mo deling proj ect io ns and th at considerable reanalysis would be requi red before EPA could reasonably u se those proj ect io ns in this proceeding
. For instance, Spencer, R.W., and W.D. Braswell, Potential Biases in Feedback Diagnosis from Observational Data: A Simple Model Demonstration , 21 J. OF C LIMATE 5624
- 28 (Nov. 2008 ), determined th at previous est imate s of the sensit ivit y o f t he climate system based on satellite data were biased toward the high side due to th e neglect of natural cloud variabilit y. This study fo und th at f ailure to account for natural, chaotic cloud variabilit y, a problem th at continues to plague climate m odeling, will always proj ect a climate56

system th at appears more sensit ive than it really is . A nother recent study, Ramanthan and Carmichael, Global and Regional Climate Changes Due to Black Carbon , 1 N ATURE G EOSCIENCE 221
- 27 (Apr. 2008 ) , demonstrate s th at global climate models underest imate the percentage of climate forcing that is attributable to black carbon, a non

- GHG. Accordingly, climate models that instead attribute this forcing to GHGs are necessarily inaccurate and their resul ts requi re reassessment. The TSD chooses to ignore these very real issue s. It cites the IPCC for the conclusio n th at : Bi ases may exist in surface temperatures due to changes in station exposure and instrumentation over land, or changes in measurement techniques by ships and buo ys in t he ocean. It i s likely that these biases are largely rando m and therefore cancel out over large regions such as the globe or tropics (Wigley et al., 2006). Li kewise, urban heat island effects are real but local, and have not biased the large

- scale trends (Trenberth et al., 2007). TSD at 22. The findings of the studies described above, however, constitute direct challenges to IPCC concl

usions and those th at EPA cites as reason s fo r ignoring potenti al biases result ing from tem perature
- record flaws. It is inappropriate and internally inconsistent for EPA to continue to di sregard the most current scientific findings on historical tem perature records in favor of outdated IPCC conclusio ns even as the Agency updates IPCC co nclusions with temperature data fo r the most recent years. The new informat io n described above requires reconsideration o f those modeling results that attributed various changes to GHG emissio ns where significant variables were ignored or where other fact ors may have been the primary causes of climate effects. These issues go direct ly t o th e asserted basis for the Proposed Endangerment Finding
. Finally, in addit io n to the problems that temperature data and similar issues pose for climate and climate impac t proj ect io ns, significant weaknesses are inherent in the design of the57

climate models used to generate the information presented in the TSD and relied on by EPA in th e Proposed Endangerment Finding . EPA fails to address these issues, and misleadingly des cribes climate change models as “well

- tested,” characterized by “a foundat io n in accepted physical principles,” and possessing the “abilit y t o reproduce observed features of current climate and past climate changes.” Id. at 39. These assertions are overbroad and ignore critical shortcomings in modeling capabilit ies. As stated in a 2008 CCSP Report, current models contain “a number of systemat ic biases,” their strengths and weaknesses “vary substantially” fro m mo del to model, and “several important aspect s of the climate system present especially severe challenges to the goal of simulat io n.” CCSP, Climate Models: An Assessment of Strengths and Limitations at 1 (July 2008). This report goes on to characterize in significant detail a variet y o f uncertaint i es and problems present ed by current models . The TSD addresses none o f those uncertaint ies and problems
. Moreover, in the few instances in which the TSD ment io ns mo del inconsistencies or uncertaint ie s, it explain s them away as “under invest igat io n”
-- le aving their implicat io ns unaddressed, even while tacit ly, if perhaps inadvertent ly, conceding that model resul ts are not now in a state in which EPA could rely on them for a regulatory determinat io n such as an endangerment finding
. See, e.g. , TSD at 41
. In sum, the TSD’s discussion o f t emperature trends is generally vague and simplist ic and fails to grapple with the most pressing quest io ns wit h anyt hing like an adequate level of detail. Moreover, a number of recent studies raise serious questions about th e reliabilit y o f t he tem perature record data used in the modeling studies on which EPA relies. The Agency ignores thi s informat io n without providing any reason for its omis sion. Finally, the models themselves are known to suffer fro m a var iet y o f weaknesses ; th ese , too, are ignored by EPA , which persists58

in misrepresent ing their reliabilit y. Accordingly, the informat io n EPA cites is inadequate to support th e Proposed Endangerment Finding
.

b. Precipitation T he TSD and the Proposed Endangerment Finding make a number of claims regarding th e likely effects of climate change on precipitat io n globally and in the United States. Regarding observed precipitat io n t rends, the Administrator concludes that “[o]ver the contiguous U.S., total annual precipitation incr eased at an average rate of 6.5 percent over the period 1901

–2006.” 74 Fed. Reg. at 18899/1. Further, EPA states that “[g]lobal mean precipitat io n is expected to increase with global warming.” Id . at 18900/1. The Agency also notes “substant ia l spat ia l and seasonal variat io ns ” in pro jected precipitat io n. Id . The TSD provides addit io nal detail on expected precipitat io n effects. See, e.g. , TSD at 29
- 30 (explaining U.S. regional increases in observed precipitat io n). The TSD also states that most of the United States will experience a

“widespread increase in annual precipitation ” except the southwest, which models indic ate will experience drying. Id. at 59. Several problems undermine EPA’s presentation of the science related to precipitat io n effects o f c limate change. First, the TSD states in a number of sect io ns that “[i] t i s likely that th ere have been increases in the number of heavy precipitat io n events (e.g., 95th percent ile) wi thin many land regions, even in those where there has been a reductio n in t otal preci pi tation
amount, consistent with a warming climate and observed significant increasing amounts of water vapor in the atmosphere. ” Id. at 29; see also id. at ES
- 2, 36. The TSD mis characterize s thi s as an “observat io n” of current climate change impacts on precipitat io n events. This is a guess , not an observat io n. Elsewhere, EPA says th at such increases have been reported, without specifying where or at what frequency, while casually noting that “ only a few regions have sufficient data to
a ssess such trends reliably (Trenberth et al., 2007).” Id. at 36.59

More broadly troubling is the lack o f any significant descript io n of the uncertainties associ ated wi

th EPA’s proj ect io ns in the TSD sections direct ly addressing precipitat io n. These problems are substant ia l a nd crit ical to a proper evaluat io n of whether endangerment will result fro m t hese projected climate change effects. T he CCSP’s assessment of model strengths and weaknesses states clearly that project io ns o f preci pi tation in so me cases remain “problemat ic” (especially at the regional scale)
. See id. at 52
- 53. Likewise, the CCSP has concluded that “[t] here is no clear evidence to date of [ an effect of ] human

- induced global climate change on North American precipitation amounts.” See i d. at 43 (citing Clark et al., Abrupt Climate Change, Executive Summary 7

- 18, A Report of the U.S. Climate Change Science Program and th e Subcommittee on Global Change Research 2008) ) ; see also id. at ES
- 3 (“ clearly attributing specific regio nal changes in climate to emissio ns of greenhouse gases from human activit ies is difficult, especially for precipitat io n”). Thi s statement reflects th e weaknesses of the relevant
mo dels. Yet the A dministrator’s conclusio ns in the Proposed Endangerment Finding com plete ly di sregard these findings, and the TSD itself downplays them without just ificat io n. These problems mu st be addressed and their implicat io ns examined if EPA chooses to rely on this informat io n . As EPA notes, “[c] hanges in precipit ation patterns will pla y a large role in determining the net impacts of climate change at the national and sub

- national scales , wh ere uncertainties about precipitation changes remain very large
. ” Id. at 84 (emphasis added) . It is plainly unacceptable for EPA to ignore these substant ia l uncertainties.

c. Sea Level Rise and Sea Ice The Proposed Endangerment Finding states th at “[w]arming of the climate system is now unequivocal, as is evident from observat io ns of ... rising global average sea level.” 74 Fed. Reg. at 18896/2. Furt her, the Administrator concludes that “[t]here is strong evidence that global sea level gradually rose in the 20th century and is current ly r ising at an increased rate.” Id. at60

18898/3; see also TSD at 30. EPA th en states additional and increasingly spec ulat ive concl usion s. For instance, the Administrator cites IPCC conclusio ns that sea level will , by the end of this century, be between 0.18 and 0.59 meters higher than in 1990 and that rapid ice loss th rough various ice sheet flow processes could increas e the rate of sea level rise. 74 Fed. Reg. at 18900/2. Further, the Administrator concludes that “[w]hile understanding of these ice sheet processes is inco mp lete, thei r inclusion in models would likely lead to increased sea

- level proj ect io ns fo r the end of th e 21st century .” Id . Regardless, the Administrator concludes that “t he rate of change will increase in the future, exacerbat ing the impacts of progressive inundat io n, storm
- surge flooding, and shoreline erosion.” Id . at 18902/3. These conclusio ns closely mirror statements in the TSD. The se conclusions are not supported by th e available science. Indeed, as EPA notes, sea level changes are due in significant part to factor s other than GHG emissio ns and climate change, such as land subsidence. Id. at 18899/1. The TSD, on occasion, makes this concessio n as well, see, e.g. , TSD at 60, although it regularly downplays the role of land subsidence , suggest ing

-- wi thout showing

-- th at it does not have significant effects or that i ts role in sea level c hange should so me how be counted towards a finding of endangerment fro m GHG emissio ns . See, e.g. , id. at 30 (“ Two maj or processes lead to changes in global mean sea level on decadal and longer time scales: i) th ermal expansion , and ii) the exchange o f wat er between oceans and other
reservo ir s (glaciers and ice caps, ice sheets, and other land water reservoirs). ”). Moreover, as the TSD acknowledges, “[v] ertical land motion fro m geologic processes may decrease (uplift) or increase (subsidence) the relat ive sea level rise at any site .” Id. at 60. Accordingly, reassess ment of EPA’s concl

usion s on sea - level rise would be necessary before EPA could use them to support an endangerment finding
.61

There is also a considerable amount of science suggest ing that the Ad ministrator’s concl usion s regarding the potential for sea level to rise at an increasing rate over time is incorrect. Indeed, the TSD itself notes that “[i] t is unclear whether the faster rate [of sea level ri se] fo r 1993 to 2003 is a reflect io n of shor t
- term variabilit y o r an increase in the longer

- term trend (Bindo ff et al., 2007). ” Id. at 30. Further, recent studies ignored by th e TSD also contradict EPA’s assessment. One study indicates that ice sheets are less suscept ible to climate change

- relate d loss of mass than has previously been suggested. In particular, this study reported th at ice sheets can adjust to what so me assumed to be feedback mechanisms thought to cause accelerated melt ing, thus indicat ing that abrupt melt ing from increased ice flow is unlikely
. See Van de Wal et al., La rge and Rapid Melt

-Induced Velocity Changes in the Ablation Zone of the Greenland Ice Sheet , 321 S CIENCE 111
- 13 (July 4, 2008 )
. A n addit io nal study indicates that ocean temperatures have not risen in response to a nt hropogeni c climate change and that any increase in ocean temperature is regional in nature and the result of natur al variabilit y. Lozi er et al ., The Spatial Pattern and Mechanisms of Heat

- C ontent Change in the North Atlantic , 319 S CIENCE 800
- 03 (Feb. 8, 2008 )
. The TSD and the Propos ed Endangerment Finding , however, omit any discussio n of these recent studies and assert that ocean warming associ ated wi th climate change is u nequivocal and that it is and will cont inue to contribute to sea level rise
. Simi larly, the TSD and the Proposed Endangerment Finding rely on outdated projections of future sea level rise. The most recent study assessing sea level rise modeling results concl udes that previous est imates, including those calculated by the IPCC, are roughly double currently supportable sea level rise expectations. Bamber, et al., Reassessment of the Potential Sea

-Level Rise from a Collapse of the West Antarctic Ice Sheet , 324 S CIENCE 901
- 03 (May62

2009). Again , this rai ses substant ia l quest io ns as to a nu mber of the TSD’s assert io ns and requi res reconsiderat io n of the addit io nal impacts EPA attri but e s to ice sheet loss. d. Ocean Acidification The Proposed Endangerment Finding states th at “[o]cean acidificat io n is projected to continue, result ing in the red uced bio lo gical production of marine calcifiers, including corals.” 74 Fed. Reg. at 18902/3. This conclusio n is remarkable given the pauci ty of informat io n in t he TSD on this issue, which receives less than a page of analysis in t hat document
. See TSD a t 31, 57. Indeed, the TSD characteriz es ocean acidificatio n a s an “emerging issue[]” that investigators
are only beginning to examine
. Id. at 6. Despite it s scant analysis , the TSD suggests future CO 2 emissio ns will be absorbed by the oceans, “th ereby r educing calcificat io n rates of organisms who [si c] rely on the minerals for development. ” Id. at 57. The evidence adduc ed for these effects is meager , while the abundant uncertaint ies are whol ly ignored. Further, fo r the reasons discussed above, conside rable uncertaint ie s greatly limit EPA’s abilit y t o rely on proj ect io ns of future emissio n s scenarios, and EPA does not even attempt to assign probabilit ies to various potential outcomes. Accordingly, no legit imate basis exists fo r EPA’s assert io ns that oc ean acidificat io n will occur and result in the level of impacts it proj ects.

e. Physical and Biological Systems The TSD addresses the science examining whether climate change affects a variet y of ecosystem co mponents. For example, r egarding water resour ces, the TSD states that drought condi tions are beco ming more severe in so me regions, increased runo ff and streamflow are resul ting fro m g lacier melt and snowmelt, lakes and rivers are experiencing increased tem peratures, and rivers are experiencing increa sed discharge. Id. at 33. The TSD acknowledges, however, that “[s]ome local trends in reduced groundwater and lake levels have been reported, but studies have been unable to separate the effects of variat io ns in temperature63

and precipitation fro m t he eff ects of human intervent io ns such as groundwater management (Rosenzweig et al., 2007).” Id
. Regarding each of the ecosystem issues th at the TSD discusses , EPA must provide significant ly mo re detail fo r any reasonable analysis of endangerment to be possibl e. For instance, the TSD states that drought may occur in “other areas” or in “so me regions” with “no clear trends for North America as a who le.” Id. at 28, 33, 37. Thus, it is unclear from the science assessed in the TSD where and how any drought

- relat ed effects may occur. Further, the TSD states that “ mo st of th e continental United States experienced reductions in drought severit y and duration over the 20th century ” and that drought in the western United States has been attributed to “ mult idecadal flu ctuations .” Id. at 37. Accordingly, it appears that drought condi tions can be attributed to causes other than climate change, contradic ting the concl usion s asserted in the TSD and the Proposed Endangerment Finding . Further, given that projections of dro ught are necessarily based on modeling of temperature increases and precipitation, which , as demonstrated above, are subject to significant reliabilit y problems, EPA’s conclusio ns as to th at asserted effect are especially quest io nable. Similarly, the TSD’ s discussio n of streamflow and runoff is abbreviated and provides no explanat io n of the evidence available, uncertaint ie s associ ated wi

th th at evidence, or any significant regional detail. Finally, the TSD’s discussio n of river discharge is, again, cursory at best. Moreover, the TSD entire ly ignores scient ific evidence demonstrating that, while climate

- related changes in precipitat io n t heoretically could affect river di scharge, few rivers have experienced any significant changes in t he current p eriod, and any changes that might occur in t he future are much more likely to be caused (or overwhelmed) by factors unrelated to climate change, such as damming and irrigat io n. Milliman et al. , Climatic and Anthropogenic Factors Affecting River Discharge to the Glo bal Ocean, 1951

- 2000 , 6264

G LOBAL & P LANETARY C HANGE 187
- 94 ( 2008 )
. It is impossible to base an endangerment finding on such a perfunctory, inco mp lete, and scient ifically unsupported discussio n. The TSD also states that bio lo gical systems are being affec ted by changing climate. It points to range shifts for flora and fauna, changes in biodiversit y, changes in pheno lo gy and breeding , and hibernat io n patterns and attributes them to climate change . TSD at 34. The TSD notes that changes observed in marine species are mo re difficult to attribute to climate change due to “ other stresses ( e.g. over fishing and pollut ion) .” Id
. Regarding these effects, the TSD say s that different species will have different capacities fo r adapting to changes (even as it refus es to analyze the effects of adaptation) and that such changes will result in “ al

ter [ed] ecosystem structure, funct io n, and services. ” Id. at ES
- 6. The TSD also notes that evidence for lo cal disappearance of species is “limit ed.” Id. at 34. Thus, EPA c oncedes that even local disappearances, which are not necessarily t ied to extinct io ns or even to problems, are not well

- supported. Suggesting that mass extinct io ns or severe eco lo gical consequences could result based on this evidence is completely unfound ed. Thus, the TSD fails to provide any objective measure of the consistency or strength of the available scient ific evidence for this particular t ype of asserted effect. Moreover, it provides litt le informat io n t hat could serve as guidance to the Adminis trator i n determining to what extent such an effect is adverse or “endangering
. ” Indeed, alt hough th e Administrator cites this potential effect in th e Proposed Endangerment Finding , she offers no explanat io n of how or whether these effects negat ively impa ct public healt h or welfare. See 74 Fed. Reg. at 18903/1. In fact , new scientific evidence indicat es climate change is much less likely than some observers previously thought to resul t in an influx of invasive species or in biodiversit y lo sses. For inst ance, one recent scient ific analysis determine s th at animal diseases previously thought to have been exacerbated by65

changing climat ic condit io ns are in fact unrelated to climate. Lips et al., Riding the Wave: Reconciling the Roles of Disease and Climate Change in Amphibian Declines , 6 PLOS B IOLOGY 441
- 54 (Mar. 2008 ) (finding that amp hibian declines due to disease increases are no t related to climate change). Other recent evidence indicat es th at previously commo n assumpt io ns regarding potenti al species

- level impacts of changing temperatures , and distribut io n of those imp acts , suffer from serious inaccuracies. Particularly important is the recent finding that species impacts will likely be greatest in t he tropics, largely outside of the U nit ed States, and that speci es in higher latitude s are far more resilient to climate change. Deutsch et a l. , Impacts of Climate Warming on Terrestrial Ectotherms Across Latitude , 105 PNAS no. 18 (May 6, 2 008 )
. Similarly, a study recent ly published in the Proceedings of the National Academy of Sciences concl uded that the int roduction of invasive plant species to new ecosystems does not necessarily result in significant species loss or harm, as is o ft en argued . Sax and Gaines , Species Invasions and Extinction: The Future of Native Biodiversity on Islands , 105 PNAS 11490
- 97 (Aug. 12, 2008 )
. Similarly, a 2009 study concludes that climate change will in fact result in range contractions for five widespread and dominant invasive plant species, and that climate change will pr esent an opportunit y t o restore native species in areas that today pose a considerable challenge for land managers. Bradley, et al., Climate Change and Plant Invasions: Restoration Opportunities Ahead? , G LOBAL C HANGE B IOLOGY (2009). The science presente d in the TSD regarding this issue is accordingly an insufficient basis fo r an endangerment finding. The TSD also discusses the effects of elevated CO 2 le vels on plant growth and species diversit y. It notes that “[c] arbon dioxide can have stimulatory or f ert ilizat io n effect [s] on plant growth .” TSD at 17. Indeed, it cites the IPCC conclusion that “ at ambient CO 2 co ncentrations66

of 550 ppm (approximately double the concentration fro m pre - industrial t imes) crop yields increase under unstressed condit io ns by 10
- 25% for C3 crops, and by 0

- 10% for C4 crops .” Id
. Yet, w it hout explaining its reasoning, EPA di smiss es thi s potenti al benefit of GHG emissio ns as “small.” Id
. Inconsistent ly, EPA uses no similar qualifiers for any remotely co mparable percentage imp act th at might arguably point to adverse effects
. See, e.g. , id. at 62 (tropical storms) , 77 (po llutant concentration episodes), 92 (forest fire risks), 92 (tree line movem ent), 94 (streamflo w change) , 105 (cooling and heat ing changes). Further, the TSD distorts the relevant science in this area by suggest ing that ambient CO 2 levels could result in “noticeable die

- off” due to root anoxia, but fails to explain that this effect will not occur as a result of any pro jected CO 2 concentration likely to occur and that it in fact has been observed only where CO 2 makes up 20 to 95 percent of soil gas, such as is found in areas
ex posed to volcanic act ivit y. Id. at 17. This informat io n th us is irrelevant and misleading. Finally, the TSD tri es to downplay the be nefit s associated with CO 2 fertilizat io n by suggest ing it will reduce the qualit y of animal livestock forage , wi th mo re nutritious grasses being replaced by a less nutrit io us variet y . Thi s assertion is unfounded and , again , misleading. The TSD itself acknowledges that “th e exact effects on both types of grasses and thei r nutri tional qualit y st ill need [] to be determined. ” Id. at 87. The overt bias in EPA’s characterizat io ns and it s attem pt to minimize benefits reflect an unacceptable approach to questio ns of scient ific evidence underpinning any endangerment finding
.

f. Ext reme Events EPA ci tes several categories of extreme events and their purportedly increased potential as a basis for th e P roposed E ndangerment F inding. For instance, th e Agency says th at “[w]idespread changes in extreme temperatures have been observed in the last 50 years.” 74 Fed. Reg. at 18898/3. EPA also quotes the CCSP’s concl usion s:67

Many extremes and their associated impacts are now changing. For example, in recent decades most o f North America has been experiencing more unusually hot days and nights, fewer unusually co ld days and nights, and fewer frost days. Heavy downpours have beco me mo re frequent and intense. Droughts are beco ming more severe in so me regions, though there are no clear trends for North America as a whole. The power and frequency of At la nt ic hurricanes have increased substant ia lly in recent decades, though North American mainland land

falling hurricanes do not appear to have increased over the past century. Outside th e tropics, storm tracks are shift ing northward and the strongest storms are beco ming even stronger. Id . at 18899/2. At the same t ime, EPA notes th at there are “key uncertaint ies” related to how “t he frequency o f hurricanes and other extreme weath er events may change in a changing climate
. ” Id . at 18903/3. The TSD further discusses th e science related to observed and projected extreme events and their associ at io n, if any, with climate change and GHG emissio ns. The TSD states that “[c] old days, cold nights, and frost have become less frequent, while hot days, hot nights, and heat waves have beco me more frequent (IPCC, 2007d). ” TSD at 36; see also id. at 61
- 6 2. Yet th e TSD fa ils to provide any addit io nal informat io n on the significance of these changes or whether they might have overall posit ive or negative consequences. Moreover , the TSD states that “[i] t is likely that there have been increases in the number of heavy precipi

tat io n events”
-- even though i t acknowledges the absence of data t o substant iat e th at claim
. Id. at 36, 62. This bald speculat io n is not scient ifically just ifiable and has no place in a document intended to support a finding on the endangerment issue
. Regarding drought, the TSD contradicts the conclusion stat ed by t he Administrator . The TSD explains th at “ mo st of th e continental United States experienced reduct io ns in drought severit y a nd duration over the 20th century. Ho wever, there is some indication of increased drought severit y a nd duration in the western and southwestern United States
. ” Id. at 37 (em phasis added); see also id. at 62 (discussing drought under various emissio ns scenarios)
.68

Other statements in the TSD are equally at odds with th e Administrator’s statement in the Proposed Endangerment Finding
. See, e.g. , id. at 64 (cit ing IPCC conclusio n t hat “ it is no t clear if the present drying [in t he United States] is outside the range of natural variabilit y a nd linked to anthropogenic causes”). Similarly, regarding tropical cyclo nes and hurricanes, both of which the Administrator relies on in th e P roposed E ndangerment F inding, EPA candidly states that “t here is no clear trend in t he annual numbers of tropical cyclo nes” due to a “large suite of problems wit h t he historical record of tropical cyclone act iv it y. ” Id. at 36, 62. Further, a recent study ignored by EPA indicates hurricanes are likely to be substant ia lly rarer events under projected climate change. Knutson et al., Simulated Reduction in Atlantic Hurricane Frequency Under Tw enty
-First

Century W

arming Conditions , 1 N ATURE G EOSCIENCE , 359
- 64 ( 2008 )
. Finally, the TSD states that extreme sea levels may increase. TSD at 36, 62. This briefly stated finding fails to elaborate on any of the relevant studies, discussed above, th at undercut proj ect io ns of increases in both the rate and amount of sea level increases, and it does not so much as ment io n any of the numerous uncertaint ie s underlying th ese observat io ns and proj ect io ns. Thus, each of the extreme event categories described in the TSD and c it ed in t he Proposed Endangerment Finding are reviewed by EPA in only the most superficial way . Moreover, the TSD itself contradicts the Administrator’s stated conclusio ns. In any event, a far
mo re meaningful assessment of the underlying science would be requi red to determine whether thi s informat io n could support an endangerment finding; EPA’s desire to reach a predetermined outcome does not allow it to avoid a thorough vetti ng of uncertainties and relevant new informat io n .69 g. “ Abrupt ” Climate Change The Proposed Endangerment Finding is vague with respect to precisely how “ abrupt climate change ” considerations factor into EPA’s proposed action
. The Administrator does state, however, that “[i]f the harm [of a particular purported climate change

- induced ef fect] would be catastrophic, the Administrator is permitted to find endangerment even if the likelihood is small.” 74 Fed. Reg. at 18890/2. Lik ewise , in discussing abrupt climate change specifically, the Ad ministrator states : Even if the probabilit y of extremely high

- impact events may be small, the existence of such high impact events, and the potent ia l fo r other currently unknown catastrophic impacts that could plausibly result from record

- high atmospheri c greenhouse gas levels, substantially bolsters t he case for an endangerment finding with respect to greenhouse gases. Id
. at 18903/3. The TSD’s discussio n of the science evaluat ing abrupt climate change conced es that investigat io n of that matter is “ in it s infancy. ” See, e.g. , TSD at 57 ( evidence fo r rapid vari at io ns in glacial outflow is based on models that are “in their infancy”). Indeed, EPA makes no assessment of th e possibilit y o f abrupt climate change impacts on various healt h and welfare int erests simply because , as it acknowledges, potent ia l abrupt climate change implicat io ns “cannot be predicted with confidence, particul arly for specific regions.” Id. at 63. The Agency’s
com plete failure to do any

thing other than note the possibilit y t hat abrupt climate change may
occur , and its decisio n to refrain fro m examining any impacts to public health and welfare , make th e Administrator’s reference to “the existence of such high impact events” and her statement th at such hypothesized “events” “ substantially bolster[] th e case for an endangerment fin ding,” 74 Fed. Reg. at 18903/3 (emphasis added) , co mp letely implausible. As EPA has acknowledged, Congress barred EPA fro m basing its assessments and projections on a “crystal ball inquiry.” 7370

Fed. Reg. at 44422/3 (quoting legislat ive history of 1977 CAA amendments); see UARG ANPR Comments at 23. T he TSD suggests abrupt climate change might be triggered by any number of
occurrence s un related to GHG emissions . These include changes in Earth’s orbit, a brightening or dimming of the sun, and emissio ns of climate

- altering particles. TSD at 63. Further, as the TSD notes, the fact that “[s] ci ent ific data show that abrupt changes in the climate at the regional scale have occurred throughout history and are characterist ic o f t he Earth’s climate system ” illust rates the point th at any abrupt climate change th at may occur would not necessarily be the product of GHG emissio ns . Id
. In sum, this issue is r iddled wit h uncertaint ies, as EPA acknowledges , and EPA’s di scussio n of it consists of litt le mo re than specul ation . The Agency fail s to assess the propensit y o f any abrupt climate change to impact public healt h and welfare interests, and it suggests that various factors unrelated to GHGs may be the likely cause of any abrupt change, should it occur. The di scuss io n of this issue in the TSD and the Proposed Endangerment Finding simply does not provide a basis fo r an endangerment finding
.

h. Ozone and Air Pollution The Proposed Endangerment Finding concludes that “[i]ncreases in regio nal ozone pollut io n in t he U.S. r elat ive to ozone levels wit hout climate change are expected due to higher tem peratures and a modification o f met eorological factors. Increases in regio nal ozone pollut io n increase the risks of respiratory infect io n, aggravatio n of asthma, and premature de at h.” 74 Fed. Reg. at 18901/2. Further, the Administrator concludes that climate change will exacerbate the71

“[s]ubstant ia l challenges [that] remain wit h respect to achieving the air qualit y protection promised by the NAAQS for ozone.” 18 Id. at 18901/3. The TSD supposedly provides the fo undation fo r the Administrator’s conclusio ns. The TSD, however, is replete wi th inaccuracies and overstatements and does not in fact support the Ad ministrator’s conclusio ns on this issue . For instance, it concludes that “[t ] here is now consistent evidence fro m mo dels and observat io ns that 21st

- century climate change will worsen summert ime surface ozone in polluted regions of North America co mpared to a future with no climate change (Jacob and Winner, 2009). ” TSD at 75. The TSD notes briefly that the relevant
mo deling studi es “ fo und some regions of the country where simulated increases in cloud cover, and hence decreases in the amount of sunlight reaching the surface, partially counteracted the effects of warming temperatures on ozone concentrations in these regions, to go along wit h t he many regions where the effects of temperature and cloud cover reinforced each other in producing O 3 increases. ” Id. at 76. Similarly, it notes that climate change “ can be expected to inf luence the concentration and distribut io n of air pollutants through a variet y o f d ir ect and indirect processes, including the modificat io n of biogenic emissio ns, the change of chemical reaction rates, wash

- out of pollutants by precipitat ion, and modificat ion of weather patterns that influence pollutant buildup. ” Id. at 75. Again, some of the suggested effects are positive ; so me

18 It i s noteworthy th at, i

n t he Proposed Endangerment Finding, the Administrator does not cite any purported effects of climate change on particulate matter (“PM”) levels. The TSD makes clear, however, that the limited science that is available on that point suggest s th at “PM generally decreases as a result of simulated climate change, due to increased atmospheric humidit y a nd increas ed preci

pi tation. ” TSD at 79 (emphasis added). It is therefore appropriate that EPA not rely on PM effects as a basis for proposing to find endangerment. On the other hand, if EPA were to proceed to a final endangerment finding, it would have to first a ddress the potential healt h benefits fro m possible climate change

- related PM reductions.72

are negat ive. In addition , the TSD describes substant ia l uncertainties that attend th e mo deling of
oz one - related impacts:

· “ Relat ive to the other greenhouse gases, there is less confidence in reproducing the changes in ozone associated with large changes in emissio ns or climate, and in the simulat io n of observed lo ng - term trends in ozone concentrations over the 20th century (Forster et al., 2007). ” Id. at 15.

· “ More frequent occurrences of stagnant air events in urban or industrial areas could enhance the intensit y of air po llution events, although the importance of these effects is not yet well quantified (Denman et al., 2007). ” I d. at 76. T hese weakly stated acknowledgements that climate change will result in so me o zone decreases and th at specific posi ted effects are uncertain are still insufficient ly reflect ive of the actual scient ific record , which undermines EPA’s reliance he re on any supposed increase in
oz one . EPA ’s own Assessment of the Impacts of Global Change on Regional U.S. Air Quality: A Preliminary Synthesis of Climate Change Impacts on Ground

-Level Ozone , EPA/600/R

- 07/094F (April 2009) (“Ozone Assessment”) , ind icate s that there are significant regions of the United States that are indeed likely to see ozone decreases associated with climate change ; th at reductions in ozone precursor emissio ns likely will overwhelm any increases th at may resul t fro m c limate change ; and that , ult imately, th e science in this area is riddled wit h uncertaint ies wi th respect to ozone ( and PM) . Moreover, EPA makes clear in it s Ozone Assessment th at scientific analysis o f t hese issues and the development of models that might proj ect climate

related ozone changes are only now in the most preliminary o f phases. Astonishingly, th e TSD and the Proposed Endangerment Finding omit any reference to these facts, even though th ey were publicly reported by t he Agency it self in t he very mo nt h in which i t i ssued the Proposed Endangerment Finding
. EPA’s approach here of ignoring or distorting scien ti fic assessments, including even its own contemporaneous report, is arbitrary and indefensible.73 3. Effects on Public Health and Welfare As ex plained above, EPA ’s assessment of climate change effects is divided into two primary sections, one addressing GHGs and their relat io n to climate change and pheno mena that may be related to climate change ( e.g. , changes in temperature and preci pi tation, sea level rise, and extreme events ) , and another examining the impact these pheno me na could have on various public healt h and welfare interests. This part of UARG’s comments focuses on EPA’s evaluat io n of climate change impacts on : (1) human healt h; (2) air qualit y; (3) fo od production and agriculture; (4) forestry; (5) water resources; (6) sea level rise and coastal areas; (7) e nergy, infrastructure , and settlements; (8) ecosystems and wildlife; and (9) internat io nal impact s. As described in sect io n V .A.2, supra , numerou s flaws undermine th e analysis and underlying data relied on by EPA in th e TSD and th e Proposed Endangerment F inding wi th respect to direct effects of GHGs on climate change s . Similar problems also undermine the Agency’s concl usion s wi th respect to the sp ecific public health and welfare e ffects th at may be related to those c hange s.
a. Human Health Amo ng the most clearly un supported parts of the Proposed Endangerment Finding is that which addresses asserted effects on public healt h. EPA properly acknowledges th at GHG emissio ns are not likely to have any direct effect on public healt h. 74 Fed. Reg. at 18902/1; TSD at 157 (“Greenhouse gases, at both current and projected atmospheric concentrations, are not expected to pose exposure risks on human respiratory s ystems (i .e., breathing/inhalat io n).”). EPA asserts, however, that “effects which may flo w fro m a welfare effect,” i.e., indirect healt h effects that may result from climate change, should be treated as public health threats regardless of th ei r welfare

- ba sed cause. 74 Fed. Reg. at 18902/1. While any episode of mortalit y o r
mo rbidi ty resul ting from any proximate cause is by definit io n a healt h impact, EPA has failed to74

grasp the legal significance of this issue under the CAA. Indeed, the Agency fails eve n to note th e fact that CAA regulat io n t o protect against exclusively indirect healt h impacts is unprecedented. Further, the Agency does not even attempt to answer whether Congress intended th at EPA regulate emissio ns under the CAA based on indirect healt h impacts of what otherwise constitute welfare effects. There are, for instance, statements in the legislat ive history of the CAA indicat ing that only direct healt h effects fall within the regulatory authorit y granted in the Act. See, e.g. , H.R. Rep. No. 95
- 294 at 5 1 (1977) (“[T]he Co mmit tee intends to require the Ad ministrator to consider all sources of the contaminant which contribute to air pollution and to consider all sources of exposure to the contaminant

-- fo od, water, air, etc.

-- in determining healt h r isks.”); S. Rep. No. 91

- 1196 at 7 (1970) (“The protection of the public healt h and welfare requi res definit ive knowledge of the causal relat io nship s between exposure to air pollution agents -- singl y or in combinat io n s -- and healt h or welfare unde r varying environmental condi tions.”) (em

phasis added). The Agency cannot avoid these fundamental legal quest io ns. It must address them directly. Perhaps even more important, EPA fa ils even to begin to address one of the most fundamental problems wit h i ts fat ally deficient proposal : The Administrator’ s acknowledged inabilit y t o make any conclusio n as to whether the current or projected climate change pheno me na that EPA describes has ( or will have ) , on balance, a negat ive or a posi tive effect on human mo rtalit y a nd morbidit y. As the Administrator observes : [W] arming tem

peratures may bring about some health benefit s. Both extremely cold days and extremely hot days are dangerous to human health . But at least in the short run, modest temperature increases may produce health benefits in the U.S. (and elsewhere). Although the IPCC projects reduced human mortality from cold exposure through 2100 , i t i s current ly difficult to ascertain the balance between increased heat

- related mortality and decreased cold

- re lated mortality
. Wit h respect to health, different regions will be affected in different ways. The75

Administrator does not believe that it is now possible to quantify the various [human health] e

ffects [ including effects on human mortality]

. 74 Fed. Reg. at 18901/2 (emphases added). Thus:

· EPA a cknowledges that extremely co ld weather

-- which would be reduced under the proj ect io ns of climate change on which EPA relies

-- r esults in increased human mo rtalit y;

· T he IPCC, which EPA treats as authoritative, “ projects reduced human mortalit y from cold exposure” due to projected climate change over at least the next nine decades, unt il at least th e end of th is century ( a period EPA apparent ly views as “the short run” ) ; and

· The Administrator has concluded that, at least at the present time, it is “not
. . . p ossible ” to determine whether proj ected climate change will, on balance, result in more or less human mortalit y . In addit io n, EPA’s assessment of th e science, in it s TSD , st at es forthright ly t hat “[i ] t i s no t clear whether reduced mortalit y fr om co ld will be greater or less than increased heat

- related mortalit y in t he U.S. due to climate change (Gamble et al., 2008) .” TSD at 70. Thus, EPA concludes, “addit io nal research is needed” to underst and the mortalit y quest io n. Id. at 71. Nevertheless , in the face of this profound scient ific uncertaint y on this mo st important of public healt h or welfare effect s , th e Administrator concl udes th at i

t is “reasonable” to determine th at public healt h is endangered. 74 F ed. Reg. at 18901/2. EPA cites no precedent, and UARG is aware of none, for this extraordinary result. Cf

. Massachusetts v. EPA , 549 U.S. 497, 534 (2007) (“If the scientific uncertaint y is so profound that it precludes EPA from making a reasoned judgment as to whether” the endangerment criterion is met, “EPA must say so.”). EPA is utterly silent on its rationale for proposing to find endangerment notwithstanding what i t characterizes as unreso lvable uncertaint y as to which way the balance of human mortal it y (and
mo rbidi ty) ma y fall. EPA likewise fails to address th e corollary fundamental quest io n of how , in light of the admitted possibilit y t hat net weather

- related human mortalit y wo uld decline under76

proj ected climate change, th e Agency could find endang erment of non - human

- health “welfare ” int erests and, on that basis, regulate emissions it believes contribute to that climate change. Moreover , EPA’s specific statements regarding asserted human healt h impacts of climate change are unjust ified or inadequat ely supported . EPA states , f or instance, that , based on the IPCC Fourth Assessment Report, “risks to public health will be more severe in 20 years than in ten years, more severe in 30 years than in 20 years, more severe in 40 years than in 30 years, and
s o f orth , ” even while acknowledging th at “[t]here is disagreement about whether and when increases in adverse effects will be linear or nonlinear
. ” 74 Fed. Reg. at 18901/1. Regardless of thi s uncertaint y, however, th e Administrator “believe[s] that exist ing evidence supports a finding th at there are current adverse effects. Thi s evidence also supports a finding that these effects will beco me mo re serious over the next several decades, in so me cases out to 2100.” Id .; see also id
. at 18901/2 (“The Adminis trator simply means to recognize, with the scient ific communit y, that concentrations of greenhouse gases endanger public healt h t hrough a wide range of pathways.”). In addit io n to these general conclusio ns, the Administrator makes special note of several potenti al pathways for human healt h effects to result from climate change. Addressing the relat io nship between temperatures and human mortalit y a nd morbidit y, EPA states th at “u nusually hot days and nights and heat waves have beco me mo re frequent in the U .S. [and] are proj ected to intensify
. . . wit h likely increases in mortalit y and morbidit y. ” Id
. Yet , as noted above, th e Administrator “acknowledges that warming temperatures may bring about some healt h benefits” and that “at least in the short run, mo dest tem perature increases may produce healt h benefits in the U.S. (and elsewhere).” Id. Despite this and the fact that the Administrator cannot “quant ify th e various effects,” she concludes that “[b]ecause the risks from unusually hot days and nights, and fro m heat waves, are very serious, it is reasonable to find on balance that77

th ese ri sks support a finding that public health is endangered even if it is also possible that
mo dest tem

perature increases will have so me beneficial health effects.” Id
. EPA ’s rationale for thi s proposed conclusio n th at heat

- related effects on human health suffice to sup port an endangerment finding is inconsistent with the available science. Indeed, the Agency’s reasoning in t he Proposed Endangerment Finding is undermined by statements in its own TSD. For example, as noted above, the TSD states that “ [i ] t i s not clear whether reduced
mo rtalit y fro m co ld will be greater or less than increased heat

- related mortalit y in t he U.S. due to climate change (Gamble et al., 2008)
. ” Mo reover, the TSD explains that “[h] eat exposures vary widely, and current studies do not quantify the years of life lost due to high temperatures. Estimates of heat

- related mortali ty attributable to climate change are reduced but not eliminated when assump tions about acclimat iz ation and adaptation are included in models. ” TSD at 70. The TSD adds that “addit io nal research is needed”: [M] ortalit y patterns in U.S. cit ie s are relatively insensit ive to temperature variabilit y . . . . Given the paucit y o f rece nt lit erature on the subject and the challenges in estimat ing and project ing weather

- related mortalit y, IPCC concl udes addi tional research is needed to understand how the balance o f heat

and co ld

- related deaths might change globally under different climate scenarios (Confalo nieri et al, 2007). Id. at 71. Indeed, the uncertaint y surrounding this issue is heightened in light of the significant questions related to modeling and temperature trends in particular, as noted in other sections of th ese comments, t hat also undermine EPA’s conclusions. Further, the Agency’s selective citation to, and discussio n of, the various effects that have examined this issue reveal significant biases that distort the presentation of the available evidence. First, EPA has remo ved from the TSD, without explanation or just ificat io n, reference to “several studies that indicate decreases in winter mortalit y ma y be greater than increases in summer mortalit y in so me t em perate counties under climate change,” despite including this78

inf ormat io n in an earlier draft. Compare Draft TSD, Doc. ID EPA

- HQ
- OAR
- 2008
- 0318
- 0082 at 66 (June 21, 2008) wi th TSD at 71. Mo reover, despite a direct request from the Office of Management and Budget in a document summarizing the results of an interagency r eview proceeding, 19 EPA has refused to incorporate an assessment of a 2007 study by Deschenes and Moretti th at demonstrates that extremely co ld days are more dangerous to human health than extremely hot days. It appears that EPA has determined that it will not address the science that would tend to demonstrate a net health benefit related to mortalit y and temperature changes, even though such an analysis is crucial to answering questions that are central to a proper endangerment analysis. The Administrat or also points to health effects that may stem fro m a climate change

related “increase in the spread of several food and water

- borne pathogens (e.g., Salmo nella, Vibrio) among susceptible populat io ns. ” 74 Fed. Reg. at 18901/3. She states that the “primar y climate

- related factors that affect these pathogens include temperature, precipitat io n, extreme weather events, and shifts in their eco lo gical regimes.” Id
. If the TSD’s contents are any indicat io n, however, EPA has invested few resources in analyzing th e effects of these climate

related factors on disease pathogens. Alt hough i t reports IPCC conclusio ns that disease may beco me mo re prevalent , see, e .g. , TSD at 69, 71 , i t provide s no analysis o f uncertaint ie s and probabilit ies or any quant it ative assess ment of likely impacts

-- even while observing th at disease and healt h impacts related to drought are “ likely to be experienced in developing countries and not direct ly in t he U.S. ,” further weighing against any endangerment determinat io n based on healt h fa ctors. Id. at 72.

19 Office of Management and Budget, Summary o f Interagency Review Proceedings Document, EPA
- HQ
- 2009
- 1071
- 01241 at 3.79

In addit io n, the Administrator asserts th at : Climate change, including the direct changes in carbon dioxide concentrations th emselves, could impact the production, distribut ion, dispersion and allergenicit y of aeroallergens and the g rowth and distribut io n of weeds, grasses and trees that produce them. These changes in aeroallergens and subsequent human exposures could affect the prevalence and severit y o f a llergy symptoms. 74 Fed. Reg. at 18901/3. At the same time, however, t he Administrator acknowledges that “the scientific literature does not provide definit ive data or conclusio ns on how climate change might impact aeroallergens and subsequent ly t he prevalence o f a llergenic illnesses in the U.S.” Id. Interestingly, while me nt io n ing this potential effect, the Administrator avo ids say ing th at i t is a basis for th e Proposed Endangerment F inding

-- and for good reason. The TSD notes the lack of scientific evidence linking increases in aeroallergens to human healt h impacts. TSD at 7 4. In fact , thi s t ype of uncertaint y is co mparable to the uncertaint y t hat characterizes the other human healt h effects that the Administrator relies on for the Proposed Endangerment F inding. Therefore, just as it is inappropriate to rely on speculat ive climate

- related effects on aeroallergens, insufficient scient ific information exists to just ify a finding that GHG emissions endanger public health. Finally, i t i s important to e mp hasize th at th e TSD includes numerous, more general statements that raise further doubts as to the adequacy of a basis for concluding that public healt h will be adversely affected by climate change. For instance, the TSD states th at “[h] uman system responses to climate change are more difficult to identify and isolate due to t he larger role that
non - climate factors play (e.g., management practices in agriculture and forestry, and adaptation responses to protect human health against adverse climatic conditions ) (Rosenzweig et al., 2007). ” Id. at 44 (emphasis added) . EPA fails even to attempt to address th ese complications in th e TSD or in th e Proposed Endangerment Finding
.80 b. Ozone and Air Quality Regarding the air qualit y effects of climate change and their potential to impact public healt h and welfare, the Administrator conclud es: Increases in regio nal ozone pollut io n in t he U.S. relat ive to ozone levels wit hout climate change are expected due to higher temperatures and a modificat io n of meteorological factors. Increases in regional ozone pollut io n increase the risks of respira tory infection, aggravation of asthma, and premature death
. EPA does have in place National Ambient Air Qualit y Standards (NAAQS) for ozone, which are premised on the harmfulness of ozone to public healt h and welfare. These standards and their accompanying regulatory regime have helped to reduce th e dangers fro m o zo ne in the U.S. Substantial challenges remain with respect to achieving the air qualit y protection promised by the NAAQS for ozone. These challenges will be exacerbated by climate change
. 7 4 Fed. Reg. at 18901/2

- 3 (emphas e s added). Thus, according to the Administrator, ozone levels will be higher than might otherwise be th e case if no climate change were to occur. Moreover, this might require addit io nal efforts of some unspecified sort to maintain co mp liance with exist ing CAA regulatory st andards th at are requi si te to protect public healt h and welfare. Alt hough th e Administrator’s proposed findings touch on issues related to endangerment under the CAA, they demo nstrate that the standard fo r making a posit ive determinat io n has not been sat is fied. Indeed, the Administrator does not claim th at climate change will result in an inabilit y t o c omply wi th exist ing regulat io n s that protect public healt h and welfare from ozone pollut io n, only that continued protection might require increased efforts. EPA has not shown that this is a basis for an endangerment finding
. Finally, a s noted above, EPA’s TSD statements contradict the Agency findings reached two mo nt hs ago in it s Ozone Assessment. T he TSD summarizes that report’s findings repeatedly in a misleading and inco mp lete manner. EPA cannot rationally proceed to an endangerment finding on the basis of a TSD that is inconsistent wit h it s own contemporaneous report.81 c. Food Production and Agricult ur e EPA states a number of proposed conclusio ns related to asserted imp act s of climate change on food production and agriculture. It notes, for instance, that “[c]limate changes are very likely already affect ing U.S. water resources, agriculture, land re sources, and biodiversit y as a result of climate variabilit y a nd change.” Id . at 18899/1. T he Agency notes that there will be aggregate benefits for agriculture in the early decades of th is century wi th increased yields o f approximately 5 to 20 percent , even while assert ing th at “as temperature rises, these crops will increasingly begin to experience failure, especially if climate variabilit y increases and preci pi tation lessens or beco mes mo re variable.” Id . at 18902/2

- 3. EPA al so proposes to concl ude t hat “[h]igher temperatures will very likely reduce livestock production during the summer season, but these losses will very likely be partially offset by warmer temperatures during the winter season. ” Id . at 18902/3. Despite the benefits concededly asso ci ated wi th climate change for this sector, the Administrator states that ultimately the existence o f t hese benefits “is not inconsistent with a judgment that greenhouse gases in the at mo sphere endanger welfare. Beneficial effects can coexist with harmful effects, and it is not necessary to reach a fi rm conclusio n, for particular domains and sectors, about the net result in order to reach an overall conclusio n in favor of endangerment.” Id . at 18903/1. Given these statements, it is not entirely clear whe th er EPA is proposing to determine th at effects on food production and agriculture support or do not support it s purported basis for finding endangerment. It is possible to read the Administrator’s findings as indicating that she believes the posit ive eff

ects will ult imately be outweighed by the negat ive effects; on the other hand, her statements ma y be interpreted to mean that the overall beneficial effects of climate change fo r thi s sector are outweighed by negative effects on other healt h and welfare in terests. The Administrator’s conclusio ns do not appear to be consistent with the conclusio ns of the U.S.82

Department of Agriculture, as expressed in a recent CCSP report, The Effects of Climate Change on Agriculture, Land Resources, Water Resources, and Bi odiversity in the United States , SAP 4.3 (May 2008). In that report, the Department of Agriculture concludes that most crops for which there are data will experience net productivity gains, despite certain projected negat ive impacts result ing fro m t emperature increases, precipitat io n changes, and increased pest and di sease act ivit y. Id. at 59, 70
- 71. The Agency must provide clarit y o n t hese issues. In an opinio n lat er modified and then reversed on other grounds, the U.S. Court of Appeals for the D.C. Ci rcui t h eld that the CAA requi res EPA to consider both adverse and beneficent healt h effects of pollutants and to assess “net” healt h impacts. American Trucking Ass’ns, Inc. v. EPA , 175 F.3d 1027, 1053 (D.C. Cir. 1999) . As in the American Trucking case, E PA must determine likely net health impacts before it can reasonably conclude that GHG emissio ns pose a risk to public health. Yet, this is precisely what EPA has failed to do in the Proposed Endangerment Finding. Regardless of EPA’s analysis , the evide nce presented by EPA regarding these issues indicates substant ia l beneficia l e ffects that should not be downplayed or disregarded, as the Agency appears to be doing. Further, it bears repeating that many o f t he Agency’s conclusio ns related to the negat ive impacts that climate change might have on this sector require revisio n af ter a reassessment of the science addressing the direct effects of GHG emissio ns on climate change factors, such as precipitat io n, drough t, extreme events, and temperature project io n s. Further, the section of the TSD addressing these issues appears to exhibit significant bias. It fails even to attempt to quantify the relat ive impacts of positive and negat ive effects except in those instances where the Agency can find an argument t hat minimizes benefits. See, e.g. , TSD at 84 (di scussing and downplaying posit ive benefit s of direct CO 2 exposure); id. at 85
- 8683

( sugges ting that extreme events may offset any benefits of mo derate climate change). Thi s bias calls into question the remain der of this section’s analysis. Similarly, speculat io n in t his sect io n of the TSD undermines its reliabilit y. Specifically, th e TSD asserts that elevated CO 2 le vels c an reduce livestock feed’s nutri tional value by leading to a decrease in C4 grasses and an increase in C3 grasses. It also states, however, that “the exact effects on both types of grasses and their nutrit io nal qualit y st ill need [] to be determined.” Id. at 87
. EPA thus contradicts its own predict io n of negative effects by its acknowledg ement that the matter remains undetermined. Furthermore , the TSD states in general, outside of the section addressing these impacts, th at “[h] uman system responses to climate change are more difficult to ident ify and iso lat e due to th e larger role that non - climate factors play (e.g., management practices in agriculture and fo restry, and adaptation responses to protect human healt h against adverse climat ic condit io ns) (Rosenzweig et al., 2007). ” Id. at 44 (emphas i s added)
. The TSD fails, however, to address th ese difficult uncertaint ies in it s actual analysis o f agricultural effects . Indeed, it is unclear whether any o f t hese considerat io ns factored into EPA ’s assessment of this area of the science. Accordingly, the Propos ed Endangerment Finding and th e TSD fail to present a persuasive case in support of endangerment based on agriculture and food production impacts.

d. Forestry T he Administrator’s ult imate posit io n on whether forestry impacts support or do not support her proposed endangerment finding is u nclear. 74 Fed. Reg. 18903/1 (“The Ad ministrator acknowledges that as for human healt h, so too for welfare: mo derate temperature increases may have some benefits, particularly for
. . . fo restry over the short term
. . . . Thi s possibilit y is not inc onsistent with a judgment that greenhouse gases in the at mo sphere endanger welfare. Beneficial effects can coexist with harmful effects, and it is not necessary to reach a84

fi rm conclusio n, for particular domains and sectors, about the net result in order to reach an overall conclusio n in favor of endangerment.”). The Administrator reports that both negat ive and posit ive effects on forestry are expected : Climate change has very likely increased the size and number of forest fires, insect outbreaks, and tr ee mortalit y in t he interior west, the Southwest, and Alaska , and will cont inue to do so. . . . IPCC reported that overall forest growth fo r North America as a who le will likely increase modestly (10

–20 percent) as a resul t of extended growing seasons and elevated CO 2 over the next century, but wi th important spatial and temporal variat io n. Id . at 18902/2

- 3. The Administrator also cites tropospheric ozone increases as negat ively impact ing forest growth. Id
. The conclusio ns contained in the TSD by and large mirror the Ad ministrator’s proposed findings, discussing such issues as increased forest growth, increased wildfires and drought, more frequent insect and disease outbreaks, more severe extreme event di srupt io ns, and reduced biodiversit y r esul ting from the spread o f invasive species. Again, EPA’s proj ect io ns are subject to serious question due to the Agency’s failure to reassess previous modeling resul ts in light of new scientific studies, as discussed above . Further, proj ect io ns of invasive speci es impacts should be reexamined in light of recent studies , discussed further in sect io n V.D.2.e above , indicat ing that climate change will have considerably less of an impact in this regard. See Sax and Gaines; Bradley et al. It i s also important to not e that the Administrator ’s discussio n of this issue ignores several other climate change

- related sources of forest growth b enefits . The TSD states: Forest productivit y g ains may result through: (i) the direct stimulatory CO 2 fertilizat io n effect (althou gh the magnitude of this effect remains uncertain over th e lo ng term and can be curtailed by other changing factors); (ii) warming in co ld climates, given concomitant precipitation increases to compensate for possibly increasing water vapor pressure defici ts; and (iii) precipitat io n increases under water limited condit io ns (Fischlin et al., 2007).85

TSD at 90. Thus, it appears that th e Administrator’s statements on this issue fail to account for th e full range of posi

tive influences. T he Administrator also ig nores a singular benefit of increased forest growth : th e correlated increase in CO 2 sinks. The TSD states that “North American forests will absorb more CO 2 and might retain more carbon as at mo spheric CO 2 increases.” Id . Neglect ing these
com plex int eractions skews the analysis o f e ndangerment from GHG emissio ns and likewise f eeds int o what mo st lik ely are inaccurate project io ns o f fut ure GHG concentrations. EPA fails to address this important issue. Addit io nally, the sect io n of the TSD address ing forest impacts indulges in speculat io n in th e face of mu lt iple uncertainties. For instance, th e TSD cites as evidence for current climate change impacts that “[g]rowth is slowing in areas subject to drought.” Id
. It is not at all established that th is drought was caused by climate change or GHG emissio ns. El sewhere, th e document suggests that wildfires will pose the largest threat to forests over time. It notes, however, that wildfires and other extreme events are “not well represented in models” e ven as it suggests that wildfires will increase by as much as 10 percent
. Id. at 92; see also id. at 93 (noti ng that insect and pathogen outbreaks mo deling also remains limited)
. Given that wildfires (and similar events) cannot be accurately modeled, it is u nclear how the TSD arrives , or could arrive, at such a specific project io n. Indeed, a recent scient ific study ignored by EPA has found th at past climate change has not been direct ly linked to increases in wildfires, that a variet y o f other factors are instead more closely related to increases in wildfire events, and that climate int eract io ns wit h other factors can override any influence o f c limate change on wildfire events. Higuera, et al ., Vegetation Mediated the Impacts of Postglacial Climate Change on Fire Regimes in the South

- Central Brooks Range, Alaska , 79 E COLOGICAL M ONOGRAPHS 201
- 19 (2009). For86

instance , the TSD states that forest productivit y impacts due to climate change are “ difficult to separate
. . . from other potentially influencing fac tors, particularly because these interact io ns vary by locat io n. ” TSD at 89. T his , however, is precisely t he sort of informat io n needed in any rational eval

uation of th e potenti al fo r endangerment , and the Agency’s suggest io n t hat these impacts result fro m c limate is speculative and wholly unsupportable
. Finally, this sect io n of the Endangerment TSD suggests that changing forestry condit io ns in t he United States might place it at a compet it ive disadvantage with other nat io ns that will experience more po si

tive effects fro m c limate change. The document does not, however, attempt to analyze this issue at any useful level o f detail. Further, no other sections of the TSD address th e int ernat io nal co mpet it iveness issue. If , as seems probable, th e United Sta tes i s likely to be placed at a compet it ive advantage to other nat io ns as a result of other effects of climate change, those possible benefit s to the Uni ted States should equally be reflected in the document. Failure to address th is matter even

- handedly c ontributes to the bias exhibited by EPA’s analysis
.

e. Water Resources Regarding water resources, the Administrator proposes to find that “[c]limate change will likely further constrain already over

- allocated water resources in so me sections of the U.S., inc reasing co mpet it io n among agricultural, municipal, industrial, and eco lo gical uses.” 74 Fed. Reg. 18902/2

- 3. She notes that “current water management practices in the U.S. are generally advanced, particularly in the West,” id. at 18902/3, but concludes t hat “climate change increasingly creates condit io ns well outside of hist orical observat io ns , ” id. , and that drought “is expected to i

ncrease in the western U.S., where water availabilit y to meet demands for agricul tural and municipal water needs is already limited , ” id. at 18900/1. In addit io n, the Ad ministrator p ro poses to find that lower water levels in lakes and rivers “are likely to exacerbate challenges relating to water qualit y, navigat io n, recreation, hydropower generation,87

water transfers, and binational relationships,” i d ., that “[h]igher water temperatures, increased preci pi tation intensit y, and longer periods of low flows can exacerbate many forms of water pollut io n,” i d ., and that “[r] ising sea levels could lead to salt water intrusion of coasta l ground aquifers, which would further reduce freshwater availabilit y fo r m unicipal and agricul

tural use
among coastal co mmunit ie s that depend on these aquifers,” i d . at 18900/1

- 2. As with the other public healt h and welfare issues addressed in these com ments, the Ad ministrator’s concl

usion s and the TSD passages addressing water resources require
reassess ment in light of new scientific findings. Mo reover , alt hough th e TSD notes potential negat ive impacts on water qualit y a nd supply fro m population increa ses , TSD at 94 , and states th at water shortages will be influenced by “ changes in withdrawals (reflecting development, demand, and availabilit y o f other sources) ,” id. at 96 , t hese influence s are independent of climate change and cannot proper ly be conside red in assessing endangerment. T heir inclusio n further undermines the document’s usefulness as support for any endangerment finding
. Similarly, scient ific clarit y is co mpromised by this TSD section’s treatment of various uncertaint ies and its tendency to engage in speculation. Specifically, t he document acknowledges that data on exist ing groundwater supplies are “limited,” yet , i n t he face of this lack of informat io n, EPA proceeds to reach a number of conclusio ns about purported groundwater impacts. I

d
. Addit io nally, this section of the document argues that extreme weather events will negatively affect water resources by allowing salt water intrusion into fresh groundwater, increasing water pollut io n le vels and negat ively affect ing water supplies. The TSD fails to note , however, th at modeling o f ext reme events is plagued by significant uncertainties, as di scussed above, even though this information is included in other sections.88

Finally, this sect io n of the TSD fails to acknowledge and quantify cle ar beneficial effects even as it describes asserted negative effects associated with the source of th e benefit s. The TSD, for instance, notes that certain water bodie s will likely experience increased navigabilit y as a result of climate change , but th e do cument fails to quantify this benefit or to compare its relat ive value to decreases in navigabilit y e lsewhere. Id. at 99
. Similarly, other sections of the TSD specifically note the sophist icated water treatment infrastructure and regulatory structures in place in the United States. See, e.g. , id. at 73. Yet this key sect io n, which is supposed to assess potential impacts on water resources, fails to address how climate change impacts would be mo derated th

rough implementation of exist ing laws, such as the Safe Drinking Water Act and th e Clean Water Act. Given that EPA is charged with implement ing these laws, EPA would need to evaluate whether they will effect ively avo id all or portions of any pro jected negat ive impacts. f. Sea Level Rise and Coastal Areas T he P roposed E ndangerment F inding contains a number s tatements related to sea level ri se and coastal areas: Coastal co mmu nit ies and habitats will be increasingly stressed by climate change impacts interacting with development and pollut io n. Sea level is ri sing along much of the U.S. coast, and the rate of change will increase in the future, exacerbating the impacts of progressive inundation, storm

- surge flooding, and shoreline erosion. Coastal aquifers and estuaries are vulnerable to salt water int rusion d

ue to rising sea levels, which could co mpromise water sources used for municipal drinking water, agricultural crops, and other human uses. Storm impacts are likely to be more severe, especially alo ng the Gulf and At la nt ic coasts. Sal

t marshes, other coas tal habitats, and dependent species are threatened by sea

- level rise, fixed structures blocking landward migrat io n, and changes in vegetation. Population growth and rising value of infrastructure in coastal areas increases vulnerabilit y t o climate variabi lit y and future climate change. 74 Fed. Reg. at 18902/3.89

Thus, the Administrator proposes to reach a number of highly problemat ic conclusio n s wi th respect to coastal impacts. As stated above, the severit y a nd rate of sea level rise is significant ly o ve rest imated in the EPA’s scient ific assessment. This means that related impacts, such as flooding, shoreline erosion, and salt water intrusio n, are also overstated. The TSD section addressing sea level rise and coastal areas also includes discussio n of various impacts on and problems facing coastal areas that are not necessarily linked to climate change or even to sea level rise. See, e.g. , TSD at 100 (di scussing coastal areas stressed by dev elopment and pollut io n), 101 (di scussing ‘coastal squeeze’ and it s effects on wetlands), 101 (di scussing erosion in the Great Lakes , where sea level rise “is not a concern”)
. Moreover, as the TSD indicates , “[a] lt hough climate change is impacting coastal systems, non

climate human impacts have been more damaging ov er the past century
. ” Id. at 100
- 01 (em phasis added)
. Thus, it appears that the evidence EPA presents related to coastal impacts due to climate change is significant ly o verstated to the extent these other effe cts are not effect ively di st inguished from cl imate change

- related impacts. These issues are improper for inclusio n in an assessment of possible endangerment fro m GHGs
.

g. Energy, Infrastructure , and Settlements The Administrator proposes to conclude that “[c]limate change is likely to affect U.S.
ener gy use (e.g., heat ing and cooling requirements), and energy production (e.g., effects on hydropower), physical infrastructures and institutional infrastructures. Climate change will likely int eract wi

th and possibly exacerbate ongoing environmental change and environmental pressures in settlements, particularly in Alaska where indigenous communit ies are facing major environmental changes fro m sea ice loss and coastal erosion that threaten tradit io nal ways o f life.” 74 Fed. Reg. at 18902/3

- 18903/1.90

These statement s in t he Proposed Endangerment Finding are except io nally vague. It is
com pletely unclear from thos e statements whether EPA views th e effects it describes as posi tive or negative ; indeed, it is unclear exact ly what the effects may be at all. The TSD secti on describing these effects provides so mewhat mo re detail on the relevant science but is flawed in th e ways ident ified below (and also fails to meet the overarching need, discussed above, for the PSD to reassess proj ect io ns of climate change and i ts effects based on new scient ific studies )
. This sect io n of the TSD engages in speculat io n t hat is unsupported by the science and overstates the likely impact of climate change. For instance, the document acknowledges that industri es and settlements “ have beco me resilient to” variabilit y in climate conditions but fo llo ws up this statement by suggest ing th at variabilit y caused by climate change will be greater than th e capacit y t o adapt. TSD at 105
. In the absence of evidence, this assert io n is unwarr anted. Similarly, the TSD notes that “ it is not possible to attribute the occurrence of any singular [sic] hurri cane to climate change ,” yet i t engages in an indirect but speculative attempt to make such an attribut io n when it suggests th at energy
- related impacts caused by Hurricanes Ivan, Katrina, and Rita are “ indicator [s] of th e kinds of impacts that could manifest as a result of climate change (CCSP, 2007a). ” Id. at 107. Moreover, as demonstrated above, project io ns of hurricanes and other extreme eve nt s are subject to greater uncertaint ies than the TSD generally acknowle dges. T his sect io n of the TSD also unjust ifiably favor s study resul ts that suggest impacts will be significant over those that predict the opposite. This is especially problemat ic in t he document’s discussio n of energy use for heating and cooling. The weight of the evidence on thi s issue indicates th at overall energy use will not increase substant ia lly because increases and decreases will generally net out. Id. at 105. The TSD ac knowledges that changes in energy91

consumption will vary regio n to region and that overall effects on energy consum ption are not clear. Id. (“ Generally speaking, the net effects of climate change in the U.S. on total energy demand are proj ected to amount t o between perhaps a 5% increase and decrease in demand per 1oC in warming in buildings. Exist ing studies do not agree on whether there would be a net increase or decrease in energy consumpt io n with changed climate because a variet y o f methodologi es have b een used (CCSP, 2007a). ”). Despite these uncertaint ie s, the TSD improperly emphasizes one study th at predicts a significant increase in electricit y demand requi ring substant ia l investment in new generat io n. EPA gives no reason for singling out this
one s tudy fo r deference. Indeed, EPA apparent ly ha s not evaluated this study it self and only refers to a CCSP synthesis report th at apparently cites it
. Id. at 106
. W here one study is

-- wi thout explanation

-- given special weight, it is an especially egregious error to f ail to assess it wi th reasonable clarit y. EPA al so fails to just ify it s decisio n to deem phasize th e greater body of science on this issue. Similar problems undermine th e TSD’s assessment of asserted climate change

- related impacts on transpo rtation resources and human settlements. As with energy production, the TSD states that these resources will primarily be affected by “weather and climate extremes, such as very hot days; intense precipitation events; intense hurricanes; drought; and rising sea levels, coupled wi

th storm surges and land subsidence. ” Id. at 109; see also id. at 111. Fi rst, land subsidence plainly is not a climate change

- related influence. More broadly, any asserted impacts th at EPA tri es to trace to climate change effect s would have to be reassessed based on the flaws described above in EPA’s analysis o f t ho se effect s. Further, this sect io n of the TSD acknowledges that adaptive capacit y is a significant factor in determining the severit y o f impacts t o human settlements. Id. at 111 . Because the Agency improperly o mit s analysis of adaptation92

fro m it s assessment of endangerment, however, the TSD’s conclusio n wit h respect to these effects is inco mp lete and inaccurate.

h. Ecosystems and Wildlife The Administrator proposes to find that “changes in climate will cause so me species to shift north and to higher elevat io ns and fundamentally rearrange U.S. ecosystems. Differential capacit ies to adapt to range shifts and constraints from development, habitat fragmentation, invasive s pecies, and broken eco lo gical connect io ns will alter ecosystem structure, composit io n, funct io n, and services.” 74 Fed. Reg. at 18903/1. In addit io n to the overarching concerns resul ting fro m t he need for reanalysis of earlier modeling results, these concl usion s and the TSD’s analysis of these issues are marked by several specific s hortcomings
. A nu mber of problems with EPA’s analysis of ecosystem and wildlife impacts have led to misguided conclusions in the Propos ed Endangerment Finding . Fi rst, the TSD describes possible effects on plant pheno lo gy, such as the onset of greenness and leaf senescence. TSD at 113. EPA offers no basis, however, for judg ing whether these effects are posit ive, negative, or neutral. The same is true with respect to similar life

- cycle issues for animal species. See id. at 114. EPA speculates that these changes “ may shift out of sync, causing species to become decoupled fro m th ei r resource requirements. ” Id . It further speculates that “th e decline of long

- distance migratory birds in the United States may originate in mist iming of breeding and food abundance due to differences in pheno lo gical shifts in response to climate change (Scott et al., 2008). ” Id
. EPA provides no assessment of the evidence supporti ng th ese assertions, which appear to be
mere guess es . T hese unsupported “ effects ” are not a basis for an affirmat ive endangerment finding. Similarly, t he TSD states th at there will be increases in glo bal likelihood of species ext inct io ns and that 20 to 30 percent of spe cies glo bally will be at risk
. Id. at 117. The document notes, however, that such risk varies regio nally and includes percentages as low as 193

percent , id. , and EPA again fails to ident ify the risk levels applicable in the United States, a failing that makes this information useless in a CAA endangerment assessment. The TSD also describes potential range shifts for various plant and animal species. It states that “[m] igrat ing to higher elevat io ns wi th more suitable temperatures can be an effect ive strate gy fo r s peci es if habitat connectivit y exists and other biotic and abiot ic condit io ns are appropriate. ” Id. at 114. The TSD further states, however, that “ ma ny organisms cannot shift th ei r ranges fast enough to keep up with the current pace of climate c h ange (Fischlin et al., 2007).” Id. Thi s statement suggests that adaptive capacit ies are limited and will result in species lo ss. That some (but not all) species will have migration as an option for adaptation does not however, support a co nclusio n t hat species will be unable to adapt in other ways. Similarly, the TSD describes a number of ecosystem changes that may occur in certain regions and localit ies in th e United States. Id. (discussing frog breeding in upstate New York), 115 (discussing changes in mar ine mammal and pelagic fish populat io ns in the Southeastern Bering Sea)
. Again, EPA provides no basis for concluding whether these effects will actually be negat ive. Indeed, reference to changes at specific locat io ns overlooks the potential for offs etting changes in other regions and localit ies. EPA cannot conclude that ecosystem changes will result in overall negat ive effects without thoroughly examining ecosystem changes throughout the nation. Further, the Agency must acknowledge and explain the significant limitat io ns in regio nal

- scale
mo deling and the implications of these limitat io ns fo r EPA’s conclusions. Regarding marine organisms and ecosystems, the TSD states that “human impacts such as overfishing, pollution, and the int roduction of inva sive species” negatively affect these resources and may exacerbate any problems that result fro m c limate change. These effects, however, will occur regardless of whether climate change results in any addit io nal impacts to94

marine organisms and ecosystems, and they are therefore inappropriate considerations in an assessment of possible endangerment fro m GHG emissio ns. Id. at 114. The TSD also projects that climate change will result in decreased biodiversit y. The science in this area is particular ly unc ertain, however, and even the studies EPA cites indicate th at there may be long

- term posi tive developments in species richness. Id. at 117, 118 (noting lack of informat io n regarding numerous species). Further, as noted above, recent studies indicat e th at biodiversit y i mpacts and invasive species propagation will be limited. In addit io n , the document ci

tes the IPCC for the conclusio n t hat ocean acidificat io n will result in declines in carbonate

- based marine organisms, such as corals, due to reduced arag oni te needed for biocalcificat io n. Id. at 114. The IPCC, however, concluded wit h only medium confidence that th at increased CO 2 le vels in conjunct io n with climate change could have negative impacts on th ese same marine organisms. Wo rking Group II Ch. IV at 213, 234, Fi schlin A. et al. , 2007. The TSD improperly fails to reflect accurately the uncertaint ies and limitat io ns embedded in it s source material.

4. International Impacts As noted above, the TSD devotes substantial space to di scussio n of glo bal em issio ns and global effects of climate change, often co mmingling discussio n of th ese effects with discussio n of U.S. impacts in a manner that prevents accurate assessment of th e effects of climate change on U.S. resources alone. Beyond this, the Administrator and the TSD both address internat io nal impacts separate ly fro m U.S. effec ts. The Administrator states that her proposed endangerment finding is warranted based only on the healt h and welfare effects projected to occur in the United States. She furthe r states: “In addit io n, the scient ific evidence concerning risks and impacts occurring outside the U.S., including risks and impacts that can affect people in the U.S., provides further support for this finding.” 74 Fed. Reg. at 18888/1.95

The analysis of int ernational issues presented in the TSD is wholly unscient ific and cannot provide any support for an endangerment finding. In general, the TSD discusses potential effects of climate change in other nations, focusing particularly on areas EPA characterizes as vulnerable, including Africa, Asia, Latin America, Polar Regions, and Small Islands. It assert s th at climate change will affect the health o f people , f ood production, and water resources in t hese regions and could influence internat io nal trade. TS D at 125
- 28. Although scient ific evidence exists on potenti al impacts of climate change in foreign nat io ns, these impacts are not direct ly relevant to an endangerment assessment. Moreover, EPA’s attempt to tie foreign effects to the United States by noting the potential internat io nal trade effects of climate change fails because , as EPA concedes, “[t] here is currently a lack of information about how these potential impacts in other regions o f t he world may influence international trade and migrat io n patterns . ” Id. at 125. The TSD likewise fa ils to establish that foreign impacts will affect U.S. interests in other ways. Again, EPA suggests vaguely th at f oreign climate change impacts “may have consequences that transcend nat io nal boundaries that raise concerns for the U.S.” Id. at 2. The only “evidence” o f addi

tional transcendental consequences t o whi ch EPA can point , however, is derived fro m non - scient ific sources that are inherent ly speculat ive. The TSD cites, for instance, a Defense Depart me nt report co ncluding that climate change could potentially destabilize glo bal geopolit ics
. Id. at 123. The TSD also cites a report suggesting that opening A rctic sea routes could raise quest io ns about sovereignt y r ig ht s in the A r c tic. Id
. Moreover, it ci tes a r eport detailing the opinio ns of 12 reti red generals and admirals regarding possible threats climate change could pose to national securit y. Id. at 124. Resort to t his unscient ific, speculat ive grab

bag reflects EPA’s unjustifiabl e attem pt to expand the s cope of it s endangerment assessment to
e nco mpass issues that are not shown to impact U.S. public healt h and welfare. Indeed, the TSD96

notes that neither the IPCC nor the CCSP

-- on which EPA otherwise heavily relies

-- ha s “explicit ly addre ssed these issue s.” Id. at 6. VI. The Proposed Endangerment Finding and the TSD Fail To Comply with the Data Quality Act. When President Obama appointed Ad ministrator Jackson to lead EPA , she pledged that all o f E PA’s efforts would be “rooted in three fundamental values: sc ience

- based po licies and programs, adherence to the rule of law, and overwhelming transparency.” 20 In a memorandum to EPA s taff issued shortly af ter her Senate co nfirmatio n, Administrator Jackson explained these th ree values further, expressing the importa nce of “rigorous adherence to the best available science,” observ ing that, while policy judgments are required for the proper implementation o f law, “po licy decisio ns should not be disguised as scient ific findings,” and reminding Agency
s taff that “[p]ubli c trust in the Agency demands
. . . th at we fully disclose the information that fo rm s the bases for our decisio ns.” 21 More recently, in EPA’s Semiannual Regulatory Agenda, she reiterated EPA’s commit ment to these three principles. 22 Sadly, in the Propose d Endangerment Finding and its acco mpanying TSD, EPA has missed an opportunit y t o put these principles into practice. Indeed, EPA here falls far short of th e Administrator’s stated goals
. And, more significant fro m a legal standpo int , EPA has vio lated th e DQA , 23 th e guidelines set forth by the Office of Management and Budget to

20 Statement by Ad ministrator

- designate Lisa Jackson (Jan. 23, 2009), available at ht tp://y osemi te.epa.gov/opa/adm

press.nsf/0/2297C12A9F4773D285257547006497D4. 21 Memo to EPA Em

ploy ees fro m Ad ministrator Lisa P. Jackson (Jan. 23, 2009), available at ht tp://www.epa.gov/administrator/memotoemplo yees.ht ml. 22 74 Fed. Reg. 21992, 21993 /1 (May 11, 2009). 23 Treasury and General Government Appropriat io ns Act for Fiscal Year 2001, Pub. L. No. 106

- 554 , § 515 ( Dec. 21, 2001) , 114 Stat. 2763.97

implement the DQA (“ OMB Guidelines”) , 24 and EPA’s own DQA guidelines (“EPA Guidelines”). 25 The DQA and the OMB Guidelines require f ederal agencies , including EPA , to i ssue guidelines ensuring and maximizing th e qualit y, object ivit y, ut ilit y, and integrit y o f a ll informat io n disseminated by the agency and establish ing administrative procedures allowing affected parties to request and obtain correction of any disseminated informat io n t h at f ails to
com ply wi th those guidelines. EPA has published guidelines th at closely track the language in th e OMB Guidelines
. T he OMB and EPA Guidelines define disseminat ion of informat io n as any distribut io n of informat io n to the public that is init iated or sponsored by th e agency, 26 including distribut io n of informat io n prepared by a party outside the agency in a manner that suggests the agency intends to endorse or agree with that informat io n. 27 T he term “quali ty” broadly enco mpasses th e standards of objectivit y, utilit y, and integrit y. 28 The standard of object ivit y r efers to informat io n th at is “presented in an accurate, clear, complete and unbiased manner.” 29 The standard of utilit y refers to “the usefulness of the informat io n to its intended users, including the public.” 30 The

24 67 Fed. Reg. 8452 (Feb. 22, 2002). 25 U.S. EPA Office of Environmental Infor mat io n, “Guidelines for Ensuring and Maximizing the Qualit y, Object ivit y, Ut ilit y, and Integrit y o f I nformat io n Disseminated by the Environmental Protection Agency,” EPA/260R

- 02
- 008 (Oct. 2002). 26 67 Fed. Reg. at 8460/2
- 3 ; EPA Guidelines at 15. 27 EPA Guidelines at 16; see also 67 Fed. Reg. at 8454/1. 28 67 Fed. Reg. at 8459 /2 ; EPA Guidelines at 15. 29 67 Fed. Reg. at 8459 /3 ; EPA Guidelines at 15. 30 67 Fed. Reg. at 8459 /2 ; see also EPA Guidelines at 15.98

standard of integrit y r efers to the securit y o f t he information, meaning its protection from unauthorized access or revisio n. 31 In compliance with the OMB Guidelines, the EPA Guidelines impose heightened standards for the qua lit y o f “influent ia l in fo rm ation,” which is defined as informat io n t hat the Agency ant ic ipates “will have or does have a clear and substantial impact
. . . on important public policies or private sector decisio ns.” 32 Influent ia l in fo rm ation is to be dissem inated with a higher

- th an - usual degree of transparency wit h respect to : “(1) the source of the data used, (2) the various assumptions emplo yed, (3) the analyt ic methods applied, and (4) the statist ical procedures emplo yed,” in order to “facilitate the rep roducibilit y of such informat io n by qualified thi rd parti es, to an acceptable degree of imprecisio n.” 33 Among the classes of informat io n deemed “influent ia l” by EPA is informat io n t hat is “disseminated in support of top Agency actions,” such as rules, subs tant ive notices , and po licy documents. 34 Undoubtedly, the Proposed Endangerment Finding and the TSD on which it relies fall into this category, as these documents would form th e basis for th e unprecedented regulatio n of GHG emissio n s under the CAA. In add it io n, as described further below, the EPA Guidelines impose special requirements for the qualit y o f science used in risk assessments.

31 67 Fed. Reg. at 8460 /2 ; EPA Guidelines at 15. 32 EPA Guidelines at 19. 33 Id. at 20
- 21. 34 Id. at 20.99

Despite assurances fro m E PA to the contrary, 35 it is clear that the TSD on which th e Proposed Endangerment Finding is ba sed fail s to c om ply wi th OMB and EPA Guidelines for di sseminat io n of influent ia l in fo rm ation. Specifically, as described in the sect io ns below, EPA has failed to comply wit h t he requirements that it : (1) undertake an independent external peer review of t he TSD ; ( 2 ) provide informat io n t hat is reproducible ; and (3) use only the best available science. In accordance wi th th e procedures set out in t he EPA Guidelines, 36 UARG respectfully submits a Request for Correction of informat io n in t he TSD with respect to each of th e se th ree issues and reserves its right to file a Request for Reconsiderat io n of any refusal by the Agency to make corrections or any inadequate correction by the Agency, pursuant to section 8.6 of th e EPA Guidelines. 37 UARG has an interest in ensuring that the TSD, which forms the basis fo r the Proposed Endangerment Finding, is accurate. A final endangerment finding by EPA would raise issues concerning requirements for stationary sources, including electric generat ing units such as those oper at ed by UARG members, under the CAA. UARG members will benefit fro m e nsuring that any finding by EPA wit h regard to the question of endangerment rests on sound scientific principles.

35 Both the TSD and the Proposed Endangerment Finding state that the informat io n in t he TSD com plies wit h t he EPA Guidelines. TSD at 4; 74 Fed. Reg. at 18894 /1
. 36 See EPA Guidelines at 30

- 33. Section 8.5 o f t he EPA Guidelines states that any Request for Correction of disseminated informat io n fo r which a public co mment period is provided should be addressed using the public co mment process. See id. at 32. 37 Id. at 34.100

A. Inadequate Peer Review EPA requires independent external peer review in accordance with EPA’s Peer Review Handbook (the “Handbook”) 38 of influential information such as th at in th e Proposed Endangerment Finding and the TSD. 39 The Handbook explains that peer reviewers are to be individuals or organizat io ns “who are independent of those who performed the work” to be reviewed 40 and who are unbiased and do not “have a material stake in the outcome of the peer review.” 41 It explains further that “EPA should always make every effort to use peer reviewers who do not have any conflict o f int erest or an appearance o f a lack of impartialit y, and who are
com pletely independent.” 42 Alt hough many qualified experts were available to serve as reviewers of the TSD, EPA chose external reviewers who were likely in favor of the conclusio ns stated in t he Proposed Endangerment Finding. All 12 reviewers for the TSD are scient ist s em ployed by th e f

ederal government . One is an EPA scient ist. Each of the reviewers is closely affiliated with the CCSP and has openly and publicly articulated his or her belief that GHGs create dangers for p ublic healt h and welfare. Seven of the 12 reviewers authored studies that are cited in the TSD ; several o f those studies are ci ted extensively and relied on by the TSD.

38 U.S. EPA Science Policy Council, “U.S . Environmental Protection Agency Peer Review Handbook” (3d ed.), EPA/100/B

- 06/002 (May 2006). 39 EPA Guidelines at 11; EPA Peer Review Po licy, available at http://www.epa.gov/OSA/spc/ 2peerrev.ht m. 40 Handbook at 12. 41 Id. at 13. 42 Id. at 60.101

Thus, none of the reviewers chosen by EPA could be expected to provide a crit ical, independent , and object ive peer review of the TSD. EPA’s fa ilure to subject the TSD to independent external peer review vio lates the DQA and the EPA Guidelines. Therefore, UARG’s first Request for Correction is a requ est that EPA submit the TSD to independent external peer review pursuant to th e Handbook, as required by the EPA Guidelines. B. Lack of Transparency As described above, the EPA Guidelines set especially strict requirements for transparency when th e Agency di sseminat es influent ia l in fo rm ation such as th at i n th e TSD and th e Proposed Endangerment Finding. The purpose of this heightened level of transparency is to allow for reproducibilit y by qualified members of the public. 43 The OMB Guidelines explain in greater detail that agency guidelines are to “require sufficient transparency about data and methods that an independent reanalysis could be undertaken by a qualified member of the public

. . . [whether] agency analysis [is] of data fro m a single study
. . . [ or] combine[s] informat io n fro m mu lt ip le studies.” 44 The OMB Guidelines explain, and the EPA Guidelines acknowledge, th at agencies may deviate fro m t his requirement only in cases where a “co mpelling interest,” such as “privacy, trade secrets [or] intellectual property,” requi res that transparency be limited. 45 In cases where transparency is limited by a co mpelling interest, the agency is required to “apply especially ri gorous robustness checks to analyt ic results and document what checks were undertaken.” 46 The OMB Guidelines state that in every case, agency guidelines are to require

43 EPA Guidelin es at 20
- 21. 44 67 Fed. Reg. at 8460 / 1
. 45 Id. ; EPA Guidelines at 21. 46 67 Fed. Reg. at 8460 /1 ; see also EPA Guidelines at 21.102

“d isclosure of the specific data sources that have been used and the specific quant it ative methods and assumptions that have been emplo yed.” 47 EPA has failed to fulfill these tr ansparency requi rements in th e TSD and the Proposed Endangerment Finding. EPA has not provided access or reference to any raw data or to any data source and has not described the methods and assumptions it used to analyze the informat io n it relied on fo r th e concl usion s in the Proposed Endangerment Finding. This is likely due , at least in part , to EPA’s heavy reliance on reports by the CCSP and th e IPCC. Over two
- thi rds of the ci

tations in the TSD are to reports published by or in connection with one o f t hese groups or the National Research Council , and only a small fract io n of the remaining one

- thi rd are references to independent studies or journal articles. Most of the remaining references a re to reports or online statist ical compilat io ns by EPA and other f ederal agencies. EPA explains in the Proposed Enda ngerment Finding that it chose to rely on reports by the IPCC and the CCSP “rather than conducting a new assessment of the scient ific literature” and that it views the IPCC in particular as a “benchmark” against which it plans to judge future research and findings. 48 Transparency is , therefore, limited by EPA’s decisio n to adopt th e reports of the IPCC and the CCSP instead of developing it s own posi

tion based on independent scientific research. Ye t , neither the TSD nor the Proposed Endangerment Finding describes any t ype of checks undertaken by EPA to evaluate the scient ific data on which the IPCC and CCSP reports were based, or indicates whether EPA reviewed or even had access to those underlying data. The TSD says th at IPCC reports are based “mainly on peer reviewed and published

47 67 Fed. Reg. at 8460/1
. 48 74 Fed. Reg. at 18894 /1
.10 3

scientific/technical literature” and that they are subject to expert and governmental review. 49 th e TSD also says th at CCSP reports are subject to expert, interagency, a nd public review and that final reports issued by CCSP comply wit h t he DQA. 50 EPA’s explanat io ns are aimed at indicat ing that , in EPA’s view, th e informat io n in the IPCC and CCSP reports are reliable; they do not indicate that EPA has reviewed or assessed th e accuracy of th e data underlying those reports. In fact, EPA states in the TSD that it chose to rely on these reports in part b ecause the reports “have assessed numerous individual studies in order to draw general conclusio ns about th e state of science .” 51 Thi s statement implicit ly acknowledges th at EPA relied on IPCC and CCSP assessments without reviewing the underlying data
. Finally, documents such as the IPCC reports must satisfy DQA requirements if they are endorsed or relied on by EPA. T he IPCC is not required , however, to comply wit h t he DQA, and EPA has not shown that the IPCC’s information qualit y processes are equivalent to DQA requi rements. In fact, as discussed above, a review of IPCC policy and procedures reveals that preparation of IPCC reports is a highly bureaucrat ic polit ic al process aimed at forming governmental policies on climate change in t he context of internat io nal negotiat io n . IPCC was fo rmed for the purpose of providing policymakers wit h “an objective source of informat io n ab out the causes of climate change, its potential environmental and socio

- economic consequences and the adaptation and mit igation options to respond to it.” 52 Lead authors for

49 TSD at 3, Box 1.1 (emphasis added). 50 Id. 51 Id. at 5. 52 See “Abo ut IPCC” on the IPCC website at http://www.ipcc.ch/about/index.ht m.104

IPCC reports are chosen fro m list s supplied by governments and participat ing organ iz ations. 53 Drafts of the reports are reviewed by governments and experts selected by governments. 54 Moreover , IPCC reports examine global effects of GHGs, and are not focused on condit io ns in th e United States. 55 EPA’s reliance on IPCC reports and its fa ilure either to provide access to the data and methods used to form its conclusions, or to perform and document the rigorous reliabilit y c heck requi red in cases where transparency is limited, violate the DQA, the OMB Guidelines , and the EPA Guidelines. UARG’s second Request fo r Correction is that EPA: (1) provide all o f t he informat io n on which EPA relied in t he TSD and the Proposed Endangerment Finding, along wi th an explanation of the methods and assumpt io ns used to analyze that informat io n; (2) describ e each compelling interest that preclud ed EPA fro m di sclos ing any of th e informat io n th at it wi thheld; and (3) fu lly document the rigorous robustness check undertaken to assess any informat io n th at i

t h as wi thheld. C. Failure T o U se Best Available Science As ment io ned above, the EPA Guidelines place special requirements on influent ia l scientific informat io n used in human health, safet y , or environmental risk assessments. For these assessments, EPA adapted the informat io n qualit y pr inciples set forth in the Safe Drinking Water

53 Procedures for the Preparation, Review, Acceptance, Adoption, Approval and Publicat io n of IPCC Reports (App. A to the Principles Governing IPCC Work) § 4.2.2 , available at ht tp://www.ipc c - wg2.gov/AR5/extremes

- sr/extremes_documents/ipcc

- principles

- appendix

- a.pdf (hereinafter “IPCC Procedures”). 54 Id. § 4.2.4. 55 See section V.B
.105

Act Amendments of 1996. 56 These requirements state that the influent ia l informat io n must be “accurate, reliable and unbiased” and must emplo y “t he best available science and supporting studi es” and “data collected by accepted methods or best available methods.” 57 In addit io n, the presentation of the influent ia l in fo rm at io n must specify each of the fo llo wing: ( 1 ) each populat io n a ffect ed by each risk assessed; (2 ) the expected ri sk for each affected populat io n; ( 3 )
e ach appropriate upp er - or lower - bound est imate of risk; ( 4 ) each significant uncertaint y ident ified by the risk assessment and studies that may assist in reso lving the uncertaint y; and (5 ) peer - reviewed studies “that support, are direct ly relevant to, or fail to support” any ri sk assessment and methodologies used to reconcile any inco nsistencies in the scient ific data. 58 As described in greater detail in sect io n V of these comments , the science th at EPA used fo r th e TSD and the Proposed Endangerment Finding fails to meet th ese requirements. For example, t he TSD ignores informat io n relevant to adaptation and fails to distinguish amo ng climate effects. 59 Such omissio ns and other shortcomings reduce the accuracy of th e science th at is presented and result in an exaggerated ass essment of risk. The TSD relies on reports by the CCSP and the IPCC, which fail to address adequately issues relevant to condit io ns in the United States and under the CAA. 60 Thi s is a clear failure to emplo y t he best available science. The Proposed Endangerment Finding fails to explain adequately the basis for the Administrator’s

56 Safe Drinking Water Act Amendments of 1996, Pub. L. No. 104

- 182, 110 Stat. 1613 (Aug. 6, 1996). 57 EPA Guide lines at 21

- 22. 58 Id. at 22
- 23. 59 See section V.A. 60 See section V.B.106

concl usion regarding the effects of GHG emissio ns on public healt h and welfare 61 and fails to consider a number of recent studies that contradict or challenge EPA ’s conclusio ns in th e Proposed Endangerment Finding. 62 These deficiencies constitute a vio lation of th e requi rements regarding presentation o f influential informat io n established by t he EPA Guidelines. Therefore, UARG’s third Request for Correction is that EPA amend the T SD and the Proposed Endangerment Finding to reflect reliance on the best available science, specifically reso lving the scientific shortcomings not ed in this paragraph and discuss ed in sect io n V of th ese comments
. VII. EPA Has Not Presented a Proper Contribution Analysis for Public Comment. As noted above, any “contribut io n” analysis under sect io n 202(a)(1) of the Act should address the contribution o f e missio ns fro m t he relevant U.S. sources to total worldwide GHG emissio ns and atmospheric concentrations. Beca use the stated purpose of this proceeding is to address contribut io ns to what EPA characterizes as air pollut io n t hat consists of global atmospheri c concentrations of certain gases, it makes no sense to assess U.S. emissio ns of the sources to be regulated in relat io n to all U.S. emissio ns, with respect to either a single GHG or all six GHGs in the aggregate. Moreover, the relevant emissio ns to be assessed in the contribut io n analysis are those fro m new U.S. motor vehicles only, not from all U.S. motor ve hicles. The emissio n percentage th at EPA cites (4.3%) reflects emissio ns fro m a ll section 202(a)(1) sources, not emissio ns fro m th at subset of sect io n 202(a)(1) sources, i.e. , new vehicles, that EPA is authorized to regulate. Moreover, EPA should further refine the contribution assessment to address those categories of new section 202(a)(1) sources whose GHG emissions it plans to address through regulat io n.
61 See section V.C
. 62 See section V.D
.107

Thus, for the reasons discussed in sect io n II of these comments, the contribut io n assessment should address new U.S. section 202(a)(1) vehicles to be manufactured in model years 2012 th rough 2016, other than motorcycles, buses, and heavy

- and medium

- dut y t rucks. Finally, EPA properly acknowledges that “any finding of a ‘contribut io n’ requires so me th r esho ld to be met; a truly trivial or de minimis ‘contribut io n’ might not count as such. ” 74 Fed. Reg. at 18892/2
- 3. EPA says that it “need not determine at this time the circumstances in which emissio ns would be trivial or de minimis and would not warran t a finding of contribut io n.” Id. at n.14. Yet EPA also states that, where “[m]ethane emissio ns fro m S ection 202(a) source categori es were less than 0.01 percent of total global greenhouse gas emissio ns in 2005” (and where, of course, the methane emissio ns fro m o nly the new s ect io n 202(a) sources in categories th at EPA actually would regulate would const it ute an even smaller percentage of that total), EPA would deem even that vanishingly small portion of emissio ns to “contribute” within the meaning of sec tion 202(a)(1). EPA’s implic it de terminat io n that a share of total emissio ns of less than
one one - hundredth of one percent is not “trivial or de minimis ” is, on its face, inconsistent with EPA’s suggest io n t hat it would apply a de minimis except io n under section 202(a)(1). Mo re fundamentally, that determinat io n reflects an incoherent and internally inconsistent approach by EPA in this proceeding to the question of what constitutes a statutorily cognizable “contribut io n.” VIII. If EPA Decides To Promulgat e Fina l Motor Vehicle GHG Rules , Regulation of Many Previously Unregulated Sources Will Result . If EPA mak es the Proposed Endangerment Finding final , thi s act io n would affect more th an the new motor vehicles whose GHG emissio n s EPA would be requi red to regulate under sect io n 202(a) of the Act. As EPA recognized in the ANPR, “if EPA were to regulate greenhouse gas emissio ns fro m mo tor vehicles under the Clean Air Act, then regulat io n of108

smaller stationary sources that also emit GHGs

– such as apart me nt buildings , large ho mes, school s and hospitals

– could also be triggered” through the Act’s PSD program. 73 Fed. Reg. at 44355/1. The potential for regulation o f GHGs under the PSD program presents an enormous cha llenge for EPA and the nat io n. In examining whethe r GHGs endanger public healt h and welfare, EPA should recognize th at a healthy econo my and the abilit y t o provide good jobs with fair wages is abso lut ely the
mo st cri tical it em in assuring the protection of our nat io n’s healt h and welfare. In assessing wh ether to find that GHGs endanger public healt h and welfare, EPA should consider the regulatory consequences of such a decisio n, including the negat ive impact on the nation’s economy that could result fro m r egulat io n of GHGs through the PSD program and the Ti tle V program. The imposit io n of these programs on all sectors of the nat io n’s econo my, which may very well be required if EPA makes final the Proposed Endangerment Finding, may very well create economic gridlock where commerce cannot implement the normal , routine changes needed to respond to growth or changes in demand. Such economic gridlock will adversely affect public healt h and welfare. The CAA requires owners and operators of major stationary sources of air pollut io n to obtain construction permits before building or modifying those sources. Although PSD primarily applies to criteria air pollutants for which a NAAQS has been established, PSD can also apply to CAA

- regulated poll utants for which there is no NAAQS. If EPA decide s to propose and promu lgate a rule establishing limit s on emissio ns of GHGs fro m mo tor vehicles, which it will have to do if it decides to make th e Proposed Endangerment Finding final , th at finding could result in PSD permit s need ing to provide that GHG emissio ns fro m P SD sourc es are limited by any applicable “best available control techno lo gy ” (“BACT”)
.109

Under the PSD program, a PSD permit is required for the construction or modificat io n of any major stationary source that emits or has the potential to emit 250 tons per year of a regulated pollutant ( or 100 tons per year for a source in a specifically listed category, including large fossil fuel

- fired steam electric plants)
. Because many sources emit CO 2 , EPA noted in the ANPR th at “many ty

pes of new small fuel

- co mbusting equipm ent could beco me newly subject to the PSD program if CO 2 beco me s a regulated . . . pollutant.” Id. at 44498/3. Addit io nally, f or sources already considered major sources, such as fossil fuel

- fi red power plants, regulat io n of CO 2 likely would create the r isk that many more changes c ould arguably be deemed major
mo difications. See id. at 44499/1. As an example, EPA notes that a hypothetical 500

- megawatt electric utilit y boiler that burns bituminous coal and that is well

- controlled for tradit io nal air pollutants can emit more than 580 tons per hour of CO 2 . Id. At such a source, any change that otherwi se qualifies as a modificat io n under applicable NSR regulat io ns and th at results in just 10 addi tional minutes of utilizat io n over the course of a year could , at least in theory, resul t in a 100
- ton
- per - year increase and thus could potentially trigger PSD requirements. See id. In th e ANPR, EPA estimate d th at approximately 200

- 300 PSD permits are issued nat io nally each year for construction of new sources and major modifications at exist ing sources. If CO 2 were to beco me a regulated pollutant, which will eventually occur if EPA finalizes th e Proposed Endangerment Finding, EPA est imated that th e number of PSD permit s requi red each year would increase by more than a factor of 10 ( i.e. , to mo re than 2000 to 3000 permits each year). Id. at 44499/1

- 2. UARG believes, however, that this is actually an underest imate because EPA failed to account fo r a source’s po tenti al to emit year

- round but instead based the est imate on actual emissio ns . As EPA acknowledged in the ANPR, if year

- round operation is assumed as th e basis for estimat ing sources’ potenti al to emi t, the actual number of PSD permits required110

“would likely be an order of magnitude higher.” Id. at 44504/2. EPA’s so le reliance on actual emissio ns is misplaced, as EPA’s rules make clear that a source’s potential to emit applies in the case of new construction and for modificat io ns where the exist ing facilit y ha s not begun normal operations. 40 C.F.R. § 52.21 (b)(21). In the ANPR, EPA also stated its belief that PSD program requirements beco me applicable on the effect ive date of the first regulation requiring GHG control under the Act. 73 Fed. Reg. at 44500/1. UARG notes that exactly when a regulat io n beco mes “effect ive” can vary depending on the CAA provisio n at issue. For example, sect io n 202(a)(2) of the Act specifies th at any sect io n 202(a)(1) emissio n standard for new motor vehicles “shall take effect after such period as the Administrator finds necessar y t o permit the development and applicat io n of the requi si te technology, giving appropriate consideratio n to the cost of co mp liance within such period.” Any CAA regulation of a GHG for the first time would have to be coordinated carefully wi th a lawful and appropriate approach to PSD permitting, and EPA should consider the effects of regulat io n under the PSD program when it considers the Proposed Endangerment Finding and possible regulat io n of GHGs under the Act. In the ANPR, EPA stated that this type of
c oordinat io n would be “necessary to minimize confusio n on the part of sources, permitting authori ties, and the public, to provide for as effective a transit io n as possible, and to ensure that th e strategies intended to avoid problems can be in place in t ime to prevent those problems.” Id. at 44510/1. Given the importance of the issue, EPA should consider carefully not only the nature but also the timing of any regulat io n of GHGs under the CAA if it decides to finalize the Proposed Endangerment Finding. At th e same t ime, EPA will be required to engage questions concerning whether, given the nature and scope of the impacts on the PSD program that would111

resul t f rom GHG regulat io n under emissio n control provisio ns of the Act such as section 202(a), Congress in

tended any such GHG regulat io n to occur at all. In the ANPR, EPA discussed the possibilit y of some alternatives, under which, it suggests, it might be possible to mit igate the impact of PSD regulation on a variet y o f sources. Id. at 44503/2. To the exte nt EPA believes it can propose alternat ives to ease this regulatory burden, it would have to provide in any notice of proposed rulemaking a co mp lete and adequate explanat io n of the authorit y it believes it has to accomplish this and of how its action on this matter wo uld not conflict with posit io ns previously taken by the Agency or the courts. Although some environmental groups have suggested th at EPA may have broad administrative or regulatory flexibilit y to mit igate or even avo id t hese burdenso me effects , these statements conflict with past statements made by those groups. For example, in the past, environmental organizat io ns and others have argued that EPA cannot issue general permits for PSD and that BACT determinations must be made on a case

- by

- case b asis. See, e.g. , Statement of David Hawkins, N atural Resources Defense Council (“ NRDC”) (stating that proposed utilit y BACT presum pt io n fo r NOx emissio ns fro m mo dified electric utilit y st eam generating units (proposed at 56 Fed. Reg. 27630, 27638 (June 14 , 1991)) had “no legal basis” because “[t]he Act specifies th at BACT control decisio ns must be made on a case

- by

- case basis”); Statement of Congressman Henry A. Waxman (stating , wi th regard to the same proposed utilit y B ACT presumpt io n , th at “[ i] t i s highl y unusual

-- if no t illegal

-- fo r EPA to set a federal BACT presumpt io n”). Thus, EPA would need to explain , in any proposed rulemaking addressing possible alternat ives to mit igate th e effect the PSD program c ould have if GHGs beco me regulated poll utants under the CAA , why those pri or arguments are incorrect and why contrary views now expressed by certain representatives of those groups can be relied on with assurance. See, e.g. , Massachusetts v. EPA112

Part II: Implications of the Supreme Court Decision: Hearing Before the House Select Committee on Energy Independence and Global Warming , 110 th Cong. (Mar. 13, 2008), T estimo ny of David Bookbinder, Chief Climate Counsel, Sierra Club, at 9 (“Bookbinder Testimo ny”) ( argu ing that a “possibilit y” to avoid the P SD problem would be to “allow[] for coverage of all sources below an individual permit ting level (again, possibly 5

- 10,000 [tons per year]) to be covered by a general permit”). In addition, UARG notes that the thresho lds for PSD applicabilit y are written di rect ly int o th e statute itself. If EPA decides to increase these th resho ld s to ensure that PSD applies only to “ large ” sources, it will need to just ify it s legal authori ty to take that step wi

thout express congressio nal approval. If EPA finalizes the P roposed Endangerment Finding, it is not only th e PSD program that could lead to the potential regulation of numerous small stationary sources that are currently unregulated. Regulat ing GHGs, as will occur if the Proposed Endangerment Finding is finalized,
c ould resul

t in numerous sources needing to obtain operating permit s under Ti tle V of th e Act
. If EPA regulates GHG emission s under the Act, this could trigger a requirement that any source th at emits at least 100 tons per year of one of those GHG s , including CO 2 , would need to apply fo r a Ti tle V permit within one year of beco ming subject to Title V requirements. The Title V permit for that source would include not only any applicable requirements for the GHG s but also requi rements that apply to other p ollutants such as generally applicable opacit y limit ations that exist in several state implementation plan s. In the ANPR, EPA note d th at the Tit le V permit program would bring in even more sources than the PSD program would because the 100

- ton
- per - year c utoff applies to all source categori es, not only to categori es specifically listed in the CAA. 73 Fed. Reg. at 44511/1. EPA estimate d th at more than 550,000 sources would require Title V permit s if EPA regulates GHG s113

under the CAA . Current ly, there are approximately 15,000

- 16,000 Ti tle V sources. Id. at 44511/1

- 2. EPA also expressed concern that Tit le V permit s might have to be continually reopened as any GHG regulat io n takes effect under the Act. In the ANPR, EPA observed th at th ere would be relat ive ly little benefit from regulating these small sources because of the expected unavailabilit y of add

- on emissio n control devices at such sources and their relat ively small emissio ns. Id. at 44512/2. Although UARG agrees that there may well be lit tle demon strable benefit from regulating these small sources, it notes that Congress enacted the requi rements of the Title V operating permit in the Act, and EPA is bound to fo llo w the di rect ives of Congress. As with the PSD program, EPA describe d several alternat ives in the ANPR that it sugg est ed might address the burden of the Tit le V program in the GHG context. Id
. at 44512/3

- 44513/1. Yet EPA has thus far failed to address the legal barriers that co uld prevent EPA from implement ing such alternat ives
. Wit h resp ect to both PSD and Title V , EPA w ould need , in any notice of proposed rulemaking for GHG regulation under the CAA

-- including a notice of proposed rulemaking for new motor vehicle GHG emissio n standards under sect io n 202(a)

-- to address the specific bas is fo r any authori

ty it believes it may have to mit igate the dramat ic and disruptive effects on the se programs’ nature and scope that c ould resul t from any decisio n t o finalize the Proposed Endangerment Finding
. IX. A Final Endangerment Finding with Respect to GHGs Under Section 202(a) of the CAA Would Not Satisfy the Prerequisites for List ing GHGs as Criteria Air Pollutant s Under Section 108 of the Act. Section 108(a)(1) of the CAA specifies three prerequisites for the list ing of an air pollutant to be regulat ed by NAAQS. Specifically, this sect io n provides that EPA:

[S]hall fro m t ime to time . . . list . . . each air pollutant

–114 (A) emissio ns of which, in [the Administrator’s] judgment, cause or con tribute to ai

r pollut io n which may reasonably be ant ic ipated to endanger public healt h or welfare; (B) the presence o f w hich in the ambient air result s fro m nu merous or diverse mobile or stationary sources; and (C) for which air qualit y criteria had not been issued before the date of enact me nt of th e Clean Ai r Am endments of 1970, but for which [the Administrator] plans to issue air quality criteria under thi s section. CAA § 108(a)(1). Should EPA make final th e Proposed Endangerment Finding, th at finding would not be at all disposi

tive with regard to section 108. Section 108 and its companio n provision, sect io n 109, contain different language from that in section 202. S ections 108 and 109 of th e CAA authorize list ing of a pollutant as a criteria air po llut ant, and regulat io n of that pollutant through NAAQS , fo r t he purpose of addressing any endangerment of the public healt h or welfare that may reasonably be ant ic ipated due to the quantit ie s of the po llut ant in the ambient air , which is the relat ively limited portion of the atmosphere to which the general public ha s access. Id. § 108(a)(2) (“Air qualit y criteria for an air pollutant [listed under section 108] shall accurately reflect the latest scient ific knowledge useful in indicating the kind and extent of all identifiable effects on public healt h or welfare whic h may be expected from the presence of such pollutant in the ambient air , in var ying quantities .”) (em phas e s added); id. § 109(b)(2) (secondary NAAQS fo r a section 108

- listed air pollutant must be set at the level “requisit e to protect the public welfare f rom any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air”) (emphasis added); 40 C.F.R. § 50.1(e) (“Ambient air means that portion of the atmosphere, external to buildings, to which the general publi c has access.”); Train115

v. NRDC, 421 U.S. 60, 65 (1975) (“ambient air” is “the statute’s term for the outdoor air used by th e general public”). Even if EPA finalizes the Proposed Endangerment Finding, before the Agency could list any GHGs as criteria air po llutants under sect io n 108 of the Act, it would have to examine and determine what , if any, effect on U.S. public healt h or welfare is caused by th e presence of GHGs in the ambient air in t he United States. The Proposed Endangerment Finding and th e accomp anying TSD do not address thi s matter, and it is far fro m c lear, for example, that GHGs in t he amount in which they are present in the ambient air in the United States could reasonably be ant ic ipated to endanger public healt h or welfare. The lack of infor mat io n regarding any effects of GHGs on public healt h and welfare due to their presence in the U.S. ambient air could, in fact, be among a number of factors that would le ad th e Administrator to co nclude that s he has no “plans to issue air qualit y cr it eria” fo r GHGs
- - th e thi rd prerequi si

te f or list ing under sect io n 108. To use the third prerequisite in this (or any oth er) fashio n, however, EPA might need to address whether and to what extent th at prerequisit e gives EPA discret io n not to list a pollutant i f th e Agency has in fact made an affirmat ive endangerment finding fo r that pollutant
. Alt hough EPA note d in t he ANPR th at the thi rd prerequi si

te “could provide EPA discret io n to decide whether to list those pollutants [i .e., GHGs] under sect io n 108 for purposes of regulating them via the NAAQS , ” 73 Fed. Reg. at 44477/2 , in the 1970s, NRDC successfully argued to a federal di strict court i

n a CAA cit izen suit th at this language deprived EPA of any discret io n to decline to list and regulate a pollutant under sections 108 and 109 where the Agency had conceded that th e endangerment criterion (and sect io n 108(a)(1)(B)’s “numerous or diverse mobile or stationary sources” criterion) was satisfied for that pollutant. That lit igat io n culminated in the116

decisio n of th e U.S. Court of Appeals for the Second Circuit in NRDC v. Train , 545 F.2d 320 (2d Ci r. 1976) , th at EPA must list and regulate a pollutant under sect io ns 108 and 109 when it has made an endangerment finding fo r that pollutant , notwithstanding the “plans to is sue air qualit y cri teria” provi sion in sect io n 108 (a)(1)(C)
. EPA correctly note d th e existence of this case in the ANPR and suggest ed th at , because it was decided before the Supreme Court’s decisio n in Chevron v. NRDC, 467 U.S. 837 (1984), the Agency ma y well have an argument that its original int erpretation of the statute should now be accorded deference. 73 Fed. Reg. at 44477 n.229. In addi tion, the Second Circuit issued its decisio n before the development of case law, including case law in that circ ui

t, on the narrowly circumscribed limit s of cit izen suit jurisdiction under the CAA and the scope of EPA “nondiscret io nary dut ies” under the Act. 63 The argument th at the thi rd cri terion does not provide EPA with discret io n regarding whether to list an ai

r pollutant for which it has made an endangerment finding was advanc ed as recent ly as 2003 , when th ree states (Connecticut, Maine, and Massachusetts) premised a cit izen sui t a gainst the Administrator on the Second Circuit’s 1976 decision. Massachusetts v. Horinko , No. 3:03
- CV
- 984 (D. Conn. filed June 4, 2003) (dismissed wit hout prejudice by plaint iffs on September 3, 2003, in light of EPA’s denial of the rulemaking petit io n t hat led to Massachusetts v. EPA ). Mo re recent ly, nat io nal environmental group representatives have suggested that the “p lans to issue air qualit y criteria” clause does give EPA discr et io n not to list and regulate, but th ey did not explain their legal rationale for abandoning the posit io n advanced by NRDC and adopted by two c ourts ov er three decades ago
. See, e.g. , Strengths and Weaknesses of Regulating Greenhouse Gas Emissions Using Existing Clean Air Act Authorities: Hearing
63 EPA’s discret io n under sect io n 108 extends not only to substant ive determinat io ns but also to th e timing of any list ing. CAA § 108(a)(1) (aut horizing EPA, where the list ing prerequisites are satisfied, to revise the list of criteria pollutants “from t ime to time”).117

Before the House Energy and Commerce Subcommittee on Energy and Air Quality , 110 th Cong. (Apr. 10, 2008), T estimo ny of Lisa Heinzerling, Professor of Law, Georgetown Universit y Law Center, at 6 (noting that the third prerequisite “may provide the Administrator somewhat more wiggle room in deciding whether to issue a NAAQS for a greenhouse gas, even after an end angerment finding ” ); Bookbinder Testimo ny at 9 (noti ng that the third prerequisite “appears to con tem plate some discretion on EPA’s part in whether to establish a NAAQS”). UARG believes that, for many reasons, the argument for EPA discret io n under sect io n 108(a)(1) (C) is
com pelling, but in any event, EPA would need to state clearly and co mprehensively its view of th e matter
-- specifically including its interpretation of the current effect of NRDC v. Train
-- before it proceeds with any proposed rule that addresses, or that arguably could give rise to, regulat io n of GHGs under sect io n 108 and 109. X. A Final Endangerment Finding for GHGs Under Section 202(a) of the CAA Would Not Satisfy the Criteria Necessary To Take Any Action Under Section 1 15 of the Act. S ection 115 of the CAA a uthorizes th e Administrator to require states to establish emissio n control requirements where the Administrator “has reason to believe that any air pollutant or pollutants emitted in the United States cause or contribute to air poll ut io n which may reasonably be ant ic ipated to endanger public healt h or welfare in a foreign country.” If EPA makes a final endangerment finding in the present proceeding, that finding would not satisfy the requi rements of sect io n 115. Before taking any s teps to regulate under sect io n 115, EPA would need to examine a wide range o f is sues , including not only issues concerning possible endangerment of public health or welfare in a specific foreign country but also whether the fo reign nat io n in quest io n gives th e United States reciprocal rights (a prerequisite to any sect io n 115 regulat io n under sect io n 115(c) ) and whether requi red revisio ns to state implementation plans resul

ting fro m any EPA determination under sect io n 115 w ould “prevent or eliminate the118

end angerment” (a criterion under sect io n 115(b) ). EPA al so would have to show that it has “sufficient evidence correlat ing the endangerment to sources of pollution wit hin a part icu lar State,” a criterion th at EPA and the courts have drawn fro m sect io n 115. Her Majesty the Queen in Right of Ontario v. EPA , 912 F.2d 1525 , 1533 (D.C. Cir. 1990). XI. Conclusion UARG appreciates the opportunit y t o submit these comments on the Proposed Endangerment Finding. For the reasons discussed above, EPA’s proposal is seriously flawed and does not provide a basis for the Agency to make an endangerment or “cause or contribute” finding wit h respect to GHGs under section 202(a)(1) of the CAA
.

# Attachment A

### COMMENTS OF THE UTILITY AIR REGULATORY GROUP on the ADVANCE NOTICE OF PROPOSED RULEMAKING REGARDING REGULATING GREENHOUSE GAS EMISSIONS UNDER THE CLEAN AIR ACT Docket ID No. EPA - HQ - OAR - 2008 - 0318

HUNTON & WILLIAMS LLP Norman W. Fichthorn Allison D. Wood James W. Rubin Aaron M. Flynn 1900 K Street, N.W. Washington, D.C. 20006 (202) 955 - 1500 Counsel for the Utility Air Regulatory Group
November 28, 2008ii 

### TABLE OF CONTENTS

I. Introduction and General Issues for EPA To Consider in Any Future Proposed Rulemaking on GHGs Under the CAA
................................ ................................ ............ 2 II. UARG Ag rees Wit h t he Concerns Expressed by Numerous Federal Agencies Regarding Possible Regulat io n of GHGs Under the CAA.
................................ ............ 10 III. In Any Future Proposed Rulemaking Regarding Regulat io n of GHGs Under the CAA, EPA Should Specifically Address the Special Needs and Perspect ives of th e Electric Generat ing Sector.
................................ ................................ ...................... 15 IV. Before EPA Could Present a Reasoned Basis for Any Future Proposed Endangerment Finding, the Agency Would Need To Address a Range of Issues Requi ring Substant ia l Further Development.
................................ ................................ . 18 A. The Effect of Massachusetts v. EPA
................................ ................................ .. 19 B. The Endangerment Test
................................ ................................ ..................... 22 1. The Legal Framework and Decisio n - Making Criteria
............................. 22 2. Applicat io n of the Endangerment Test to the “Air Pollution” at Issue
................................ ................................ ................................ ...... 26 V. The Draft Endangerment TSD Does Not Provide a Sufficient Basis for Making Any Possible Future Endangerment Determinat io n with Regard to GHGs Under th e CAA.
................................ ................................ ................................ ....................... 33 A. The Draft Endangerment TSD Has Improperly Defined the Scope of Relevant GHG

- Related Sci ence, Rendering It Unfit for Use in Assessing Endangerment.
................................ ................................ ................................ .. 35 B
. The Draft Endangerment TSD Relies on Scient ific Informat io n t hat Is Inadequate To Assess Whether Endangerment to U.S. Public Healt h or Welfare Exists.
................................ ................................ ................................ .. 39 C. The Draft Endangerment TSD Mischaracterizes the Conclusions of the IPCC on Which It Relies.
................................ ................................ .................. 44 D. Recent Individual Studies Undercut Conclusio ns Contained in EPA’s Draft Endangerment TSD and the Reports on Which It Relies.
.......................... 50 E. Uncertaint y I s Not Adequately Refl ected in the TSD’s Analysis.
....................... 58 F. The Draft Endangerment TSD Contains Numerous Examples of Bias and Speculat io n t hat Are Inconsistent with the Scientific Evidence.
......................... 62iii

G. The TSD’s Conclusio ns as to Climate Change

- Related Effects on Specific Heal th and Welfare Resources Must Be Revised To Address the Scient ific Flaws Ident ified in the Co mments.
................................ ................................ .... 66 1. Human Healt h
................................ ................................ ........................ 66 2. Air Qualit y ................................ ................................ ............................. 68 3. Food Production and Agriculture
................................ ........................... 69 4. Forestry
................................ ................................ ................................ . 71 5. Water Resources
................................ ................................ .................... 72 6. Sea Level Rise and Coastal Areas
................................ .......................... 73 7. Energy, Infrastructure, and Settlements
................................ .................. 74 8. Ecosystems and Wildlife
................................ ................................ ........ 75 H. Concl

usion ................................ ................................ ................................ ........ 76 VI. If EPA Decides To Propose Regulat io n of GHGs Under Any Exist ing Pr ovi sion of th e CAA, EPA Will Need To Consider Numerous Issues Further.
............................. 78 A. Issues Relat ing to Possible Regulat io n of Mobile Sources Under Tit le II of th e CAA
................................ ................................ ................................ ............ 79 1. Issues Raised in EPA’s Tit le I I Discussio n t hat May Implicate Potenti al Regulat io n of Non

- Mobile Sources
................................ ......... 79 2. EPA’s Mobile Source Discussio n Raises General Legal Issues That May Be Relevant to Other Potentially Regulated Sectors.
...................... 80 3. The Petit io ns Before EPA Raise Certain Issues that Are Relevant to the Utilit y I ndustry
. ................................ ................................ ............ 82 B. Issues Relat ing to Possible Regulat io n Through NAAQS and SIPs (CAA §§ 107
- 110)
................................ ................................ ................................ ....... 88 C. Issue s Relat ing to Possible Regulat io n Through Performance Standards for New and Exist ing Stationary Sources (CAA § 111)
................................ ........... 98 1. Authori

ty To Regulate
................................ ................................ ........... 99 2. Efficacy
................................ ................................ ............................... 101 3. Policy Design Cri teri a ................................ ................................ .......... 102iv a. Effect iveness of Healt h and Environmental Risk Reduction
...... 102 b. Certaint y a nd Transparency of Results
................................ ...... 103
c. Cost Effect iveness and Economic Efficiency
............................ 103 d. Equi

ty Considerations ................................ .............................. 103
e. Policy Flexibilit y O ver Time
................................ .................... 104 f. Incent ives for Innovation and Techno lo gy Development
.......... 104 g. Pro
- Co mp eti

tiveness ................................ ................................ 104 h. Ad ministrative Feasibilit y ................................ ........................ 105 i. Enforceabilit y ................................ ................................ ........... 105 j. Avo idance of Unintended Consequences
................................ .. 105 4. New and Exist ing Sources
................................ ................................ .... 106 5. Definit io n o f Source Categories and Coverage of Sources
.................... 107 6. Best Demonstrated Techno lo gy ................................ ............................ 109
a. Techno lo gical Availabilit y ................................ ....................... 109 b. Techno lo gical Availabilit y in t he Power Sector
........................ 112
c. Carbon Capture and Sequestration
................................ ............ 115 7. Market Mechanisms
................................ ................................ ............. 118 8. Updating Inform ation and Standards
................................ .................... 120 D. Issues Relat ing to Possible Regulat io n of GHGs as Hazardous Air Pollutants (CAA § 112)
................................ ................................ ................... 120 E. Im

plications for the PSD Program fro m P ossible Regulat io n of GHGs Under the CAA
................................ ................................ ............................... 123 F. Im

plications for the Tit le V Operating Permit Program Due to Possible Regulation o f GHGs Under the CAA
................................ ............................... 128 G. Ti tle VI of the CAA, Which Addresses Stratospheric Ozone Protection, Does Not Provide EPA wit h Authority To Regulate GHGs.
............................. 132 VII. Concl

usion ................................ ................................ ................................ .................. 1341 COMMENTS OF THE UTILITY AIR REGULATORY GROUP on the ADVANCE NOTICE OF PROPOSED RULEMAKING REGARDING REGULATING GREENHOUSE GAS EMISSIONS UNDER THE CLEAN AIR ACT Docket ID No. EPA - HQ - OAR- 2008 - 0318

November 28, 2008

______________________________________________________________________________ The Utilit y Air Regulatory Group (“UARG”) offers the fo llo wing comments on the Ad v ance Notice o f Proposed Rulemaking Regarding Regulat ing Greenhouse Gas Emissio ns Under the Clean Air Act (“ANPR”), which the U.S. Environmental Protection Agency (“ EPA” or “Agency”) publish ed for public comment on July 30 , 2008
. 1 UARG is a vo lu nt ary, nonp rofi t group of electric generat ing companies and organizations and four nat io nal trade associat io ns (the Edi son Electric Insti

tute, the National Rural Electric Cooperative Associat io n, the American Public Power Associat io n, and the National Mining Associat io n). UARG’s purpose is to participate collect ively on behalf o f it s members in EPA’s rulemakings and other proceedings under the Clean Air Act (“CAA” or “Act” ) that affect the interests of electric generators and in lit igat io n arising fro m t hose proceedings. UARG members would be significant ly a ffected by any decisio ns EPA may make on issues r aised in the ANPR concerning possible regulat io n of greenhouse gases (“GHG s ”) under the exist ing provisio ns of the CAA. UARG appreciates the opportunit y t o comment on the ANPR and notes that the issues raised in the ANPR are crit ical to it s members as well as to a broader group of industry parti es , commercial interests, and the public.

1 73 Fed. Reg. 44354 (July 30, 2008).2

I. Introduction and General Issues for EPA To Consider in Any Future Proposed Rulema king on GHGs Under the CAA At th e outset , UARG recognizes that the issue of whether and how to regulate emissions of GHGs, including carbon dio xide (“ CO 2 ”), under the current provisio ns o f t he CAA is controversial and needs to be considered in the broadest co nt ext, given the dramat ic impacts such regulat io n ma y have on other CAA regulatory programs and on the economy. As EPA Ad ministrator Johnson himself accurately states in the preface to the ANPR, “[o]ne point is clear: [t] he potential regulat io n of gre enhouse gases under any portion of the Clean Air Act could resul

t in an unprecedented expansio n of EPA authorit y t hat would have a profound effect on virtually every sector of the economy and touch ever y househo ld in t he land.” 73 Fed. Reg. at 44355 / 1. UARG also underscores and agrees wit h Administrator Johnson’s assert io n t hat the CAA is ill

- sui

ted for the task of regulating glo bal greenhouse gases. Based on the analysis to date, pursuing this course of act io n would inevitably result in a very com plicat ed, time

- consuming and, likely, convo lut ed set of regulat io ns. These rules would largely pre

- empt or overlay exist ing programs that help control greenhouse gas emissio ns and would be relat ively ineffect ive at reducing greenhouse gas concentrations given t he potentially damaging effect on jobs and th e U.S. economy. Id. at 44355/2

- 3. 2 This concern is shared by the numerous federal agencies whose comments are appended to the ANPR. Indeed , mo st of th e issues raised in the ANPR, including the scope of regulat ion

2 Even the staff draft portion of the ANPR observes that “[ i] n light of the CAA’s int erconnect io ns and other issues explored in this notice, EPA does not believe that all aspects of th e Act are well designed for establishing the kind of comprehensive GHG regulatory program th at could most efficient ly achieve th e GHG emissio n reductions that may be needed over the next several decades.” 73 Fed. Reg. at 44397/2

- 3. UARG does not believe that any o f t he current CAA provisio ns discussed in the ANPR provide an appropriate vehicle for GHG regulat io n, particularly of th e electric power sector, for the many reasons stated below.3

and how to minimize and fairly allo cate costs imposed by any regulatory program, are crit ical issues for Congress to consider as its discussio ns on potential GHG regulation progress. UARG believ es th e best role th at the ANPR can play is not in future r egulation of GHG emissio ns under th e “ill

- sui

ted ” exist ing provisio ns of the CAA but in assist ing Congress in c onsidering a possible leg is lat ive program to address climate change by providing necessary informat io n on key aspects of any such program. 3 Inde ed, th e ANPR lists some of the most important principles fo r such legislat io n: (1) addressing GHG emissio ns in a manner that does not further harm the economy; (2) encouraging techno lo gical development; and (3) recognizing the threat of
com pet it ive disadv antage if other countries wit h significant emissio ns fail to control their emissio ns. Id. at 44397/1

- 2. The current CAA cannot adequately sat is fy th ese three principles and thus is a n inappropriate vehicle to address climate change meaningfully. Curtailing economic costs is perhaps the most significant issue to consider in response to th e ANPR. Since the ANPR was released in July 2008 in th e midst of an already sluggish economy, the nat io n has faced a significant and worriso me economic downturn of uncert ain duration. Most sectors of the economy are facing difficult financial and operating condit io ns . It is simply not appropriate to institute a regulatory program at this time that would impose even higher energy costs on American businesses and consumers
. UARG fully understands and appreciates EPA’s efforts to “shape an overall approach for potenti ally addressing GHG emissio ns under the CAA as part of a broader set of actions to address GHG emissio ns taken by Congress, EPA, other federal departments a nd agencies, state

3 The separate comments on the ANPR o f t he American Public Power Association, the Edison Electric Inst it ute, and the National Rural Electric Cooperative Associat io n, all o f w hich are UARG membe rs, explain the reasons for Congress to enact comprehensive legislat io n t o address GHG emissio ns.4

and local governments, the private sector, and the internat io nal co mmunit y. ” Id. at 44400 /2. UARG recognizes that the electric power sector plays an important role in nat io nal GHG emissio ns, but any regulat io n of that sector wo uld need to be considered as part of a broader program that takes into account the full scope of national and internat io nal sources of GHG emissio ns, exist ing and soon

- to
- be

- established state and regional programs, and the need to spread economic costs and regulat ory burdens across a wide spectrum of sources. Any regulat io n of GHGs under the various provisio ns of the exist ing CAA must also recognize regulatory effects on other CAA programs, including the prevent io n of significant deterioration (“PSD ”) and Tit le V programs, and how those effects wo uld impact the electric power and other sectors. UARG therefore supports EPA’s decisio n to revi ew the potential for GHG regulat io n as part of a set of broader domest ic and internat io nal decisio ns and programs. UARG also s tresses th at the Supreme Court’s decision in Massachusetts v. EPA , 127 S. Ct. 1438 (2007), does not mandate that EPA regulate GHGs under the CAA or do so within a specific period. EPA retains considerable discret io n as to whether to make an endangerment f inding under CAA § 202(a)(1), and if it d oes decide to make such a finding , th e Agency has di scretion over the timing of such a finding and when and how to take any subsequent regulatory steps. In Massachusetts , the Supreme Court determined that the Act’s definit io n of “air pollutant” in section 302(g) enco mpasses “all airborne compounds of whatever stripe,” including GHGs. Id. at 1460. Having concluded that GHGs can be “air po llutant s ” under the CAA, however, the Court th en explained that EPA has author it y t o regulate GHGs under CAA sect io n 202(a)(1) only “[i]f EPA makes a finding o f endangerment” under that provisio n. Id . at 1462. Alt hough the Court rejected th e specific rationale offered by EPA fo r denying a petit io n to regulate GHGs fro m new motor v ehicles as unrelated to th e scope of the relevant statutory text, it5

em phasized the limited nature of its decisio n: “We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform E PA’s act io ns in the event th at it makes such a finding.” Id. at 1463. Rather, discret io n
remains wit h t he Agency regarding whether and how to make a determinat io n as to endangerment, as long as EPA provides a “reasoned j ustification” for its deci s io n and it s “reasons for action or inact io n” are “grounded . . . in the statute.” Id. Moreover, the Court recognized that even if EPA does make an affirmative endangerment finding, it would “no doubt [have] significant lat it ude as to the manner, timing, [and] c ontent ” o f it s regulat io ns and

“ coordinat io n of [those] regulat io ns with those of other agencies.” Id. at 1462. Thus, the Agency maintains considerable discret io n as to whether to make an endangerment finding under sect io n 202(a)(1). 4 Even if EPA were t o find endangerment, it would retain discret io n to determine when and how to regulate. Moreover, the regulatory authori ty reviewed by the Supreme Court pertains only to new motor vehicles and engines under Ti tle II. N othing in Massachusetts establishes a ny requi rements for regulat ing stationary sources of GHG s . There fo re, EPA is under no legal obligation to regulate GHGs fro m st at io nary sources as a result of the Supreme Court’s decision, and can

-- and s hould

-- take time to co nsider carefully whether t o do so in the context of the many legal and po licy issues raised by the ANPR and by th e co mments of UARG and other parties on the ANPR. Overall, UARG believes that the many issues set forth in t he ANPR, on balance, demonstrate the problems inherent in any attem pt to regulat e GHGs under the exist ing provisio ns of th e CAA and in analyzing the economic effects of such regulat io n. UARG believ es th at EPA

4 The Agency is also under no obligat io n to make an endangerment finding under sect io n 202(a)(1) by a date certain. See Massachusetts v. EPA , No. 03
- 1361 (D. C. Cir. June 26, 2008) (denying petit io n fo r wri

t of ma ndamus).6

understates the problems when it says in the ANPR th at the “large temporal and spat ia l scales of th e climat e change challenge introduce regulatory issues beyo nd those ty pically presented for
mo st tradi

tional ai r pollutants.” 73 Fed. Reg. at 44401/2. The unique characteristics of this challenge ( e.g. , lo nger atmospheric lifet imes of th e gases , uniform mixing o f t he gases in t he global atmosphere , and cumulative impacts from past, present , and future emissio ns ) create many uncertainties over long time frames and across national boundaries, thereby increasing the
com plexi ty of any attem

pt to design an effective and co mprehensive long

- term regulatory strategy
. Id. at 44400
- 01. Further, these characterist ic s make GHG s a poor fit , at best, fo r the statutory endangerment tests in several o f t he CAA provisio ns discus sed in the ANPR, which were enacted to address conv ent io nal po llutants and their localized, specific , and di rect public healt h and welfare impacts. T he data reported by EPA for emissio ns per sector show that GHG emiss io ns in the United States are spread out over a number of sectors. Even wit hin one sec tor, there may be a diversit y o f t yp es and sizes o f so urces. If EPA should decide to regulate GHGs under the exist ing provisio ns of the CAA, it would have to co nsider carefully how to allocate the burden and costs of such regulat io n fa ir ly among and within t hese sectors, as well as to account for the significant global emission s that will occur notwithstanding the imposit io n of any CAA regulatory requi

rement s. The development of new techno lo gi es will be key to the abilit y t o reduce GHG emissio ns fro m a ll s ectors of the economy. But while there may be exist ing techno lo gi es that can be
em ploy ed in the short term as ident ified in the ANPR, such as improved plant efficiencies, fuel swi tching, nuclear power , and renewable power, each o f t hese techno lo gi es curre nt ly faces obstacles to wide spread deplo yment or limit s to th e imp act it may have. The ANPR’s di scussion7

of th ese techno lo gies is quite generalized , so i t is difficult to comment more specifically on how EPA could or wo uld requi re implement ation of th ese techno lo gi es through the exist ing CAA. In any future proposed rulemaking on GHG regulation, EPA would need to analyze why such techno lo gi es are not already widely being used to red uce GHG emissio ns in the relevant sectors and whether regulat io n t hrough ex ist ing CAA provisio ns would overco me obstacles to thei r implementation
. As to possible future techno lo gi es, EPA has not provided an adequate basis on which the public may co mment meaningfully on how they could be applied under exist ing CAA provi s io ns. As will be described later, the current CAA tends to constrain the use of unproven or speculat ive techno lo gies, so th e exist ing Act ma y not be useful for achieving the techno lo gical inno vat io ns th at may be necessary fo r significant GHG reductions. Section V I.C. of th ese comments provides more detailed informat io n on techno lo gi es f or electric generat ing plants and carbon capture and sequestration (“CCS”)
. 5 UARG supports appropriate federal efforts to fund th e development and deplo yment of techno lo gy necessar y t o reduce GHG emissio ns. As will be discussed in more detail in sect io n VI.C. , EPA should be mindful that controls needed to reduce emissio ns of conv ent io nal po llut ants, such as sulfur dioxide (“ SO 2 ”) and nit rogen oxides (“NOx”), and new c ontrol techno logies such as CCS can require large amounts of energy and decrease plant efficiencies, leading to increased GHG emissio ns. Moreover, EPA should consider to what extent improvements in exist ing plants to increase efficiencies and reduce GHG emissio ns ma y implicate New Source Review (“NSR”) concerns. A meaningful discussio n of the effects of possible GHG control programs on non

- ai r environmental media must await a more specific descript io n of such programs. Nevertheless,

5 CCS is also commonly referred to as carbon capture and storage.8

EPA correctly observes in the ANPR ( 73 Fed. Reg. at 44407
- 08) that certain types of potential programs and techno lo gi es may have effects on other environmental media

-- as well as on the cost to implement, and th e abilit y t o comply with , statutory and regulatory requi rement s governin g those other media. Thus, for example, the potential use of CCS techno lo gy rai se s a number of issues that currently are being considered in the context of a proposed rulemaking under the Safe Drinking Water Act’s Underground Inject io n Control program . S ee 73 Fed. Reg. 43492 (July 25, 2008). Similarly, other possible future or emerging emission reduct io n techno lo gi es may implicate issues concerning water use and availabilit y ( part icu larly for facilit ies in arid areas) and waste disposal. EPA should care fu lly consider impacts on other media

-- and on compliance with other environmental laws and regulat io ns -- if it develops a proposed rule fo r GHG emissio n control requi rements under exist ing provisio ns o f t he CAA. UARG agrees that the policy and econo mic considerations set forth in th e ANPR ( 73 Fed. Reg. at 44409) are among those EPA should strongly consider in determining whether GHG regulat io n is appropriate and warranted under existing CAA provisio ns. As to market

- ori ented approaches under the CAA ( id. at 4 4409
- 12), EPA discusses several options in t he ANPR wit h regard to inst it ut ing cap

- and

- trade and other market

- based mechanisms under the Act’s exist ing provi sion s. 6 In general, however, if EPA were to prom ulgate both source

- specific or sector

based “ co mmand and control” programs (e.g. , PSD) and market

- based programs, any cost savings fro m market

- based programs c ould be greatly reduced or eliminated by countervailing addi tional costs to sati sfy th e co mmand

- and

- control requirements
. Id. at 44411
- 12.

6 EPA correctly notes that, should it decide to establish a carbon tax or fee (or a provisio n t hat approximates a tax or fee) fo r any category or categori es of sources, it would need to consider whether it has authority to do so under the relevant provisio ns of the CAA. 73 Fed. Reg. at 44411/1

- 2.9

As to th e cho ice between economy - wide and sector
- based regulatory approac hes ( id. at 4 4411
- 13), UARG strongly believes th at any regulatory program should cover the broadest spectrum of sources and not single out any one sector simply because more informat io n about th at sector is available. In general , should EPA decide to propose regulat io ns to co nt rol GHG emissio ns under the CAA , i t should do so th

rough programs that lower the costs of emissio n control s and spread those costs fairly across all contribut ing sources and sectors, while also recognizing the limits of such programs. These limits include the legal and practical limitat io n s imposed by th e CAA itself and th e past (and continuing) opposit io n t o such programs by environmental organizat io ns and so me s tates
. EPA rai ses a number of other program design issues very generically . These are important to consider in any proposed regulatory program, such as the reasons to different iat e between new and exist ing sources (which generally have shorter useful live s and require more costly retrofi

ts), emission s leakage , and international co mpet it iveness. Id. at 4 4413
- 14
. Thos e issues are discussed, where relevant, in later sections o f t he se comments in regard to specific CAA sect io ns. EPA ident ifies several over arching analyt ical challenges for economic analysis of any potenti al GHG regulat io n under exist ing CAA provisio ns, including long time horizon s and th e need to anal yze costs and benefit s over those horizon s ; the uncertaint y inherent in those analyses; int e rnat io nal considerations; how to value domestic and internat io nal marginal benefits; estimat ing energy securit y be nefits; how to assess interactions wit h other , non - climate policies such as reduction of tradit io nal air po llutants; and integrating economic and non

- econo mic considerations. Id. at 44414
- 16. UARG agrees that these are all key issues that further demonstrate the com

plexi ty of any attem

pt to adapt and apply CAA

- based analyses developed10

fo r convent io nal po llutants to an entirely new and differen t ty pe of emissio ns. EPA should
ensure th at it s policy cho ices associated with any GHG emissio n controls that it may propose are informed by and address th ese analyt ical challenges as well as other important policy, legal , and ethical quest io ns. See id. at 44417 /1

- 2 . The CAA, as it currently exists, with provisio ns int ended to address convent io nal po llutants in far less co mp lex scenarios , simply does not provide the most appropriate context for undertaking this challenge. 7 II. UARG Agrees With the Concerns E xp ressed by Numerous Federal Agencies Regarding Possible Regulation of GHGs Under the CAA. UARG believes it is very significant and telling that th e main federal agencies and E xecut ive Branch offices wit h expert is e in scient ific, environmental , economic, and co mmercial matters
-- th e Office of Informat io n and Regulatory Affairs ( “ OIRA ” ), which is part of th e Office of Management and Budget ( “ OMB ” ) ; th e Council of Economic Advisers ( “ CEA ” ) ; th e Office of Sci ence Techno lo gy and Policy ( “ OSTP ” ) ; th e Council on Envi ronmental Quali

ty ( “ CEQ ” ); th e Department of Agriculture ( “USDA ” ) ; th e Department of Co mmerce ( “ Co mmerce ”); th e Department of Transportation ( “DOT ” ) ; th e Department of Energy ( “DOE ” ); and th e Office of Ad vocacy, Small Business Administration ( “ SBA ” )

- - so st rongly disagree with the ANPR that th ei r comments were appended in who le t o the document. This is not simply a matter, as some

7 EPA further recognizes that determining an acceptable level o f c limate change involves important value judgments and acknowledges that “[i] t is not the purpose of this ANPR to make any judgment regarding what an appropriate stabilization goal may be.” Id. at 44401 /2
. But if EPA were to decide to propose to regulate GHG emissio ns unde r exist ing provisio ns of the CAA, it would have to make such judgments to balance costs and benefits, determine the goals of any proposed regulat io ns, and assess the effectiveness of any proposed regulat io ns in meeting th ese goals. For example, how string ent would GHG reductions or limitat io ns need to be on a sectoral or national level in response to any endangerment determinat io n? How would EPA determine an appropriate reduction goal or limitat ion for a sector or group of sectors, given the past, present , f

uture, and internat io nal contributions to climate change, and the inabilit y t o attribute specific risks to global concentrations? These and other issues make developing any proposed CAA regulatory approaches a particular challenge.11

may claim, of the Bush Administration’s d isinclination to establish GHG regulat io ns under the exist ing CAA . Rather, it s hows that there is fundamental disagreement by th e mo st relevant federal agencies th at GHG regulat io n under exist ing CAA provisions is prudent, practical , or even fu lly authorized. UARG agrees with the salient concerns of these agencies and with the
cen tr al principles underlying those co ncerns, including:

· The ill- suited nature of the CAA for GHG regulation, particularly given the complexity of the issues involved in any such regulation . This concern is universally shared by the comment ing agencies as well as Administrator Johnson. Id. at 44359. Fo r example, Ad ministrator Dudley of OIRA call s th e ANPR a “deeply flawed and unsuitable vehicle for reducing greenhouse gas emissions.” Id. at 44356.

· I mpacts that r egulation of CO 2 may have on a wide range of CAA programs, particularly the PSD and Title V program s. EPA correctly ident ifies the concern that any regulat io n of GHGs under one part of the CAA may affe ct other part s and require regulat io n of ma ny new sources th

rough the se programs. That concern is sh ared collect ively by the comment ing agencies , which recognize the tremendous burdens that such regulat io n would place on U.S. businesses and the public . In thi s regard, DOE observe s that regulat io n of GHG s would significant ly increase the costs associated wi th th e operation of power plants and industrial sources, as well as the direct energy use for commercial and resident ia l users, including many sources of GHG s not current ly regulated. Id. at 443 66/2 . CEQ states that EPA should conduct “a much more com plete technical, inst it utional, and econo mic analysis of th e far reaching consequences that will arise from th e automat ic applicat io n of exist ing regulat io ns that would occur in the event EPA makes an endangerment finding” and subsequent ly regulates CO 2 . Id. at 44388.12

· E conomic costs and burdens of a regulatory program and the degree to which such regulation would intrude into the operations and activities of sources, many of which were previously unregulated . Co mmerce fo cuses on the costs that CAA re gulation of GHGs would impose on workers, consumers , and producers, including the high costs of
com pliance wit h mu lt iple state regulat io ns, reliance on techno lo gi es that are not yet vi able, and the impacts on a large number of small busine ss es and nonprofit or ganizat io n s th at have not been regulated under the CAA as sources in the past but now would be subject to costly, lengthy PSD and Ti

tle V permitting procedures. Id. at 44371
- 76. SBA also expresses serious concerns with the negative impacts such regulat io n would have on small ent it ies by subjecting large numbers of firms to costly and burdenso me new requirements. Id. at 44390
- 96. CEA and OSTP similarly warn that regulat io n would be inordinat ely burdenso me, especially fo r previously unregulated small sour ces. Id. at 4438 3
. See infra at sections VI.E. and VI.F
.
· The l ack of state, regional, or national environme ntal benefits, and concerns about harm to U.S. industry competitiveness . CEA and OSTP warn that CAA regulat io n would create cumberso me sets of rules and restrict io n s that would be excessive and disproporti onate at the state and facilit y le vel s and m ight not even meet the purported environme nt al goals. In particular, CEA and OSTP note that healt h and welfare impacts cannot be quantified to the stand ards required by the CAA and th at no credible framework exi s ts to give assurance that a target can be met. Id. at 44380
- 84. Co mmerce also id entifies problems in labor cost and
com pet it io n issues , id. at 44371
- 76 , and CEQ states that leakage and global em issions may offset any benefits the U.S. mig ht otherwi se obtain fro m r educ tions under CAA regulat io n, id. at 44385
- 8 9.13

· P erceived weaknesses and uncertainties in the legal analysis of regulatory options . OIRA expresses concern about EPA’s “untested legal p roposi tions” for purported “flexible” int erpretation s of th e CAA and “untested legal theories” to suggest that some CAA provi sion s could be adapted to provide econo mic incent ives to reduce GHGs ( e.g. , establishing a nat io nwide cap

- and

- trade program)
. Id. at 44357
- 58
. Co llect ively, USDA, Commerce, DOT, and DOE note that EPA’s theories are uncertain and subject to challenge. Id. at 44360. I ndeed, al

though EPA asserts authority to regulate GHGs under a wide scope of provi sion s o f t he Act, it th en seeks co m ment on whether it in fact has such authorit y w hen it specifically discuss es those provis io ns in t he ANPR
.
· Disagreements over assumptions as to costs of technologies and availability of those technologies to control and reduce emissions . Whether regulatory co nt rols on GHGs will be effective and affordable depends to a great extent on ava ilabilit y o f su it able techno lo gies to achieve those control s, but it is not at all clear that the ANPR’s review of techno lo gy is realist ic in all situat io ns. OIRA warns th at the ANPR “could result in the piecemeal applicat io n of co mmand

- and

- control regulat io n -- based on EPA staff determinat io ns of the availabilit y a nd suitabilit y of a wide range of technology

-- co vering both U.S. manufacturing activit y a nd a broad range o f commercial and househo ld act ivit ies to an extent well beyo nd th e scope of current regulat io n.” Id. at 44357. Commerce rei terate s th at regulat io n would be costly if it relies on techno lo gies that ar e not viable. Id. at 44371
- 76.

· D uplication of existing laws and regulatory programs . CEA and OSTP , as well as the other comment ing agencies, express their concerns that GHG regulation under the CAA would, to a significant extent, duplicate exist ing programs and authorit ies, especially concerning mobile sourc es and fuel econo my. Id. at 44361
- 64, 44383. CEQ believes more14

generally that the ANPR ignores how new regulat ions would duplicate or co nt radict numerous mandates, incentives, partnerships , and federal and state legislat io n , as well as some of EPA’s own programs, including mandates under th e Energy Independence and Securi ty Act of 2007 (“EISA”) , Pub. L. No. 110

- 140, 121 Stat. 1492 (2007), actions taken under the Montreal Pro tocol such as accelerated phase

- out of hydrochlorofluorocarbons, state renewable p ortf

ol io standards, programs under the Energy Policy Act of 2005 , and DOE and EPA vo lu nt ary GHG emissio n reduction partnerships. 73 Fed. Reg. at 44386
- 87
. The Chair of the CEQ best sums up ma ny o f th e collect ive concerns of the co mmenting agencies 8 when h e states that the ANPR d oes not provide a fu ll and meaningful discussion of the broader policy and economic context in which it is considering, in the event of an endangerment finding, triggering the prospect of essent ia lly automat ic and immediate regulation over a vast range of communit y a nd business act ivit y a nd an equally vast range of potenti al discret io nary regulat io ns with respect to the same and addit io nal activit ies. Id. at 44385

. EPA should not propose any finding o f endangerment or any regulation under the exist ing CAA wit hout providing such a discussio n and a com prehensive analysis o f t he many significant economic, technical, institutional, environmental , scient ific, regulatory, legal , and policy issues that would be implicated by such regulat io n . See i d. at 44388.

8 In addition to t he regulatory, legal, and policy concerns raised by these agencies, OSTP raises a number of important issues concerning the significant complexit ies and uncertaint ie s associated wi th anthropogenic climate change that dist inguish GHGs fro m t radit io nally regulated pollutants and increase the technical difficult y o f any regulation of those gases under the exist ing provi sion s of the CAA. 73 Fed. Reg. at 44379

- 81. CEQ comments that EPA should take addi tional comment on OSTP’s remarks and observat io ns as to the current and future capabilit y of science wit h respect to predict io ns and project io ns on a nat io nal, regional, and local scale. Id. at 44387. UARG agrees that EPA must carefully consider these issues.15

III. In Any Future Proposed Rulemaking Regarding Regulation of GHGs Under the CAA, EPA Should Specifically Address the Special Needs and Perspectives of the Electric Generating Sector. UARG agrees with the comment of DOE that the ANPR show s lit tle understanding of how GHG emissio ns regulat io n under exist ing CAA provisions would affect U.S. energy securit y a nd econo mic securit y needs. These important matters are barely noted in the ANPR. Id. at 44371. These concerns are particular ly acute fo r the electric generating industry fo r a number of reasons , and EPA should take the sector’s special perspectives into account as the Agency determines whet her and how to propose regulat io n of GHGs under the current provi sion s of the CAA. Fi rst, the sec tor may be seen as a particularly tem pting target for GHG regulat io n because
mo re is known about electric generat ing facilit ies’ emissio ns and emissio n controls than about emissio ns fro m a nd emissio n controls at many other industries. Thi s is because util it ies report th ei r CO 2 emissions to EPA, these facilit ies are already subject to strict emissio n controls and standards for convent io nal po llutants, and much of the public attention has focused on reducing GHG emissio ns fro m t his sector. Hence, all o f t he concerns ident ified above by the co mment ing federal agencies ar e magnified for the electric generating sector to the extent th at sector is at risk of bearing a disproporti onate and unfair burden under a GHG regulatory program . There are many sources o f GHG s in t he United States. According to the ANPR, the electric power sector was responsible for 33.7% of all U.S. GHG emissio ns in 2006, while the transportation sector emitted 28% . The remaining U.S. GHG emissio ns in 2006 came fro m t he industri al sect or (19%), th e resident ia l a nd commercial se ctor s (4.8% and 5.6% respectively), and the agriculture sector ( 6.4% )
. Id. at 44402
- 03. Thus, alt hough th e electric power sector is a significant source of U.S. GHG emissio ns, it is far fro m be ing th e only sourc e , and any CAA regulat ions must take into account the other sectors and allocat e the burden of regulat io n16

appropriately . Moreover, co ncern about climate change arises from global concentrations of GHG emissio ns, caused by global emissio ns. Any CAA regulation must reflect the fact that U.S. emissio ns, while a significant source of GHG emissions worldwide, are not the only large contributor
. 9 Even if U.S. emissio ns were reduced significant ly, GHG concentrati ons would continue to grow on a global basi s. T he U.S. electric power sector should not shoulder a di sproporti onate burden in addressing GHG emissions when significant emissio ns also occur fro m o th er domest ic sources and other countries. Further, the electric power sector itself is made up of diverse types of sources, and any regulatory program must take into account their differences

-- and the difference in control techno lo gi es that may be available to them
. In addit io n, as stated infra in sect io n VI.C. , CCS techno lo gy is far fro m be ing co mmercially available for power plants. If EPA decides to regulate GHGs under the CAA, increasing efficiencies may be the only

-- albeit limited

-- achievable method in t he short term of reducing GHG emissions at existing and new plants, and cost
- effect ive applicat io ns differ based on the age and size o f t he plant. A crit ical issue for EPA to consider is the reliabilit y o f t he electric power grid. The North American Electric Reliabilit y Co rporation (“NERC”), which has regulatory authority over the operations of the electrici ty grid under federal law, has expressed serious concerns about the effect regulat io n of GHGs may have on electricit y r eliabilit y in t he United States. In a recent report, NERC ident ified several key reliabilit y issues associated with climate change i ssues that EPA should consider in any future regulat io n of GHGs under the CAA. NERC, Special Report:

9 For example, GHG emissio ns from China now exceed U. S. GHG emissio ns. International Energy Agency, CO2 Emissions from Fuel Combustion 1971

- 2005 (2007). The Netherlands Envi ronmental Assessment Agency was the first organizat io n to conclude that Chinese GHG emissio ns exceeded U.S. emissio ns in 2006. See http://www.mnp.nl/en/dossiers/Climatechange/ mo reinfo/Chinanowno1inCO2emissio nsUSAinsecondposit io n. ht ml.17

Electric Industry Concerns on the Reliability Impacts of Climate Change Initiatives (Nov. 2008) (“NERC Special Report”), available at http://www.ne rc.com /files/2008

- Climate

- Ini

ti at ives

Report.pdf. Rick Sergel, President and CEO of NERC, commented that: We are concerned that, when viewed fro m a continent

- wide perspect ive, current climate init iat ives do not adequately address key reliabilit y o bject ive s, particularly th e need for a strong and robust transmissio n system. . . . As we consider our energy future, it becomes increasingly clear that our success in reducing carbon emissio ns and realizing energy independence will hinge on our abi lit y t o provid e reliable, clean . . . electricit y w here and when it is needed. Press Release, NERC, Climate Policy Crit ical to Grid Reliabilit y (Nov. 10, 2008), available at ht tp://www.nerc.com/ news_pr.php?npr=198
. In particular, the NERC Special Report noted that broad

- scale fuel switching from coal to natural gas in response to GHG regulat io n would jeopardize electric reliabilit y. Ret ir ements of coal

- fired power plants over a short timeline in response to GHG regulat io n could resul t in the lo ss of generation needed to support the integrit y of t he bulk power system and thus severely harm reliabili

ty, especially in those regions th at depend heavily on coal for fuel. Also, the broad

scale replacement and relocation of generating plants fro m current coal sites to sites that would be suitable for new or expanded natural gas

- fi red generat io n would requi re significant upgrades to exist ing transmissio n infrastructure. NERC Special Report at 6

- 10. NERC notes that “[t]he timelines established for CO2 reductions will be one of th e driving factors determining the extent to which this fuel

- swi

tching occurs and any resul ting impacts to reliabilit y.” Id. at 6. Another important considerat io n is t hat exist ing transmissio n infrastructure is insufficient to deliver electricit y fr om ne w “cleaner” sources of power to the grid. The exist ing electricit y transmissio n network cannot reliably deliver power from new sources of renewable power to demand centers. As states attempt to deliver “clean energy” over already heavily

- lo aded transmiss io n lines to meet renewable portfolio standard requirements, the transmissio n system18

will need to be expanded to meet these new requirements. Id. at 11
- 14. As NERC notes, “[t]he abilit y t o reduce the carbon emissio ns of the electric sector hinges on having a robust transmissio n system,” and the “[e]xist ing transmission infrastructure is inadequate to reliably int egrate new renewable sources to demand centers.” Id. at 11. Because of the vit al importance of electric reliability to national securit y a nd to th e nat io n generally, EPA needs to consider carefully how any proposed regulat io n of GHGs under the CAA may affect th e reliabilit y of th e electrici ty generation, transmissio n, and distribut io n system in t his country
. IV. Before EPA Could Present a Reasoned Bas is for Any Future Proposed Endangerment Finding, the Agency Would Need To Address a Range of Issues Requiring Substantial Further Development. Section V of the ANPR summarizes EPA’ s “work to date on an endangerment analysis in response to the Supreme Court ’s decisio n in Massachusetts v. EPA .” 73 Fed. Reg. at 44421/2. This sect io n includes three main parts: (1) a fairly brief descript io n of what EPA views as the legal framework for an endangerment determinat io n; (2) a summary o f info rm at io n and issues bearing on such a determination; and (3) a discussion of how EPA might determine whether emissio ns of GHGs from motor vehicles or fuels cause or contribute to air pollut io n t hat may reasonably be ant ic ipated to endanger public healt h or welfare. As discussed below, this sect io n of th e ANPR raises a range of issues that require substantial further development before EPA could present a reasoned basis for any proposed endangerment finding. Before EPA could make and publish a final endangerment finding that cou ld be the basis fo r regulation, EPA would have to provide public notice of

-- and so licit, consider, and respond to public co mment on
-- a specific proposed endangerment finding. See Thomas v. New York, 802 F.2d 1443, 1447 (D.C. Cir. 1986); Nat’l Asphalt Pavement Ass’n v. Train , 539 F.2d 775, 779 n.2 (D.C. Cir. 1976). The ANPR of course does not provide public notice of any proposed19

endangerment finding. The fo llo wing co mments provide UARG’s views on the issues that EPA would have to address before it co uld provide effective public notice of any determinat io n t hat emissio ns of GHG s from new U.S. motor vehicles (or any other sources) under the Act cause or contribute to air pollution that may reasonably be ant ic ipated to endanger public health or welfare. A. The Effect of Massachusetts v. EPA Scattered passages in the ANPR provide only a limited discussio n of the Supreme Court’s decisio n in Massachusetts v. EPA
. See id. at 44398/1

- 2, 44418/3, 44421/2. Some aspects of this discussio n appear to be inco mp lete and internally inconsistent. For example, the ANPR at one point states that “[t]he Supreme Court’s decisio n in Massachusetts v. EPA requires EPA to address whether GHG emissio ns fro m new motor vehicles meet the endangerment test of CAA sect io n 202( a)(1).” Id. at 44418/3. This statement could be read as suggesting that EPA believes it has an obligat io n to determine whether or not that endangerment test is met. Elsewhere in the ANPR, EPA recognizes that scient ific uncertaint y is a legit imate factor in determining how to respond to the petit io n fo r rulemaking and may “‘preclude[] EPA fro m making a reasoned judgment as to whether greenhouse gases contribute to global warming.’” I d. at 44398/1 (quoting Massachusetts , 127 S. Ct. at 1463); see also id. at 44421/2. Yet the ANPR fails to explain that the references in the Court’s opinio n to “contribut io n t o global warming” are a shorthand reference to the statutory test of contribut io n to air pollution that may reasonably be ant ic ipated to endanger public heal th or welfare. See, e.g. , Strengths and Weaknesses of Regulating Greenhouse Gas Emissions Using Existing Clean Air Act Authorities: Hearing Before the House Energy and Commerce Subcommittee on Energy and Air Quality , 110 th Cong. (Apr. 10, 2008), T estimo ny of Robert J. Meyers, Principal Deput y As sistant Administrator for20

Air and Radiat io n, EPA, at 3 ( characterizing the Court’s reference to scientific uncertainty as relevant to “making a reasoned judgment on such an endangerment determinat io n”). More over, although the ANPR observes that the Court did not “dictat[e] EPA’s action on
remand” or “decid[e] whether EPA must find there is endangerment,” 73 Fed. Reg. at 44398/2, th e ANPR provides no clear description of the limited nature of the Court’s holding -- th at, for example, EPA on remand need not make any finding regarding endangerment 10 and need not confine its consideration o f fact ors to sci entific uncertaint y as lo ng as those factors relate to the language o f t he statute. The Court found EPA’s deci sion to deny the rulemaking pet it io n to be arbitrary because its explanat io n fo r i ts denial “rest[ed] on reasoning divorced fro m t he statutory text,” 127 S. Ct. at 1462, and was unsupported by “reasoned ex planat io n” that is “ground[ed] . . . in t he statute ,” id. at 1463. Section 202(a)(1), the Court held, “ condi tion [s] th e exercise of EPA’s authorit y o n it s fo rmation o f a ‘judgment,’” and “that judgment must relate to whether an ai r pollutant ‘cause[s], or contribute[s] to, air pollution which may reasonab ly be ant ic ipated to endanger public health or welfare.’” Id. at 1462 (quoting CAA § 202(a)(1)). Thus, under the Court’s opinio n, EPA’s responsibilit y is t o make a judgment, in response to the rulemaking peti tion, that does not “ignore” the text of sect ion 202(a)(1), that “exercise[s] discret io n within defined statutory limit s,” id. , and that is supported by a “reasoned explanat io n,” id. at 1463. Furthermore, certain statements in the ANPR’s limited discussio n of Massachusetts do not fully or consistent ly reflect the Court’s descriptio n of EPA’s authorit y. For example, one part of the ANPR says, wit hout any apparent qualificat io n, that “[i]f the Administrator makes a posi tive endangerment determinat io n fo r GHG emissio ns fro m new motor vehicles, he must

10 See 127 S. Ct. at 1463 (“We need not and do not reach the question whether on remand EPA must make an endangerment finding. . . .”).21

r egulate those GHG emissio ns under sect io n 202(a).” 73 Fed. Reg. at 44418/3. Yet a separate passage acknowledges the Court’s statement that its ho ld ing does not address whether EPA on
remand may take into account “policy concerns” that might “inform EPA’s act io ns in the event th at it makes such a finding.” 127 S. Ct. at 1463, quoted in 73 Fed. Reg. at 44398/2. And, as th at passage also notes, the Court made clear that EPA “has significant lat it ude as to the manner, timing, [and] content” of any regulat io ns that it does adopt “and coordinat io n of [those] regulat io ns wit h t hose of other agencies.” 127 S. Ct. at 1462, quoted in 73 Fed. Reg. at 44398/2. Thus, to the extent EPA proceeds with a notice of proposed rulemaking, it will be essent ia l fo r i t to pro vide the public with a discussio n of Massachusetts th at reflects in a consistent way (1) the limited nature of the Court’s ho ld ing 11 and (2) the Court’s recognit io n of EPA’s substant ia l di scretion as to (a) the timing and manner of any regulat io ns that may accom pany or f ol lo w an affirmat ive endangerment finding and (b) coordination of its regulatory determinat io ns and actions wi

th those of other agencies, such as the Department of Transportation

-- as to which, the Court noted, EPA is to seek to “avo id incon sistency” in implement ing statutory obligations. 127 S. Ct. at 1462. In addit io n, in developing any such notice, EPA should relate the holdings in Massachusetts to the specific issues EPA would have to engage before it could propose an endangerment findin g wi

th respect to GHG emissions from new U.S. motor vehicles (or other sources). Some of these issues are discussed below.

11 For example, EPA in any notice of proposed rulemaking should explain its view of what would const it ute a “reasonable explanat io n as to why it cannot or will not exercise its discretion” to determine whether new U.S. motor vehicle emissions meet the endangerment standard. 127 S. Ct. at 1462.22

B. The Endangerment Test 1. The Legal Framework and Decision - Making Criteria N othing in section 202(a)(1) (or any other provisio n of th e Act) refers to, or suggests EPA may treat, global climate change as endangerment per se , apart from specific ally ident ifiable physical effects on public healt h or welfare in the United States th at may result from emissio ns of GHG s in the amounts in whi ch they occur fro m new U.S. motor vehicles (or any other relevant source category). T h us, th e relevant issues for EPA’s exercise of judgment under sect io n 202(a)(1) includ e whether emissio ns from new U.S. motor vehicles of the GHG s ident ified in the petit io n fo r rulemaking “cause [] , or contribute [] to, air pollut io n which may reasonably be ant ic ipated to e ndanger public healt h or welfare” and whether exist ing scient ific informat io n is “sufficient” to a l lo w EPA to come to a conclusio n on that question. Id. at 14 62
- 63. As noted abov e, EPA has discret io n to exercise its judgment on remand consi s tent wi th th e statutory cri

teri a, and the Court did not prejudge the outcome of EPA’s considerat io n of the sect io n 202(a)(1) endangerment criterion. The ANPR describe s what it characterizes as th e two
- part nature of the endangerment test: “First, the Administrator must decide if, in his judgment, air pollut io n ma y reasonably be ant ic ipated to endanger public health or welfare. Second, the Administrator must decide wh ether, in his judgment, emissio ns of any air po llutant fro m new mo tor vehicles or engines cause or contribute to this air pollut io n. ” 73 Fed. Reg. at 44421/3. T he ANPR th en discusses th e legislat ive history o f t he endangerment criterion in section 202(a)(1) and similar criteria in other parts of the Act, and in particular the legislat ive history of the 1977 amendments to the Act, which in part reflected the D.C. Circuit ’s decisio n in Ethyl Corp. v. EPA , 541 F.2d 1 (D.C. Cir. 1976). Id. at 44422/2

- 3. EP A o bserves that the court in that case was confronted with an argument that EPA’s regulation o f lead in gaso line under section 211 of the Act was inconsistent23

wi th th e statutory standard in effect at that time, which established a “will endanger” test for regulat io n under that section. Reject ing an industry challenge to the regulat io n, the court held , among other things, th at section 211 did not require proof of actual harm as a prerequisite to regulat io n and that Congress intended the statute to be preven tative or precautionary in nature. In addit io n, it indicated that EPA has authorit y t o c onsider the cumulat ive effects of exposure to lead fro m nu merous sources, not only lead fro m t he motor vehicle fuels being considered for regulat io n. The ANPR also notes that the legislat ive history of the 1977 amendments reflected the view that the statute’s call for the Administrator to exercise “judgment” in applying the endangerment test pertains both to the “cause or contribute” analysis and to the “may reasonabl y be ant ic ipated to endanger” language. And that legislat ive history makes clear that EPA’s “pro ject io ns, assessments and est imates must be reasonable, and cannot be based on a ‘crystal ball inquiry.’” Id. at 4442 2 /3. The legislat ive history th us reflec ts congressional intent to use the statutory phrase “may reasonably be ant ic ipated” to “build[] upon the precautionary and preventative goals already provided in the use of the term ‘endanger.’” Id. EPA adds that, based on the legislat ive history: [T]he phrase “cause or contribute” ensures that all sources of the contaminant which contribute to air pollut io n be considered in the endangerment analysis (e.g., not a single source or category of sources). It is also intended to require the Ad ministrator to c onsider all sources of exposure to a pollutant (e.g., food, water, ai r) when determining risk. Id. The ANPR notes that the legislat ive history does not fully explain what EPA should consider when making an endangerment finding: [I]t is not clear ... what c onsti tutes a sufficient “contribut io n” for purposes of making a finding. The CAA does not define the concept “cause or contribute” and instead requires that the Administrator exercise his judgment when24

determining whether emissio ns of air po llut ants cause or contribute to air pollut io n. As a result, the Administrator has the discretion to interpret “cause or contribute” in a reasonable manner when applying it to the circumstances before him. Id. EPA points out, however, that in Ethyl , th e court observed th at, even where EPA takes into account “cumulat ive impact,” “‘ emission s mu st make more than a minimal contribut io n to total exposure in order to just ify regulat io n .’” Id. at 44423/2 (cit ing Ethyl , 541 F.2d at 31 n.62 ). Alt hough EPA is correct that it has so me d iscretion in applying the endangerment test, it will be important for the Agency, in any notice of proposed rulemaking, to provide its proposed int erpretation of how that test should be construed in the context of the specific source categories bein g considered for regulat io n. For example, with respect to the “contribut io n” quest io n, EPA must address specifically how it will determine whether emissio ns of one or more GHG s considered individually

-- or, al ternatively, various possible co mbinat io ns of GHGs
-- from
mo tor vehicles and motor vehicle fuels can properly be determined to “cause or contribute” to “air pollut io n.” Id. at 44428/1

- 3. EPA must also discuss how it will de fine the “total” emissio ns to which EPA would co mpare the relevant source o r source category’s emissio ns. In this regard, given the global nature of the “air pollut io n” at issue, EPA wo uld need to co nsider , as the deno minator in a “contribut io n ratio,” total global atmospheric concentrations of the GHG or GHG s whose emissio ns wo uld be addressed through any regulatory action. See id. This approach would be consonant with EPA’s recognitio n, noted above, that “all sources of the contaminant which contribute to air pollut io n [m ust] be considered in the endangerment analysis .” Id. at 44422/3. In di scussing possible “contribut io n” levels, the ANPR notes potentially applicable percentages, such as 1.2 percent of total emissio ns. Id. at 44423/1

- 2 (cit ing Bluew ater Network v. EPA , 370 F.3d 1, 15 (D.C. Cir. 2004) )
. The ANPR’s discussio n of this issue, however, is25

limited and superficial , and EPA should recognize that its discretion in defining “contribut io n” is far from unbounded and must be exercised in light of its own previous determinat io ns under the CAA
. EPA should, for example, analyze the applicabilit y of it s discussio n of contribut io n percentages in the context of the CAA’s “best available retrofit techno lo gy ” ( “BART ” ) program fo r regional haze. The Act’s BART provisio n -- which, like sect io n 202(a)(1)’s endangerment language, was added by Congress in the 1977 CAA Amendments

-- uses “contribut io n” language similar to that in sect io n 202(a)(1). See CAA § 169A(b)(2)(A) (BART applies to a source in certain specified categories of major stationary sources if it “may reasonably be ant ic ipated to cause or contribute [ not “significant ly” contribute] to any imp ai rm ent of visibilit y” in any mandatory federal Class I area (emphasis added) ) . In its Guidelines for implement ing this requi rement, EPA describes an appropriate test for any “c ontribut io n”
-- not “significant contribution”

-- as that amount of emissio ns that makes a difference in visibilit y t hat is humanly perceptible in the real world (a perceptibilit y “t hresho ld ” that EPA estimates as no smaller than a 5 percent change in ligh

t ext inct io n). 70 Fed. Reg. 39104, 39119

- 20 & n.28 (July 6, 2005). The point here is not that 5 percent is necessarily the “right” contribut io n percentage for assessing GHG emissio ns or global climate change . Rather, the poi nt is t hat EPA should conside r and di scuss what amount of addit io nal GHG emissio n reduction fro m ne w U.S. motor vehicles (beyond emissio n levels that would result from existing requirements) would produce a humanly perceptible difference in specific ally ident ified adverse public healt h or welfare e ffects in t he U.S. In doing so, EPA also should bear in mind its admonit io n in it s BART Gui delines that it would be “inappropriate[] [to] create a ‘contribut io n to contribut io n’ test” by “aggregat[ing] the26

... effects of mult iple sources and c om par[ing] their collect ive effects against [the] contribut io n th resho ld.” Id. at 39121 n.34.

2. Application of the Endangerment Test to the “ Air Pollution ” at Issue Section V of th e ANPR also di scusses certain issues bearing on a determination o f t he relevant “air po llution,” including a descript io n of GHGs and other anthropogenic factors that may affect global climate. This part then includes a very limited summary of scient ific informat io n t hat is more fully discussed in the draft Technical Support Do cument on the Endangerment Analysis (“Draft Endangerment TSD ”)
. 12 Amo ng other things, for example, t he ANPR states that “climat ic changes” associated wi th increases in “glo bal temperatures” include “change in precipitat io n patterns, rise in sea levels, and changes in the frequency and intensit y o f ext reme weather events.” 73 Fed. Reg. at 44423/3. Yet, EPA notes, “[t]he scient ific literature that assesses the potential risks and end

point impacts of climate change ... does not assess these impacts on a gas

- by

- gas basis , ” id. at 44424/1 , thus making it particularly difficult to assess adequately whether and to what extent endangerment is posed by at mo spheric concentrations of a single gas, such as CO 2 . EPA also states that climat ic changes result fro m GHG co ncentrations in the at mo sphere “as well as other natural and anthropogenic factors that influence the Earth’s energy balance , ” id

. , further
com plicat ing the endangerment analysis. Alt hough EPA says that it “is considering defining the ‘air po llution’ related to GHGs as the elevated combined current and projected atmospheric concentration of the six GHGs , ” i d. , one effect of that approach would be to reduce the likelihood that any category of sources of any o f t hose GHG s could be deemed to make a

12 UARG’s co mments on the Draft Endangerment TSD are presented in Section V of these comments.27

humanly pe rceptible contribution to the “air pollut ion,” so defined. This is particularly so given EPA’s recognit io n t hat climatic changes that may b e associ ated wi th GHG emissio ns or GHG atmospheri c concentrations are in part attributable to “other natural and anthropogenic factors th at influence the Earth’s energy balance” as well as to “GHGs and aerosols” other than the six “primary” GHG s. Id. ; see id. at 44424/1

- 44425/2 (di scussing other GHG s)
. If EPA develops a notice of proposed rulemaking, it will need to d is cuss the relat ive contribut io ns of these other factors and the implications of such contribut io ns on the basis for and nature of any endangerment finding with respect to a source category’s emissio ns o f any of the six primary gases, such as CO 2 . In di sc ussing “observed global effects,” EPA notes, among other things, that current

“ ambient ” 13 GHG concentrations “remain well belo w published thresho lds for any direct adverse healt h effects, such as respiratory or toxic effects.” Id. at 44425/2. Likewise, EP A notes that proj ected concentrations “remain well below published thresho ld s fo r any di rect adverse healt h effects, such as respirat io n or toxic effects.” Id. at 44426/2. EPA says , however, that “[w]arming of the [global] climate system is unequivocal, as is now evident fro m o bservations of increases in glo bal average air and ocean temperatures, widespread melt ing of snow and ice, and ri sing global average sea level,” and that “[m]ost of the observed increase in glo bal average tem peratures since the mid

- 20 th century is very likely due to the observed increase in anthropogenic GHG concentrations.” Id. at 44425/3. In other words, EPA says, “the warming cannot be explained by natural variabilit y alone .” Id. (emphasis added). EPA then refers

13 EPA’s use of the word “ambient” reflects the need under the CAA to eval uate any possible endangerment of public health or welfare with re spect to the presence of an air pollutant in the
“ ambient air , ” i. e. , the portion of the atmosphere to which the general public has access. This point is discussed in greater detail in other parts of these comments.28

generally to various global effects that it believes are associated with climate change, including preci pi tation changes, global sea level, and extreme temperatures. Id. EPA also refers to temperature increases, extreme temperatures, sea level rise, and preci pi tation increases as “observed” effects in the U.S. Id. at 44426/1. A significant issue br iefly ment io ned in the discussio n of projected U.S. effects is mortalit y -- obviousl y t he mo st significant possible public health effect

-- due to temperature changes; EPA says “ [i ]t i s current ly not possible to quantify the balance between decreased cold

- related deaths and increased heat

related deaths attributable to climate change over time .” Id. at 44426/3. The balance of possible benefits and detriments to U.S. agricu lt ural and forest productivit y is also discussed. Id. at 44427/1. This part of Section V concludes with a discussio n of endangerment in the context of GHG
- related “air po llution.” EPA says: The scient ific record shows there is co mpelling and robust evide nce that observed climate change can be attributed to the heating effect caused by global anthropogenic GHG emissio ns. . . . Some degree of future warming is now unavo idable given the current buildup of atmospheric concentrations of GHGs, as th e result of past and present GHG emissions. Based on the scient ific evidence, it is reasonable to conclude that future climate change will result fro m current and future emissio ns of GHGs. Id. at 44427/2. EPA says that “all regio ns o f t he U.S. will be affected in s ome way,” al though “[t]here is a wide range in the magnitude of the[] estimated impacts , ” and “[t]here [is] more confidence in the occurrence of so me effects and less confidence in the occurrence of others.” Id. at 44427/2

- 3. Regarding possible public he al th effects, the ANPR says: “ [T]here are indirect human healt h r isk s (e.g., heat

- related mortalit y, exacerbated air qualit y, extreme events) and benefits (e.g., less cold

- related mortali ty ) that occur due to climate change. We seek comment on how these human healt h impacts should be characterized under the CAA for purposes of an endangerment analysis. ” Id. at 44427/3. EPA adds that:29

Some elements of human health, societ y a nd the environment may benefit fro m climate change (e.g., short

- term increases in agricul tural yields, less co ld

- related mo rtalit y). We seek co mment on how the potential for so me benefits should be viewed against the full weight of evidence showing numerous risks and the potenti al fo r adverse impacts. Id. EPA states that informat io n in t he ANPR and the Draft Endangerment TSD “points towards th e robust conclusio n t hat expected rates of climate change (driven by past, present, and plausible future GHG emissions) pose a number of serious risks to the U.S., even if the exact nature of the ri sks is difficult to quantify wit h confidence.” Id. at 44428/1. EPA then so licits

“ co mment on whether, in light of the precautionary nature of the statutory language, the Ad ministrator needs to find that current levels o f GHG concentrations endanger pu blic healt h or welfare now. ” Id. EPA concludes by invit ing “comment on all issues relevant to making an endangerment finding, including the scientific basis supporting a finding that there is or is not endangerment under the CAA, as well as the potential scope of the finding (i.e., public healt h, welfare, or both).” Id. Alt hough UARG presents its detailed comments on these issues in Sect io n V ( addressing th e Draft Endangerment TSD ) , i t off ers the fo llo wing general co mments here. Fi rst, in determinin g an appropriate response to the petition for rulemaking at issue in Massachusetts , EPA must co nsider the broad effects that regulat io n of new U.S. mo tor vehicle s’ emissio ns may have on public healt h or welfare. For example, any regulat io n of motor vehicl e GHG emissio ns under section 202 (or almo st any other regulat io n of any other source sector’s GHG emissio ns under the exist ing CAA) presumably would trigger PSD regulat io n of emissio ns of th e relevant gase s. That in turn could have profoundly damaging ef fects on the U.S. economy, which in turn could harm public health or welfare to a degree that would offset any benefit from such mo tor vehicle regulat io n. In addit io n, PSD or other broadly applicable regulat io n of GHG emissio n s under the exist ing CAA could accelerate the flight of industry to other countries,30

especially developing countri es that are unlikely to control th ei r sources’ GHG emissio ns and are unlikely to c ontrol associated convent io nal

- poll utant emissio ns to the same extent as the U.S. does. (Indeed, global GHG emissio n le vels are rising only , or primarily, because of developing countri es’ increasing emissio ns; emissio ns fro m developed countries such as the U.S. have largely stabilized.) Given the global nature of GHG concentrations in t he at mo sphere , and effects that may be attributable to those concentrations, th e result might be a net detriment to U.S. public healt h or welfare. These collateral effects of possible motor vehicle regulat io n at least must be considered before EPA could rationally proceed wi th a proposed endangerment finding and proposed regulat io n of GHG emissio ns under sect io n 202. It will be particularly important to consider these potentially damaging collateral effects in the context of not only the available informat io n regarding potential risks of adverse effects of climate change but also the possible healt h and welfare benefits fro m c limate change as ident ified in the ANPR ( e.g. , reductions in co ld

- weather

- related mortali ty and increased agricultural productivit y a nd f orest growth). Second, as the above co mments illustrate, if EPA prepares a notice of proposed rulemaking, it must focus not on “global effects” but on evidence specifically o f “U.S. effects.” EPA’s mandate is not to protect public health or welfare on a g lo bal scale but only in the United States. Thus, notwithstanding EPA’s discussio n in the ANPR o f “g lo bal effects,” EPA must clearly recognize that any basis that may exist for an endangerment finding is limited to U.S. effects only. As UARG’s comments on th e Draft Endangerment TSD note in greater detail, very little informat io n exists on U.S. effects on which EPA could base a finding o f endangerment of public healt h or welfare.31

Thi rd, a focus on a balanced assessment of potential adverse and beneficial ef fects i s essent ia l to any rational determinat io n concerning endangerment. The ANPR implicit ly recognizes the need for such an assessment by referring to informat io n on increased agricultural yields and lower cold

- weather

- related mortalit y. Instructive in this regard is American Trucking Ass’ns v. EPA , 175 F.3d 1027, 1051

- 53 (D.C. Cir.), modified on reh’g on other grounds , 195 F.3d 4 (D.C. Cir. 1999), rev’d in part and remanded on other grounds , Whitman v. American Trucking Ass’ns , 531 U.S. 457 (2001), in which the D.C. Circuit held that “EPA must consider posi tive ident ifiable effects of a pollutant’s presence in the ambient air in formulat ing air qualit y cri teria under § 108 and NAAQS under § 109,” id. at 1052. Although this decisio n did not specifically address the criteria for making endangerment determinat io ns, it would be unreasonable for EPA to make a finding of endangerment with respect to a given pollutant wi thout evaluating and weighing the potentially beneficent effects of that “pollutant’s prese nce” in t he portion o f t he atmosphere that is relevant to an assessment of that pollutant’s potentially negat ive effects. Moreover, EPA would have to assess and co mpare the pollutant’s public healt h effects, including non

- adverse U.S. health effects such as reduct io ns in co ld

- weather deaths, with any effects the pollutant may have on public welfare in the U.S. Fourth, with respect to “contribut io n,” an important factor in any endangerment analysis fo r new U.S. motor vehicles is the extent, if any, to whic h endangerment ma y be posed by th at portion of motor vehicle GHG emissio ns that is not con trolled, and will not be controlled, under exist ing provisio ns of law, including the Energy Policy and Conservat io n Act , 42 U.S.C. §§ 6201, et seq., (wi

th it s Corpora

te Average Fuel Economy ( “ CAFÉ ” ) program ) and the EISA, which includes amendments to CAFÉ that will have the effect of further reducing vehicles’ CO 2 emissio ns. EPA should take into account the contribut io n of only that portion of the emissions32

that will remain after application of existing emission control requirements
. See, e.g. , 73 Fed. Reg. at 44388. I ndeed, with new U.S. motor vehicles’ GHG emissio ns (and U.S. GHG emissio ns mo re generally) beco ming a steadily smaller share of global emissio ns and at mo spheric concentrations , i t is unclear what basis EPA would have for concluding that any global

- climate

- related risks of adverse effects on U.S. public healt h or welfare would not occur even in the absence of those U.S. emissio ns. In any event, i f E PA we re to base any endangerment finding on projected future effects (a concept discussed in the ANPR) , i t would need to consider evidence that new U.S. motor vehicle s’ emission s (and other U.S. emissio ns) have but a small, and diminishing, effect on global atm ospheric concentrations
. Finally, a s a related matter , the purpose of the CAA endangerment test, as reflected in Ethyl and in the legislat ive history to which EPA refers, is to be preventative regarding dangers th at may be posed by air pollutant emission s and concentrations . In other words, under CAA endangerment criteria, the purpose of regulation is to prevent or avert dangers to the public healt h or welfare. Accordingly, i f EPA proposes any endangerment finding for, or any regulation of

, GHG emissi ons from motor vehicles or other sources under the CAA, it must first evaluate to w

hat extent the risk to the U.S. public health or w elfare w ould actually be averted as a result of that regulation. In the case of th e le ad in motor vehicle fuels addressed in Ethyl , f or example, there were strong reasons for EPA to believe that regulat io n of the lead in fuels would prevent at least a substant ia l part of the danger to public healt h posed by human exposure to th at ai r pollutant
. See, e.g. , Ethyl , 541 F.2d at 31 (The Administrator “determined that absorption of lead automobile emissio ns , when added to all other human exposure to lead, rai ses the body lead burden to a level that will endanger healt h . He realized that lead automobile emissio ns were, far and away , the most readily reduced significant source of environmental lead.”). Thus, the Court33

observed, “the lead exposure problem can fruitfully be attacked th rough control of lead addi tives” in motor vehicle fuels. Id. at 31 n.62 (emphasis added). Before proceeding with any proposed endangerment finding or regulat io n, therefore, EPA would need first to analyze what concrete public health or welfare danger in t he United States would be averted by regulat io n th at would control or reduce GHG emissions fro m new U.S.
mo tor vehicles, above and beyo nd the emissio n control s or reductions that would occur because of other statutory and regulatory requi rements such as CAFÉ and EISA requirements. EPA then would need to determine that

-- even in the face o f large and ev er - growing non

- U.S. emissio ns of GHG s that are making steadily increasing contributions to the global pool of the asserted danger

causing pollutants

-- th e U.S. health or welfare danger could “ fruitfully be attacked” through control of th ese U.S. emissio ns alone. Id. (emphasis added). In light of exist ing and rapidly growing levels o f GHG emissio ns fro m other countri es, and the large and increasing percentage of global GHG atmospheric concentrations attributable to those countries’ emissio ns, it is highly questionable whether CAA regulation o f new U.S. mo tor vehicle s’ emission s (or emissio ns from any other U.S. source category) c ould avert any danger EPA might determine is associated with emissio ns of GHG s . V. The Draft Endangerment TSD Does Not Provide a Suf ficient Basis for Making Any Possible Fut ur e Endangerment Determination w ith Regard to GHGs Under the CAA. In addit io n to the portions of the ANPR that describe EPA’s preliminary conceptualizat io n of potential GHG regulatory approaches, EPA has also r eleas ed and requested comment on several draft Technical Support Documents, including one outl ining the Agency’s preliminary endangerment analysis for GHG emissio ns (the “Draft Endangerment TSD ” ). UARG submit s the fo llo wing co mments on EPA’s Draft Endangerment TSD
.34

The int roduction to the Draft Endangerment TSD indicates that the document: (1) assesses the extent to which climate change can be attributed to human act ivit ies; (2) examines a range of specific and quant ifiable vulnerabilit ies, risks , and impacts due to GHGs and climate change; and (3) explores known or expected benefits of elevated GHG concentrations in the atmosphere or of climate change . Its focus , EPA states, is pr imar ily on the United States. Draft Endangerment TSD at 1. As described below , however, th e D raft Endangerment TSD a ddresses th ese three topics in only the most cursory manner. T he analys is contained in the Draft Endangerment TSD is woefully insufficient as a potential basis for making any endangerment determinat io ns under the CAA
. Bri efly, the document: (1) improperly define s th e scope of GHG

- related science relevant to an endangerment finding, rendering the information it presents fundamentally ill

- sui ted to the task of supporting any endangerment determinat io n; (2) relies on sources of informat io n t hat do not adequately address the scient ific issues relevant under the CAA; (3) contains improper and inaccurate characterizat io ns o f t he conclusio ns that can reasonably be drawn fro m t he scient ific studi es and assess ments it cites; (4) fails to addr ess the import of recent scient ific studies that undercut the conclusio ns stat ed in the Draft Endangerment TSD ; (5) fails to address adequately th e numerous uncertaint ie s present in the current science; and (6) exhibit s bias in its failur e to address all relevant issues fully, including the potent ia l fo r posi tive effects associated wi th climate change. The flaws ident ified in the remainder of this sect io n of UARG’s co mments represent serious problems with the Agency’s preliminary endanger me nt analysis. Unless these deficiencies and inadequacies are addressed, the Agency will lack a sufficient scientific basis on which to propose any determinat io n as to whether GHG emissio ns fro m any source cause or35

contribute to air pollution that may rea sonably be ant ic ipated to endanger public health or welfare. A. The Draft Endangerment TSD Has Improperly Defined the Scope of Relevant GHG - Related Science, Rendering It Unfit f or Use in Assessing Endangerment. EPA states that the purpose of the Draft Endangerment TSD is “to provide scient ific and technical support for an endangerment analysis regarding greenhouse gas (GHG) emissio ns under the Clean Air Act.” Draft Endangerment TSD at 1. The scientific and technical informat io n provided in the document, ho wever, is wholly inadequate to support an endangerment finding under the provisio ns of the Act. This failing results , in part, from a lack of clari ty in the document as to th e scope of its analysis and a persistent lack of precision in the ident ificat io n and analysis o f relevant informat io n. By mixing relevant and irrelevant facts in a manner that makes it impossible to dist inguish between those effects that are relevant and those th at are not, the Draft Endangerment TSD fa ils to serve its intended purpos e as a source of informat io n to be used to assess endangerment
. Fi rst, the Draft Endangerment TSD states that it is an assessment of the extent to which observed climate change can be attributed to anthropogenic GHG emissio ns . . . . The term “climate change” in this document generally refers to climate change induced by human act ivit ie s, including act ivit ie s that emit GHGs. Future project io ns of climate change, based primarily on future scenarios of anthropogenic GHG emissio ns, are shown for th e global and nat io nal scale. Id. (emphasis added)
. As thi s quotation demonstrates, at the outset of its preliminary endangerment analysis, EPA is simultaneously claiming that it is assessing anthropogenic

- induced climate change and th at it is also addressing, in a n unspecified manner, climate change that is not related to anthropogenic emissio ns or to GHG emissio ns of any sort. In further illustration of this point, th e Draft Endangerment TSD describes the climate

- related effects of changes in tropospheric36

oz one, anthropogenic emissio ns of aerosols, increases in stratospheric and tropospheric water vapor, changes in land cover, and changes in so lar irradiance

-- none of which are related to emissio ns of th e GHGs that the ANPR addresses
. See, e.g. , id. at 20
- 21. Addressing the impacts that may result fro m c limate change in general is not the purpose of th e Draft Endangerment TSD , and this informatio n does not provide support for any potential endangerment find ing. Rather, the purpose of this document i s to assess whether anthropogenic GHG emissio ns themselves endanger public health or welfare. This lack of clarit y, reflected th roughout th e document, as to the scope of climate effects that are the subject of this analysis make s it impossible to determine whether t he effects described and any potential endangerment are the result of anthropogenic emissio ns o f GHGs or some co mbinat io n of anthropogenic and biogenic emissions of GHGs and the climate

- related effects that do not result from human activit ies or from GHG e missio ns. Because it is impossible to determine based on the analysis contained in the Draft Endangerment TSD what precisely might be the ultimate source of any putative endangerment, the document cannot serve as a basis for an endangerment finding under th e CAA. EPA must revise this document , if it is to serve as the basis for any finding as to endangerment, to address only those effects that are relevant to such a finding as defined by the standards in th e CAA. Further, t he CAA standards governing endangerment require more fro m EPA than clarification as to whether the Draft Endangerment TSD examines anthropogenic, biogenic, or
non - GHG
- based climate change. EPA al so mu st specify whether it intends the Draft Endangerment TSD to serve as supportive analysi s f or endangerment determinat io ns under all relevant CAA authorit ie s, a subset of such authorities, or only one particular CAA provision . Indeed, EPA’s intent io ns fo r this document and how it is t o be used are remarkably opaque
.37

EPA never expressly state s it s intent io ns in this regard; however, in one telling sect io n of the Draft Endangerment TSD , the Agency states th at “[t] hese radiat ive forcing values are the result of global changes in at mo spheric concentrations of GHGs
... and other factors, and are the refore not the result of U.S. transportation emissions in isolation
. ” Draft Endangerment TSD at 19 ( first emphasis in original; second emphasis added). It is unclear if this statement implies that other sections of the Draft Endangerment TSD are intended to reflect only purported transportation

- related global changes, if the document is intended for use only in analysis o f endangerment potential fro m t ransportation

- related emissio ns while st ill addressing other sources of emissio ns, or if it s scope is eve n broader. This lack of clarit y creat es a host of problems. As EPA has itself acknowledged in the body of th e ANPR, each sect io n of the CAA requiring an endangerment finding prior to regulat io n contains its own unique standard for reaching such a determin at io n. 73 Fed. Reg. at 44418
- 19. T he Draft Endangerment TSD fa ils to specify which of the various impacts it ident ifies, or what portion of such impacts, can be attributed to emissio ns from each source category . Indeed, it does not even attempt to descr ibe the extent to which such an analysis is even possible given the state of current scient ific knowledge. This is precisely the sort of scientific informat io n t hat will be required to conduct an endangerment analysis under the various CAA provision s EPA proposes as potential GHG regulatory authorit ies in the ANPR. In addit io n, the scope of the Draft Endangerment TSD is inadequately defined with respect to global and U.S. emissio ns and the effects that can be attributed to each. Because EPA has the author it y only to regulate U.S. emissio ns, it s endangerment analysis must provide a basis fo r determining th e extent, if any, to which U.S. emissio ns result in endangerment. The Draft Endangerment TSD fa ils to do so . Instead, it addresses all observed and pote nt ia l future climate38

ch ange caused by global emissio ns , and devotes a considerable portion of its discussio n t o global climate change

- related effects , wi thout providing any explanat io n as to how those emissio ns or effects should or should not factor into a n endangerment analysis. See, e.g. , Draft Endangerment TSD at 27
- 28 (global precipitation), 29

- 30 (global sea level rise), 31

- 33 (changes in global physical a nd bio lo gical systems ) , 34
- 35 (global extreme events). Accordingly, the current Draft Endangerme nt TSD is wr it ten in a manner that makes it impossible to determine whether the effects it describes are associated with U.S. or global emissio ns and whether regulat io n of U.S. sources will ha ve anyt hing more than a negligible effect on the various impacts ident ified in the document. Moreover, the Agency acknowledges in the Draft Endangerment TSD th at EPA tracks U.S. emissio ns through the development of the official U.S. GHG inventory, underscoring th e potenti al to analyze only those effects that are assoc iat ed wi th U.S. emissions. Id
. at 8
. Accordingly, an analysis o f t hose effects that can be attributed solely to U.S. emissio ns may be possible, and EPA should, at the least, describe the relevance of such an assessment to the standards for determining whether endangerment exists. Failure to provide this informat io n leaves a gaping ho le in EPA’s preliminary endangerment analysis and again renders the document insufficient to support any endangerment determinat io n. Finally, the Draft Endangerment TSD addr esses climate change

- related effects that are who lly unrelated to U.S. impacts. Specifically, the Draft Endangerment TSD discusses potential effects of climate change in other nations, focusing particularly on regio ns, such as Africa, Asia, and Lat in Amer ica. It assert s that climate change will affect the healt h of people and impact fo od producti on and water resources in t hese regions and could influence internat io nal trade. Id. at 113. The document fails t o establish, however, that such effects have any relevance to U.S. public healt h and welfare, suggesting only that th ey “may have consequences that transcend39

nat io nal boundaries that raise concerns fo r the U.S.” Id. at 1. Tellingly, th e Draft Endangerment TSD provides no scient ific data by which to a ssess such scenarios. This speculat ive approach unjust ifiably expands the scope of the issues that should be considered during an endangerment assessment to include issues th at have not been shown to affe ct U.S. public healt h and welfare. Further, even where the document does address U.S. ( or North American) effects, it frequent ly int ersperses addit io nal discussio n of glo bal impacts, often failing to different iat e between the two. See, e.g. , id. at 41. By incorporating such substantial discussio n of glo bal impacts that are not ti ed to U.S. resources, the Draft Endangerment TSD does more to confuse a potential assessment of endangerment than it does to illuminate it. In sum, EPA has failed to define the scope and purpos e of th e analysis contained in t he Draft Endangerment TSD . Instead , th e document unhelpfully co mmingles informat io n regarding : (1) anthropogenic, biogenic and non

- GHG
- related climate change effects; (2) various sources of emissio ns wi

thout defining which purported effects ma y be associat ed with each source category; (3) global and U.S. emissio ns without differentiating between the effects that can be attributed to each category; and (4) global effects that have not been shown to have any relevance to U .S. public health or welfare. Becaus e this information is presented in composite, wi thout any meaningful attempt to dist inguish emissio ns and effects that are relevant to the United States, it is impossible, based on the Draft Endangerment TSD , to determine whether any endangerment finding i s ju st ified. B. The Draft Endangerment TSD Relies on Scientific Information t hat Is Inadequate T o Assess Whether Endangerment to U.S. Public Health or Welfare Exists. The Draft Endangerment TSD st ates that it relies on a number of sources of scient ific info rmat io n as the basis for its analysis of potential endangerment from GHG

- related climate change. Draft Endangerment TSD at 4 (stating that the document relies primarily on th e Fourth40

Assessment Report of the Intergovernmental Panel on Climate Change (“IPC C”) , synthesis and assessment p roducts of the U.S. Climate Change Science Program ( “ CCSP ” ) com pleted and publicly released to date, National Research Council ( “ NRC ” ) reports, and the EPA annual report on U.S. GHG emissio n inventories). Upon reviewing the document, however, it is clear th at EPA has relied most extensively, and in many cases exclusively, upon the analysis contained in t he IPCC’s Fourth Assessment Report. See, e.g. , id. at 11
- 14 (discussing historic and current GHG emissio ns ) ; id at 19 (disc ussing radiat ive forcing values). Such overwhelming emphasis on th e IPCC’s summary o f scient ific knowledge is misplaced for a number of reasons. Fi rst, EPA m

ust more effect ively acknowledge and address a crit ical limit ation of the informat io n contained in th e IPCC Assessment Report. None of the reports issued by the IPCC address es U.S.
- specific effects in iso lat io n as would be necessary to support an endangerment finding under the CAA . Instead, the IPCC Assessments are devoted primarily to global effects and glo bal emissio ns. Further, EPA has adopted the IPCC’s regional analysis o f North American impacts, including project io ns fo r changes in temperature, precipitation, and sea level rise , reasoning that such effects “ can be generalized for the U.S. ” Id. at 53. Such an approach is at best questionable, and, as EPA acknowledges, not always consistent with the science. For instance, the Draft Endangerment TSD states “[t] his document relies heavily on the North America chapter of the IPCC Working Group II report, though thi s chapter may not provide as much regional detail wit hin the U.S. as did the 2000 report, Climate Change Impacts on the United States: The Potential Consequences of Climate Variability and Change (NAST, 2000).” Id. at 5. The implicat io n s of the limited U.S.

- specific discussio ns are apparent in the analysis o f specific scientific issues. For instance, the Draft Endangerment TSD simultaneously cites the IPCC’s discussio n of the effects of abrupt climate change even while acknowledging that U .S.41

effects “ cannot be predicted with confidence
. ” Id. at 58
- 60. There is no scient ific just ificat io n fo r di scussing North American impacts that are not relevant to the United States, and the Draft Endangerment TSD ’s presentation o f t his informatio n makes it impos sible to determine whether consideration of North American impacts have played any ro le whatsoever in EPA’s decisio ns as to what effects to address and what effects to exclude, if any. Similarly, the conclusio ns that the Draft Endangerment TS D adopts from the IPCC are frequent ly so vague as to lose almost all meaning when viewed from a U.S. endangerment analysis perspect ive. For instance, the document adopts the fo llo wing IPCC North American conclusions: For the period 1955

- 2005, the greatest warming occurred in Alaska and north

western Canada, with substant ia l warming in the continental interior and modest warming in the south

- eastern U.S. and eastern Canada. Spring and winter show the greatest changes in temperature and daily minimum (night

- time) temperatures have warmed more than daily maximum (dayt ime) tem peratures. Id. at 27. Alt hough so me U.S.
- specific informat io n appears in these conclusio ns, it is difficult to determine which effects apply to the United States, which apply primarily t o Canada, and which apply only to non

- U.S. resources. In the context of an endangerment analysis, such impr ecision is who lly unacceptable. The problems stemming fro m t his imprecisio n are not, moreover, rectified by EPA’s chosen method for validating the u se of IPCC North America conclusio ns as a proxy for U.S.

- specific informat io n. EPA relies on the conclusio n of two IPCC Assessment Report authors (Christopher Field and Linda Mortsch) as proof that extrapolation fro m North American concl usion s to the Unit ed States is appropriate. These authors state that the “ ma jo r conclusio ns ” of th e North America chapter “all apply to the United States” and that the topics and impacts di scussed are “relevant to at least some lo cations in the United States
. ” Id. at 63 ( emp hasis42

added)
. Thi s statement only begs further critical questions. Which concl usions are “ major ” ? Which concl

usion s apply to wh ich U.S. locations? And which conclusio ns are inapposite? The Draft Endangerment TSD does not answer these questions. Further, validation o f t he North America conclusio ns by two authors is ent ir ely inconsistent with the procedures governing IPCC work, as discussed below, and is quest io nable scient ifically and not just ified adequately by EPA. Given that the Draft Endangerme nt TSD “rel[ies] heavily on the North America chapter of the IPCC Working Group II volume of th e Fourth Assessment Report ” fo r all of its conclusio ns regarding purported U.S. impacts, the document fails to present the type of relevant and reliable informat io n th at would be needed to support any endangerment finding. Id. Finally, in addit io n to the scient ific imprecisio n int roduced in to th e endangerment analysis process by the draft’s adoption of general North America IPCC analysis as a proxy for scientif ic informat io n specific to the United States, it is also important to note that the IPCC Assessment Report is not it s el f prepared in accordance with U.S. standards for scientific assessments. The IPCC is governed by its own “Principles Governing IPCC Work ,” available at ht tp://www.ipcc.ch/pdf/ipcc

- principles/ipcc

- principles.pdf . These Principles emphasize that approval of th e contents of IPCC Assessments is to be determin ed on the basis o f consensus
among IPCC member governments. Principles Governing IPC C Work at 2. In addit io n to the statutory principles establishe d in the CAA, EPA’s Draft Endangerment TSD is subject to the Informat io n Qualit y Act and its guidelines establishing standards for the qualit y, object ivit y, int egri ty, and utilit y o f info rmat ion disseminated by federal agencies. Pub. L. No. 106

- 554 § 515; 67 Fed. Reg. 8452 (Feb. 22, 2002). Adopting scient ific conclusio ns of a body not subject to these U.S.
- law requi

rements and “generalizing” such conclusio ns to stand for proposit io ns that
wer e not intended by their originator raise substantial quest io ns as to whether the requirements of43

th e Information Qualit y Act are being met. Indeed, EPA highlights this issue itself when describing the process for approving th e IPCC Assessment Report and t he Informat ion Quali ty Act procedures us ed during th e review and approval of CCSP Synthesis and Assessment Products. See Draft Endangerment TSD at 3. Thus, before the informat io n in t he Draft Endangerment TSD could be used as the basis for any finding on endangerment, EPA wo uld have to ensure that it independent ly concurs wit h the conclusio ns presented in the IPCC’s Assessment Report , would have to address the possible consequences of the IPCC’s procedures wi th respect to the concl

usion s reached by that b ody, and would have to demonstrate that it has
com plied wi th th e Informat io n Qualit y Act and its associated guidelines
. In sum, the analysis and conclusio ns of the IPCC, as contained in it s Fourth Assessment Report, is the primary basis for many o f t he D raft Endangerment TSD ’s conclusio ns, including it s mo st important determinat io ns as to climate change

- related effects in the United States. This is an inappropriate use of this informat io n. Most of the IPCC conclusio ns concern global effects and e mission s, informat io n t hat serves only to cloud the state of scientific knowledge wit h respect to whether U.S. GHG emissio ns are associated with endangerment to U.S. public healt h
or welfare. Further, adoption of the IPCC’s North America conclusio ns as generally applicable to the United States is not scient ifically justifiable. It is unclear precisely which effects cited in th e Draft Endangerment TSD are in fact relevant to the United States, and EPA’s failure to provide any addit io nal analysis o f t his issue mak e s the Draft Endangerment TSD ’s conclusio ns unreliable. Further, EPA’s just ification for adopting the North America conclusio ns for the United States is inadequate, inconsistent with IPCC principles, and inconsistent with standards g overning the preparation of scient ific reports fo r use in U.S. federal agency decisio n - making
. Finally, the Agency is obligated by the Information Qualit y Act and good scientific practice to44

review for itself the conclusio ns o f t he IPCC and to conduct its own analysis o f t he i ssues addressed by that body before adopting its conclusio ns. Continuing with the Draft Endangerment TSD ’s current approach runs the considerable risk that an endangerment finding will be based on informat io n th at i s not relevant and not appropriate for u se under the CAA
. C. The Draft Endangerment TSD Mischaracterizes the Conclusions of the IPCC on Which It Relies. In addit io n to the significant problems associated with the Draft Endangerment TSD ’s heavy reliance on the Assessment Report of the IPCC, there are a number of instances where it appears EPA has misinterpreted informat io n in t he Assessment Report or failed to explain why it has adopted a viewpo int seemingly at odds with the conclusio ns reached by the IPCC. As a preliminary matter, it should be not ed that the Draft Endangerment TSD ’s system o f ci tation is insufficient and unnecessarily co mp licates external review of the document. In particular, the Draft Endangerment TSD indicates that Box 1.2 “provides guidance for the reader about how this docume nt references different chapte rs of the IPCC reports.” B ox 1.2 is missing fro m t he document. See Draft Endangerment TSD at 4. Further, the document’s citation method is ill

- sui ted to the sources on which it relies most heavily. The IPCC Assessments and similar synthesis reports, which compile the results of numerous individual studies and span hundreds of pages, should be cited with greater specificit y. Inclusio n of individual page numbers and more thorough efforts to document the sources for specific assertions w ould greatly enhance the usefulness of th e Draft Endangerment TSD and aid public review. Given the heavy emphasis thi s document places on these long

- fo rm assessments, a modified and more transparent system o f ci tation would be a considerable improvement. The Draft Endangerment TSD also contains a number of statements that are inconsistent wi th th e informat io n contained in the sources it cites as support fo r various conclusio ns. For45

instance, the document states that “[t] he atmospheric concen tration of CO 2 in 2005 exceeds by far the natural range over the last 650,000 years (180 to 300 ppm) as determined fro m ice cores. ” Draft Endangerment TSD at 12. It cites Chapter 2 of the IPCC’s Working Group I Report for thi s conclusio n. This informat ion, however, does not appear in that chapter , and EPA’s basis for thi s statement i s unclear. A similar quotation regarding the ice core record for methane concentrations appears on page 13 of the Draft Endangerment TSD , and it likewise is not supported by th e informat io n contained in the cited IPCC report. Another technical flaw is contained in the Draft Endangerment TSD ’s statement that “[i] ce core data show that the atmospheri c concentration of N 2 O varied by less than about 10 ppb for 11,500 years before th e onset of the industrial period .” Id. at 13. This info rmat io n does not appear in the IPCC Assess ment chapter cit ed as the source of these data. Indeed, the cited chapter indicates only th at ice core data for N 2 O go back 2000 years. See IPCC Working Group I, Ch
. 2 at 143, Forster, P. et al ., 2007 , available at http://www.ipcc.ch/pdf/assessment

- report/ar4/wg1/ar4

- wg1
- chapter2.pdf

. Similar ly , the Draft Endangerment TSD co nt ains some very basic scient ific inaccuracies th at are contradicted by in fo rmat io n in t he IPCC’s Assessment. For instance, the document states that hydrofluorocarbons (“HFCs”), perfluorocarbons (“PFCs”), and sulf ur hexafluoride (“SF 6 ”) are “ent ir ely anthropogenic in origin.” Draft Endangerment TSD at 14. The IPCC, however, notes that th ese fluorinated gases come from “anthropogenic and natural sources.” IPCC Working Group I, Ch . 2 at 145, Forster, P. et al., 2007. Perhaps more significantly, the Draft Endangerment TSD also states that these gases are “increasing rapidly,” a stateme nt th at misrepresents the findings of the IPCC. Draft Endangerment TSD at 14. Indeed , certain o f t hese gases have decreased or remained at relat ively constant levels for the most recent 10 to 20 years46

and, as the IPCC notes, concentration levels for some PFCs have not been updated “since 199 7.” IPCC Working Group I, Ch. 2 at 145, Forster, P. et al., 2007. In addit io n to instances where the informat io n contained in the Draft Endangerment TSD does not appear in the source it cites fo r that informat io n , th ere are equally problemat ic occurrences of misint erpretation of IPCC conclusions and instances where significant caveats expressed by the original source are not reflected in EPA’s statement s. For instance, the Draft Endangerment TSD regularly uses the year 1750 as the pre

- industrial bas eline year from which subsequent radiative forcing, i.e. , warming or cooling effects, is measured. See, e.g. , Draft Endangerment TSD at ES
- 1, 13, 19
- 21. The IPCC, which the Agency cites for this informat io n, indicates, however, that in the period between the years 1600 and 1800, CO 2 mixing ratios actually dropped by 5 to 10 ppm and that using 1750 as the pre

- industrial index “may slightly overestimate the RF [radiative forcing], as the changes in the mixing ratios of CO 2 , CH 4 and N 2 O af ter the end of this naturally cooler period may not be solely attributable to anthropogenic emissio n s.” IPCC Working Group I, Ch. 2 at 140, Forster, P. et al., 2007. EPA must include significant caveats regarding the nature of the scient i fic inf ormat io n t hat it incorporat es in its analysis or else ri sk misrepresent ing crit ical facts. Further, it must explain the significance of such caveats. Similar misrepresentations exist with respect to the Draft Endangerment TSD ’s di scussio n of methane concentrations. The document notes in passing that methane concentration growth rates have “declined since the early 1990s,” but it fails to explain fully th e import of these declines. See Draft Endangerment TSD at 13. Significant ly, this informat io n is again provided in the very sect io n of the IPCC Assessment cited by the Agency as its source for thi s informat io n. First, the IPCC Assessment indicates that since the 1990s , th e emissio ns47

growth rate for methane has been “close to zero” and “less than z ero in 2001, 2004, and 2005,” th e mo st recent years for which the IPCC examined emissio ns and concentration data. IPCC Wo rking Group I, Ch. 2 at 14 2 , Forster, P. et al., 2007. As the IPCC notes, the result of these reductions is that the estimated second largest source of GHG radiat ive forcing has been significant ly reduced. The Draft Endangerment TSD , on the other hand, concludes instead in general and misleading terms that “[m]ethane concentrations have also risen substant ia lly .” Draft Endangerment T SD at 13. This is an inappropriate misreading o f t he IPCC conclusio ns. Addit io nally, the Draft Endangerment TSD fa ils to include important facts noted by the IPCC when discussing CO 2 - related impacts , and its omissio ns create the impressio n t hat anthropog enic CO 2 emissio ns will result in negat ive effe cts that are almo st certain not to occur. In relevant part, the document states that “[c] arbon dioxide concentrations above 5% may be dangerous for vegetation and as concentration [ s ] approach 20%, CO 2 becomes phytotoxic. Carbon dio xide can cause death of plants through ‘root anoxia’, together with low oxygen concentration (IPCC, 2005).” Id. at 17. The document fails to explain adequately, however, that th ese concentrations and these p articular effects have b een observed only in, and are relevant only fo r , areas that are exposed to massive CO 2 concentrations such as those that resul t f rom large vo lc anic eruptions. Indeed, the IPCC report cited by the Draft Endangerment TSD fo r this informat io n addresses the r isk of this particular type of harm in the context of hypothetical massive CO 2 releases fro m carbon sequestration storage areas. IPCC , Special Report on Car bon Dioxide Capture and Storage at 248 (2005) , available at http://www.ipcc.ch/pdf/special

- reports/ srccs/srccs_who lereport.pdf. The TSD misleadingly impli es that such effects could somehow resul t f rom atmospheric concentrations and other anthropogenic emissio ns -- an implicat io n th at48

is plainly inconsistent with the information contained in its ci ted source for this statement
. Draft Endangerment TSD at 17. The Draft Endangerment TSD also ignores salient IPCC conclusio ns regarding the posi tive effects of increased CO 2 concentrations and minimizes the posit ive effects it does address in a manner not sup ported by th e informat ion c ontained in the IPCC Assessment . For instance, the Draft Endangerment TSD acknowledges that crop yields may be posit ively affe cted by increased CO 2 concentrations but characterizes such benefits as “small” even though there is
no similar minimization o f posit ive crop yield effects contained in the IPCC’s analysis. Further, th e Draft Endangerment TSD wholly ignores the potential posit ive impacts associated with increased forest productivit y e ven though the IPCC discusses these be nefits in significant detail. Compare id. at 16
- 17 , wi th IPCC Working Group II, Ch . 5 at 282, Easterling W. et al., 2007 , available at http://www.ipcc.ch/pdf/assessment

- report/ar4/wg2/ar4

- wg2
- chapter5.pdf
. It i s also important to note that the IPCC’s Ass essments are comp o sed of numerous and lengthy individual chapters written by mult iple authors and often cover overlapping material. Unsurpri singly, this has resulted in a number of internal inconsistencies in the IPCC’s concl usion s. EPA should strive to ident ify these inconsistencies and to ensure that its Draft Endangerment TSD reflects the best overall summary of th e state of the science. To th e contrary, the Draft Endangerment TSD appears to take advantage improperly of th e IPCC’s int ernal inconsistencies to presen t th e mo st aggressive possible interpretation of that body’s statements. For instance, in describing the effects of enhanced CO 2 le vels o n ocean biota, one IPCC chapter states that “ [i ] ncreasing ocean acidit y due to increasing atmospheric co ncentrations of CO 2 ... is very likely to reduce biocalcification of marine organisms such as corals (Hughes et al ., 2003; Feely et al., 2004) ” (emphasis added). This chapter goes on to state, however, that the49

“limited number of studies available makes it difficult to assess confidence ” levels fo r this concl usion . A separate IPCC chapter comes to a strikingly di fferent concl usion , finding wit h “medium confidence levels” th at increased CO 2 le vels in conjunction wit h climate change could have negat ive impact s on these same marine organisms. Compare Wo rking Group II Ch. 19 Schneider S. H. et al. , 2007 , wi th Wo rking Group II Ch. 4 at 213, 234, Fischlin A. et al
. , 2007 , available at http://www.ipcc.ch/pdf/assessment

- report/ar4/wg2/ar4

- wg2
- chapter19.pdf; http:// www.i pcc.ch/pdf/assessment

- report/ar4/wg2/ar4

- wg2
- chapter4.pdf
. Instead of addressing these inconsistencies or even select ing (and supporting) one conclusio n over the other, the Draft Endangerment TSD co mbines the statements contained in these two chapte rs and eschews all di scussio n of uncertaint ies and limitat io ns to conclude that ocean acidificat io n “will” result in harm to carbonate

- based marine species. Draft Endangerment TSD at 17. Finally, the Draft Endangerment TSD includes ma ny statements fo r which it provides no ci tation at all. For instance, the document asserts that elevated CO 2 le vels could reduce the qualit y a nd nutrit io nal value of animal forage grasses without ident ifying any basis for this assert io n. Id
. In sum, the Draft Endangerment TS D co nt ains a number of factual assert io ns that are not supported by th e materials it cites. Certain of these instances result from discrepancies between th e statements made by EPA and those contained in the Assessment Report of the IPCC. Others are the r esul

t of EPA’s mischaracterizat io n of IPCC statements and it s exclusio n o f relevant addi tional information. Finally, there are problems result ing fro m s imple lack of ci tations for or clari ty regarding th e source of EPA’s informat io n. These flaws must be redressed if th e science is to be presented in an unbiased and co mp lete manner. EPA should undertake a thorough50

review of the Draft Endangerment TSD and the reports it cites to ensure that these problems are rectified. D. Recent Individual Studies Undercut C onclusions Contained in EPA’s Draft Endangerment TSD and the Reports o n Which It Relies. The Draft Endangerment TSD fa ils to take into account several mo re recent sci ent ific studi es that pose serious challenges to a number of the document’s statements and th at undermine certain key assu mpt io ns that have been relied on in the scient ific literature that th e document reviews. This sect io n of th e comments describes the source materi al EPA has chosen to rely on, observ es that addi tional sources should be includ ed, and highlights major recent findings of significance to any endangerment analysis. As stated above, the Draft Endangerment TSD relies almo st exclusively on the Fourth Assessment Report of the IPCC for the vast majority of its factual assertions and c oncl usion s. In addi tion, the Draft Endangerment TSD states that it “relies most heavily on exist ing, and in most cases very recent, synthesis reports of climate change science and potential impacts, which have gone through their own peer

- review processes including review by the U.S. Government. ” Draft Endangerment TSD at 4. EPA states that it is appropriate to rely on these reports because : [T] hey 1) are very recent and represent the current state of knowledge on climate change science, vulnerabilit ies and potential impacts; 2) have assessed numerous individual studies in order to draw general conclusio ns about the state of science; 3) have been reviewed and formally accepted by, commissioned by, or in so me cases authored by, U.S. government agencies and individual government scientists and provide EPA wit h assurances that this material has been well vetted by both the climate change research communit y a nd by the U.S. government; and 4) in many cases, they reflect and convey the consensus conclusio ns of e xpert authors. Id
. Further, EPA states that the Draft Endangerment TSD also “often cites those individual studi es that tended to be very influential in the more general findings of IPCC, CCSP [sic];51

however, every effort is made to make it clear when an individual reference was incorporated int o one of th e broader assessments.” Id. at 5
- 6. Thus, it does not appear that EPA has engaged in a literature review in an attempt to ident ify all o f t he mo st recent relevant studies addressing the issue of climate c hange and its proj ec ted effects. EPA states that a critical factor in select ing these synt hesis reports as the basis fo r the Agency’s preliminary endangerment analysis is the conclusio n t hat they “represent the current state of knowledge on climate change .” Id. at 4. A number of EPA’s identified “core reference documents” were released within the last two years, although five o f t he fifteen documents were released between 2001 and 2006. Id . Further , th ese reports are themselves necessarily based on stu di es that predate them and, given the rapidly evo lving natur e of climate science, could easily now be considered obsolete. Moreover, given that research into climate change

- related impacts is in its infancy, it is especially important that EPA, in draft ing an analysis of such impacts, include the most up

- to
- date informat io n available. See Eli Kint isch, “Climate Change: Im

pacts Research Seen As Next Climate Frontier,” Science Vo l. 322. no. 5899 at 182
- 83 (Oct. 10, 2008). Moreov er, EPA appears to acknowledge the importance of di scussing the results of important individual studies even where they have been addressed in larger synthesis reports, even though the Draft Endangerment TSD rarely discusses such studies. It fo llo w s th at i

t is at least as importan

t to address those studies that have been released after the preparation of these synt hesis reports and to assess whether they alter or undermine any o f t hose reports’ underlying assumpt io ns or conclusions. The studies described below all undercut or otherwise significant ly revise information presented in the Draft Endangerment TSD . They illustrate the importance to the document’s52

reliabilit y of a co mprehensive review of the scient ific developments that have occurred since the release of the synthesis repo rts on which EPA relies. Fi rst, i t i s particularly noteworthy that the Draft Endangerment TSD ident ifies climate change as a projected source of future increases in ozone and particulate matter concentrations wi th potenti al negat ive human health impacts. Draft Endangerment TSD at 60, 70
- 75. The informat io n contained in the Draft Endangerment TSD regarding these supposed impacts is stri kingly different fro m and less nuanced than EPA’s own recently released analysis of these same issues. See EPA, Assessmen t of th e Impacts of Global Change on Regio nal U.S. Air Qualit y: A Preliminary Synt hesis of Climate Change Impacts on Ground

- Level Ozone , EPA/600/R

- 07/094 (March 2008) (“Assessment Report”)
. That EPA analysis indicates that some regions of th e Uni

ted State s are likely to experience ozone decreases associated with climate change (see, e.g. , id. at xvii, 3

- 7, 3
- 17) , that reductions in ozone precursor emissions will likely overwhelm any increases th at may resul t from climate change ( id. at 4
- 4) , and that ul tim ately th e science in this area is riddled with uncertaint ies wit h respect to ozone and particulate matter (see, e.g. , id. at 1
- 10, 1
- 11) . EPA should ensure that the Draft Endangerment TSD is consistent with its own analysis of these issues presented in other forums (or at least explain and justify the inconsistencies) , and the Agency should update the Draft Endangerment TSD wit h t he mo re recent informat io n it addresses in it s ozone and particulate matter
a ssessment. A nu mber of recent studies indicate that certain previously projected effects of climate change will be less severe than was once anticipated or are, in fact, less certain to occur at all. The Draft Endangerment TSD , on the other hand, fails to note these recent changes in the state of th e scie nce. For instance, the Draft Endangerment TSD notes that hurricanes have trended53

toward increased destructiveness and that such storms are likely to become more intense. Draft Endangerment TSD at 35, 57. It also cites a variety o f proj ected effects of s uch storms, such as di seases, drowning, damage to forest systems, destruction of human habitat and resources, and coastline loss. Id. at 67, 83, 95
- 96, 99, 101. Significant ly, however, the document does not address the implicat io ns of a recent and import ant new study finding hurricanes are likely to be substant ia lly rarer events under projected climate condi tions . Thomas R. Knutson et al., “S imulated Reduction in At la nt ic Hurricane Frequency Under Twent y- First

- Century War ming Condi tions,” Nature Geoscien ce Vo l. 1 at 359
- 64 (2008) . Thi s finding could considerably revise th e estimates of all of these impacts and should be incorporated into the Draft Endangerment TSD ’s analysis. Similarly, the Draft Endangerment TSD devotes considerable discussio n t o ice sh eet collapse, including abr

upt ice sheet changes, Draft Endangerment TSD at ES
- 3 , and states that ice sheet melt ing is a major component of projected sea level rise, an addit io nal impact that
re ceives considerable attention, i d. at 30, 53. The document al so speculates that rapid melt ing due to increased ice flow could hasten these proj ected changes. Id. at 53, 58
- 59. A recent study, however, indicates that ice sheets are less suscept ible to climate change

- related loss of mass than has previously been sug gested. In particular, this study reported that ice sheets can adjust to what were assumed to be feedback mechanisms that were thought to cause accelerated melt ing, th us indicat ing that abrupt melt ing from increased ice flow is unlikely. See R.S.W. van d e Wal, et al ., “Large and Rapid Melt

- Induced Velocit y C hanges in the Ablat io n Zone o f t he Greenland Ice Sheet,” Science Vo l. 321 no. 5885 at 111
- 13 (July 4, 2008) . Thus , this study rai ses substant ia l quest io ns as to a number of the Draft Endangerment TSD ’ s assertions and requires reconsideration of the addit io nal projected impacts th at the draft seeks to tie to ice sheet loss.54

Further, an addit io nal study indicates that ocean temperatures have not risen in response to anthropogenic climate change and that any increase in ocean temperature is regional in nature and the result of natur al variabilit y. M. Susan Lozier et al., “The Spat ia l P attern and Mechanisms o f Heat

- con tent Change in the North At la nt ic,” Science Vol . 319 no. 5864 at 800
- 03 (Feb. 8, 2008)
. Wit hout addressing this study, however, t he Draft Endangerment TSD asserts th at ocean warming is unequivocal and that it is contribut ing, and will cont inue to contribute , to sea level rise. Draft Endangerment TSD at ES
- 1, 21, 30. Again, these findings s hould be reexamined in light of the new evidence and modified, as appropriate, to reflect the new informat io n . The Draft Endangerment TSD also points to a number of negat ive impacts that it projects will affect the healt h of the nation’s water

- based ecosys tems, incl uding rivers. In particular, the document notes that rivers may experience increases in river bottom sediment suspensio n, affect ing water qualit y a nd river discharge. Id. at 89, 91. EPA suggests that these changes in river discharge will, in turn, negat ively impact water management, park tourism, winter sport activit ies, inland water sports (e.g., fishing, rafting, and boating), and other recreational uses
. Id. at ES
- 8, 33. Further, the Draft Endangerment TSD states that increased river discharge in the Arct ic will accelerate future climate change and further impact water supplies. Id. at 88. All o f th ese assumpt io ns are significantly undercut by a recent study finding that, while climate

- related changes in precipitat io n could theoretically affect river discharge, few rivers have experienced any significant changes to da te , and any changes that might occur in t he future are much more likely to b e caused (or overwhelmed) by factors unrelated to climate change, such as damming and irrigat io n. J.D. Milliman et al., “Climat ic and Anthropogenic Factors Affect ing River Di scharge to the Global Ocean, Global and Planetary Change Vol . 62 at 187
- 94 (2008)
.55

The Draft Endangerment TSD also devotes considerable discussio n to projected impacts on various s pecies. For instance, the Draft Endangerment TSD states that climate change may assist in the spread of animal diseases. Draft Endangerment TSD at 79, 108. While examinat io n of thi s area of the science is only beginning, it is important that EPA not ove rstate the likelihood or severit y o f potential effects and that it temper its speculat io n. This is especially the case because recent sci ent ific analysis has determined that animal diseases previously thought to have been exacerbated by changing climat ic condi tion s have been shown to have, in fact, been unrelate d to climate. Karen R. Lips et al., “Riding the Wave: Reconciling the Roles of Disease and Climate Change in Amphibian Declines,” PLOS Biology Vo l. 6 no. 3 at 441
- 54 (Mar. 2008) (finding that amp h ibian declines due to di sease increases are no t related to climate change). T here is also recent evidence indicat ing that previously co mmo n assumpt io ns regarding t he species level impacts of changing temperatures and the distribut io n of s pecies impacts ar e undermined by so me ser io us inaccuracies. Curtis A. Deutsch, et al., “Impacts of Climate War ming on Terrestrial Ectotherms Across Latitude,” PNAS Vo l. 105 no. 18 (May 6, 2008). Particularly important is the finding that species impacts will likely be gr eatest in t he tropics, outside o f t he Unit ed States, and that species in higher lat it ude s are far more resilient to climate change. Id. at 6668
- 72
. The Draft Endangerment TSD , on the other hand, indicates only that many species are likely to be negat ivel y a ffected by tem perature changes as they are living at or near their temperature thresho lds. Draft Endangerment TSD at ES
- 6, 79
- 80. Alt hough all of the studies ment io ned above have important implicat io ns fo r current scientific understanding of climate c hange impacts and reflect the need for reconsiderat io n of specific conclusio ns contained in EPA’s preliminary endangerment analysis, perhaps the most significant new information is that which calls into question important temperature record data56

th at are f undamental to our abilit y t o project and understand potential climate change. This informat io n has significant implicat io ns fo r the reliabilit y o f mo deling results in that a model’s abilit y t o project future climate is assessed based on its abilit y t o rep licate past climate developments accurately based on available temperature records. Moreover, the dat a from the tem perature record are used as an input in climate models, and thus dictate how they will perform . There are a number of studies that fall int o this category . Regarding ocean tem peratures, one study has recent ly u ncovered previously undocumented biases that have resul ted in significant overestimat io n of long

- term tem perature changes in the glo bal ocean. Victor Gouretski and Klaus Peter Koltermann, “How Much Is the Ocean Really Warming?,” Geophysical Research Letters Vol . 34 at L0610 (Jan. 12, 2007) . The significance of the ocean tem perature record was recent ly demo nst rated by Keenlyside et al. , who found that use of more accurate sea surface t emperatures resulted in glo bal surface temperature project io ns that, over the next several decades, would fall within natural climate variabilit y. N.S. Keenlyside et al., “Advancing Decadal

- scale Climate Predict io n in t he North At la nt ic Sector,” Nature Vo l. 453 at 84
- 88 (May 2008). Similarly, several recent studi es have uncovered co mparable flaws, uncertaint ies, and biases in the mult idecadal surface air temperature record. David W.J. Thom pson et al ., “A Large Discont inuit y in t he Mid

- twenti eth Century in Observed Global

Mean Surface Temperature,” Nature Vo l. 453 at 646
- 49 (May 29, 2008); Roger A. Pielke, Sr. et al ., “Unreso lved Issues With the Assessment of Mult idecadal Glo bal Land Surface Temperature Trends,” Journal of Geophysical Research Vol . 112 at D24508 (Dec. 29, 2007); Roger Pielke, Sr. et al., “Documentation of Uncertainties and Biases Associated with Surface Temperature Measurement Sites for Climate Change Assessment,” American Meteorological Society at 913
- 28 (June 2007); X. Lin et al., “An Exa minat io n of 1997

- 2007 Surface Layer Temperature Trends57

at Two Heights in Oklaho ma,” Geophysical Research Letters Vol . 34 at L24705 (Dec. 22, 2007)
. These findings requi

re reanalysis of modeling results previously relied on by the IPCC and the other synthe sis reports cited by EPA as they are likely to have similarly significant effects on climate projections. These changes could fundamentally alter projections with respect to all other purported cli m ate change

- related impacts. Other studies, unrelated to d is crepancies in the temperature record, also indicate th at other similarly pervasive inaccuracies may affect past climate modeling pro ject io ns and require considerable reexaminat io n. For instance, Spencer and Braswell, 2008 , determined th at previous estim ates of the sensit ivit y o f t he climate system based on satellite data were biased toward the high side due to th e neglect of natural cloud variabilit y. Roy W. Spencer and William D. Braswell, “Potential Biases in Feedback Diagnosis fro m Observat io nal Data : A Simple Model Demonstration,” Journal of Climate Vo l. 21 no. 21 at 5624
- 28 (Nov. 2008). This study determined that the failure to account for natural, chaotic cloud variabilit y, a problem that continues to plague climate modeling, will always proj ect a climate system th at appears more sensit ive than it really is . In another recent st udy, V. Ramanathan and G. Carmichael, “Glo bal and Regio nal Climate Changes Due to Black Carbon,” Nature Geoscience Vol . 1 at 221
- 27 (Apr. 2008) , the authors demonstrated t hat global climat e mo del s consistently underest imate the percentage of climate forcing that is attributable to black carbon, a non

- GHG. Further, a number of impacts associated with black carbon, including reduction of sea ice and snow albedo, were shown t o dwarf similar effects that have been attributed to CO 2 . The Draft Endangerment TSD ’s analysis of these scient ific issues is outdated. It fails to tak e into account any of the serious implicat io ns these studies have for previously performed
mo deling of p roj ected climate change and the cascading effects attributed to th at modeling
.58

Indeed, the Draft Endangerment TSD not es only in passing that inaccuracies, such as those described here, in surface and ocean temperature records may result in rando m biases t hat “likely” cancel one another out. Draft Endangerment TSD at 22. It i s evident from the current scientific record that that is no t the case. EPA therefore must significant ly revise the Draft Endangerment TSD to reflect this new informat io n, and it sho uld engage in a thorough reanalysis of th e scient ific data to arrive at more accurate projections of climate change and its potential effects. Further, the Agency must strive to ident ify all other relevant scient ific information, as exclusive reliance on older synthesis assessments is inadequate. E. Uncertainty I s Not Adequately Reflected in the TSD’s Analysis. In addit io n to the other flaws identified in these comments regarding the nature and qualit y o f it s scient ific analysis, the Draft Endangerment TSD co nsistent ly fail s to incorporate adequate discussion o f t he uncertainties that characterize the science it addresses. Such informat io n is crit ical to a thorough and reasoned understanding of the state of the science and cannot be avo ided for the sake of simplicit y o r any other purpose. Nevertheless, EPA indicates th at uncertaint ie s and confidence levels are reported in the Draft Endangerment TSD only “to the extent that such informat io n was provided in the original scient ific reports upon which [the TSD] i s based.” Draft Endangerment TSD at 3. This approach is not adequate. First, the IPCC Assessment Reports make up the bulk of the sources on which th e Draft Endangerment TSD relies , and they regularly report uncertaint ie s associated with their conclusio n s. T he Draft Endangerment TSD , however, seldom reports thi s informat io n. Moreover, given the fact that the document i s based almost exclusively on synt hesis reports, even where those reports do not address uncertaint ie s, it is imperat ive that EPA examine th e underlying studies analyzed in the m and attempt to determine and describe the uncertaint ies as di scussed by the authors . Finally, even in the absence of uncertaint y analys is in underlying studies, EPA should attempt to address59

whether uncertaint ie s o r other complicat io ns were likely before reporting the results of such studi es. In numerous cases, the Draft Endangerment TSD fa ils to state with any clarit y w hether uncertaint ies exist. This leaves the impressio n t hat it is irrefutable that the describ ed effects will occur, an impressio n t hat is in almo st ev ery cas e erroneous. For instance, within a few short paragraphs, the Draft Endangerment TSD reports that animal forage may be negat ively impacted by CO 2 le vels , that extremely high CO 2 levels in soi l c an cause root anoxia and result in significant vegetation loss , and that increased CO 2 levels could directly cause ocean acidificat io n and “impair a wide range of plankt onic and other marine organisms. ” Draft Endangerment TSD at 17. No where in thi s li

tany of purported negative effects does EPA address the likelihood that any of these effects will occur, or describe the number or qualit y o f t he studies s upporting these concl usion s, or make any mention o f uncertaint ie s. EPA’s characterizat io n of various effects , in addi tion to the examples noted here, and their likelihood of occurrence should be clear and adequately supported by t he science , or they should be removed fro m t he document
. Elsewhere, uncertaint ie s are noted in passing while their implication s are utterly ignored or glossed over. This , too , gives the impressio n t hat the uncertaint ie s are minimal and are likely to be resolved in favor of the worst case scenario that EPA presents. For instance, the Draft Endangerment TSD devotes considerable s pace to a di scussio n of proj ected increased tropical cy clone act ivit y a nd the associated impacts of such storms. Id. at 34
- 36, 40, 57, 67. The document notes that “ [m] ul ti

- decadal variabilit y a nd the qualit y o f t he tropical cyc lo ne records prior to routi

ne satellite observations in about 1970 complicate the detection of lo ng - term trends in tropical cyclo ne act ivit y. ” Id. at 36. The document fails to indicate the importance of the lack of a clear trend, which could signal that such storms are unrelated t o climate change or that its60

effects on storm act ivit y are unknown. Instead, the document treats this lack of informat io n as if it has no bearing on its remaining assertions as to tropical cyclo ne impacts. In addit io n, the Draft Endangerment TSD , while d iscussing the effects of climate change on various ecosystems, notes in passing that human system responses to climate change are “mo re difficult to ident ify and iso lat e due to the larger role that non

- climate factors play (e.g., management practices in agricul ture and forestry, and adaptation responses to protect human healt h against adverse climat ic condit io ns).” Id. at 41. Nevertheless, the Draft Endangerment TSD discusses in considerable detail

-- wit hout noting uncertaint ie s at all

-- a wide range o f human healt h effects that it attributes to climate change. Id. at 64
- 69. It is misleading to avoid di scussio n of these issues ent ir ely in the chapters that purportedly address them while slipping in references to significant uncertaint ies in a section o f t he document that is unrelated to human healt h effects. The Draft Endangerment TSD mu st redress this significant failure. Similarly, the Draft Endangerment TSD discusses and relies o n t he GHG emissio n scenarios, as well as their associated implicat io ns for future radiat ive forcing and temperature, preci pi tation , and sea level impacts, ident ified in the IPCC’s 2000 Special Report on Emission Scenarios
. Id. at 42. It also cites the emissio n scenarios described in CCSP Synthesis Report 2.1 and the most re cent IPCC Assessment as evidence that newer studies have not significant ly al tered proj ect io ns. Id. at 43, 44. The TSD acknowledges , however, that there are a number of uncertaint ies in these project io ns. See, e.g. , id. at 45. Further, it states that t hey do not take into account GHG mit igat io n po licies in eit her the Unit ed States or the rest of the world , including th e Kyoto Protocol or any other likely future regulation
. Id. at 42. Th us, these emissio n scenarios are subject to considerable doubts as to their accuracy . Yet, this informat io n and its significant implicat io ns for all o f t he proj ected effects described elsewhere in t he Draft61

Endangerment TSD are left who lly unaddressed. EPA needs to convey adequately the relevance of th ese uncertaint ie s and indicate that they substant ia lly affect the remainder of the document’s analysis. Similarly , far

- reaching uncertaint ies go unaddressed in the Draft Endangerment TSD ’s di scussio n of climate modeling. The TSD describes climate change models as “well

- t ested,” characterized by a “ fo undat io n in accepted physical principles , ” and possessing the “abilit y t o reproduce observed features of current climate and past climate changes.” Id. at 37. These assert io ns are overbroad and ignore crit ical shortcomings in mo deling capabilit ies. As stated in a 2008 CCSP Report, current models contain “a number of systemat ic biases,” their strengths and weaknesses “vary substant ia lly” fro m mo del to model , and “several important aspects of the climate system present especia lly severe challenges to the goal of simulat io n.” CCSP, Climate Model s: An Assessment of Strengths and Limitat ions at 1 (July 2008). This report goes on to characterize in significant detail a variet y o f uncertaint ies and problems posed by current model s, none of which is addressed adequately in the Draft Endangerment TSD . Moreover, in the few instances where model inconsistencies or uncertainties are mentioned, they are explained away as “under invest igat io n” while their implicat io ns are left unaddres sed. See, e.g. , Draft Endangerment TSD at 39
- 40, 49. Again, these significant issues should not be ignored. The Draft Endangerment TSD should be revised to include discussion o f uncertaint ie s and to explain their meaning. Merely acknowledging that some uncertaint y ma y exist while failing to address its implicat io ns does a disservice to th e scient ific understanding o f t hese
com plex issues.62

F. The Draft Endangerment TSD Contains Numerous Examples of Bias and Speculatio n t hat Are Inconsistent w ith the Scient ific Evidence . The analysis in the Draft Endangerment TSD is undermined, even where it may otherwi se be sound, by a number of statements that could be interpreted as indicat ing bias. This bias is demo nstrated in several ways. Of particular importance is informat io n ident ified in the Draft Endangerment TSD as potentially significant but nonetheless excluded fro m analys is and consideration. EPA fails to make a compelling argument that this informat io n should not be considered in assessing endangerment, the reby giving the appearance that its exclusio n fro m t he Draft Endangerment TSD is, at best, arbitrary and, at worst, designed to le ad to a particular concl usion on th e endangerment issue. For instance, the Draft Endangerment TSD states that “[a]daptation to climate change is a key fo cus area of the climate change research co mmunit y. ” Draft Endangerment TSD at 1. Nevertheless, EPA has determined that it is inappropriate to focus on adaptation in conduct ing it s scientific assessment of endangerment issues , and it even suggests that the Administrator may not consider adaptation in assessing the possibilit y o f endangerment. Id. at 118. Further, the Agency states that “mit igat io n measures to reduce GHGs, which could also reduce long

- term ri sks, are not addr essed.” Id
. at 1
- 2. The Agency’s stated rationale for these exclusio ns is that th e purpose of the Draft Endangerment TSD “is to review the effects of climate change rather th an societ y’s response to climate change.” Id. This reasoning is unsat is factory and has led to a preliminary endangerment analysis that, in essence, ignores realit y. 14 Fi rst, as EPA notes,

14 Indeed, EPA’s reasons for dist inguis hing between “acceptable” and “unacceptable” fields of scientific inquiry is particularly unconvincing given that the IPCC deemed it appropriate to devote an entire Working Group Report to adaptation and mit igat io n -- a report that the Draft Endangerment T SD wholly ignores

-- even as EPA has opted to rely almost exclusively on other IPCC Working Group Reports.63

mit igat io n measure s may themselves limit the effects of climate change, the extent of which is
among the necessary areas of inquiry in an endanger me nt analysis. It is ent ir ely inconsistent to assess the effects of anthropogenic GHG emissio ns wi thout considering those anthropogenic actions that might limit those emissions or thei r impacts. Further, even while adaptation will not likely limit GHG emissio ns directly, there is no practical difference between minimizing emissio ns and minimizing the effects of emissio ns. In each case, the ultimate result is less likely
or mo re limited climate change impacts, wi th th e difference having a bearing on the
e ndangerment question . Ignoring the possibilit y t hat GHG emissio ns will not result in endangerment because of adaptation or mit igat io n is unscient ific and must be rectified. Similarly, the Draft Endangerment TSD notes that it is relying on EPA’s annual Inv entory of U.S. Greenhouse Gas Emissions and Sinks fo r informat io n regarding the primary GHGs of interest and indicates that this informat io n is used to project the effects of climate change. Id. at 1. Further, the document st ates that thi s U.S. inventory does not account for emissio ns and sinks resul ting from land use changes and the forestry sector . Im portantly, in t he United States, the forestry sector is “a significant sink, while in so me developing countries it is a significant net source of emissio n s.” Id. at 9. Fi rst, exclusio n of a significant U.S. carbon sink resul ts in a bias toward a finding that U.S. emissio ns will result in or contribute to endangerment. Further, the Draft Endangerment TSD ig nores other significant carbon sinks , a fact th at further biases the analysis in the document in the direct io n of a finding of endangerment. See, e.g. , id. (“Remov als o f carbon through land use, land

- use change and forestry act ivit ies are not included in Figure 2.2, but are significant; net sequestratio n is est imated to be 828.5 TgCO 2 eq in 2005, offsetting 11.4% of total emissio ns (EPA, 2007). ”)
. Thi s problem is exacerbated by the fact that EPA’s global emissio ns est imates may indeed include forestry

- related emissio ns and sinks fro m64

other countries, the reby skewing the Agency’s assessment of the relat ive importance of U.S. emissio ns. See id. at 11 (“Excluding land use, land

- use change, and forestry, U.S. emissio ns were 20% of the total year 2000 global emissio ns ....”). EPA must clarify what sinks and
emissio n sources, both in the U.S. and internat io nally, are taken into account in its endangerment assessment. Further, to ensure that the Agency’s analysis o f t he endangerment issue is based on th e mo st com

plete record possible, an adequate representation of U.S. carbon sinks must be incorporated. Finally, the Agency who lly excludes any discussio n of hydroxyl free radical in limit ing th e impacts of GHGs. This information is prominent ly featured in chapters of the IPCC Assessment Report cited extensively in th e Draft Endangerment TSD , and the IPCC has characterized it as playing a “very significant role ” in mit ig ating climate change effects. IPCC Wo rking Group I, Ch. 2 at 147, Forster, P. et al., 2007. In addit io n to the irrat io nal exclusio n of key scientif ic informat io n, the Draft Endangerment TSD indicates bias through unfounded speculation about possible effects of climate change that are in no way supported by the scient ific evidence discussed in the document. F or i

nstance, the Draft Endangerment TSD st at es that “[i] t i s likely th at there have been increases in the number of heavy precipitation events ( e.g. , 95th percentile) within many land regions, even in those where there has been a reduction in total precipitat io n amount, consistent with a warming c limate and observed significant increasing amounts of water vapor in th e atmosphere.” Draft Endangerment TSD at 28 (emphasis added)
. The Agency, however, provides no citation and no evidence for this assertio n. Indeed, elsewhere in the Draft Endangermen

t TSD , the Agency notes that “only a few regio ns have sufficient data to assess such [precipitation] trends reliably.” Id. at 35 . Accordingly, i t i s improper to suggest that other65

regions have also experienced similar precipitat io n events in the absence of evidence for such effects. Similarly, the Draft Endangerment TSD states that significant effects “may” occur as a resul t of abrupt climate change, th us engaging in considerable speculat io n even as the Agency acknowledges substantial uncertaint y. Id. a t 59
- 60. Li

kewise, the Draft Endangerment TSD notes that th ere is insufficient current scientific knowledge to determine the effect iveness of adaptation
. Id. a

t 119. Despite this, the Agency concludes without a basis that adaptation mechanisms will not be sufficient to respond to all aspects of climate change. Id. at 119
- 120. Finally, the Draft Endangerment TSD st ates that “[i]t is believed th at on average, over the period f rom 1961 to 2003, thermal expansio n contributed about one

- quarter of the observe d sea level rise, while melt ing of land ice accounted for less than half; the full magnitude of the observed sea level rise was not satisfactorily explained by the available data sets (Bindoff et al., 2007). ” Id. at 30 (emphasis added). Indeed, the uncertaint ies in this area are underscored particularly well by the scient ific assertions put forward by pet it io ners in Massachusetts v. EPA to support th ei

r arguments that petit io ners had standing to bring the case
. In affidavits filed in th at case, at least one of peti tioners ’ scient ific experts concede d th at sea level rise will occur “regardless of” glo bal climate change and that, at least with respect to some areas of the country, naturally occurring “land subsidence also contributes significant ly to sea le vel ri se.” Massachusetts v. EPA , Kirshen Decl. ¶ 6, Standing App. at 197. Again , i t i s inappropriate to suggest scient ific conclusio ns in the absence of available data. These speculat ive statements tend to suggest that climate change will resul t in effe cts for which evidence is lacking. EPA must
mo re accurately present the state of the science and avo id speculat io n as to significant ly uncertain potential effects.66

In sum, the Draft Endangerment TSD displays a number of biases that minimize important sci entific informat io n t hat tends to support a finding of less likely, less severe, or le ss extensive GHG

- or climate change

- related effects. Further, the document includes numerous instances of unfounded speculat io n t hat tend to overstate the extent of various climate change

related effects or that portray th e likelihood that certain effects will occur as more certain than th e science supports. EPA must redress the specific flaws identified in these comments and review and revise th e Draft Endangerment TSD to ensure that all similar problems are addressed. G. The TSD’s Conclusions as to Climate Change - Related Effects on Specific Health and Welfare Resources Must Be Revised T o Address the Scientific Flaws Identified in the Comments. As explained above, there ar e numerous and varying flaws in the analysis and underlying data relied on by EPA in the Draft Endangerment TSD . These problems undermine the document’s conclusio ns wi th respect to the specific o bserved and p roj ected U.S. human healt h and welfare e ffects fro m c limate c hange . Because these flaws go to the fundamental scient ific bases for many o f t he Draft Endangerment TSD ’s assert io ns, EPA must revi si t it s statement s wi th respect to likely effects of climate change on : human healt h; air qualit y; fo od prod uction and agriculture; forestry; water resources; sea level rise and coastal areas; energy, infrastructure , and settlements; and ecosystems and wildlife. For the sake of clarit y, this sect io n of these comments addresses the key flaws undermin ing the reli abili ty of th e Draft Endangerment TSD’s statements as to each of these healt h and welfare interests and ident ifies areas in which the document would have to be revised to reflect the current science adequately
.

1. Human Health Several o f t he Draft Endanger ment TSD’s statements regarding the purported human healt h impacts of climate change require revisio n for the reasons ident ified in the previous sect io ns of these co mments. First, the document observes th at climate change is projected to67

have both positiv e and negat ive healt h effects and states th at “ [t] he balance of positive and negat ive healt h impacts will vary fro m o ne lo cation to another, and will alter over time as tem peratures continue to rise.” Draft Endangerment TSD at 64. EPA goes on to address in substant ia l d etail numerous potential negat ive outcomes, devoting substant ia ll y mo re space to negat ive th an to posit ive outcomes. This approach overemphasizes potential negat ive effects, even as EPA notes that it is unclear whether posit ive or negative impacts will be greater. Id. at 64
- 66. The Agency must effect ively present the uncertaint ies in this area of inquiry and mu st adequately explain the difficult ies in assessing human healt h impacts th at resul t f rom problems in account ing for the capacit ie s of human response systems. See id. at 41. For similar reasons, the Draft Endangerment TSD must rev ise its assertions regarding likely impacts on human healt h from climate change

- related floods and storms as well as their possible secondary effects, suc h as increases in disease. Moreover, the informat io n contained in recent scient ific studies not addressed in the Draft Endangerment TSD indicates that these effects may be less extensive than the Draft Endangerment TSD acknowledges. Id. at 66
- 67. Furthe r, th e potenti al of mit ig at io n and adaptation to minimize such impacts further should be considered and quant ified. See id. at 68 (noting that disease impacts will be “strongly modulated by changes in healt h c are, infrastructure, techno lo gy, and accessibi lit y t o health care.” ). Reanalysis o f t hese issues is thus necessary. In addit io n, a number of specific uncertaint ies should also be better reflected in this sect io n of the document’s analysis. Specifically, the Draft Endangerment TSD asserts that climat e change will result in addit io nal allergenic illnesses in approximately 20% of the U.S. populat io n. Id. Thi s assert io n, however, is unfounded. Indeed EPA acknowledges that there is only a limited understanding o f aeroallergens and their effects on sens it iz ation of individuals. Id
.68

Similarly, even while acknowledging the pauci ty of studies addressing “th e interaction effects of mult i

- sector climate impacts (they may be nonlinear) or of interactions between climate change healt h impacts and other kinds of lo cal , regional , and global changes , ” EPA’s analysis demonstrates that the Agency assumes th at such studies would demo nstrate addit io nal negat ive impacts as opposed to possible mit igat io n. Id. at 64. Again, EPA may not properly subst it ute speculat io n fo r adequate informat io n . Finally, EPA must also consider the relevance of general informat io n about potential human healt h effects. Informat io n t hat does not assess specific effects is o f ver y l imited relevance to the endangerment question
.

2. Air Quality T his sect io n of the TSD cites the IPCC for the conclusion that air qualit y in c it ie s is virtually certain to decline due to climate change. Id. at 70. It concludes that t hese projected changes are associ ated wi th th e expected influence of climate change o n biogenic emissio ns, chemical react io n rates, precipitation, and weather pattern modificat io n. Id. As stated above, various recent studies suggest that the project io ns of these effects on which EPA relies require revisio n, and EPA accordingly would have to revisit these issues bef ore i t could propose any endangerment finding . Addit io nally, the Draft Endangerment TSD specifically cites changes proj ected in particulate matter and ozone as the primary sources of decreased air qualit y supposedly resul

ting f rom climate change. Id. at 70
- 75. Again, EPA’s own recent analysis o f th ese issues indicates that particulate matter effects are especially uncertain and that ozone concentrations may decrease in substant ia l portions of th e United States. Assessment Rep ort at 3
- 7, 3
- 17
. Mo reover, it is possible that ozone concentration increases result ing fro m c limate change will be more than offset by reductions in anthropogenic precursors of ozone.69

Accordingly, the Draft Endangerment TSD ’s air qualit y co nclusio ns mus t b e revised to reflect a
mo re accurate presentation of the science. In addit io n, thi s section of the Draft Endangerment TSD notes various uncertaint ie s wi thout addressing their implications for the document’s assertions
. See, e.g. , Draft Endangerment TSD at 72 (noting major discrepancies that prevent establishment of confidence in t he mo dels). As stated above, EPA must not only note uncertaint ies but explain their implicat io ns by incorporating them into the Agency’s conclusio ns. Finally, very little o f t his sect io n of the Draft Endangerment TSD is specific to the United States . As described above, any CAA finding of endangerment must be tied to U.S. effects. Failure to identify adequately which of its conclusions apply to U.S. resources , and which do not, renders the Draft Endangerment TSD inadequate as a resource for evaluating endangerment under the CAA.

3. F ood Production and Agriculture The part of th e Draft Endangerment TSD addressing food production and agriculture is also affected by each of the flaws identified in the previous sect io ns of these co mments. As is true throughout the document, EPA in t his part relies almo st exclusively on reports of t he IPCC and CCSP . Thi s creat es problems wit h respect to the geographic scope of the document’s anal ys is, and indeed, substant ia l portions of this section discuss global impacts and fail to di st inguish adequately U.S. effects. Further, the limit at io ns on the document’s sources of scientific informat io n le ad EPA to ignore significant new findings influencing proj ections for all of th e major effects identified in this section, including temperature changes, precipitat io n, and invasive species impacts. See id. at 76
- 77, 79. Estimates of these effects should be revisited in light of newly available information.70

Furthe r, thi s sect io n of the TSD fa ils to quantify in any meaningful way the effects that it predict s , making a reasoned endangerment determinat io n based on this informat io n impossible. Similarly, despite acknowledging numerous beneficial effects in t his area, the Draft Endangerment TSD rarely attempt s to describe how posit ive and negat ive impacts may o ffset one another. See, e.g. , id. at 80 (discussing benefit s to and negat ive impacts on fisherie s). In fact, the document appears to undertake thi s kind of analysis only where it asserts negat ive effects will outweigh posit ive effects
. See, e.g. , id. at 78 (discussing but downplaying benefits of di rect CO 2 exposure); id. (indicat ing that extreme events may offset any benefits o f mo derate climate change). Thi s bias calls into question the remainder of this sect io n’s analysis. Similarly, speculat io n in t his sect io n of the Draft Endangerment TSD undermines its reliabilit y. Specifically, th e Draft Endangerment TSD asserts that elevated CO 2 le vels c an lead to reduced nutri tional value by resul

ting in a decrease in C4 grasses and an increase in C3 grasses. It also states, however, that “the exact effects on both types of grasses and their nutrit io nal qualit y st ill need [] to be determined.” Id. at 79. Accordingl y, it is difficult to see how the Agency can predict negative outcomes given that , as its own document acknowledges, essent ia l in fo rm ation is unknown. Finally, in it s discussio n of drought, the Draft Endangerment TSD suggests th at water shortage s are a problem in certain regions of North America because of causes unrelated to climate change. Id. at 79. It is unclear precisely why this informat io n is included in a document int ended to address potential climate change

- related endangerment of publ ic healt h or welfare. Indeed, to the extent any o f t he impacts that EPA discusses in this document cannot be attributed to GHG emissio ns and their effects, discussio n of those impacts only undermines the usefulness of th e scient ific information in t he doc ument for any endangerment inquiry
.71 4. Forestry This sect io n of the Draft Endangerment TSD makes assert io ns regarding potential climate change

- related effects on forest resources, including project io ns o f increased forest growth, increased wildfires and droug ht , mo re frequent insect and disease outbreaks, more severe extreme
- event disruptions, and reduced bio diversit y r esul ting fro m th e spread of invasive species
. Again, all of these pro

ject io ns must be reexamined in light of new scientific studies that requi r e reassessment of previous modeling , wi th potenti al to substant ia lly reconfigure proj ect io ns of climate change and related effects. Addit io nally, this sect io n of the Draft Endangerment TSD notes a number of uncertaint ies in the scientific record but fail s to explain the ir significance. See, e.g. , id. at 81 (noti ng that th e combined effect of temperature increases, CO 2 increases, nitrogen deposit io n,
oz one, and forest disturbance on soil processes and carbon storage “remains unclear”). These limitations mu st be reflected in the conclusio ns presented. Further, this sect io n of the Draft Endangerment TSD must avo id indulging in speculat io n in t he face of uncertaint ie s. For instance, th e TSD cites as evidence for current climate change impacts that “[g]rowth is slowing in areas subject to drought.” Id. at 82. It is not established that this drought was caused by climate change or GHG emissio ns. El sewhere, th e document suggests that wildfires will pose th e largest threat to forests over time. It notes, ho wever, that wildfires and other extreme events are “not well represented in models” even as it suggests that wildfires will increase by as much as 10%. Id. at 83. Similar points can be made wit h respect to other assertions in this sect io n of th e Draft Endangerment TSD
. This sect io n of the Draft Endangerment TSD also continues to provide inadequate quant ificat io n of projected effects, limit ing the abilit y t o assess endangerment based on it s72

analysis. Again, U.S. and global emissio ns and effects are not su fficient ly delineated. In addi tion, the Draft Endangerment TSD states that forest productivit y impacts due to climate change are “ difficult to separate . . . from other potent ia lly influencing factors, particularly because these interact io ns var y by lo cat io n. ” Id. at 81. T his , however, is precisely t he sort of informat io n needed to evaluate the endangerment issue . Further, despite these acknowledged difficult ies, the Draft Endangerment TSD asserts that certain observed changes , both negat ive and posit iv e, are in fact due to climate change without providing support fo r that assert io n. Id
. Finally, this sect io n of the Draft Endangerment TSD suggests that changing forestry condi tions in the United States might place it at a compet it ive disadvantage with o th er nations th at will experience more posit ive effects fro m c limate change. The document does not, however, attempt to analyze this issue at any useful level o f detail. Further, no other sections of th e Draft Endangerment TSD address this issue. If , as seems likely, th e United States is proj ected to be placed at a compet it ive advantage to other regions with respect to other potential effects of climate change, those possible benefit s should also be reflected in the document. Failure to address these is sues indicates a bias that EPA must address. Id. at 82
- 83.

5. Water Resources This sect io n of the Draft Endangerment TSD addresses a number of climate change

related effects on U.S. water supply, water qualit y, and water uses. In general, these impacts must be reassessed in light of new scient ific findings. Similarly problemat ic, this sect io n, like th e other “ concl

usion” sect io ns of the Draft Endangerment TSD , f ails to dist inguish between global and U.S. effects, as is necessary to conduct an endangerment a ssessment. Id. at 87. In addit io n to these more generally applicable flaws, this sect io n of the Draft Endangerment TSD notes potential negat ive impacts on water qualit y a nd supply that are proj ected to result fro m populat io n increases , i d. at 86 , but it does not ti e these purported effects73

to climate change; such effects thus cannot properly be considered in assessing endangerment. This problem further muddies the document’s presentation of relevant sci ent ific issues. Similarly, scient ific clarit y is co mpromised by this section’s treatment of various uncertaint ies and its tendency to engage in speculation. Specifically, t he document acknowledges that data on exist ing groundwater supplies are “limited,” yet it goes on to mak e a number of assert io ns about groundwater impacts despite the lack of informat io n. Id. at 88. Addit io nally, this sect io n of the document fails to note that modeling of extreme events is plagued by extreme uncertainties, even though this point is made in other sections. Id. at 90
- 91
. Finally, this sect io n of the Draft Endangerment TSD fa ils to acknowledge and quantify clear beneficial effects even as it describes the negative effects associated with the source of such benefits. For instance, the Draft Endangerment TSD states that warmer water will result in transfer of pollutants from the water to the air and notes the negat ive impact on air qualit y. The document does not, however, attempt to quantify the benefit th at this transfer will have on water qualit y o r to com

pare the magnitude of this change to the other impacts on water qualit y di scussed elsewhere in the document. Id. at 89. Si milarly, the Draft Endangerment TSD notes th at certain waters will likely experience increased navigabilit y as a result of climate change , but th e document fails to quantify this benefit or to compare its relat ive value to decreases in navigabilit y e lsewhere. Id. at 91.

6. S ea Level Rise and Coastal Areas This sect io n of the Draft Endangerment TSD describes the impacts in U.S. coastal areas of sea leve l r ise projected to result from climate change. Id. at 92. It identifies a number of potenti al negat ive effects, including loss of salt marshes, coastal ecosystems, and the services and habitat that they provide. Id. at 92, 94. It also projects that se a level rise will result in increasing saltwater intrusion into drinking water supplies and freshwater resources, impact ing74

aquatic species. Id. at 94. It fails, however, to acknowledge the considerable uncertainties

-- and th ei r implicat io ns -- th at pla gue this area of the science. In addit io n to these impacts, however, t his sect io n of the Draft Endangerment TSD di scuss es various impacts on and problems facing coastal areas that are not necessarily linked to climate change or even to sea level rise. See, e.g. , id. at 92 (discussing coastal areas stressed by dev elopment and pollut io n); 93 (di scussing “ coastal squeeze ” and its effects on wetlands), 93

- 94 (di scussing erosion in the Great Lakes where sea level rise “is not a concern”)
. These issues are impr oper for i

ncl usion in an assessment of endangerment from GHGs and climate change ; their inclusio n t ends to lead to a misleading overstatement of th e impacts that should be considered in an analysis o f whether endangerment exists.

7. E nergy, Infrastructure , an d Settlements This sect io n of the Draft Endangerment TSD describes the effects climate change may have o n energy, infrastructure, and settlements. It contains a number of flaws that must be ad dressed in addit io n to the general need for reanalysis o f proje cted climate change and its effects based on new scient ific studies. This sect io n of the Draft Endangerment TSD engages in speculat io n t hat is unsupported by t he science and overstates the likely impact of climate change. For instance, the document acknowledges that industries and settlements “have beco me resilient to” variabilit y in climate condi tions but fo llo ws up this statement by suggesting th at vari abilit y caused by climate change will be greater than capacit y t o adapt. Id. at 97. In the absence of evidence, th e latter assertion is unwarranted. Similarly, this section o f t he document appears to favor unjustifiably study resul ts that suggest impacts will be significant over those studies that predict the opposite. This is especially problemat ic in t he document’s discussio n of energy use for heat ing and cooling. The weight of75

th e evidence on thi s issue indicates th at overall energy use will not increase substant ia lly because th e changes will generally net each other out. Id. at 98. The Draft Endangerment TSD places considerable weight, however, on one study th at predicts a significant increase in electricit y demand , requi

ring substant ia l invest me nt in new generat io n. There is no indicat io n as to why thi s study warrants such deference. Indeed, th e Draft Endangerment TSD does not even ci te thi s study specifically, but refers only to a CCSP synthesis report th at apparently references it
. Id
. In such a circumstance as this, where one study is given special weight, it is particularly unacceptable to f

ail to ident ify it wi

th reasonable clari

ty . EPA must redress this problem and should, in general, provide more extensive ci tations to individual studies on which EPA relies. Further, the Agency must just ify it s decisio n to downplay the greater body o f science on this issue , or else revise its statement s to provide an object ive analysis
.

8. Ecosystems and Wildlife The final sect io n of the Draft Endangerment TSD ’s discussio n of specific impacts addresses ecosystem and species effec ts. Generally, it assess es impacts on ecosystem services, th e effects o f e xt reme events, and impacts on tourism and indigenous peoples. Id. at 104. In addi tion to the overarching concerns result ing from the need for reanalysis o f ear lier modeling resul ts, this sect io n mu st also be revised to redress a number of specific fl aws. Particularly problemat ic is th at this sect io n of the Draft Endangerment TSD places considerable emphasis on global impacts, especially regarding proj ected species loss, that are not relevant to an analysis of endangerment from GHG emissio ns and their result ing effects in the United States. Id. at 107. Further, t he document states th at there will be increases in th e glob al likelihood of extinctions and that 20% to 30% of species globally will be at risk
. Id
. The document notes, however, that such risk varies regio nally fro m as lo w as 1%
. Id
. EPA fails to76

ident ify the risk levels applicable in the United States, a deficiency that , again, renders this informat io n irrelevant to an endangerment assessment under the CAA
. This sect io n o f th e document al so engages in unfounded speculation. It cites, for instance, examples of greater spe ci es richness in areas that experienced less paleoclimat ic changes as evidence that biodiversit y is threatened by climate shif ts. Id . There may be any number of explanat io ns fo r suc h biodiversit y differences, and, in any event , the document provides no scient i fic evidence for its proposition on this issue
. Finally, this sect io n of the document includes informat io n t hat is not c lear ly related to ecosystem services impacts. Specifically, th e Draft Endangerment TSD discusses potential impac ts on financial markets based on industries dependent on fisheries, timber, and tourism. Id. at 109. Similarly, this section’s di scussion of th e economic impacts of temporarily closing touri st areas does not appear to be clearly related to the projected species and ecosystem effects th at it addresses and does not belong in this section. Id. at 110. H. C onclusion The Draft Endangerment TSD suffers fro m a nu mber of serious flaws that undermine its reliabilit y and render it unfit for use in mak ing a CAA endangerment determinat io n fo r GHG emissio ns . Fi rst, EPA’s approach to analyzing these issues is hopelessly confused due to the Agency’s failure to d efine properly the scope of the analysis contained in the document. The CAA requires that EPA examine specific effects on U.S. public health and welfare . Instead, EPA di scusses a mixture of U.S. and global effects that the Agency fails to associate with ei th er U.S. or global emission s consistent ly o r clearly. Furt her, it is unclear whether the Agency is addressing climate change related to anthropogenic GHG emissio n s, all GHG emission s, or other various sources. These flaws nece ssitate substant ial reexa minat io n and revision .77

Second, EPA has further undermined the usefulness of th e Draft Endangerment TSD by relying almo st exclusively on IPCC Assessments that do not address U.S.

- specific effec ts. EPA’s attempt to attribute projected general North America n effects to the United States int roduces a host of uncertaint ie s and ambiguit ies into th e Agency ’s analysis, and its attempt to just ify such attribut io n is unsupported by the science. EPA must revise the Draft Endangerment TSD to incorporate information th at is more relevant to effects on U.S. resources. Thi rd, EPA’s interpretation of the material contained in the scient ific reports that it does ci te i s not consistent ly a ccurate. It overstates the conclusions that may be drawn, fails to resolve inconsist encies contained in t he reports it cites, and occasionally appears to cite studies as the source of informat io n t hat they do not actually contain. These inaccuracies and misrepresentations must be corrected. Fourth, the Draft Endangerment TSD fa ils to include in its assessment of the relevant science a number of significant new studies. These studies contradict specific statements and assert io ns in t he Draft Endangerment TSD . Further, some of these studies significantly mo dify basic assumpt io ns underly ing, and thus demand reanalysis of , previously accepted modeling resul ts. Fift h, the Draft Endangerment TSD fa ils to address adequately the numerous uncertaint ies present in the current science. In order to portray realist ically the state of scient ific knowledge, EPA must more effect ively explain the implicat io ns of the uncertaint ies it ident ifies and be far more rigorous in ident ifying uncertaint ies th roughout the document. Finally, the Draft Endangerment TSD exhibits significant biases th rough it s fai lure to address fu lly all relevant issues, including the potent ia l fo r posi tive effects associated with climate change. Further, the Agency has opted to ignore adaptation and mit igat io n in t his78

document, despi

te the fact that such matters relate direct ly to th e endangerment question . These biases must be removed. In sum, the ostensible purpose of the Draft Endangerment TSD is to inform any endangerment determination to be made by the EPA Administrator consistent with the provisio n s of th e CAA. Failure to address the science in a thorough and balanced manner and to limit the document’s analysis to those issues relevant to EPA’s statutory authori ty has resulted in a document that oversta

tes proj ected ri sks o f c limate change and that makes assert io ns that ar e not supported by available scient ific informat io n. Without substant ia l revisio n to correct its many deficiencies, the Draft Endangerment TSD cannot properly be used in any endangerment analysis
. VI. If EPA Decide s To Pro pose Regulation of GHGs Under Any Exi sting Provision of the CAA, EPA Will Need To Consider Numerous Issues Further. Section VI of the ANPR addresses issues related to the possibilit y o f regulat ing GHGs fro m mo bile sources under Tit le II of the CAA. 73 Fed. Reg. at 44432

- 76. Section VII of t he ANPR discusses what EPA calls the “three major pathways that the CAA provides for regulat ing stationary sources” and addit io nal stationary source authorit ie s under the CAA that will be im pacted by any future regulatory controls on emissions of GHGs unde r the Act. Id. at 44476/2

- 3. The three major pathways are: (1) national ambient air qualit y st andards (“NAAQS”) and state implementation plans (“SIPs”) under sect io ns 107, 108, 109, and 110 of the Act; (2) performance standards for new and exist ing stat io nary sources under sect io n 111 of th e CAA ; and (3) hazardous air pollutant standards under section 112 of the Act. In addit io n, sect io n VII of th e ANPR discusses the impact of regulatory control s on emissio ns of GHGs under the CAA on other important CAA programs including the PSD and Title V operating permit programs.79

UARG stresses that neither Title II of the CAA nor th e “three major pathways” fo r stationary source regulation provides a sui table means fo r GHG regulation because none of th ese provi sion s of th e CAA was designed to address air pollutants like GHGs. In considering whether to propose to regulate GHGs under the Act and under what section or sections to do so , EPA should consider the fo llo wing important issues wit h regard to these sect io ns. A. Is sues Relating to Possible Regulation of Mobile Sources Under Title II of the CAA EPA’s ANPR addresses the potential regulatory options available to the Agency to regulate mobile sources under the authorit ies provide d in Tit le II of the CAA . Specifically, th ese authori ties apply to cars and light duty trucks; heavy dut y t rucks and buses; nonroad recreation vehicles; farm and construction machines; lawn and garden equipment; marine engines; aircraft; and loco mo ti

ves. See id. at 44432/1

- 2. Alt hough mo bile s ource regulat io n is not a primary UARG concern, a number of issues raised in the ANPR do implicate UARG member s’ int erests. Accordingly, these comments address matters presented in Section VI of the ANPR that are relevant to the electric utilit y industry. Bri efly, these co mments address several dist inct categories of issues raised by EPA in its di scussio n of T it le II authorit ie s: (1) matters that implicate the relat io nship between mo bile and stationary source regulation; (2) general legal issues raised in EPA’s Ti tle II di scussio n; and (3) issues raised in the pet it io ns seeking regulation of GHG s th at are currently before EPA.

1. Issues Raise d in EPA’s Title II Discussion t hat May Implicate Potential Regulation of Non - Mobile Sources Many of th e issues raised in Sect io n VI of the ANPR are relevant only to mobile sources and are not specifically addressed in these co mments. A number of matters ra ised by EPA, however, could affe ct potenti al regulat io n of electric generat ing facili ti es under the CAA. In80

particul ar, EPA has requested comme nt on two issues addressing how it might structure the relat io nship between potential mo bile and non

- mo bile source regulat io n. Specifically, EPA seeks co mment on whether it should allow trading of emissio ns credits between mobile sources and other potentially regulated sectors if EPA ul timately proposes and prom ulgates a GHG regulatory program that incorporates cap

- and

- trade mechanisms. Id . at 44433/1. Specif

ically, the Agency requests : [P] ublic co mment on the available authorit y fo r, and the merits of, allowing credit trading between mobile sources and non

- mo bile source sectors. One of the potenti al limitat io ns of allowing credit trading only within the transportation sector is that it would not permit firms to take advantage o f e missio n reduction opportunit ie s available elsewhere in the econo my. In particular, EPA requests comment on the advantages and disadvantages of allowing trading across sectors, and how to ensure that credit trading would have environmental integrity and th at credi ts are real and permanent. Id. at 44440/3. In general, EPA should make every effort to ensure that any regulat io n t hat it may devise achieves its policy goals while minimizing burdens on the regulated communit y. Accordingly, to the extent that EPA is able to devise a legally sound cap

- and

- trade GHG regulatory program under the CAA, such program should acco mmo date trading across sectors. Such an approach would likely enhance the efficiency of any r egulatory regime that EPA adopt s, and the Age ncy should give serious considerat io n to its authorit y t o implement such a program.

2. EPA’s Mobile Source Discussion Raises General Legal Issues That May Be Relevant to Other Potentially Regulated Sectors. The sect io n of the ANPR addressing EPA’s Title II au thori ti es also address es one issue o f general legal significa nce that is relevant outside th e Ti tle II con text. Specifically, EPA r equest s comment on whether it may consider any glob al benefits of a proposed GHG regulat io n or instead is limit ed to conside rat io n of domest ic benefits in conduct ing it s regulatory analysis. Id. at 44446/3. E conomic analys i s of regulatory act io ns is required by Ex ecut ive Order 12866, “Regulatory Pl anning and Review.” This requirement is further governed by guidance issued by81

OMB, ent it led “ Economic Analysis o f Federal Regulat io ns Under Execut ive Order 12866 ,” (Jan. 11, 1996) (“ OMB’s Guidance”) , available at http://www.whitehouse.gov/omb/inforeg/riaguide. ht ml#ii
. OMB’s Guidance addresses a number of issues, amo ng them the c onsiderat io n of int ernat io nal impacts in a regulatory cost

- benefit analysis. Briefly, OMB’s Guidance requires EPA to focus on domest ic costs and benefits and allow s only fo r limited considerat io n of int ernat io nal impacts. Specifically, OMB notes that a p roper cost
- be nefit analysis may consider effe cts on foreign resources only to the extent that a proposed regulat io n’s impacts on those resources would, in turn, result in domestic costs or benefits. This interpretation is supported by each of the examples OMB provides in the sect io ns of its Guidance document addressing int ernat io nal co nsiderations. For instance, OMB’s Guidance states that an agency must consider t he cost to domestic co mpanies of a proposed regulat io n t hat would require the purchase of spe cific equipment fro m a fo reign manufacturer. See OMB’s Guidance at II I .A.6. Further, OMB indicates that agencies will need to consider certain internat io nal trade implicat io ns of proposed regulations but only to the extent necessary to determine costs and benefits to th e United States. Indeed, OMB’s Guidance illustrates this po int by suggesting that agencies must consider the role of foreign co mpet it io n in assessing the impacts of a regulat io n on domest ic industry
. Id . Finally, OMB’s Guidance states that special consideration must be given to costs and benefits of regulatory proposals that would have the effect of limit ing imports. Again, OMB’s Guidance makes clear, however, that it is only the econo mic loss or benefit “to the United States” that agenc ies should consider. In su m, OMB’s cost
- benefit analysis guidance does not indicate that it is generally appropriate for agencies to consider foreign costs or benefits o f U.S. regulat io ns as a part of th ei r82

regulatory analysis. The governing Guidance in stead indicates that internat io nal effect s of regulatory act io n are relevant only to the extent that such effects result in domestic costs or benefits. Accordingly, EPA’s cost

- benefit analysis of any regulatory proposal to address GHG emissio ns should con sider only domest ic impacts.

3. T he Petitions Before EPA Raise Certain Issues t hat Are Relevant to the Utility Industry. This sect io n of the ANPR also addresses the seven petitions that EPA has received seeking regulat io n of GHGs under various provisions of T it le II. Specifically, EPA has received peti tions seeking GHG regulation under sect io ns 211, 213 , and 231 to address emissio ns fro m fuels, nonroad sources, and ai rcraft. See 73 Fed. Reg. at 44458/3. In addit io n to raising questions regarding EPA’s autho ri ty and the propriety of undertaki ng such regulat io n, these peti tions address a number of issues of general relevance to other sectors that could be the subject of regulat io n under other CAA authori ties. EPA requests co mment on all o f t he issues rai sed b y t he pet it io ners. Id
. Generally, UARG disagrees wit h t he legal analysis and conclusio ns contained in these peti tions. These co mments address the fo llo wing issues: (1) the scientific claims made by peti tioners and whether endangerment has been establish ed; (2) whether an endangerment finding under one sect io n of the CAA translates to an endangerment finding under other sections of th e Act; (3) petit io ners’ misinterpretations of Massachusett s v. EPA ; and (4) assertions as to th e extraterritorial applicat ion of the CAA
. Fi rst, each of the petitions on which EPA request s comment make s numerous scient ific assert io ns regarding the effects of climate change. Briefly, these petit io ns claim that GHG emissio ns are now resul

ting and will cont inue to result in clim ate change

- related public healt h and welfare impacts that negat ively affect the petitio ners, specific states, and the United States as83

a who le. These petit io ns generally conclude, without providing reasoned or thorough scient ific analysis , th at these effe cts will be “severe.” See, e.g. , California v. Stephen Johnson , Peti tion for Rule Making Seeking the Regulation o f Greenhouse Gas Emissions fro m Ocean
- Going Vessels , at 3 (Oct. 3 , 2007). The petit io ns cite such purported effects as melt ing glaciers, rising sea levels, altered plant senescence, ocean acidification, proliferat io n of invasive species, droughts, floods, increased storm act ivit y a nd intensit y, decreasing water qualit y, heat waves, more frequent wildfires, decreases in air qualit y, threats to a gricul tural output, al

teration of forest character, ecosystem and human infrastructure effects, and negative disease

- related impacts. As support for these claims, the petitioners cite the Assessment Reports of the I PCC and a limited select io n of individua l scient ific studies. See, e.g. , California , et al. v. Stephen Johnson , Petit io n fo r Rule Making Seeking Regulat io n of Greenhouse Gas Emissio ns fro m Aircraft , at 2
- 11 (Dec. 4, 2007); South Coast Air Qualit y Ma nagement District, Petit io n fo r Rulemaking Und er the Clean Air Act to Reduce Global Warming Pollutants from Ships , at 2
- 4 (Jan. 10, 2008); California , et al., Petition for Rulemaking Seeking Regulation o f Greenhouse Gas Emissio ns fro m Nonroad Vehicles and Engines , at 2
- 7 (Jan. 29, 2008); Friends of th e Earth , et al., Petit io n fo r Rulemaking Under the Clean Air Act to Reduce the Emissio n o f Air Pollutants fro m Aircraft th at Contribute to Global Climate Change , at 5
- 6, 14
- 20 (Dec. 31, 2007). These purported effects and others not listed here are addres sed in significant detail in sect io n V of these comments . Bri efly, however, petit io ners ’ claims are unfounded and fail to take into accoun

t significant sci ent ific uncertaint ie s regarding the effects of climate change and th e substantial amount of scient if ic informat io n t hat con

tradicts the conclusio ns petit io ners present.84

Further, the petitioners assert as to each source category fo r which they seek regulation th at the contribution fr om th ese sectors is o f su fficie nt size to require regulat io n. See, e.g

. , California v. Stephen Johnson , Petit io n fo r Rule Making Seeking the Regulat io n of Greenhouse Gas Emissio ns from Ocean

- Going Vessels , at 6
- 7 (Oct. 3 , 2007) (stating that percentage of
ocean - going vessel contribut io n to GHG emissio ns renders it “a source th at i s vital to regulate”); see also South Coast Air Qualit y Ma nagement District, Petit io n fo r Rulemaking Under the Clean Air Act to Reduce Global Warming Pollutants from Ships , at 7 (Jan. 10, 2008) (stating that “ships emit 3% of the world’s greenhouse g ases” and that such contribution is “significant”)
. Peti tioners have not provided a scient ific assessment supporting their claims that the proportion of emissio ns attributable to each of these sectors makes that sector a cognizable “contributor” to any endangering air pollut io n . 15 Indeed, some pet it ioners cite a st atement in Massachusetts v. EPA discussing, for standing purposes, the contribution of th e U.S. transportation sector as a who le in support of th ei

r assertion that an endangerment finding is requ ir ed, despite the fact the Court explicit ly neit her made no r required any endangerment finding. Massachusetts , 127 S. Ct. at 1463 (“We need not and do not reach the question whether on remand EPA must make an endangerment finding. . . .”)
. Accordingly, p et it io ners’ claims that GHGs cause or contribute to ai r pollut io n t hat ma y r easonably be ant ic ipated to endanger public health or welfare are insufficient ly supported and must be rejected. Second, some petit io ners assert that an endangerment finding unde r one section of the CAA should essent ia lly resul t in an automat ic determination o f endangerment under other

15 It i s noteworthy th at peti tioners do not uniformly address the percentage of emissio ns fro m th ese source categories that is specific to the U.S. p ortion of the relevant industry. EPA should be certain that it bases any endangerment determination only on the portion of such emissio ns th at fall s wi

th in it s jur isdict io n under the CAA.85

sect io ns of the statute. Specifically, petit io ners seeking regulat io n of GHGs fro m no nroad vehicles and engines assert that an endangerment findin g under sect io n 202 of the CAA, which governs on - road motor vehicles, is sufficient to serve as a proxy for an endangerment determinat io n under sect io n 213. International Center for Technology Assessment v. Stephen Johnson , Peti

tion for Rulemaking Seeking th e Regulat io n of Greenhouse Gas Emissio ns from Nonroad Vehicles and Engines , at 8 (Jan. 29, 2008). Importantly, before regulat io n is authorized under sect io n 213, EPA must “conduct a study of emissio ns from nonroad engines and nonroad vehicles ... to dete rmine if such emission s cause, or significant ly contribute to, air pollution which may reasonably be ant ic ipated to endanger public healt h or welfare. ” CAA § 213(a)( 1 ) (em phasis added). Likewise, the section 202 endangerment standard requires EPA to dete rmine if emissio ns of a given air pollutant from on

- road motor vehicles and engines themselves cause or contribute to air pollution which may reasonably be ant ic ipated to endanger public healt h or welfare. CAA § 202(a)(1); see also id. § 202(a)(3)(D). Th ese standards are not interchangeable. Indeed, each provisio n addressing endangerment determinat io ns mu st be viewed independent ly, and EPA must engage in a separate and appropriate endangerment analysis that addresses the pertinent source - specific standar ds contained in each relevant provisio n of the CAA. Thi rd, peti tioners make assertions regarding the meaning of the Supreme Court’s decisio n in Massachusetts v. EPA th at are incorrect and must be rejected by EPA. As stated above, some peti tioners suggest th at the Court’s assessment of the significance , f or standing purposes, of th e U.S. transportation sector’s contribut io n to GHG co ncentration levels is a de facto determinat io n th at mobile sources, even when further subdivided among source categories, are “significant”
causes o f o r contributors to endangering air pollut ion
. See, e.g. , California v. Stephen Johnson , Peti tion for Rule Making Seeking the Regulat io n of Greenhouse Gas Emissio ns fro m Ocean
-86

Going Vessels , at 7 (Oct. 3 , 2007). Again, this is a mis int erpretation of the Supreme Court’s ruling. The Court’s statements on this point have no bearing on an endangerment determination, which invo lves a substant ia lly different standard of scient ific evidence and incorporates a degree of policymaking

- relat ed discretion not at issue in a standing analysis. In addit io n, petit io ners argue that the Court’s opinion in Massachusetts constrains the policy reasons th e EPA Administrator may choose as support for a determinat io n to decline to regulate GHGs under the CAA. See, e.g. , California, et al. , Peti tion for Rulemaking Seeking Regulation o f Greenhouse Gas Emissio ns fro m Nonroad Vehicles and Engines , at 13 (Jan. 29, 2008); California v. Stephen Johnson , Petit io n fo r Rule Making Seeking the Regulation o f Greenhou se Gas Emissio ns fro m Ocean
- Go ing Vessels , at 11
- 12 (Oct. 3 , 2007). Indeed, th e Court did reject certain policy reasons advanced by EPA for its decisio n to deny a pet it io n fo r rulemaking under § 202 of the CAA , including foreign policy considerations and judgments as to th e efficacy o f t he CAA as a regulatory tool. Massachusetts , 127 S. Ct. at 1462
- 63. The limitations of the Supreme Court’s decisio n, however, must be recognized. Its opinio n addresses only regulat io n purs uant to section 202 and not other provisio ns o f t he CAA, including sect io n 213, which the petit io ners argue is subject to similar policy

- related ci rcumscript io ns but which give EPA more discret io n . See CAA § 213(a)(4) (EPA “may prom ulgate” regulat io ns it “deems appropriate”) (emphasis ad ded); 73 Fed. Reg. at 44433/3. This difference illustrates the cri tical point that EPA must carefully evaluate each relevant provisio n of the CAA to determine th e extent of its discretion under th at provisio n . Finally, several pet it io ners assert that EPA has the authority to regulate foreign ves sels and aircraft pursuant to sections 213 and 231, respectively. Petitioners arguing in favor of regulat io n of foreign ocean

- going vessels argue that Congress intended that the CAA be applied87

extraterritorially
. California v. Stephen Johnson , Petit io n fo r Rule Making Seeking the Regulation o f Greenhouse Gas Emissio ns fro m Ocean
- Go ing Vessels , at 13 (Oct. 3 , 2007). As stated by th e Supreme Court, “[i] t i s a longstanding principle of American law ‘that legislat io n of Congress, unless a contrary int ent appears, is meant to apply only wit hin the territorial jurisdict io n of the United States.’ This ‘canon o f construction’
. . . serves to protect against unintended clashes between our laws and those of other nations wh ich could resul t in int ernat io nal discord.” EEOC v. Arabian Am. Oil Co. , 499 U.S. 244, 248 (1991) (quoting Foley Bros

. , Inc. v. Filardo , 336 U.S. 281, 285 (1949)). There is no clear indicat io n t hat Congress int ended the CAA to apply outside of U.S. terri tory
. 16 Indeed, the only argument offered by peti tioners in support of its contention is that the Americans wit h Disabilit ies Act (“ADA”) , 42 U.S.C. §§ 12101
- 12213 (1990), applies, in limited circumstances, to foreign flagged vessels. See California v. St ephen Johnson, Petit io n fo r Rule Making Seeking the Regulat io n of Greenhouse Gas Emissio ns from Ocean

- Going Vessels, at 13

- 14 (Oct. 3, 2007)
. The Supreme Court decisio n explaining this interpretation of the ADA, however, demonstrates that a clear statemen t of congressio nal intent is required to give a general statute exterritorial applicat io n if the statute will affec t th e internal order of a foreign flagged ship
. Spector v

. Norwegian Cruise L ine Ltd. , 545 U.S. 119, 125, 132, 134
- 35 (2005). Although the Court determined that the ADA contained such a statement of congressio nal intent, t he text of the CAA contains no similar indicat io n of

16 One provisio n of the CAA authorizes considerat io n of th e effects th at air pollutants are expected to have on the public healt h or welfare of other nat io n s to the extent that such fo reign nat io ns provide reci

procal rights . CAA § 115. This limited and clear expressio n of congressio nal intent does not, however, indicate th at all CAA authorities also apply extraterritorially, and, in fact, suggests that Congress did not intend addit io nal applicat io n of the CAA to foreign nat io ns. See Keene Corp. v. United States , 508 U.S. 200, 208 (1993) (quoting Russello v. United States , 464 U.S. 16, 23 (1983)) ( “ [W] here Congress includes particular language in one sect io n of a statut e but omits it in another . . . , i t is generally presumed that Congress acts intent io nally and purposely in the dis parate inclusio n or exclusio n.”).88

congressio nal intent. EPA appears to lack authority to apply the CAA in accordance wi th peti tioners’ request. At a min imum, EPA mu st conduct a thorough analysis of each CAA provi sion th at might implicate these concerns and make a reasoned determinat io n as to the extent of th e Agency’s authorit y. B. Issues Relating to Possible Regulation Through NAAQS and SIPs (CAA §§ 107 - 110 ) Section VII.A of the ANPR addresses issues relat ing to possible regulat io n of GHGs under sect io ns 107 through 110 of the CAA. The discussio n in t his sect io n of the ANPR highlights dramat ic ally how ill

- sui ted these prov isions of the CAA are to any GHG re gulat io n. As EPA acknowledges, “the ambient concentrations measured across all locat io ns wit hin the U.S. for purposes of co mpar ison to the level o f t he standard would not vary, and all areas of the country would have the same designat io n -- th at i s, the e nt ir e U.S. would be designated either attainment or nonattainment, depending on the level of the NAAQS compared to observed GHG ambient concentrations.” 73 Fed. Reg. at 44480/1. This presents a whole host of problems for potenti al GHG regulat io n under th ese sect io ns of the Act. The heart of Congress’s design of the CAA is that states take the primary responsibilit y fo r ensuring that air qualit y w it hin their borders meets the NAAQS . CAA §§ 107(a), 110(a) ; see also Clean Air Implementation Project v. EPA , 150 F.3d 1200, 1202 (D.C. Cir. 1998) (“The Act makes states primarily responsible for the attainment and maintenance of the NAAQS through state designed implementation plans. . . .”)
. S ta tes would have abso lut ely no control over whether they would attain a GHG NAAQS. As EPA notes, “[t]he SIP development process, because it relies in large part on individual states, is not designed to result in a uniform nat io nal program o f e missio ns controls.” 73 Fed. Reg. at 44480/2. No action that a state could take o n it s own would be able to assist it in either attaining or maintaining a GHG NAAQS. Indeed,89

wi thout internat io nal cooperation, no action that the United States takes could assure attainment
or maintenance of a GHG NAAQS. That the entire United States wo uld be ei th er attainment or nonattainment for a GHG NAAQS , and that a st at e , in “implement ing” such a NAAQS, would be unable to take any action to affect meaningfully the GHG “air qualit y” wit hin it s borders, demonstrate that no basis exists for any GHG NAAQS under the exist ing CAA. Section 108(a)(1) of the CAA specifies three prerequi si tes fo r the list ing of an air pollutant to be regulated by NAAQS. Specifically, this sect io n provides that EPA: [S]hall fro m t ime to time . . . list . . . each air pollutan t
-- (A) emissio ns of which, in [the Administrator’s] judgment, cause or contribute to ai r pollut io n which may reasonably be ant ic ipated to endanger public healt h or welfare; (B) the presence of which in the ambient air results fro m nu merous or diverse mo b ile or stationary sources; and (C) for which air qualit y cr it eria had not been issued before the date of enactment of th e Clean Air Amendments of 1970, but for which [the Administrator] plans to issue air qualit y cr it eria under this sect io n. CAA § 108(a)(1 ) (quoted at 73 Fed. Reg. at 44477/1

- 2). As di scussed in more detail in sections IV and V of these comments, EPA has not yet made a determinat io n whether GHG emis sion s endanger public healt h or welfare, which is the fi rst prong of the section 108 test. Should EPA make such a determinat io n wit h regard to another section of the CAA, such as sect io n 202(a) regarding motor vehicles, that would not be di sposi tive wi th regard to section 108. Section 108 contains different language from that in sect io n 202
. Unlike sect io n 202(a), section s 108 and 109 authorize list ing of a pollutant as a criteria ai r pollutant, and regulation of that pollutant through “nat io nal ambient air qualit y st andards , ” fo r th e purpose of addressing any endangerment of the public healt h or welfare that may reasonably90

be ant ic ipated due to the quantit ies o f t he pollutant in the ambient air , which is the relat ively limited portion of the atmosphere to which the general public has access. CAA § 108(a)(2) (“Air qualit y cr it eri a for an air pollutant [listed under section 108] shall accurately reflect the latest scientific knowledge useful in indicat ing the kind and extent of all ident ifiable effects on public healt h or welfare which may be expected from the presence of such pollutant in the ambie nt air , in varying quantities .”) (em phasis added); id. § 109(b)(2) (secondary NAAQS for a section 108

- listed air pollutant must be set at the level “requisit e to protect the public welfare fro m a ny known or anticipated adverse effects associated with the p resence of such air po llutant in the ambient air”) (emphasis added); 40 C.F.R. § 50.1(e) (“Ambient air means that portion of the atmosphere, external to buildings, to which the general public has access.”); Train v. NRDC, 421 U.S. 60, 65 (1975) (“ambient a ir ” is “the statute’s term for the outdoor air used by the general public”). In any proposed rule that EPA may develop on possible regulat io n of GHGs under th ese provisio ns of the Act, EPA will need to examine what the effect is on U.S. public health or
w elfare due to the presence of GHGs in the ambient air in t he United States. This may p ose a serious obstacle to list ing
. It is far from clear, for example, that GHGs in the amount in which th ey are present in the ambient air in the United States could re asonably be anticipated to endanger public health or welfare. Thus, EPA will need to consider in any notice of proposed rulemaking how to different iat e the effects of GHGs due to their presence in t he U.S. ambient air fro m th e effects due to their presenc e in the rest of the global at mo sphere. The absence o f informat io n supporting list ing and regulat io n under sections 108 and 109 could, in fact, be the reason why th e Administrator wo uld conclude that he or she has no “plans to issue air qualit y cri teria” fo r GHGs
-- th e third prerequisite for list ing under section 108.91

To u s e the thi

rd prerequisite in this fashion, however, EPA ma y w ell need to address whether and to what extent th at prerequisite gives EPA discret io n not to list a pollutant for which it ha s made an affirmat ive endangerment finding. EPA notes that th e thi rd prerequisite “could provide EPA discretion to decide whether to list those pollutants under sect io n 108 for purposes of regulat ing them via the NAAQS.” 73 Fed. Reg. at 44477 /2. In the 1970s, however, NRDC successfully argued to two federal courts that this language gave EPA no discretion to decline to list and regulate a pollutant under sect io ns 108 and 109 where the Agency had conceded that the endangerment criterion (and the “numerous or diverse mobile or stationary sources” criterion in sect io n 108(a)(1)(B)) was satisfied for that pollutant. That lit igat io n culminated in the decisio n of th e U.S. Court of Appeals for the Second Circuit in NRDC v. Train , 545 F.2 d 320 (2d Cir. 1976 ), af f’g , 411 F. Supp. 864 (S.D.N.Y. 1976), th at EPA must list and regulate a pollutant under sect io ns 108 and 109 when it has made an endangerment finding fo r that pollutant , notwi th standing the “plans to issue air qualit y criteri a” provi sion in sect io n 108 (a) (1)(C)
. EPA correctly notes the existence of this case in the ANPR and notes that because it was decided before th e Supreme Court’s decisio n in Chevron v. NRDC, 467 U.S. 837 (1984), the Agency may have an argument that its original int erpretation of the s ta tu te should now be accorded deference. 73 Fed. Reg. at 44477 n.229. The interpretation that the third criterion does not provide EPA with d iscret io n regarding whether to list an air pollutant for which an endangerment finding has been made was rai sed as recent ly as 2003 when th

ree states (Connect icut, Maine, and Massachusetts) premised a 2003 ci tizen suit against the Administrator on that 1976 decisio n. Massachusetts v. Horinko , No. 3:03
- CV
- 984 (D. Conn. filed June 4, 2003) (dismissed without prejudice by plaint iffs on September 3, 2003, in light of EPA’s denial of the rulemaking petit io n t hat led to Massachusetts92

v. EPA )
. Mo re recent ly, nat io nal environmental group representatives

-- as part of their attempt to blunt opposit io n to thei r cam paign for GH G regulat io n under sections 202 and 111

-- have suggested that the “plans to issue air qualit y cr it eria” clause does give EPA discr et io n not to list and regulate , but they have not explained their legal rat io nale for abandoning the posit io n advanced by NRD C and adopted by two c ourts. See, e.g. , Strengths and Weaknesses of Regulating Greenhouse Gas Emissions Using Existing Clean Air Act Authorities: Hearing Before the House Energy and Commerce Subcommittee on Energy and Air Quality , 110 th Cong. (Apr. 10, 2 008), T estimo ny of Lisa Heinzerling, Professor of Law, Georgetown Universit y Law Center, at 6 (noting that the third prerequisite “may provide the Administrator somewhat more wiggle room in deciding whether to issue a NAAQS for a greenhouse gas, even after an endangerment finding); Massachusetts v. EPA Part II: Implications of the Supreme Court Decision: Hearing Before the House Select Committee on Energy Independence and Global Warming , 110 th Cong. (Mar. 13, 2008), T estimo ny of David Bookbinder, Chief Cl imate Counsel, Si erra Cl ub, at 9 (“Bookbinder Testimo ny”) (noting that the thi rd prerequi si

te “appears to contem plate some discret io n on EPA’s part in whether to establish a NAAQS”). There are, in UARG’s view, compelling reasons to believe that that posit io n was and is incorrect, but in any event, EPA should state clearly and comprehensively its view o f t he matter

-- specifically including its interpretation o f t he current effect of NRDC v. Train
-- before it proceeds with any proposed rule that addresses, or that arguably could give ri se to, regulation of GHGs under sect io n 108 and 109. EPA notes that section 108 also requires EPA to issue “air qualit y cr it eri a” once a pollutant has been listed. In response to this requirement, EPA issues “criteria docume nt s” or , as th ey have been called more recently , “integrated science assessments,” for each of the pollutants93

listed under sect io n 108. These documents are reviewed by EPA’s Clean Air Scientific Advisory Committee and , as noted above, must “accurately ref lect the latest scient ific knowledge useful in indicat ing the kind and exten t of all ident ifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, in varying quantit ie s.” CAA § 108(a)(2). E PA specifically asks whether it would be “appropriate” for the Agency to rely on the
mo st recent reports of the IPCC and the synthesis reports of the CCSP “as an important source or as the primary basis for the Agency’s issuance of ‘air qualit y criteri a.’” 73 Fed. Reg. at 44477/3. For the numerous reasons discussed in more detail in sect io n V.B. of these co mments, reliance on th e IPCC and CCSP reports for this purpose , wi thout any independent analyses by EPA of the latest relevant scient ific knowledge, wou ld not be appropriate and would not comply wi th th e requi

rements of the CAA. Moreover, as stated by the Agency throughout its most recent ly co mp leted criteria document, the Integrated Science Assessment for Sulfur Oxides

-- Heal th Cri teri a, Integrated Sci ence Assessment for Sulfur Oxides

-- Health Criteria, EPA/600/R

08/047F (Sept. 2008) (“SOx ISA”), EPA has established a number of basic standards governing preparation of these scient ific analyses that would conflict with reliance on the IPCC and CCSP. Fi rst, EPA has generally established that to accurately reflect the latest scient ific knowledge, air qualit y cr it eri a mu st consist of EPA analysis o f recent, individual scient ific studies that have been subject to peer review. SOx ISA at 1

- 2. To ensure the timeliness of the research analyzed in t he SOx ISA, EPA engaged a call fo r informat io n fro m t he public and its own “ ongoing literature search process that includes extensive computer database mining on specific topics. ” Id. Addit io nally, the Agency indi cated that “[a] ll relevant epidemio lo gic, human clinical, and animal toxico lo gical studi es ... published since the last review were considered. ” Id. Indeed, at times, EPA has even altered its own self

- imposed study publishing cut

- off dates to include94

espec ially important research in its air qualit y cr it eri a analysis. See, e.g. , Air Qualit y Cr it eria for Particulate Matter, EPA/600/P

- 99/002aF at I
- iii (Oct. 2004) (indicat ing that the Agency expanded its original limitat io ns on study publication date to accom mo date analysis o f “important new studies published through 2003”) (hereinafter “PM AQCD”). Failure to conduct a similar literature search and analysis o f t he mo st recent informat io n would not only be inconsistent with basic principles of sound science but would also wi th past EPA practice. Similarly, through its preparation of past air qualit y cr it eri a, EPA has established study select io n standards that emphasize the science that is most relevant to the establishment of NAAQS, a concern not reflected in I PCC or CCSP reports. For instance, in the SOx ISA, EPA placed considerable emphasis on those studies “ conducted in the U.S. or Canada [as opposed to] those from other geographic regions. ” SOx ISA at A
- 2; see also id. at 1
- 1 ( “ The Integrated Sci ence Asses sment (ISA) is a concise review, synthesis, and evaluat io n of the most policy

relevant science , and communicates crit ical science judgments relevant to the NAAQS review
. ”) (em phasis added). Further, criteria documents are drafted in response to specific “ policy

relevant questions th at provide a framework for [the] review of the scient ific evidence. ” Id. at 1
- 1 (emphasis added). Other criteria documents have emphasized the importance of “substant ia l external peer and public review” and “iterative reviews of successive drafts” of the air qualit y cri teria prepared by EPA. See, e.g. , PM AQCD at 1
- 12; see also id. at 1
- 16 (“The assessment presented in this document is framed by: (1) the select io n of pertinent issues to be addressed; (2) th e select io n of rel evant studi es and an approach to the presentation of informat io n drawn fro m those studies; and (3) the select io n of an approach to interpreting and integrating the body o f evidence evaluated in the document.”). None of these crucial co mponents to NAAQS
- sp ecific95

scientific assessment can be achieved through adoption of the reports of the IPCC and CCSP as th e statutory ai

r qualit y criteria. The analysis and conclusio ns of the IPCC primarily concern global effects and emissio ns. The purpose of a criteria doc ument is to examine the latest scient ific evidence regarding the effect th at atmospheric concentrations of a cri teri a ai r pollutant have on public health and welfare in t he U.S. due to i

ts presence in the U.S. ambient air. The IPCC reports do not focus on th e effects in the U.S. of the presence of GHGs in the U.S. ambient air. The closest the IPCC gets to examining the United States is a short discussio n of pro jected effects of climate change in North America, and it is not scient i fically just ifiable to r ead concl usions wi th regard to North America as generally applying to the United States. In the event EPA were to list GHGs (or a subset of GHGs) as a criteria air po llutant under section 108, it could not avoid its obligat io n to “issue air qualit y cr it er ia” that “accurately reflect the latest scient ific knowledge useful in indicat ing the kind and exten

t of all ident ifiable effects on public healt h or welfare which may be expected fro m t he presence of such po llutant in the ambient air, in varying quant it ie s.” CAA § 108(a)(2). Moreover, any cri

teri a document would need to address the beneficial effects of GHGs in the ambient air. American Trucking , 175 F.3d at 1051
- 53
. Because EPA cannot substitute the IPCC or CCSP reports for the criteria document, in th e ev ent EPA decides to establish a NAAQS for GHGs, it should wait to list GHGs (either as a group or individually) unt il it has made significant progress on both th e air qualit y cr it eri a and a proposed NAAQS. As the Agency acknowledges, preparation of air qualit y criteria and revisio ns to a proposed NAAQS can take several years even when th e pollutant at issue has lo ng been listed and regulated as a criteria po llut ant , and EPA expects that preparation of a criteria document for GHGs would be particularly burdensome because of the complexit y o f c limate96

change science and the vast amount of research that would be relevant . 73 Fed. Reg. at 44483/2

- 3 . Once EPA lists a pollutant under section 108, however, EPA must issue a criteria document and proposed NAAQS wi thin twelve mo nt hs , f

ol lo wed by a final NAAQS 90 days af ter that. CAA § § 108(b)(2), 109(a)(1), (2). When criteria pollutants were first listed before enact me nt of th e 1970 Clean Air Act , considerable work had already been done on criteria documents that made this schedule feas ible. 73 Fed. Reg. at 44483/2. Alt hough EPA does not have discret io n with regard to timing once it lists an air pollutant under sect io n 108, it does have discret io n with regard to the timing of the list ing it self, as the Agency co rrectly notes. Id. To avoid a situat io n where due care cannot be taken to consider the science fully and what the “requisite” level o f any NAAQS should be, in t he event EPA decides to list a GHG as a criteria air pollutant under sect io n 108, it should wa it to list until af ter it has
com pleted most of it s work on the ai r qualit y cr it eria
. Thi s would be important to ensure that the Ad ministrator has all of the relevant scient ific info rmat io n to determine at what specific level any NAAQS for GHGs would be “ ‘requisi te’
-- th at i s not lower or higher than is necessary

-- to protect the public health wit h an adequate margin of safet y” o r the “public welfare fro m a ny known or anticipated adverse effects associated with the presence of such air po llutant in the
a mbient air.” Whitman , 531 U.S. at 475
- 76; CAA § 109(b)(1), (2). Wit h regard to the setting of NAAQS, EPA specifically notes that in its view it has di scretion to set either a primary or a secondary standard for a pollutant. 73 Fed. Reg. at 44478/2. EPA notes that it revoked the secondary standard for carbon monoxide after a review of th e scient ific evidence indicated that there was no evidence of adverse welfare effects from th e presence o f carbon monoxide in the ambient air. Id. Thi s does not answer t he question, however, of whether the CAA authorizes EPA to establish a secondary standard for an air97

pollutant without a primary standard. UARG agrees with EPA that any possible public heal th effects fro m th e presence of GHGs in t he ambient air are the re sult of indirect effects from “ecological and meteorological changes, which are effects on welfare , ” and that it might not have th e scient ific evidence needed to establish a primary standard for GHGs. Id. Because of the lack of scient ific evidence regard ing direct effects of GHGs on public healt h, EPA discusses the possibilit y of setting only a secondary NAAQS for GHGs to address welfare effects. Should EPA decide to fo llo w that course of action, it would need to discuss its legal authorit y fo r setting
a secondary standard wi

thout a primary standard. EPA notes that it has precedent for list ing related compounds as a group rather than individually and has done so with nitrogen oxides and particulate matter. Id. at 44477/2. EPA di scusses the fact that l ist ing each GHG separately would present “significant challenges” for determining which level is appropriate because “the science of global climate change is generally fo cused on the total radiat ive impact of the combined concentration of GHGs in the at mo s phere.” Id. at 44479/2. Because the level that would be required to protect public health and welfare for any individual GHG is highly dependent on the concentration of other GHGs in the atmosphere, setting individual levels presents challenges. Id. In th e event EPA decide s to use section 108 of th e Act, UARG generally supports list ing GHGs as a group , if at all, but only if endangerment and other applicable statutory criteria have been satisfied for all of th e gases to be regulated. UARG emphasizes th at any CAA program to regulate GHGs wo uld need to encompass sources of all GHGs and not only sources of CO 2 . 17

17 Mo re over, if EPA decides to regulate GHGs as a group under the Act, UARG supports measuring these GHGs using a commo n deno minator, such as CO 2 - equivalent.98

C. Issues Relating to Possible Regulation Through Performance Standards for New and Existing Stationary Sources (CAA § 111) Notwi th standing EPA’s st atements that th e ANPR does not represent an Agency po licy decisio n, it app ears from it s discussio n of new source performance standard (“NSPS”) authorit y th at EPA believes that CAA sect io n 111 in its current form may provide the most appropriate authori ty and flexibilit y t o regulate GHG emissio ns from stationary sources under the CAA, including through a broad cap

- and

- trade program. 18 For that reason, it is particularly important th at EPA carefully consider the many factors discussed below th at suggest that section 111 is not an effective program for GHG regulat io n. Indeed, regulat io n under the exist ing section 111 would impose significant costs on companies and consumers at a time o f great financial uncertaint y w it hout a clear healt h or environmental benef it
. As described below, and in response to the many issues raised by EPA in the ANPR, UARG does not believe sect io n 111 is an appropriate mechanism for regulating GHG emissions
. Moreover, r egulat io n of GHG emissio ns under section 111 generally would not meet the policy design criteria set forth in the ANPR. In particular, using NSPS authori ty would requi

re lo ng, expensive , and co mp lex category

- by

- category regulatory development th at would be significant ly limited by the techno lo gi es available for emissio n reductions. In addit io n, s ection 111 regulat io n could greatly overburden the Agency and states by requiring regulat io n of a large segment of economic actors without a real environmental benefit. Such regulat io n also may not

18 If EPA decides to propose to regulate GHGs through a cap

- and

- trade program, i t needs to address and sol icit public comment on whether it is the appropriate federal agency to administer such a program. The size of a cap

- and

- trade program for GHGs would be enormous and would dwarf the size o f any of EPA’s exist ing trading programs. It might be more appropriate for another federal agency wit h mo re expertise in co mmo di ti es markets

-- such as the U.S. Commodit y Fut ures Trading Co mmission

-- to manage and administer a GHG market.99

necessarily support an effect ive and broadly

- based cap

- and

- trade program, further increasing costs to regulated industries and consumers. Should EPA nevertheless decide to propose GHG regulat io ns under s ect io n 111, it must be careful to do so in an even

- handed manner and not overbur den the electric power sector simply because more informat io n is known about emissio ns fro m t hat sector and (arguably) potenti al emissio n reduction opportunit ie s fo r that sector than for some other significant contributors. Moreover, any section 111 stand ard should not disproportionately burden small er electrici ty generating units, which const it ute a significant element of the nat io n’s power generat io n supply.

1. Authority T o Regulate At th e outset, it must be stressed that an affirmat ive endangerment determinat io n under CAA sect io n 202(a)(1) neither requires regulat io n under sect io n 111 nor makes regulat io n under it inevitable. Section 111 establishes an endangerment criterion fo r new categories o f st ationary
sources of pollutants and in this respect, there fo re, differs significant ly fro m C AA sect io n 202(a)(1) and o th er relevant CAA sections that address regulat io n of pollutants . Under section 111, the Administrator may revise a list of categories of stationary sources and “shall include a category of sourc es in such list if in his judgment it causes, or contributes significantly to, air pollut io n which may reasonably be ant ic ipated to endange r public healt h or welfare.” CAA § 111(b)(1)(A) (e mp hasis added). Section 111 thus differs fro m sect io n 202(a)(1) and other CAA sections because it addresses categori es of sources, not pollutants. Moreover, it provides EPA with significant di scretion as to whether or not to list a so urce category. In addit io n , i t requi res that the category of sources “significant ly” c ontribute s to endangering air po llut io n. Perhaps most important, for source categories that are already listed under section 111, EPA has broad discret io n to decide100

whether or not to adopt standards for addit io nal pollutants. See, e.g. , 73 Fed. Reg. 3583 8, 35858/3

- 35859/1 (June 24, 2008) (preamble to final rule on petroleum refineries NSPS)
. Therefore, should EPA determine that GHGs me e t th e sect io n 202(a)(1) endangerment test, this would not requi

re EPA automat ically to list new categories o f so urces of GHG s , or to add standards for GHGs, under section 111. 19 Mo reover , should EPA decide to list new categories of sources of GHGs under sect io n 111(b), it would need to show th at such catego ri es “significant ly” contribute to air pollut io n th at endanger s publ ic health or welfare. Moreover, the endangerment language cited above is di rect ly relevant only to new, reconstructed , and modified sources. Many large sources of GHG emissio ns, e.g. , fo ssil fuel

fi red steam generators, industrial

- co mmercial

- inst itutional steam generating units, municipal waste com

bust ers , Portland cement plants , and petroleum refineries, are already subject to sect io n 111 standards for convent io nal po llutants. EPA can set standards for “new ” pol lutants (i .e., pollutants that generally ar e not otherwise regulated under the CAA) at exi st ing sources, but only indirect ly, by publishing “emissio ns guidelines.” Following publicat io n of such guidelines, th ese exist ing sources are regulat ed pursuant to state plans that set perf ormance standards th at take into consideration, among other factors, “the remaining useful life of the exist ing source.” CAA § 111(d) (1)
. As a result , GHG emissio ns may be treated very different ly u nder section 111, depending on whether they are emitted from categories o f new stationary sources or exist ing sources
. At th e same time, regulation of GHGs fro m a new or existing source may very well render GHGs “subject to regulat io n” under the CAA, and thus require GHGs to be considered in

19 Should EPA nonetheless decide to propose to regulate GHG s under sect io n 111, UARG would urge EPA to consider adding a broader set of new categories to lessen the burden on the electric power sector and other listed categories
.101

a Best Available Control Techno lo gy ( “B ACT ”) analysis for any PSD permit, reg ardless of th e ty pe of source to which the permit would apply . Therefore , regulat io n of one or more sources of GHGs under sect io n 111 may result in piecemeal and inconsistent regulat io n of emitt ing industri es yet re quire all major new sources of GHG emissio ns to undergo PSD determinat io ns. 73 Fed. Reg. at 44492/3. This ad hoc , di sj oint ed approach to regulat io n c ould significant ly undercut any cost savings EPA would seek to achieve through market

- based mechanisms under sect io n 111
. 2. Efficacy EPA right ly po int s out that section 111 differs from other CAA pro visio n s in that, when EPA determines under sect io n 111 to list and regulate a category of sources (or set a design, equi pment, work practice , or operational standar d), i t m ust consider the cost of achieving emissio n reductions alo ng with a ny non - ai r qualit y healt h and environmental impact s and energy requi rements, CAA § 111(a), (h) , -- a range of factors beyond harm to public health or welfare
. In addit io n, sect io n 111 includes considerat io ns o f “e fficacy.” Under sect io n 111(b ) (1)(B), EPA in general is to review new - source standards of performance at least eve ry eight years, and shall revise them “if appropriate,” but need not review a standard (m uch less revise it) if it determines th at “such review is not appropriate in light of readily available informat io n on the efficacy o f such standard.” In other words, where EPA has already set standards for a category of sources, such as electric ut ilit y steam generat ing un it s, it is not r equired to review or revise the standard s
or to add standards for new pollutants fo r that source category if it does not consider such actions to be efficacious. 20

20 EPA has taken the posit io n in response to comments on its final NSPS rules for petroleum refineries and fo r Portland cement manufacturers developed under the eight

- year review provi sion th at i

t i s not requ ir ed by section 111(b) to promulgat e a new standard of performance (continued...)102 3. Policy Design Criteria According to EPA, it should consider potenti al so urces of regulat io n based on specific policy design cri

teri a set forth in the ANPR . 73 Fed. Reg. at 44491/2. Regulat io n of GHGs under sect io n 111 would meet few , if a ny , of th ese criteria.

a. Effectiveness of H ealth and E nvironmental Risk R eduction GHG emi ssi on s in the United States occur fro m a nu mber of ty pes of sources, including sources in th e transportation, resident ia l, commercial , and industrial sectors. Id. at 44402
- 03. Even within a given sector, emissio ns occur from a combination o f large and sm all sources. Moreover, the perceived threat to human healt h and the environment is from glo bal emissio ns. Thus, it is difficult to determine whether reductions from emissions fro m any one sector in t he United States would be ef fect ive in r isk reduct io n. Section 111 regulat io n, however, does not allow regulatory decisio ns by sector but by source category . Thi s makes it very difficult, if not impossible, to determine whether a performance standard fo r a specific source category will really be effect ive in reducing any public health or welfare ri sks th at may be associated with collect ive emissio ns . Moreover , as discussed belo w, i t might be difficult to set a standard appropriate fo r all sources in even one sector, given cost and techno lo gy considerations. For example, small electric steam generat ing unit s make up an important part of the U.S. power sector but may warrant different standards or limits than larger sources, possibly co mp licat ing efforts to determine whether NSPS regulat io n would even be effec tive for the power industry.

fo r an air po llut ant not already covered by a standard of performance under review. See 7 3 Fed. at 35859 /1

- 2; 73 Fed. Reg. 34072, 34084/2

- 3 (June 16, 2008) . Rather, th e Agency has discret io n to decide whether to do so. 73 Fed. Reg. at 35858

- 60 ; 73 Fed. Reg. at 34084/2

- 3. UARG agrees th at EPA has discret io n as to whether to include GHGs in a standard of performance.103

EPA would likely have to subcategorize steam generating unit s and set different NSPS for different sizes and fossil fuels as well as distinguish between new and exist ing units.

b. Certainty and Transparency of Results Similarly, given the category

- by

- category nature of r egulat io n under sect io n 111, differences in emissio n s levels amo ng different ly sized and differently configured sources, and th e global dist ribut io n of GHGs, it would be diffic ul t to determine whether standards for a given source or category
-- or even a number of categories

-- wo uld reduce nat io nal or global GHG emissio ns, let alone reduce any healt h or environmental risk in the United States.

c. Cost Effectiveness and Economic Efficiency This is a particularly impo rtan t cri terion becaus e cost, efficacy, technological availabilit y, environmental impact , and energy requirements are all statutory factors t hat EPA must co nsider under sect io n 111 . Cost
- effect iveness and efficiency are particularly important factors to
c onsider given the current economic climate and financial troubles facing consumers and industry
. d. E quity Considerations Regulation of GHGs under sect io n 111 would raise equi ty concerns becaus e sect io n 111 regulat io n is based on specific source categories an d is not comprehensive across all econo mic sectors that emit GHGs. In fact, in the ANPR, EPA ask s whether section 111 would allow EPA to regulate GHGs only fro m certain source categorie s fo r which it has adequate informat io n on emissio ns and reduction opp ortunit ie s or fo r which control techno lo gi es may be available. This picking and choosing of source categorie s could result in the inequitable imposit io n of costly control s on one sector (or even on one category) while other sectors or categories would not be so regulated. Moreover, any regulat io ns th at significant ly raise electricit y costs would have a104

di sproporti onate impact on consumers at lower income levels and could drive some industrial operations to foreign countries , leading to job losses.

e. Policy Flexibility Over Time Alt hough sect io n 111 regulat io n gives EPA some flexibilit y t o address sources different ly th rough subcategorizat io n , EPA also appears to recognize the limitat io ns inherent in the NSPS approach , under which “stretch goals” may not be appropriate and control techno lo gi es must be adequately demonstrated. In addit io n, serious questions have been raised by environmental groups and some states as to whether section 111 is an appropriate statutory vehicle for a broad

based cap

- and

- trade sys tem
.

f. Incentives for Innovation and Technology Development As is discussed below and as EPA acknowledges, sect io n 111 does not lend itself to imposi tion of “t echno lo gy- fo rcing” regulat io ns due to requirements that techno lo gy be demonstrated and available a nd th at st andards be “achievable.”

g. Pro - Competitiveness EPA could create internat io nal co mpetit iveness issues by establishing costly standards for certain categories of sources that are not regulated similarly outside the United States. Moreover, EPA could conceivably create domest ic com pet it iveness issues between and amo ng sectors, such as betwe en large and small sources that have different techno lo gical and financial capabilit ies, bet ween categories of sources , and between sectors . Indeed, the very flexibilit y t hat EPA perceives in sect io n 111 to prioritize and different iat e among source categories can lead to
com pet it iveness issues. Becaus e exist ing

- source regulat io ns are imposed through state plans , a possibilit y also exists of creating co mpet it iveness issues among states and regions.105 h. Administrative Feasibility Alt hough EPA may be able to administer NSPS for GHG emissio n s fro m certain source categori e s wi

th adequate monitoring and reporting capacit y, it would not be able to address the full scope of GHG emissio ns fro m a ll significant sectors without establishing tailored standards
or measures for all such sectors. These efforts could quickly overwhelm the capacit y o f t he Agency (as well as so me o f t he sources). Moreover, EPA must consider the admin istrative burdens on states , which would be the primary implementers of standards for existing sources (in addi tion to the burdens on states and facilit ies resul ting from th e fact that section 111 regulat io n would trigger PSD and Title V oblig ations fo r GH Gs ). States face increasing burdens on their
resources , and state

- to
- state administration may vary considerably.

i. Enforceability To a large extent, enforcement is a funct io n of ease of administration, monitoring, reporting, and inspection. As wit h admini strative feasibilit y, EPA may be able to enforce NSPS adequately fo r some categori es o f so urces but may find it difficult to do so for other source categori es or certain sources wi thin categories. Moreo ver, enforcement of standards for exist ing
sources wo uld be a state responsibilit y a s an init ial matter, and enforcement may vary considerably amo ng states, especially considering reduction s in state administrative and enforcement resources in an econo mic downturn.

j. Avoidance of Unintended Consequences As und er oth er CAA sect io ns, regulation o f GHGs fro m e ven one source category under sect io n 111 could be expected to make all major sources of GHGs subject to PSD and Tit le V requi rements fo r GHGs
. 73 Fed. Reg. at 44492/3
. Thus, even if EPA should decide to re gulate only one or a few source categories to simplify administration of the NSPS program, it may find it self overwhelmed by permitt ing requirements under the PSD and Tit le V programs. As106

di scussed above, category

- by

- category regulat io n may cause differen ti al cost s and burdens
among sources , while increasing costs to consumers at a time of great financial uncertaint y. Moreover, some may argue that any ma ndated increases in efficiency may trigger NSR requi rements fo r exist ing units on the theory that more efficient equipment would be able to run lo nger, raising the potential for enforcement actions and cit izen suits. NSR could , in turn, significant ly affect costs and timing for facilit ies trying to meet efficiency

- based standards. Finally, achieving lower emissio ns of convent io nal pollutants, such as NO x and SO 2 , can give ri se to sig nificant ancillary power (“parasit ic energy”) needs to operate pollut io n control equi pment , potentially leading to more, not fewer, GHG emissio ns.

4. New and Existing Sources EPA ask s in the ANPR whether, if sect io n 111 s tandards were set for GHGs fro m specific source categories, those standards should differ between new and exist ing sources. If,
notwi th standing the concerns described above about the appropriateness of sect io n 11 1 regulat io n at all , EPA proposes regulat io ns under section 111, it should treat new and exist ing sources differently. Under sect io n 111, standards of performance for both new and exist ing sources share several co mmo n criteria, including th e requi rement t hat section 111 standards be established considering costs and energy requirements. These commo n criteria, however, will of ten result in different considerat io ns for new and exist ing source s. In most cases , it would be
mo re costly and energy

- int ensive to impose emission limits that would require retrofi ts at exist ing sources to meet emissio n standards than to require th at new sources meet limit s wi th emissio n control techno lo gy . For example, supercritical design bo ilers may be possible with
new u nit s fo r certain t ypes of facilit ies, but completely impract ical as a retrofit option. Difference s in cost s and energy requirements can also affe ct any resul ting environmental benefits.107

Significant ly, sect io n 111(d) recognizes the differences between new and exis ting sources by including , as an addit io nal criterion for existing sources , th e “remaining useful life o f t he exist ing source to which [ th e ] standard applies.” CAA § 1 11(d)(1) ; see also id. § 111(d) ( 2). Thus , any proposed section 111 standard fo r exist ing sources would have to be developed with consideration for how that standard could be met by sources with varying useful lives. This is particularly important for energy efficiency standards because a given source ’s efficiency tends to d iminish over its useful life, and invest me nt s that may be econo mical for a newer source ma y be inappropriate for an older source near the end of its useful life.

5. Definition of Source Categories and Coverage of Sources Section 111 gives EPA considerable discretion in dis tinguishing amo ng classes, types , and sizes within categories of new sources for the purpose of establishing NSPS
. CAA § 1 11(b)(2). The ANPR lists as relevant factors the magnitude of GHG emissio ns fro m a source category, the potency of particular GHGs e mitted, whether emissio ns are continuous, seasonal , or intermittent, what informat io n is known about that category’s emissio ns, and whether regulat ing those emissio ns would be beneficial. 73 Fed. Reg. at 44487/3. EPA then inquires whether, given such dis cret io n, it should develop sub

- or super - categories of sources or set standards to be met plant

- wide, facilit y - wide , or company - wide. It also asks whether it should set standards for all GHGs or for emissio ns of specific GHGs such as CO 2 . Finally, EPA
co nsiders whether it has the discret io n to set priorities among sources and categories, regulat ing some but not others based on such factors as available informat io n on emissio ns, cost , and availabilit y o f reduction techno lo gi es. Id. at 4448 8/2

- 3 , 44490/3. As an init ia l matter, UARG believes that any such discretion, where it exists, should be exercised in accordance wit h principles o f fa ir ness. Nothing in t he CAA requi r es EPA to set NSPS for GHG emissio ns from new, reconstructed , or modified sources simply because it makes108

an affirmat ive endangerment finding under another CAA provision. But if EPA decides to set an NSPS fo r GHGs , i

t should be careful to do so in a way that does not penalize a sector for providing data to E PA and should be careful not to do so simply because more is known about th at sector th an others. This is a particular concern for the electric utilit y g enerating sector, which has lo ng been required to report CO 2 emissions and which is subject to comprehensive regulat io n of conventional pollutant emissio ns. EPA should not succumb to the temptation to fo cus any regulatory efforts only on one sector in order to avoid difficult decisio ns wi th respect to other sectors; if it proposes GHG standards for any source categories, it should propose how it will address other significant emitters of GHG s as well , regardless of whether it may be relat ively more difficult or costly to achieve reduc tio ns fro m those source s. If EPA proposes regulat ing GHGs under section 111, it should seek to provide sour ces wi th ma ximum flexibilit y t o meet any standards or requirements, including , where appropriate, th rough subcategorizat io n of sources that co uld take into account differences among the capacit ies of various types of sources. On the other hand, s uper - cate gori es, especially those envis ag ed by EPA in the ANPR may simply be too broad to apply in a meaningful way. 21 Facilit y- wide, plant

- wide , and com pany - wide standards would provide valuable flexibilit y but also complexit y in t rying to integrate such standards int o potential econo my - wide programs like trading. Such standards also might be challenged by environmental or ganizat io ns as not authorized by the CAA. The important criteria fo r EPA to consid er are achiev ement of cost
effect ive emissio n reductions, ene rgy requirements, and other relevant factors, including equit y

21 Super
- categories, int o whi ch ma ny t ypes o f so urces are combined, may also un fa ir ly skew a finding that a source category meets the “significance” factor in sect io n 111(b) (1)(A)
. In addi tion, life

- cycle approaches, as suggested in t he ANPR, would be hard to administer, measure, and enforce.109

in relat io n to other sectors. These criteria should apply to any regulatory option th at EPA ma y decide to propose
.

6. Best Demonstrated Technology
a. Technological Availability EPA claims that “[t]he systems, and corresponding emissio n rates, need not be actually in use or achieved in pract ice at potentially regulated sources or even at a commercial scale” and th at, “if a techno lo gy is ‘adequately demo nstrated’ for use at a date in the future, EPA co uld establish a future

- ye ar standard based on that technology.” 73 Fed. Reg. at 4448 7 /1. EPA fails to show that either th e CAA or case law support s these assertions. Under se ct io n 111 , EPA is to set NSPS at a le vel th at “reflects the degree of emissio n limitat io n achievable through the applicat io n of the ‘b est system of emissio n reduct ion ’ which [ taking into account the cost of achieving such reduction and any nonair qualit y he al th and environmental impact and energy requi rem ents] . . . has been ‘ adequately demonstrated. ’” Id. at 44368/1 (quoting CAA § 111(a)(1)(A) )
. Thi s standard is commo nly referred to as “Best Demonstrated Techno lo gy ” or “BDT
. ” Section 111 “most reasonably seems to require that EPA identify the emissio n levels th at are ‘achievable’ wi

th ‘adequately demo nstrated techno lo gy .’ After EPA makes this determinat io n, it must exercise its discret io n to choose an achievable emissio n le vel which represents the best balance o f economic, environmental, and energy considerat io ns.” Sierra Club v . Costle , 657 F.2d 298, 330 (D.C. Cir. 1981). But , under section 111, it is no t enoug h t hat “the system
. . . be adequately demonstrated .” Essex Che m. Corp. v. Ruckelshaus , 486 F.2d 427, 433 ( D.C. Cir. 1973) . Rather, th e standard th at i s set based on B DT must also be “ achievable
. ” Id
. (emphasis added) ; s ee also Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 391 (D.C. Cir. 1973) (“Section 111 looks toward what may fairly be projected for the regulated future, rather than the state of the art at110

pre sent, since it is addressed to standards for new plants
. . . . It is the ‘ achievabilit y ’ of th e proposed standard that is in issue.” Thus, th e techno lo gy on which the standard is based must not be a matter of speculat io n or conjecture , cf. Na t’ l Asphalt , 539 F.2d at 787 (finding that EPA had adequate factual basis for standards), and the techno lo gy must not be “uncertain and unproven,” Sierra Club , 657 F.2d at 346

- 47 (“ The statutory factors which EPA must weigh are broadly defined and include wit hin their ambit subfactors such as te chno lo gical innovation, [but]

. . . [t] his is not to say
. . . th at NSPS may be relaxed just to accommodate an uncertain and unproven technology.”). The U.S. Court of Appeals for the D.C. Circuit has exclusive jurisdict io n t o review NSPS and has examined sect io n 111 standards on numerous occasions. See, e.g. , Nat ’ l Lime Ass’n v. EPA , 627 F.2d 416 (D.C. Cir. 1980); Nat’l Asphalt, 539 F.2d at 775 ; Essex Chem

. , 486 F.2d at 427; Portland Cement , 486 F.2d at 375 . The D.C. Ci rcui t has established a rigorous standard of review . The court, for example, has remanded s ection 111 standards where the agency had “legit imate problems wit h t he methodology of
. . . tests” on which EPA relied in setting the standards, Portland Cement, 486 F .2d at 392, and in light of the limited relevance and reliabilit y of thos e tests , i d. at 396, 401. For the standards to be upheld, the record must support the ir “achievabilit y . ” Thus, according to the D.C. Circuit, the CAA : [D] oes [not] allow the EPA t o set the standards solely on the basis o f it s subjective understanding o f t he problem or “crystal ball inquiry.” See Portland Cement , . . ., 486 F.2d 391. An adequately demo nstrated system is one which has been shown to be reasonably reliable, reasonably efficient, and which can reasonably be expected to serve the interests of pollut io n control without beco ming exorbitant ly costly in an econo mic or environmental way. An achievable standard is one which is within the realm o f t he adequately demonstrated system’s efficiency and which, while not at a level that is purely th eoretical or experimental, need not necessarily be routinely achieved wit hin the industry prior to i

ts adoption.111

Essex Chem ., 486 F.2d at 43 3
- 3 4 (footnote omitted) . The D.C. Circuit in National Lime later defined “ achievable ” as denoti ng “a uniform standard [that] must be capable of being met under most adverse condit io ns which can reasonably be expected to recur and which are not or cannot be taken into account in determining the ‘ costs ’ of com pliance.” Nat ’ l Lime , 627 F.2 d at 43 1 n.46. EPA ’s claim in the ANPR th at i t c ould establish a future

- year standard based on “adequately demonstrated” technology th at is not actually in use or achieved in pract ice mu st contend with the fact that, “ [a]l though it is conceivable that a particular control techn ique could be considered both an emerging techno lo gy and an adequately demo nstrated technology, there is inherent tensio n between the two concepts
. ” Sierra Club , 657 F.2d at 341 n.157
. In light of th e novelt y o f a ny emerging techno lo gy, i t inevitably would be harder for EPA to acquire th e necessary informat io n about th at technology th an it would to support a standard based on established techno lo gi es. Thus, if EPA were to propose a “ future

- year ” standard that is not based on techno lo gy in current commercial use , i t would have great difficult y ju stifying th at proposal in light of the sect io n 111 factors
. The ANPR la nguage di scus sed above simply does not account properly for the requi rement that any sect io n 111 standard must be achievable through an adequately demonstrated system of emissio n reduction. It also does not account properly for the role of EPA’s periodic review of NSPS. Because sect io n 111(b)(1)(B) of th e CAA requi res EPA to review N SPS periodically, the Agency does not even arguably have a need to establish “future” standards at this time based on a “crystal ball inquiry” but may undertake new rulemaking, where appropriate and just ified, to review the NSPS when a previously inadequat ely demo nstrated techno lo gy has matured to a degree that its capabilit ies can fairly be assessed. Accordingly, if112

EPA does not have enough informat io n regarding available demon strated techno lo gi es to propose a standard , i

t should wai

t unt il such informat ion exists to do so ; it should not propose or establish standards based on what technology it estimates might become available in the future. 22

b. Technological Availability in the Power Sector The ANPR and EPA’s draf t Technical Support Document on Stationary S ources (“Draft Stationary Source TSD”) make certain assumpt io ns about what techno lo gy may be available to achieve emissio ns reduct io ns at sources in var io us sectors in the near and longer term, including th e electric power sector and coal

- fi red power plant s in particular. For existing facilit ies, EPA acknowledges that flexibilit y fo r new techno lo gies is limited and instead ident ifies a number of ways plants can increase their efficiencies through “well known” modificat io ns and upgrades to plant systems sug gest ing, for example, that net heat rate reductions (improvements) of up to 10 % may be feasible through various efficiency improvements. 73 Fed. Reg. at 44488/1, 44492/1; Draft Stationary Source TSD at 16
- 18. EPA states that these options are well known in t he industry “but for many reasons are not equally feasible fro m p la nt to plant or f rom unit to unit in a plant” and th at combined cycle and simple cycle combustion turbine uni ts “have fewer physical options for significant efficiency improvement.” Dra ft Stationary Source TSD at 16. Thus , EPA effect ively acknowledges that establishing sector

- wide perf ormance standards fo r exist ing sources in the power sector wo uld be difficult and clearly would invo lve different considerations th an would establishing s tandards fo r new sources, and that BDT may not be available for all sources in a category.

22 EPA asks whether it should or must set unit

- specific requirements for categories o f so urces under sect io n 111 in addit io n t o any cap - and

- trade system . 73 Fed. Reg. at 44490 n.247. To the e xt ent that EPA proposes such standards for categories of sources as an independent requi rement, the com

pliance costs would significant ly u ndermine the cost savings EPA might estimate from use o f a cap

- and

- trade system.113

As to new sources, EPA observes that as older plants are retired, their capacit y co uld be replaced wit h new, more efficient units such as those wi th supercri

tical coal plant design , which may produce 10 % to 15 % lo wer GHG emissio n s than the average exist ing coal plant per Brit ish th ermal uni

t fo r the same amount of electricit y t hat is produced . According to EPA, future , more advanced ultra

- supercri

tical plant desig ns wit h efficiencies of about 40 % wo uld have heat rates th at are 18 % below the current coal f leet average and produce much lo wer GHG emissions than th e average exist ing coal plant. Id. at 16, 17. 23 Many of EPA ’s assumpt io ns are based on a limited deplo ymen t of supercri

tical plants wi th com paratively high thermal performance that may be beyo nd the abilit ies of th e many smaller sources that make up an important portion of U.S. electric power production , especially in rural areas. For example, a DOE report ad dressing new pulverized coal

- generat io n options reports that subcrit ical pulverized coal

- fired units are ty pified by full

- lo ad gross plant thermal efficiencies o f 37.6 % (and may be able to extract approximately 38 % to 39 % gross thermal efficiency )
. 24 Some unit s th at have recently been permi tted in the U.S. achieve efficiencies by adopting super

- cri

tical and ultra

- crit ical steam condit io n , but most higher

- perf orming new plants have been deplo yed on a limited basis in Europe and Japan. Even at new plant s , th e highest gross thermal efficienc ies th at can be achieved will degrade by 2 to 3 percentage points over the lo ad range; thus , a plant full

- lo ad gross thermal efficiency of 39 % ma y relax to a load

- weighted gross thermal efficiency of 36 % to 37 %
. EPA should also recognize the role o f var iabilit y in
23 EPA also briefly discusses bio mass co - fir ing as a potential subst it ute for coal in exist ing and future coal

- fired bo ilers. Alt hough b io mass can reduce GHG emissions, it still produces significant amounts of those emissio ns. Moreover, it s u sefulness at plants, particularly large coal

- fired plants, is acknowledged to be limited due to supply and operational constraints. Draft Stationary Source TSD at 17. 24 U.S. Department of Energy, Market

-Based Advanced Coal Power Systems , DOE/FE

- 0400 at 3.1
- 6 (1999).114

determining gross thermal efficiency and the need to account for such variabilit y in setting any NSPS based on such efficiencies. In addit io n, efficiencies of new plants inevitably degrade over the ir lifet ime s . H ist orically, the aging of equipment and co mpromise in tolerances of the steam turbine will degrade efficiency over time. That factor brings down the gross thermal efficiency of a subcri tical bo iler design over an ent ir e plant lifet ime to 36 % , which would presumably lo wer the lifet ime estimates of efficiencies in higher thermal performance techno lo gi es. In addit io n, whereas high thermal efficiency techno lo gi es for new units have been u s ed in a limited number of plants around the world, mandat ing such effic iency in a n NSPS could eliminate or severely restrict the role of smaller generat ing unit s ( i. e. , less than 200 megawatts ) that are key to the portf olios o f s maller public power and municipal agencies. Thi s is a crit ical problem becaus e NSPS m ust be broad ly a chievable by sources and applicat io ns in a given regulated sector. Finally, EPA asks whether section 111 might allow for “techno lo gy- fo rcing” requi rements , a subject discussed above . The techno lo gy fo rcing concept might apply to expectations of refinements and improvements in the po llut io n control capacit y o f a t echno lo gy th at is already well demon strated , as opposed to a regulatory “ leap of fait h” th at a techno lo gy th at is not demonstrated today will eventually prove to be a viable techno lo gy wi th in so me time certain. For example, it may be rational for EPA to project that select ive catalyt ic reduction could achieve 88 % NOx reductions so me ye ars in the future if it has determined that th at techno lo gy can current ly reduce NOx by 86 % . But unless a te chno lo gy is currently viable, any assessments of the cost of achieving any emissio ns standard premised on th at techno lo gy would rest on speculat io n would, thus, be impermissible
.115 c. Carbon Capture and Sequestration EPA also seeks informat io n as to whether CCS techno lo gi es are adequately demo nstrated to be available in the electric power and other sectors. 73 Fed. Reg. at 44492/1

- 2. Alt hough CC S may indeed ho ld promise for mit igat io n of GHG emissions in the future , i t i s not currently available or ready fo r large - scale and rapid deplo yment. At the current time , it has not been adequately demonstrated on the necessary scale and is not present ly a vailable to most sourc es, and thus cannot be relied on in a section 111 context to achi eve necessary reductions eith er at exist ing or at new or modified sources. Numerous impediments exist to wide

- scale application of CCS techno lo gy, especially in th e power sector. For example, in a recent study, the U.S. Go vernment Accountabilit y Office (“GAO”) found that key techno logical barriers include a lack of experience in capturing significant amounts of CO 2 from co mmercial

- scale power plants and the significant costs of retrofitt ing exist ing plants. 25 GAO found that, to date, there have been only small

- scale tests of CO 2 capt ure at power plants around the world, and these projects typically remo ve CO 2 from only a small fraction of the power plant’s overall output; “ CO 2 capture has not been demonstrated on a large scale at a power plant in the United States or in any country.” GAO

25 GAO Report, Climate Change, Feder al Actions Will Greatly Affect the Viability of Carbon Capture and Storage As a Key Mitigation Option, Report to the Chairman on the Select Committee on Energy Independence and Glo bal War ming, House of Represe nt atives, GAO

- 08
- 1080 (Sept. 2008 ) (“GAO Report ”) . In particular, GAO noted th at th e challenges to CCS deploy ment include: “(1) the absence of any co mmercial

- scale demo nstration of the techno lo gy at a power plant; (2) certain limitat io ns of coal gasificat io n t echno lo gy fo r capturi ng CO 2 emissio ns at new power plants; and (3) the high cost of retrofitt ing CCS to exist ing pulverized coal

- fired power plants that will, for the next several decades, account for a significant share of U.S. CO 2 emissio ns.” GAO Report at 16; s ee also Wo rld Resources Inst it ut e, CCS Guidelines: Guidelines for Carbon Dioxide Capture, Transport, and Storage at 34 (2008) (discussing high costs of retrofit relat ive to costs for new plants, as well as facilit y space limitat io ns and other factors that make retrofit difficult); id. a t 35 (noting that CCS techno lo gi es have not been proven on a commercial scale).116

Report at 17. Further, the IPCC found in its special r eport on CCS that “there have been no applicat io ns [of carbon capture] at large

- scale power plants of several hundred megawatts.” 26 Indeed, DOE , th e International Energy Administration, and others have reco mmended accelerating the development of full

- scale CCS demo nstration proj ects for thi s very reason. 27 Fin ally, parasi

ti c energy costs associ ated wi th using CCS techno lo gy are substantial
. There are further techno lo gical barriers to the availabili ty of CCS techno lo gy . Integrated Gasification Co mbined Cycle (“IGCC”) technology co mbined with CCS is seen by some as promising for new plants becaus e CCS costs are thought to be lower at IGCC plants than at pulverized coal

- fired plants . There are impediments, however, to deploy ment of IGCC techno lo gy wi

th CCS , includ ing th e large costs of construction, reliabilit y co ncerns, and challenges to building new plants in the United States. Mo reover , the GAO Report concludes th at “[k]ey assessments indicate that p ost
- co mbust ion capture of CO 2 , which would be used at
26 IPCC , Speci al Report on C arbon Dioxide Capture and Storage at 107 (2005). The GAO Report does conclude that carbon capture techno lo gy has been demo nstrated at plants that purify natural gas and produce chemicals, and so me o f t he captured CO 2 at those plants is used in enhanced oil recovery, while the remainder is vented. GAO Report at 17 & n.15. According to th e GAO Report, there are techno lo gical barriers to direct adaptat io n of CCS techno lo gi es fro m th e natural gas purificat io n process to coal

- fired power plants, and CCS in the natural gas processing industry would account for a very small percentage of GHG emissio ns per year from large stationary sources. Id. at 18. 27 GE O reported that t he National Coal Council noted that CCS “ ‘ deployment will require successful pilot

- scale testing and operation at a demo nstration scale of 50 to 100 megawatts before com

panies will have confidence in their cost and performance for large s c ale systems. ’ ” GAO Report at 16; s ee also Union o f Concerned Scient ist s, Coal Power in a Warming World ; A Sensible Transition To Cleaner Energy Options , Exec. Summ. at 1
- 2 (Oct. 2008) (“UCS Report”) (“CCS is still an emerging techno lo gy . It has the poten ti al to substant ia lly reduce CO 2 emissio ns fro m co al plants, but i t also faces many challenges. In its current form the techno lo gy would greatly increase the cost of building and running coal plants while greatly reducing their power output. . . . For CC S to play a major role in reducing CO 2 emissio ns, an enormous new infrastructure must be constructed to capture, process, and transport large quantit ie s of CO 2 . And alt hough CCS has been the subject of considerable research and analysis, it has yet to be demonstrated in the form of co mmercial

- scale, fully integrated projects at coal

- fi red power plants.”).117

pulverized

- coal power plants, faces significant technical challenges that greatly affect the cost and feasibilit y o f it s deplo yment using current ly a vailable techno lo gy .” Id. at 22. 28 Bey ond techno lo gical and cost limitat io ns, there are regulatory and legal uncertaint ies th at serve as significant barriers to the availabilit y of CCS, including legal uncertainty regarding liabilit y fo r potenti al CO 2 leakage and ownership of th e CO 2 once it is injected. Id. at 15, 23
- 26 ;
s ee also Wo rld Resources Inst it ute, Capturing King Coal: Deploying Carbon Capture and Storage Systems in the US at Scale at 24 (2008) ; UCS Report, Exec. Summ. at 1 (observing that “t he development of regulatory standards and mechanisms t o guide this process[] will be needed to minimize the environmental risks associated with CO 2 leakage (including groundwater contaminat io n)”). These uncertaint ies are seen as present ing significant financial barriers to further development and deplo yment. 29 Consequently, f or many reasons, CCS techno lo gy could not be considered adequately demonstrated or available as BDT at thi s time fo r section 111 standards for the power sector or for mo st other major GHG

- emit ting sectors. Mo reover, g iven it s cost and co mp lexit y, CCS would not be appropriate for the mult it ude of smaller sources of GHG emissio ns.

28 The GAO Report ident ifies such challenges as the need to treat large vo lu mes of flue gas to remove CO 2 , the need to remove impurit ies fro m t he flue g as before CO 2 removal , the large amount of energy needed to compress the captured or separated CO 2 , and the significant cost increases in retrofitt ing CCS to an exist ing plant. As to the last factor, an IPCC assessment concl uded that retrofitting a CO 2 ca pture system to exist ing coal

- fir ed power plants would increase the incremental cost of producing electricity fro m abo ut 150 % to 290 %
. GAO Report at 22
- 23. 29 See e.g. , CCS Alliance , “ Study of Legal Issues Relat ing to Risk and Liabilit y in Connect io n wi th Carbon Capture and Storage” (July 23, 2008), available at http://www.ccsalliance.net; C. Trabucchi & L. Patton, Storing Carbon: Options for Liability Risk Management, Financial Responsibility , Daily Environment Report, Vol. 2008 no . 170 (Sept. 3, 2008) (p roposing a design fo r addressing the financial risk arising from deplo yment of CCS techno lo gy ).118 7. Market Mechanisms EPA opines that section 111 as it currently exists can provide statutory authori ty fo r a
com prehensive cap

- and

- trade program fo r GHG emissio ns because such a program meets the th ree criteria for “standard of performance” set out in section 111(a), namely that such a program would const it ute ( 1) “a standard for emissions of air pollutan ts,” that (2) “reflects th e degree of emissio n limitat io n achi evable , ” and (3) does so “through the applicat io n of the best system of emissio n reduction” that “has been adequately demo nstrated. ” 73 Fed. Reg. at 44491/2; s ee CAA § 11 1(a)(1). There are several reasons fo r believing that questions likely would be rais ed as to whether a proposed cap

- and

- trade program under sect io n 111 actually would sat is fy those cri teria
.Fi rst, section 111, as no ted above, authorizes regulation by category of sources and not by po llutant. It is not practical to set, administer , and e nforce NSPS for every source of GHG emissio ns in the Uni

ted States, and EPA, should it decide to propose regulat io ns fo r GHG emissio ns under the CAA, will certainly look to the major sources of those emissio ns. I f it does regulate , EPA may be able to crea te an industry

- specific cap

- and

- trade program in which only some categories of sources and sec tors could participate, but that approach would undercut one of th e presum

pt ive ma in goal s of a ny broad

- based cap - and

- trade regime

-- to maximize emissio ns reduct io ns and spread the costs across the economy so th at no one industry, or it s
c ustomers, is d isproportionately burdened. Second, assuming that GHGs are not listed as criteria pollutants or regulated under sect io n 112, promulgation o f NSPS for GHGs would als o trigger regulat io n under section 111(d) fo r exist ing sources. But regulation o f exist ing sources is a state funct io n, albeit one based on EPA guidelines. The Agency itself recognizes the need for compat ible state rules “pro mo ted” by EP A rules and guida nce if such a broad cap

- and

- trade program were to be possible under sect io n119

111
. 73 Fed. Reg. at 44487/2. This may be very difficult to achieve in practice as states may choose different regulatory approach es and might not be required to jo in, or to coor dinate their programs with, a nat io nal trading program. Indeed, under the now

- invalidated Clean Air Mercury Rule (“CAMR”), which was based on section 111 authorit y a nd sought to create a cap

and

- trade program fo r mercury emission s, several states declined to implement the model cap

and

- trade program th at EPA had adop ted. Thi rd, environmental organizat io ns have raised significant questions as to whether sect io n 111 can provide the legal basis for a trading program. When EPA use d sect io n 111 to establish a cap - and

- trade program fo r mercury under CAMR, it was strongly opposed by those organizat io ns, arguing that a trading program that allowed so me sources to purchase emission allowances and not reduce their own emissio ns did not constitute a “standard of pe rf ormance” wi thin the meaning of sect io n 111 b ecause , in their view, it did not constitute “a requirement of continuous emissio n reduction , including any requirement relat ing to the operation or maintenance of a source to assure continuous emission reducti on. ” CAA § 302 ( l) (emphasis added) (defining “standard of performance”) . These groups further argued that, under section 111(d), each source had to achieve continuous emissio n reductions and that sections 111(a) and (d) requi red state plans under sect io n 111(d) to reduce emissio ns fro m any and all exist ing sources covered by those plans . Finally, these groups argued that EPA would be prevented from inst it uti ng a trading program under sect io n 111 by application o f ASARCO Inc. v. EPA , 578 F.2d 319 (D.C. Ci r. 1978), which rejected a proposed form of emissio n s trading under sect io n 111 becaus e, among other things, it allowed operators to “avo id installing the best pollut io n control techno lo gy” and th ereby “postpone[d] the time when the best technology must be em ploy ed.” Id. at 327
- 328.120

T he environmental groups argue d that section 111 is meant to apply uniformly to new and
mo dified sources, regardless of their location. See Final Opening Brief o f E nvironmental Peti tioners, New Jersey v. EPA , No . 05
- 1097 , at 26
- 29 (D.C. Cir
. final form br ief filed July 23, 2007). Alt hough the D.C. Circuit to date has had no occasion to resolve the merits of this argument, one cannot conclude that such an argument would not be made to challenge the legal basis of any sect io n 1 11 cap
- and

- trade program fo r GHG emissio ns.

8. Updating Information and Standards EPA solicit s comment on whether and how often it should revis e standards and require and review informat io n fro m so urces under sect io n 111
. 73 Fed. Reg. at 44489/2

- 3. UARG und erstands that global climate change is a long

- term is sue with an ev olving body of science and data, and that techno lo gies change over time, so that regulatory programs must have the flexibilit y t o adapt. Alt hough sect io n 111 does provide EPA with authorit y t o revi se NSPS periodically, i

t i s not required to do so, and in fact, need not review (or revise) them if it is “not appropriate in light of readily available inf ormat io n on the efficacy o f [the] st andard.” CAA § 111(b)(1)(B). If EPA decides to propos e to regulate GHGs under sect io n 111, it should ensure th at any po licy it follows on requiring submission of informat io n and on revising standard fairly and appropriately balances the need to reflect significant new circumstances wit h sources’ need fo r long - term planning and certainty, and it should not impose unnecessarily onerous reporting and informat io n requirements. For example, the Agency should not c onstant ly update standards but do so only when substant ia l developments occur in new and available te chno lo gi es. D. Issues Relating to P ossible Regulation of GHGs as Hazardous Air Pollutant s (CAA § 112) Section 112 is the third “main regulatory pathway” identified by EPA for possible regulat io n of stationary sources under the CAA. EPA must list for regulat ion all categori es of121

major sources that emit one or more of the hazardous air pollutants (“HAPs”) listed under sect io n 112. If it decided to regulate GHGs under sect io n 112, EPA would first need to add GHGs to the list of HAPs and then would need to regulate GHG emissions fro m all major sources of GHG emissio n s. A source is considered “major” under sect io n 112 when it emits or has the potential to emit 10 tons per year or more of any one HAP or 25 tons per year of any combinat io n of HAPs. CAA § 112(a)(1) . For many o f t he reasons identified by EPA, regulation of GHGs under section 112 would be problemat ic. As EPA notes, regulat io n under sect io n 112 would result in EPA having to regulate a very large number of new and exist ing stationary sources, including small GHG emitters, because of the low 10 and 25 ton per year thresho lds. Unlike sect io n 111, section 112 does not give EPA discret io n to limit regulat io n t o those sources that contribute “significant ly” to air pollut io n endangering public healt h and wel fare. 73 Fed. Reg. at 44494/2

- 3. EPA is right to be concerned that a large number of small sources would be required to comply if GHG regulation
occurr ed under section 112. Given th e sect io n 112 thresho lds, a large family residence that has all natural gas appliances would have to comply wit h GHG regulat io n. Id. at 44495/1. On the other hand, one aspect of regulation under section 112 is t hat po llutants regulated under that section are exempt from regulation under the PSD program. CAA § 112(b)(6) . In addi tion, a section 111 standard fo r exist ing sources also cannot be established to regulate emissio ns of a listed HAP that are regulated under sect io n 112. Id. § 111(d)(1) (A)(i)
. Any usefulness th at these exemptions ma y provide, however, are outweighed by the disadvantages of regulat io n under sect io n 112. For example, although regulat io n under the PSD program would be precluded by regulation under sect io n 112, the problem that the PSD program presents with regard to the sheer numbers of covered sources would only be magnified under sect io n 112. The122

th resho ld s fo r the PSD program are 100 or 250 tons per year of a GHG. As discussed above, the th resho ld s fo r regulation under sect io n 112 are much lower

-- 10 or 25 tons per year. Thus, far fro m decreasing th e number of sources that would have to comply wit h GHG regulat io n, regulat io n under sect io n 112 would be expected to inc rease that number exponent ia lly In addit io n, EPA would have lit tle flexibilit y w it h regard to the timing of any control s fo r GHGs as l isted HAPs under sect io n 112. EPA says that, under section 112, it generally would have to adopt ma ximum achievable control technology (“MACT”) requirements for new ly listed source categories within two years af ter i t lists the source category. 73 Fed. Reg. at 44494/3 . As EPA notes, MACT standards are more complicated to set than standards under sect io n 111; and meet ing a two
- year deadline for developing a MACT standard would be difficult ; and these short timelines would not allow time for emerging GHG t echno lo gi es to be further developed. See id. at 44494/3, 44495/2 Another aspect to regulat io n under sect io n 112 is that regulat io n under sect io n 112 might precl ude regulat io n of GHGs under the NAAQS program of sect io n s 108 and 109 . As EPA acknowledges, however, al though it is clear that regulat io n of an air pollutant under sect io n 108 generally precl

udes regulat io n of that pollutant under section 112, it is mu ch le ss clear that the converse is true. Id. at 44495/2. I f EPA should decide to p ropos e regulation under sect io n 112, it will need to explore f

urther whether a basis exists for concluding that doing so wo uld preclu de regulat io n under sect io n 108. EPA also notes that a significant impediment to any GHG regulat io n under section 112 is th at , in EPA’s view, th at section does not provide it with the flexibilit y t o use a market

- based app roach to GHG regulat io n, which c ould mean that any r egulat io n of GHGs under sect io n 112 would be even more costly, and less cost

- effect ive. Id. at 44495/1.123

It i s import ant to note, however, that alt hough this point may apply generally, it may not apply to electric utilit y steam generat ing units. Electric utilit y steam generating units are subject to a specific provisio n of sect io n 112
-- section 112(n)(1)

-- which provides EPA with more flexibilit y fo r this source category th an sect io n 112 does for other categories. Section 112(n)(1) is the exclusive regulatory authori ty under which section 112 for this source category
. As UARG explained in it s comments on EPA’s propos ed C AMR , UARG believes that section 112(n)(1)(A) provi des EPA with authorit y t o adopt a cap - and

- trade program fo r electric utilit y steam generat ing units. See Comments of the Utility Air Regulatory Group on the Proposed National Emissio n Standard for Hazardous Air Pollutants; and, in the Alternat ive, Proposed Standards of Performance for New and Exist ing Stationary Sources: Electric Utilit y S team Generat ing Units, Docket ID No. OAR

- 2002
- 0056 (June 29, 2004), at 120

- 39. Section 112(n)(1) establishes an ad di

tional dist inct io n wit h respect to any regulat io n under section 112 of emissio ns fro m e lectric ut ilit y st eam generat ing units. Specifically, regulat io n of those units under sect io n 112(n)(1) can be based only on public healt h reasons; effects on public welfare are not considered in determining whether to regulate this source category under section 112 . CAA § 112(n)(1)(A). As EPA acknowledges, and as these comments discuss above, any public healt h effects fro m GHG emissio ns are far fro m scient ifically c ertain and in any event are not direct effects. See 73 Fed. Reg. at 44478/2. E. Implica tions for the PSD Program from Possible Regulation of GHGs Under the CAA The potential for regulat io n of GHGs under the PSD program presents an enormous challenge for EPA and the nat io n . The CAA requires owners and operators of ma jo r stationary sources of air po llution to obtain construction permits before building or modifying those sources. PSD applies in areas that are in attainment with the NAAQS. Nonattainment NSR124

( “NNSR”) applies in nonattainment areas and generally is mo re stringent than PSD. 30 Id. at 44497/2. Although PSD primarily applies to criteria air po llutants for which a NAAQS has been established, PSD can also apply to CAA
- regulated pollutants for which t here is no NAAQS. It does not apply to HAPs listed under sect io n 112 or to section 211(o). At the present time, EPA believes

-- and UARG agrees

-- th at PSD does not currently apply to GHGs. 31 Id. at 44497/3. If EPA decided to propose and prom ulgate a ru le establishing limit s on emissions of GHGs fro m
mo bile sources or stationary sources, PSD permits would need to contain an emissio ns limit for those GHGs that reflect s BACT. BACT is “defined as the maximum achievable degree of emissio ns reduct io n fo r a g iven pollutant (determined by the permitt ing authorit y o n a case - by

case basis), taking into account energy, environmental, and econo mic impacts.” Id. Under the PSD program, a PSD permit is required for the construction or m odificat io n of any major statio nary source th at emits or has the potential to emit 250 tons per year of a regulated pollutant (100 tons per year for a source in listed categories, including large fossil fuel

fi red steam electric plants) ; the thresho ld in nonattainment areas for NNSR generally is 100 tons per year. Id. at 44498/2

- 3. Because many sources emit CO 2 , EPA anticipates that “many t ypes of new small fuel

- co mbusting equipment could become newly subject to the PSD program if

30 If EPA decided to propose and promulgate a NAAQS for GHGs that resulted in the country being deemed nonattainment, then NNSR would apply throughout the United States. Thi s would resul t, among other things, in new and modified sources having to offset their GHG emissio ns and meet ing the Lowest Achievable Emissio n Rate (“LAER”) instead of BACT. 73 Fed. Reg. at 44498/2. LAER does not allow considerat io n of cost s or energy and environmental impacts of emissio ns control techno lo gy . Id. at 44502/2. Because the ANPR primarily discusses PSD, not NNSR, UARG’s co mments do the same. 31 Note that environmental groups, led by Sierra Club, have argued in numerous permit p roceedings that PSD does in fact now apply to CO 2 emissio ns. EPA’s Environmental Appeals Board recent ly he ld that because the language of the CAA is ambiguous on this issue, EPA has di scretion to provide a reasonable interpretation of that language. In re: Deseret Power Elec. Coop. , PSD Appeal No. 07

- 03 (EPA Envt l. Appeals Board Nov. 13, 2008).125

CO 2 beco me s a regulated . . . pollutant.” Id. at 44498 /3. Addit io nally, for sources already considered major sources, such as fossil fuel fired power plants, regulat io n of CO 2 likely would create the risk that ma ny more changes would arguably be deemed ma jo r modificat io ns. See i d. at 44499/1. As an example , EPA notes that a hy pothetical 500 megawatt electric utilit y bo iler th at burns bit uminous coal and that is well controlled for tradit io nal air po llut ants can emit more th an 580 tons per hour of CO 2 . A t such a source, a

ny change that otherwi se qualifies a s a
mo dification triggers NSR under applicable regulations and resul ts in just 10 addit io nal minutes of utilizat io n over the course of a year could resul t in a 100

- ton
- per - year increase , and thus could potenti ally beco me subject to PSD requirements. See i d. EPA currently estimates that approximately 200

- 300 PSD permits are issued nat io nally each year for construction of new sources and major modificat io ns at existing sources. If CO 2 were to become a regulated pollutant, EPA estimates that the number of PS D permit s requi red to be issued each year would increase by more than a factor of 10 (i.e., more than 2000 to 3000 permits each year). Id. at 44499/1

- 2. UARG believes, however, that this is actually an underest imate . EPA ’s estimate does not account for a source’s potential to emit year

- round but is based o n actual emissio ns, and if year

- round operation is assumed to be a source’s potential to emit, EPA’s “est imates would likely be an order of magnitude higher.” Id. at 44504/2. EPA’s sole reliance on ac tual emissio ns is misplaced, as EPA’s rules make clear that a source’s potenti al to emi

t applies in the case of brand new construction and for modifications where the exist ing facilit y has not begun normal operations. 40 C.F.R. § 52.21(b)(21). UARG agrees wi

th EPA that regulat io n of CO 2 th rough the PSD program “would be a very inefficient way to address the challenges o f c limate change.” 73 Fed. Reg. at 44501/3. To determine if it is possible to avoid the extraordinary administrative and regulatory burde n s th at126

thi s regulation would create, EPA in t he ANPR discusses various alternat ives under which , i t suggests, it mig ht be possible to mit igate the impact of PSD regulation on small sources: (1) reduce the number of sources subject to the program through “potential to emit” approaches; (2) increase the major source thresho lds and PSD significance levels for GHGs “to permanent ly restrict the program to larger sources”; (3) phase in the applicabilit y o f PSD for GHGs; (4) develop streamlined approaches to imp lement ing the BACT requirement; and/or (5) issue general permit s fo r numerous similar sources. Id. at 44503/2. EPA notes that some legal barriers may exist for some of these options, and UARG agrees. If EPA were to propose any regulat io n of GHGs that wou ld t rigger PSD, EPA w ould need to address in detail th e specific basis for any authority it believes it may have to mit igate the dramat ic and disrupt ive effects on the nature and scope of the PSD program that would flow fro m a ny such regulat io n . This issu e has generated substant ia l controversy because, for example, some environmental groups’ recent suggestions that EPA may have broad administrative or regulatory flexibilit y to mit igate or even avo id t hese effects are plainly contrary to th ei r past statemen ts. Fo r example, in the past, environmental organizations and others have argued that EPA cannot issue general permit s fo r PSD and that BACT determinat io ns must be made on a
case - by

- case basis. See, e.g. , Statement of David Hawkins, NRDC (stating that proposed utilit y BACT presumpt io n fo r NOx emissio ns fro m mo dified electric ut ilit y steam generat ing unit s (proposed at 56 Fed. Reg. 27630, 27638 (June 14, 1991)) had “no legal basis” because “[t]he Act specifies that BACT control decisio ns must be made on a case - by

- case basis”); Statement of Congressman Henry A. Waxman (stating with regard to the same proposed utilit y B ACT presum pt io n t hat “[i]t is highly unusual

-- if not illegal

-- fo r EPA to set a federal BACT presum pt io n”). EPA would need to explain in a ny proposed rulemaking on GHG regulation127

under the CAA why those prior arguments are incorrect and why contrary views now expressed by certain representatives of those groups can be relied on with assurance. See Bookbinder Testimo ny at 9 (noting that a “p ossibilit y” to avoid the PSD problem would be to “allow[] for coverage of all sources below an individual permit ting level (again, possibly 5

- 10,000 [tons per year]) to be covered by a general permit”). In addition, UARG notes that the thresho lds for PSD applicabilit y are written direct ly int o th e statute itself. If EPA decides to increase these th resho ld s to ensure that PSD applies only to large sources, it will need to just ify it s legal authori ty to take that step wit hout express congressio nal approval. EPA al so state s it s belief that PSD program requirements beco me applicable on the effect ive date of the first regulat io n requiring GHG control under the Act. 73 Fed. Reg. at 44500/1. UARG notes that exactly when a regulatio n beco mes “effect ive” can vary depending on the CAA provi sion at i ssue . For example, section 202(a)(2) of the Act specifies that any sect io n 202(a)(1) emissio n standard for new motor vehicles “shall take effect after such period as th e Administrator finds necessary to permit the development and application of the requisite techno lo gy, giving appropriate considerat io n to the cost of compliance within such period.” UARG jo ins EPA in its “strong[] belie[f]” that any CAA regulat io n of a GHG for the first time would have to be coordi nated carefully wit h a lawful and appropriate approach to PSD permitting , and EPA must consider the effects of regulat ion under the PSD program when it decides whether to propose to regulate GHGs under the Act . 73 Fed. Reg. at 44510/1. EPA states that thi s “i s necessary to minimize confusion on the part of sources, permitting authorit ie s, and the public, to provide for as effective a transit ion as possible, and to ensure that the strategies int ended to avoid problems can be in place in time to prevent those problems.” Id. UARG agrees that , because of the overwhelming burden on administrative agencies and regulated128

ent it ies that would occur i f GHGs beco me regulated pollutants for purposes of the PSD program, EPA would have to consider carefully not only th e nature but also th e timing o f any regulation o f GHGs under the CAA . Moreover, to the extent EPA believes it can propose alternat ives to ease thi s regulatory burden, it would have to provide in any notice of proposed rulemaking a com plete and adequate explanat io n of the authorit y it believes it has to accomplish this and regarding how it s act io n would not conflict with posit io ns previously taken by the Agency or the courts in this matter
. F. Implications for the Title V Operating Permit Program Due to Possible

R egulation of GHGs Under the CAA Regulation o f GHGs under any o f t he CAA provisions described above, including the PSD program, could give rise to applicable requirements that would need to be included in a Ti tle V permit. In a GHG regulatory environment, if a source emits greater than 100 tons per year of a GHG, including CO 2 , i t would need to apply for a Ti tle V permit within one year of beco ming subject to Title V requirements . The Title V permit for that source would include not only applicable require ments for the GHG but also general requirements that apply to other pollutants such as generally applicable opacity limitat io ns that exist in several SIPs. 73 Fed. Reg. at 44510/2. EPA notes that the Tit le V permit program would bring in even more sourc es than the PSD program because the 100

- ton
- per - year cutoff applies to all source categories , not only to categori es list ed in the CAA. Id. at 44511/1. EPA estimates that more than 550,000 sources would requi

re Ti tle V permits. 32 Currently, there are app roximately 15,000

- 16,000 Ti tle V
sources. Id. at 44511/1

- 2.

32 EPA states that if it decided to regulate GHGs as HAPs under sect io n 112, Tit le V would apply at an even lower thresho ld (25 tons per year for any co mbination o f HAPs and 10 tons per (continued...)129

EPA also expresses concern th at Ti tle V permit s might have to be continually reopened as GHG regulat io n goes into effect under the Act. The hypothetical example EPA gives invo lves
mo bile source requirements for GHGs taking effect, triggering Ti tle V permitting requirements. Small GHG sources would need to obtain Tit le V permits even though these sources would , at th at time, have no applicable requirements. If additional regulat io ns are promulgated and take effect , permits with three or more years remaining would need to be reopened within 18 mo nt hs to incorporate any applicable requirements fro m t he new regulat io ns . (Permit s wi th le ss than th ree years remaining do not need to be reopened; appli cable requirements are added to those permits at the time o f renewal.) Id . at 44514/1

- 2. As EPA notes, “[t]his scenario would result in duplicat ive effort as permitt ing authorities issued hundreds of thousands of minimal Tit le V permits with no GHG requi rements, fo llo wed by a period of numerous reopenings for some GHG source categories, while the requirements for other GHG source categories would remain off

- permi t unt il renewal, at which point they would need to be included in the renewal permit.” Id. at 44514/2. UARG agrees with EPA that the burden o f T it le V permits and reopenings in a GHG regulatory context would be overwhelming. Id. at 44512/1. In addition, EPA expresses concern th at there would be relat ively litt le benefit fro m r egulat ing these sma ll sources because of the lack of ant ic ipated add

- on control devices at such sources and their relatively small emissio ns. Id. at 44512/2. Alt hough UARG agrees that there likely would be litt le demon strable benefit year for any single HAP). This is one of the many problems with potential regulat io n under sect io n 112, according to the Agency. 73 Fed. Reg. at 44511/2. If EPA decided to use section 112 to regulate GHGs, the number of sources ne eding a Tit le V permit “would easily number in th e millio ns absent a means to limit [potential to emit].” Id. Moreover, section 112 does not exclude fugit ive emissio ns, a fact that would capture even more sources under Title V, such as agricul ture and mining sources. Id. at 44511/2

- 3.130

fro m r egulating these small sources, it notes that Congress enacted th ese requirements of the Ti tle V operating permit in t he Act , and EPA is bound to follow the direct ives of Congress. EPA describ es several alternat ives th at i t suggests might address th e burden of the Title V program in the GH G context. EPA attempts to ju stif y th ese putative al

ternatives on two general grounds: (1) applicat io n of the literal language of the CAA results in absurd results contrary to congressio nal intent; and (2) a literal applicat io n of the Act results in administrative burden. 33 Id . at 44512/3

- 44513/1. To deal wit h t he problem of so many addit io nal sources having to obtain Ti tle V permits, EPA discusses the possibilit y o f a phased

- in approach to Tit le V permitt ing, which would defer Tit le V permitting for GHG sources unt il t hey beco me subject to applicable requi rements for GHGs. Id. at 44513/1. EPA also discusses the possibilit y o f p hasing in Tit le V applicabilit y by starting with the largest sources of GHGs first and phasing in the smaller
sources. Id. Finally, EPA addresses the possibilit y o f using general permits under Ti tle V, al though EPA expresses concern that , even wit h general permit s fo r Ti tle V , “t he sheer volume of sources and number of different types of sources affected [would] present challeng es.” Id. at 44513/2. UARG believes that leg al barri ers exist that might well prevent EPA fro m implement ing these alternat ive appro a ches. As with the PSD program, UARG believes that EPA w ould need , in any notice of proposed rulemaking for GHG regulat io n, to address the specific basis for any authorit y it believes it may have to mit igate the dramat ic and disrupt ive effects on the nature and scope of th e Ti tle V program that would flow fro m a decision to regulate GHGs under the Act. As with PSD , emission th

resho lds that give rise to Title V permit obligat io ns are in t he text of th e CAA ,

33 EPA used these same two general grounds as a possible justificat io n fo r measures to provide relief in the PSD context as well. See, e.g. , 73 Fed. Reg. at 44503/2

- 3.131

as are the timetables by when Tit le V permits must be applied for or reopened
. In proposing or adopting any measures int ended to mit igate the impact of GHG regulation on the Ti tle V program, EPA would have to j ust ify it s abilit y and authori ty to do so wit hout express congressio nal approval. A problem also arises with the fees for Tit le V permit ting in a potenti al GHG regulatory environment. Title V requires permitting aut hor it ies to collect permit fees adequate to co ver th e costs of running the Title V program. Id. at 44512/1. In the case of GHGs, t he cost may be extremely high, especially with respect to small sources. Yet EPA suggests that, because mo st states charge Tit le V fees on a dollar

- per - ton basis, EPA “expect[s] that the fee revenues [for GHG sources] would be grossly excessive for what is needed to process permits for GHG sources. This is particularly true for the universe of small sources brought into Tit le V solely fo r th ei r GHG emissio ns because those permits are expected to be relat ively simple and may be addressed through general permits.” Id. at 44513/3. Thus, EPA assert s that permitt ing authori ties would need to consider other options for fees , such as a lo wer per - ton fee amount fo r GHGs, fixed fees for applicants below a certain size, and/or no fees for smaller GHG sources. Id. Should EPA propose regulat io n of GHGs under Title V, UARG believes that Tit le V permitting fees should apply consistent ly to a ll so urces regardless of source size. As EPA notes, Ti tle V requi

res that the permitting pro grams be self

- funding. Rather than set fixed fees for applicants below a certain size or provide an exemption from fees for smaller GHG sources, in th e event of a ny GHG regulat io n, permitt ing authorities should institute a lower dollar

- per - ton fee amount fo r GHGs to account for the large vo lu me of GHGs, particularly CO 2 , that sources132

emit. Thi s approach, or any other fee relief, should apply to all Ti tle V sources regardless o f size. Large sources should not have to bear the permitting cost for smaller sources. As with PSD, EPA needs to consider carefully the effects on the Tit le V permitt ing program when it makes any decisio n whether to propose regulat io n of GHGs under the CAA. Id
. at 44514/1. UARG agrees that , because o f t he overwhelming burden on administrative agencies and regulated entit ie s that would occur i f GHGs become regulated pollutants for purposes of the Ti tle V program, EPA would have to consider carefully the nature and timing of any regulat io n . Moreover, to the extent EPA believes it can propose alternatives to ease this regulatory burden, it would have to provide in any notice of proposed rulemaking a com plete and adequate explanat io n of the aut hori ty it believes it has to accomplish this and regarding how its action would not conflict with posit io ns previously taken by the Agency or the courts in this matter
. G. Title VI of the CAA, Which Addresses Stratospheric Ozone Pr otection, Does Not Provide E PA w ith Authority To Regulate GHGs. As EPA notes, section 615 of the CAA provides specific regulatory authorit y t o address effects on the stratosphere. That section, like the other provisio ns of Title VI, does not authorize regulatory act io n to control emissio ns of GHG s or to address global climate change. Section 615 and the other provisio ns of Tit le VI must be construed in light of the specific stratospheric

- ozone - protection purpose of that ti tle and Congress’s direct io n -- in t he one provi sion of Ti

tle VI that expressly refers to “global warming” (sect io n 602(e))

-- th at the Ad ministrator’s obligat io n to publish the global warming potential of listed Tit le VI substances “shall not be construed to be the basis o f any addit ional regulat io n under this [ Ac t ] .” See 73 Fed. Reg. at 44518/3

- 44519/1 (quoting CAA § 602(e)). Moreover, in enacting Tit le VI in 1990, Congress rejected the Senate Environment and Public Works Committee’s proposed approach to th e issue, which was to combine regulatory authority to limit emissions of stratospheric

- ozone -133

deplet ing substances wit h regulatory authori ty to control emissio ns of GHG s. See S. REP . N O . 101
- 228, at 377
- 402, 682
- 701 (1989) , reprinted in A Legislative History of the Clean Air Act Amendments of 1990 , Vol. 5 at 83 38, 8717
- 42, 9022
- 41 (Nov. 1993) (describing and setting out th e provisions of the proposed but never

- enacted “Stratospheric Ozone and Climate Protection Act”). Thus, the Senate committee proposed to provide, in its versio n of what became Tit le VI, author it y “t o reduce the generat io n of greenhouse gases in order ... to limit anthropogenically induced glo bal climate changes” and “to reduce to the maximum extent possible emissio ns of ... gases caused by human act ivit ies that are likely to affect adversely the glob al climate.” See id. at 683, 684 (setting out text of proposed CAA § 502(a), (b) )
. The committee’s descript io n of these proposed provisio ns emphasized that “global climate change result ing from an intensified greenhouse effect” was a “dist inct” problem fro m “destruction of the stratospheric ozone layer.” Id. at 387. Yet Congress, in enact ing T it le VI, tellingly ref used to enact the GHG regulatory authori ty proposed by th e committee. As EPA observes, sect io n 615 “was intended to augment other authorit i es and responsibilit ies established by Tit le VI.” 73 Fed. Reg. at 44519/2. As discussed above, those other authorit ies and responsibilit ies address protection of the stratosphere from deplet io n of
oz one, not broader concerns about global climate changes and the role of GHG emissions wi th respect to such changes. Moreover, even if sect io n 615 could be construed to grant regulatory authorit y t o control GHG emissio ns to address global climate change, EPA, to invoke any such authorit y, plainly “would have t o c onsider whether available scient ific informat io n supports making the requisite findings.” Id. Indeed, EPA at a minimum would have to have scient ific informat io n sufficient to demonstrate that (1) particular emissio ns of GHG s “may reasonably be anticip ated to affect the134

stratosphere” and (2) the effect on the stratosphere “may reasonably be anticipated to endanger public healt h or welfare.” Id. at 44519/1 (quoting CAA § 615). EPA’s discussio n of this issue in th e ANPR indicates that, in the Agency’s own view, available scient ific informat io n is, at least at thi s t ime, not sufficient to establish the basis for any such findings under sect io n 615. See i d. at 44519/2

- 3. VII. Conclusion UARG appreciates the opportunit y t o comment on the ANPR . UARG agrees wit h EPA’s decisio n to examine the possibilit y of GHG regulatio n under the current CAA in the broadest conte xt, especially because the scope of such regulation w ould be greater than th at of any previous CAA program. As these co mments demonstrate, the basis for any proposed regulat io n of GHG emissio ns under the exist ing provisio ns of the CAA has not been established. In any event, in determining whether to propose regulat io n of GHG emissio ns under the CAA, EPA must ex amine carefully the effects that any such re gulat io n would have wit hin the United States, including effects on the economy, and should consider and engage the issues addressed in the comments on this ANPR.