Document 3evNR4GGnBDjqd29LnVm5JV80

DATED: May 1.2017 Respectfully submitted. Robert Henneke Theodore Hadzi-Antich Ryan D. Walters TEXAS PUBLIC POLICY FOUNDATION 901 Congress Avenue Austin. Texas 78701 Telephone: (512)472-2700 Facsimile: (512)472-2728 Theodore Hadzi-Antich (512)615-7956 tha-Rtcxaspolies .com ATTORNEYS FOR PETITIONERS cc: Neomi Rao (via Federal Express) Administrator Office of Information and Regulatory Affairs Office of Management and Budget 725 1 T" Street. N.W. Washington. DC 20503 Ted Boling (via Federal Express) Acting Director President's Council on Environmental Quality 722 Jackson Place. N.W. Washington. DC 20506 Sarah Dunham (via Federal EXpress) Acting Assistant Administrator Office of Air and Radiation Mail Code 6101A USEPA Headquarters William Jefferson Clinton Building 1200 Pennsylvania Ave., N.W. Washington DC 20460 33 EXHIBIT A USCA Case #09-1322 Document #1339079 Filed; 10/31/2011 Page 532 of 545 Memo to EPA Employees MEMORANDUM DATE: January 23, 2009 TO: All EPA Employees FROM: Lisa P. Jackson, Administrator USCA Case #09-1322 Document #1339079 Filed: 10/31/2011 Page 533 of 545 Science must be the backbone for EPA programs. The public health and environmental laws that Congress has enacted depend on rigorous adherence to the best available science. The President believes that when EPA addresses scientific issues, it should rely on the expert judgment of the Agency's career scientists and independent advisors. When scientific judgments are suppressed, misrepresented or distorted by political agendas, Americans can lose faith in their government to provide strong public health and environmental protection. ...................................... The laws that Congress has written and directed EPA to implement leave room for policy judgments. However, policy decisions should not be disguised as scientific findings. 1 pledge that I will not compromise the integrity of EPA's experts in order to advance a preference for a particular regulatory outcome. EPA must follow the rule of law. The President recognizes that respect for Congressional mandates and judicial decisions is the hallmark of a principled regulatory agency. Under our environmental laws, EPA has room to exercise discretion, and Congress has often looked to EPA to fill in the details of general policies. However, EPA needs to exercise policy discretion in good faith and in keeping with the directives of Congress and the courts. When Congress has been explicit, EPA cannot misinterpret or ignore the language Congress has used. When a court has determined EPA's responsibilities under our governing statutes, EPA cannot turn a blind eye to the court's decision or procrastinate in complying. EPA's actions must be transparent. In 1983, EPA Administrator Ruckelshaus promised that EPA would operate "in a fishbowl" and "will attempt to communicate with everyone from the environmentalists to those we regulate, and we will do so as openly as possible." I embrace this philosophy. Public trust in the Agency demands that we reach out to all stakeholders fairly and impartially, that we consider the views and data presented carefully and objectively, and that we fully disclose the information that forms the bases for our decisions. I pledge that we will carry out the work of the Agency in public view so that the door is open to all interested parties and that there is no doubt why we are acting and how w'e arrived at our decisions. We must take special pains to connect with those who have been historically underrepresented in EPA decision making, including the disenfranchised in our cities and rural areas, communities of color, native Americans, people disproportionately impacted by pollution, and small businesses, cities and towns working to meet their environmental responsibilities. Like all Americans, they deserve an EPA with an open mind, a big heart and a willingness to listen. As your Administrator, I will uphold the values of scientific integrity, rule of law and transparency every day. If ever you feel 1 am not meeting this commitment, I expect you to let me know. JA02161 USCA Case #09-1322 Document #1339079 Filed: 10/31/2011 Page 534 of 545 Many vital tasks lie before us in every aspect of EPA's programs. As I develop my agenda. I will be seeking your guidance on the tasks that are most urgent in protecting public health and the environment and on the strategies that EPA can adopt to maximize our effectiveness and the expertise of our talented employees. At the outset, I would like to highlight five priorities that will receive my personal attention: Reducing greenhouse gas emissions. The President has pledged to make........ responding to the threat of climate change a high priority of his administration. He is confident that we can transition to a low-carbon economy while creating jobs and making the investment we need to emerge from the current recession and create a strong foundation for future growth. I share this vision. EPA will stand ready to help Congress craft strong, science-based climate legislation that fulfills the vision of the President. As Congress does its work, we will move ahead to comply with the Supreme Court's decision recognizing EPA's obligation to address climate change under the Clean Air Act. Improving air quality. The nation continues to face serious air pollution challenges, with large areas of the country out of attainment with air-quality standards and many communities facing the threat of toxic air pollution. Science shows that people's health is at stake. We will plug the gaps in our regulatory system as science and the law demand. Managing chemical risks. More than 30 years after Congress enacted the Toxic Substances Control Act, it is clear that we are not doing an adequate job of assessing and managing the risks of chemicals in consumer products, the workplace and the environment. It is now time to revise and strengthen EPA's chemicals management and risk assessment programs. Cleaning up hazardous-waste sites. EPA will strive to accelerate the pace of cleanup at the hundreds of contaminated sites across the country. Turning these blighted properties into productive parcels and reducing threats to human health and the environment means jobs and an investment in our land, our communities and our people. Protecting America's water. EPA will intensify our work to restore and protect the quality of the nation's streams, rivers, lakes, bays, oceans and aquifers. The Agency will make robust use of our authority to restore threatened treasures such as the Great Lakes and the Chesapeake Bay, to address our neglected urban rivers, to strengthen drinking-water safety programs, and to reduce pollution from non point and industrial dischargers. As we meet these challenges, we must be sensitive to the burdens pollution has placed on vulnerable subpopulations, including children, the elderly, the poor and all others who are at particular risk to threats to health and the environment. We must seek their full partnership in the greater aim of identifying and eliminating the sources of pollution in their neighborhoods, schools and homes. EPA's strength has always been our ability to adapt to the constantly changing face of environmental protection as our economy and society evolve and science teaches us more about how humans interact with and affect the natural world. Now, more than ever, EPA JA02162 USCA Case #09-1322 Document #1339079 Filed: 10/31/2011 Page 535 of 545 must be innovative and forward looking because the environmental challenges faced by Americans all across our country are unprecedented. These challenges are indeed immense in scale and urgency . But, as President Obama said Tuesday, they will be met. I look forward to joining you at work on Monday to begin tackling these challenges together. JA02163 EXHIBIT B USCA Case #09-1322 Document #1339079 Fil^^0/31/2011 Page 256 of 605 HOLLAND&HART ^ Coalition Comments on EPA's Proposed Finding of Endangerment From Anthropogenic Greenhouse Gases to Public Health and Welfare 74 Fed. Reg. 18886-18910 (April 24,2009) These Comments are being filed by Holland & Hart on behalf of a coalition of companies and trade associations involved in energy, mining, and beef production in the Western United States, consisting of Great Northern Project Development, L.P., Questar Corporation, Solvay Chemicals, Inc., Ballard Petroleum Holdings, LLC, General Chemical, EMC Corporation, OC1 Chemical Corporation, Searles Valley Minerals Operations Inc., the Industrial Minerals Association - North America (IMA-NA), and the National Cattlemen's Beef Association (NCBA) (collectively, the Coalition). EPA proposes to classify CO2 and five other greenhouse gases, including methane (CI14), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF&) (collectively, GHGs) as "air pollutants" and "air pollution" that are anticipated to endanger public health and welfare pursuant to Section 202(a) of the Clean Air Act, 42 U.S.C. 7521. Such action by EPA would adversely affect the ability of these companies and associations to produce, make efficient use of, and continue to improve essential supplies of energy, minerals, and food. The proposed Endangerment Finding specifically addresses GHGs from new vehicles and new vehicle engines. As explained in more detail below', the Endangerment Finding will, if finalized, lead to regulation of stationary sources under the Clean Air Act (CAA) as a matter of law. including those owned and operated by the members of this Coalition. For example, Great Northern Project Development's planned coal gasification plant would be subject to major source review for CCK Ironically, this facility designed to reduce GHGs could be adversely affected by regulation of GHGs under the CAA. In like manner, the oil and gas exploration and production operations of Questar and Ballard and the cattle operations of NCBA and its members would be adversely impacted to the extent that major new source review requirements are triggered for those operations as a result of the regulation of GHGs. Solvay Chemicals, General Chemical, FMC Corporation, OCI Chemical, Searles Valley Minerals and the other members of the Industrial Minerals Association would be subject to new requirements under the CAA which would add significant costs, complexity, and schedule delays to on-going, modified or new operations. The current state of scientific knowledge on the contribution of human-caused climate change is so profoundly uncertain that it is not clear, even when using the data and sources that the United Nations' Intergovernmental Panel on Climate Change (IPCC) and EPA rely on, w hether there will be global wanning or global cooling over the course of the twenty-first century. EPA has not weighed or considered the substantive scientific evidence from many of the world's scientists who disagree that there is convincing scientific evidence that all or most of the climate change that has occurred in the last few centuries is due to human causes. Indeed, numerous scientists offer cogent, well-reasoned scientific evidence that such climate change is neither remarkable nor extraordinary, but within natural temperature variations in many previous JA02399 USCA Case #09-1322 Document #1339079 Fil^^0/31/2011 Page 265 of 605 HOLLAND&HART A review of EPA's Proposed Rule and underlying TSD demonstrates that it has not independently considered, weighed, analyzed, and made a rational decision regarding the views of many eminent scientists,4 including those who have actually collected and analyzed the necessary data, many of w hom disagree emphatically with those who assert that there is "consensus" over the extent to which human-caused GHG emissions cause or contribute to climate change. EPA's mere review of "synthesis reports," rather than the underlying science itself and its uncritical reliance on the IPCC and others, is, we believe, an impermissible delegation of EPA's authority and responsibility under the Clean Air Act to provide a "reasoned explanation." Another significant defect with EPA's rulemaking is that the evidence relied upon by EPA (derived from IPCC and other sources) is focused strictly on CO2. As a result, there is essentially no basis for any Endangerment Finding with regard to the five other greenhouse gases supposedly considered by EPA in the rulemaking; namely, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. Furthermore, EPA has essentially ignored the single-most important greenhouse gas of all, water vapor; see discussion below in Section ILF. EPA's failure to consider all the relevant scientific evidence is a pervasive and fatal deficiency in this proposed rulemaking. To summarize, the proposed Endangerment Finding violates the Administrator's commitment to scientific integrity and EPA's own requirements to assure objectivity in presenting influential scientific information, insofar as EPA completely ignores a body of "peerreviewed science and supporting studies" that demonstrate that there is considerable uncertainty regarding the degree to which anthropogenic GHGs are causing climate change. The purpose of these Comments is to let those scientists and their w ork speak for themselves, since they have not been duly considered by EPA, the IPCC, or the record on which EPA relies. Once the contributions of these scientists are considered, it is impossible to conclude that "the science is settled." Similarly, it puts to shame those who have attempted to justify their preferred policy positions on anthropogenic greenhouse gases (AGHGs) by simply dismissing these scientists as cranks. As an example of the latter, former Vice-President Gore has attempted to portray these scientists as a desperate minority of "deniers," comparable to those who still believe the earth is flat. Mr. Gore is quoted as saying; Fifteen percent of people believe the moon landing was staged on some movie lot and a somewhat smaller number still believe the Earth is flat. They get together on Saturday night and party with the global w arming deniers. 4 As the OMB suggests, "EPA has not undertaken a systematic risk analysis or cost-benefit analysis." (OMB Comments 2009: 2). As such, the Endangerment Finding fails to include sufficient information regarding `'methodologies used for weighing risks and various outcomes and the risks associated with each; Confidence intervals related to model results at the regional and local scales; Underlying assumptions of findings, publications on which the findings are based, and `business-as-usuaf scenarios; Quality and homogeneity oftemperature data from surface networks that may affect estimates of past temperature trends, and calibration and verification ofmodels; [and] Impacts of climate change on the value of net economic benefits." Ibid EPA also failed to make available to the Science Advisory' Board for review and comment the Endangerment Finding, as well as relevant scientific and technical information on which the proposed action is based, as required by 42 U.S.C. Section 4365(c). 10 JA02408 EXHIBIT C President Obama Announces National Fuel Efficiency Policy | whitehouse.gov Page 1 of 3 This is historical material "frozen in time". The website is no longer updated and links to external websites and some internal pages may not work. Briefing Room Your Weekly Address Speeches & Remarks Press Briefings I Statements & Releases White House Schedule Presidential Actions Executive Orders Presidential Memoranda Proclamations Legislation Pending Legislation Signed Legislation Vetoed Legislation Nominations & Appointments Disclosures The White House May 19,. 2009 https://obamawhitehouse.archives.gov/the-press-office/president-obama-announces-nationa... 4/7/2017 President Obama Announces National Fuel Efficiency Policy ] whitehouse.gov Page 2 of 3 President Obama Announces National Fuel Efficiency Policy THE WHITE HOUSE Office of the Press Secretary FOR IMMEDIATE RELEASE May 19, 2009 President Obama Announces National Fuel Efficiency Policy WASHINGTON, DC - President Obama today - for the first time in history - set in motion a new national policy aimed at both increasing fuel economy and reducing greenhouse gas pollution for all new cars and trucks sold in the United States. The new standards, covering model years 2012-2016, and ultimately requiring an average fuel economy standard of 35.5 mpg in 2016, are projected to save 1.8 billion barrels of oil over the life of the program with a fuel economy gain averaging more than 5 percent per year and a reduction of approximately 900 million metric tons in greenhouse gas emissions. This would surpass the CAFE law passed by Congress in 2007 required an average fuel economy of 35 mpg in 2020. "In the past, an agreement such as this would have been considered impossible," said President Obama. "That is why this announcement is so important, for it represents not only a change in policy in Washington, but the harbinger of a change in the way business is done in Washington. As a result of this agreement, we will save 1.8 billion barrels of oil over the lifetime of the vehicles sold in the next five years. And at a time of historic crisis in our auto industry, this rule provides the clear certainty that will allow these companies to plan for a future in which they are building the cars of the 21st century." This groundbreaking policy delivers on the President's commitment to enact more stringent fuel economy standards 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, leaders in the environmental community, the State of California, and other state governments. "The President brought all stakeholders to the table and came up with a plan to help the auto industry, safeguard consumers, and protect human health and the environment for all Americans," said EPA Administrator Lisa P. Jackson. "A supposedly 'unsolvable' problem was solved by unprecedented partnerships. As a https://obamawhitehouse.archives.gov/the-press-office/president-obama-armoimces-nationa... 4/7/2017 President Obama Announces National Fuel Efficiency Policy | whitehouse.gov Page 3 of 3 result, we will keep Americans healthier, cut tons of pollution from the air we breathe, and make a lasting down payment on cutting our greenhouse gas emissions." "A clear and uniform national policy is not only good news for consumers who will save money at the pump, but this policy is also good news for the auto industry which will no longer be subject to a costly patchwork of differing rules and regulations," said Carol M, Browner, Assistant to the President for Energy and Climate Change. "This an incredible step forward for our country and another way for Americans to become more energy independent and reduce air pollution.", A national policy on fuel economy standards and greenhouse gas emissions is welcomed by the auto manufacturers because it provides regulatory certainty and predictability and includes flexibilities that will significantly reduce the cost of compliance. The collaboration of federal agencies also allows for clearer rules for all automakers, instead of three standards (DOT, EPA and a state standard). "President Obama is uniting federal and state governments, the auto industry, labor unions and the environmental community behind a program that will provide for the biggest leap in history to make automobiles more fuel efficient," said Department of Transportation Secretary Ray LaHood. "This program lessens our dependence on oil and is good for America and the planet." ^ 0 f i ra 4* m ss HOME BRIEFING ROOM ISSUES THE ADMINISTRATION PARTICIPATE 1600 PENN En Espanol . Accessibility , Copyright Information : Privacy Policy USA.gov https://obamawhitehouse.archives.gov/the-press-office/president-obama-armounces-nationa... 4/7/2017 EXHIBIT D USCA Case #09-1322 Document #1339079 Filed: 10/31/2011 Page 309 of 367 % Unttod Store m/tZ* fca EttvirorinanSal PtotscSoA LbI fm Agroe* Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act: EPA's Response to Public Comments Volume 10: The Cause or Contribute Finding JA03982 USCA Case #09-1322 Document #1339079 Filed: 10/31/2011 Page 323 of 367 When the GHG emissions from land-use change are removed from the IPCC's Fourth Assessment Report's emissions total, the total global GHG emission estimates from CA1T and the 1PCC are in good agreement (less than a 5% difference). The commenter is correct that, had EPA used the IPCC Fourth Assessment Report in the Proposed Findings (which estimated that the total global emissions of the six well-mixed GHGs were 49,000 teragrams (Tg) of C02 equivalent in 2004), then Section 202(a) source category emissions (1,665 Tg of C02 equivalent for year 2006) would be 3.4% of the global total. However, considering these alternative numbers, the Administrator would still find that Section 202(a) emissions contribute to the air pollution that endangers, because this number would still represent one of the world's largest GHG sources. Comment (TO-13): A commenter (3394.1) states that, because of its reliance on the annual U.S. inventory on GHGs for projections, the TSD does not account for land use change and forestry emission and sinks. The commenter objects to the fact that while the forestry sinks are included in the text, they are sometimes not included in the figures. Also, the commenter notes that if other nations do include land use, land-use change, and forestry (LULUCF) emissions, the U.S. emissions may appear larger in proportion than they really are. Response (10-133: First, the 2005 inventories for all nations reported in the TSD are produced using the same methodologies: none of these national emission estimates include LULUCF emissions, and it is therefore appropriate to compare U.S. emissions to global emissions in 2005 on this basis. Indeed, as stated in the caption for Figure 2.3, the data "[ejxcludes land use, land-use change and forestry, and international bunker fuels. More recent emission data are available for the United States and other individual countries, but 2000 is the most recent year for which data for all countries and all gases are available including emissions from LULUCF." However, we do address recent U.S. LULUCF emissions in the text: "Removals of carbon through land use, land-use change and forestry activities are not included in Figure 2.2 but are significant; net sequestration is estimated to be 1062.6 TgC02eq in 2007, offsetting 14.9% of total emissions (EPA, 2009b)." The caption for Figure 2.2 also reiterates the fact that LULUCF and international bunker fuel emissions are not included in the data shown. Therefore, the TSD is clear and consistent in its discussion of emissions and the inclusion or lack thereof of LULUCF emissions. For comparison, using the CA1T (WRI, 2009) inventory for 2000 (the last year that land-use change and forestry emissions are available globally through this tool), U.S. emissions are 21.17% of the global total C02-equivalent emissions without LULUCF emissions, 15.41% including those emissions, and 15.35% including those emissions and emissions from international bunker fuels. Please also refer to the response immediately above regarding the use of the CA1T tool. Comment (10-14): Other commenters (e.g., 3394.1,3597) disagree with EPA's proposed contribution findings, arguing that U.S. EPA's own analysis of light-duty vehicles in the ANPR (Light Vehicle Technical Support document Docket U.S. EPA-HQ-OAR-2008-0318-0084) determined that GHG emission standards for new vehicles and new vehicle motors would produce a reduction of, at most, approximately 0,01 degree Celsius in mean global temperature. They argue that this is a value that cannot be measured except by the most 11 JA03996 USCA Case #09-1322 Document #1339079 Filed: 10/31/2011 Page 324 of 367 sensitive satellites. Commenters (e.g., 3394, 3449.1, and 3747.1) argue that the "cause or contribute" prong of the Proposal's endangerment analysis fails to satisfy the applicable legal standard, which requires more than a minimal contribution to the "air pollution reasonably anticipated to endanger public health or welfare." They contend that emissions representing approximately 4% of total global GHG emissions are a minimal contribution to global GHG concentrations. These commenters disagree with statements in the Proposal that the "unique, global aspects of the climate change problem tend to support a finding that lower levels of emissions should be considered to contribute to the air pollution than might otherwise be appropriate when considering contribution to a local or regional air pollution problem." They argue there is no basis in the Act or existing EPA policy for this position, and that it reveals an apparent effort to expand EPA's authority into the "truly trivial or de minimis" sources that are acknowledged to be outside the scope of regulation, in that it expands EPA's authority to regulate pollutants to address global effects. Commenters (e.g., 3347.1, 3747.1) also assert that contrary to EPA's position, lower contribution numbers are appropriate when looking at local pollution, like nonattainment concerns--in other words, in the context of a statutory provision (such as Section 213) specifically aimed at targeting small source categories to help nonattainment areas meet air quality standards. However, they conclude this policy is simply inapplicable in the context of global climate change. EPA received many comments (e.g., 3252.1, 3325.1, 3347.1,3379.1,3394.1, and 4037) on the appropriate comparison(s) for the contribution analysis. At least one commenter (3347.1) argues that in order to get around the "problem" of basing an endangerment finding upon a source category that contributes only 1.8% annually to global GHG emissions, EPA inappropriately also made comparisons to total U.S. GHG emissions. This commenter argues that a comparison of 202(a) source emissions to U.S. GHG emissions, versus global GHG emissions, is arbitrary for the purposes of the cause or contribute analysis, because it conflicts with the Administrator's definition of "air pollution," as well as the nature of global warming. They note that throughout the Proposal, the Administrator focuses on the global nature of GHGs. Thus, they continue, while percentage share of motor vehicle emissions at the U.S. level may be relevant for some purposes, it is irrelevant to a finding of whether these emissions contribute to air pollution, which the Administrator has proposed to define on a global rather than a domestic basis. Commenters (e.g., 3449.1) also accuse EPA of arbitrarily picking and choosing when it takes a global approach (e.g., endangerment finding) and when it does not (e.g., contribution findings). Response (10-14): We disagree that the temperature or emissions reductions resulting from GHG standards are the appropriate emissions to use for a "contribute" finding. The appropriate measure should be the emissions from the sector as a whole, regardless of the reductions resulting from any set of proposed standards. Section V.B of the Findings provides the Administrator's approach for making the cause or contribute finding, and Section V.C contains responses to key comments. Comments addressing the emissions contribution from projected emissions of new motor vehicles are addressed in Section V.C.2.C of the Findings. We disagree with the commenters that a 4% contribution to global GHG emissions is trivial. As stated in the Findings, this 4% figure as a result of Section 202(a) source emissions represents a larger contribution to global emissions than almost every single country in the world, with the exceptions of China, the U.S., Russia and India; this means the contribution from 202(a) sources alone is higher than countries as large as Japan, Brazil and Germany. As stated in Section V.B.l of the Findings, no single GHG source category dominates on the global scale--in this context, a source category that contributes 4% of GHG emissions is quite significant. See Massachusetts v. EPA, 549 U.S. at 1457-58 ("Judged by any standard, U.S. 12 JA03997 USCA Case #09-1322 Document #1339079 Filed: 10/31/2011 Page 325 of 367 motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence,. .. to global warming."). Finally, we disagree with the comment that the cause or contribute finding is based inappropriately on a comparison of Section 202(a) source category emissions to total U.S. emissions. Section V.B of the Findings describes the Administrator's rationale for the cause or contribute finding, and explains why both the U.S. and international comparisons were considered, and why these comparisons, independently and together, support the cause or contribute finding. 10.3.2 Each GHG as an Individual Air Pollutant Comment (10-15): Commenter (3603.1) disagrees with the finding that methane as an individual air pollutant can be found to contribute because methane emissions from existing Section 202(a) sources represent only 0.03% of U.S. GFIGs, and that number is overstated because the finding should refer to only new vehicles, not the entire existing fleet. Commenter states that this 0.03% is below the threshold noted in the proposal and in other proceedings such as interstate transport. Response (10-15): As explained in Section V of the Findings, the Administrator is not defining methane as an individual air pollutant under Section 202(a), thus EPA is not responding directly to the argument that the Administrator could not make a finding of contribution for methane as an individual air pollutant. Note that methane is being included in both the definition of "air pollution" and the definition of "air pollutant" because it shares all of the same common attributes with the other five well-mixed GFIGs. Importantly, methane is itself the second most important GHG directly emitted by human activities, in terms of its anthropogenic heating effect on the climate. This is why methane is consistently a standard part of climate change science analysis and policy discussions. Recognizing the important role that methane plays in climate change, EPA now for several years has been running methane voluntary programs to target cost-effective emission reductions in key sectors, within the U.S. and internationally. The amount of emissions of methane, or comparisons based on those amounts, are not relevant for determining whether emissions of the air pollutant--defined as the aggregate group of well-mixed GHGs--contributes to the air pollution. The relevant amounts and comparisons in that case concern the total emissions of the air pollutant, not a part of such emissions. Comment flO-16): A commenter (3377.1) notes that N20 is produced in extremely small amounts by motor vehicles-- almost certainly less than the estimate provided by automotive manufacturers. The commenter also cautions EPA that CH4 regulations from motor vehicles might discourage compressed natural gas vehicles that would otherwise provide a C02 reduction benefit, and therefore recommends no CH4 regulations. Response (10-16): The commenter did not provide a specific estimate or any documentation regarding their claim that N20 emissions from motor vehicles are extremely small. Further, the commenter is in error in implying that the TSD relies upon estimates provided by automotive manufacturers. In fact, the values EPA used in Section 2(a) of the TSD are taken from EPA's Inventory of Greenhouse Gas Emissions and Sinks 1990- 13 JA03998 EXHIBIT E USCA Case #09-1322 Document #1339079 Filed: 10/31/2011 Page 318 of 395 PRINCIPLES GOVERNING IPCC WORK Approved at the Fourteenth Session (Vienna, 1-3 October 1998) on 1 October 1998, amended at the 2F: Session (Vienna, 3 and 6-7 November 2003) and at the 25lh Session (Mauritius, 26-28 April 2006) INTRODUCTION 1. The Intergovernmental Panel on Climate Change (hereinafter refereed to as the IPCC or, synonymously, the Panel) shall concentrate its activities on the tasks allotted to it by the relevant WMO Executive Council and UNEP Governing Council resolutions and decisions as well as on actions in support of the UN Framework Convention on Climate Change process. ROLE 2. The role of the IPCC is to assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation. IPCC reports should be neutral with respect to policy, although they may need to deal objectively with scientific, technical and socio-economic factors relevant to the application of particular policies. 3. Review is an essential part of the IPCC process. Since the IPCC is an intergovernmental body, review of IPCC documents should involve both peer review' by experts and review by governments. ORGANIZATION 4. Major decisions of the IPCC will be taken by the Panel in plenary meetings. 5. The IPCC Bureau, the IPCC Working Croup Bureaux and the Bureaux of any Task Forces of the IPCC shall reflect balanced geographic representation with due consideration for scientific and technical requirements. 6. IPCC Working Groups and any Task Forces constituted by the IPCC shall have cfearly defined and approved mandates and work plans as established by the Panel, and shall be open-ended. PARTICIPATION 7. Participation in the work of the IPCC is open to all UNEP and WMO Member countries. 8. Invitations to participate in the sessions cf the Panel and its Working Groups, Task Forces and IPCC workshops shall be extended to Governments and other bodies by the Chairman of the IPCC. 9. Experts from WMO/UNEP Member countries or international, intergovernmental or non governmental organisations may be invited in their own right to contribute to the work of the IPCC Working Groups and Task Forces. Governments should be informed in advance of invitations extended to experts from their countries and they may nominate additional experts. 67 JA03626 EXHIBIT F USCA Case #09-1322 Document #13390/9 Filed: 10/31/2011 Page 42 of 246 Paul D. Phillips Phone (303) 295-8131 pphi Hi ps@hoilandhart.com December 4, 2009 VIA EMAIL & OVERNIGHT MAIL U.S. Environmental Protection Agency EPA Docket Center (EPA/DC), Mailcode 6102T Attn; Docket ID No. EPA-HQ-OAR-2009-0I71 1200 Pennsylvania Avenue. N.W. Washington, D.C. 20460 Re: Addendum and Supplementation of Record to Coalition Comments on EPA's Proposed Finding of Endangerment From Anthropogenic Greenhouse Gases to Public Health and Welfare, 74 Fed. Reg. 18886-18910 (April 24, 2009): Docket ID No. EPA-HQ-OAR-2OO9-0171, or, in the Alternative, Petition to Re-Open this Proceeding in Light of Newly-Released Information Deal- Sir/Madam: This Addendum and Supplementation of Record is being submitted by Holland & Hart LLP and Vinson & Elkins LLP to supplement our June 23,2009 Comments on EPA's proposed Endangerment and Cause or Contribute Findings, 74 Fed. Reg. 18886-18901 (April 24,2009) ("Endangerment Rulemaking" or "Endangerment Finding"), Docket ID Nos. EPA-HQ-OAR2009-0171-3722,-4041, -5158, -11454, -11455 and-11536. In the alternative, this submission petitions EPA to re-open this proceeding in light of newly-released information of central importance. This Addendum and Supplementation of Record is filed on behalf of a coalition of companies and trade associations that have submitted comments under our prior Docket ID numbers and also on behalf of the Coalition for Responsible Regulation, Inc. and its members (collectively, "CRR"). CRR includes companies and trade associations involved in energy, mineral, and food production throughout the United States. This Addendum and Supplementation is necessary due to the November 19, 2009 disclosure of key correspondence and documents from the University of East Anglia's Climatic Research Unit ("CRU") that acknowledge deficiencies in and manipulation of historical temperature datasets, which are relied upon by EPA and other to conclude that global warming is occurring. These documents, which include over 1,000 emails either sent from or sent to members of the CRU, together with meteorological station data used for research by CRU to support its findings, confirm that the fundamental underpinnings for EPA's Endangerment Finding are scientifically unsupported, lacking a rational basis, incorrect, arbitrary and capricious. Holland & Hart LLP Phone B03] 295-8000 Pa* 1303! 295 826'! www.hollandhart.com 555 r/th Street Suite 3200 Denver.CO 60202 Maiiinq Address P.O.Box 8749 Denver.CO 80201-8749 USCA Case #09-1322 Document #1339079 HOLLAND&HART Filed: 10/31/2011 Page 43 of 246 U.S. Environmental Protection Agency December 4, 2009 Page 2 EPA and IPCC Rely Heavily on CRU's Temperature Data .... CRU, in conjunction with the Hadley Center at the UK Meteorological (Met) Office, compiles and maintains one of only four of the world's temperature datasets. Further, CRU's temperature dataset is one of only two surface temperature datasets (the other is maintained by NASA's Goddard Institute for Space Studies, in collaboration with National Oceanic and Atmospheric Administration's National Climatic Data Center). (Monckton 2009b). As discussed below, the two non-land based datasets (maintained by University of Alabama Huntsvi lle and Remote Sensing Systems) are generated by satellite measurements, and those datasets are themselves processed and reconstructed based on calibrations using CRU and NASA's surfacetemperature record datasets. Id, According to CRU, its land-based temperature dataset, together with CRU's monthly datasets for maximum and minimum temperature, precipitation, rainday counts, vapor pressure, cloudiness and windspeed for all the world's inhabited land areas, has provided many researchers with "basic data for a whole range of studies," (Climatic Research Unit Website 2009) CRU states that it ranks behind only a few other sources "as the acknowledged primary data source by climate scientists around the world." Id, CRU staff has also been instrumental in the publication of the 1990, 1995, 2001, and 2007 assessment reports by the Intergovernmental Panel on Climate Change ("IPCC"). As CRU makes clear, its "staff have been heavily involved in all four [IPCC] assessments, probably more than anywhere else relative to the size of an institution," Id.] CRU's considerable involvement in drafting IPCC reports is illustrated by IPCC's significant reliance on CRU's HadCrut data in its 2007 IPCC Fourth Assessment Report ("AR4"). IPCC does not collect its own temperature data but instead compiles information relating to climate change, and in AR4, it marshaled CRU's HadCrut record as key evidence of warming temperatures. Based on CRU's dataset, IPCC concluded in its AR4 that "warming of the climate is unequivocal," and constructed a global mean temperature graph that is discussed in detail (IPCC 2007a: 253) and highlighted in AR4's Synthesis Report (IPCC 2007d: 31), Summary for Policymakers (IPCC 2007c: 6), and Frequently Asked Questions (IPCC 2007e: 104). Similarly, models employed by IPCC to make fiiture predictions regarding surface warming were often gauged against CRU datasets. (IPCC 2007a: 619). These are just a few* examples of IPCC's heavy reliance on CRU's temperature dataset to make assessments about climate change and to recommend policies based on those analyses. 1 CRU's influence within IPCC circles is also established in the attached CRU correspondence, which discloses that Phil Jones, wdio has temporarily resigned his position as CRU director in the wake of these disclosures, planned to exclude studies casting doubt on the relationship between human activity and global warming. Jones wrote, "I can't see either of these papers being in the next IPCC report," and he vowed to "keep them out somehow - even if w'e have to redefine what the peer-review literature is!" (CRU Disclosures 2009b). Likewise, Keith Briffa, also of CRU, wrote to Michael Mann (another prominent scientist predicting widespread global warming), saying "1 tried hard to balance the needs of the science and the IPCC, which were not always the same." (CRU Disclosures 2009c). JA03135 USCA Case #09-1322 Document #1339079 HOLLAND&HARX. r h it. law o u - wes r Filed: 10/31/2011 Page 44 of 246 U.S. Environmental Protection Agency December 4, 2009 Page 3 EPA, in turn, relies "most heavily*' on IPCC's AR4 in formulating its Endangerment Rulemaking and the accompanying Technical Support Document ("TSD") (TSD: Section 1(b)). See also (TSD: Executive Summary) ("The conclusions here and the information throughout this document are primarily drawn from the assessment reports of the Intergovernmental Panel on Climate Change and the U.S. Climate Change Science Program "2), Indeed, the same global mean temperature graph that uses CRU data and is featured in AR4 also appears in the TSD as support for the conclusion that "global mean surface temperatures have risen by 0.74C- 0.18C when estimated by a linear trend over the last 100 years (1906-2005)/' (TSD: Section 4(b)). Likewise, IPCC conclusions and its summary graph depicting multi-model averages and assessed ranges for surface warming through the year 2100 (IPCC 2007a: 762) are used in the TSD to support the proposition that "[a]U of the simulations performed by the IPCC project warming, for the full range of emissions scenarios." (TSD: Section 6(b)). These conclusions, which are based on defective, incomplete, or manipulated data, are central to EPA's proposed finding that greenhouse gas emissions endanger public health and welfare and thus should be regulated. CRU Documents Reveal its Staff Manipulated Data Due to the overwhelming significance EPA accords to IPCC conclusions, which are in turn premised on CRU data, the very foundation of EPA's proposed Endangerment Finding has been called into question by newly-released CRU documents. These materials indicate that CRU data has been adjusted for non-scientific purposes, and that IPCC has failed to consider and incorporate significant dissenting viewpoints. Indeed, these documents, attached hereto and incorporated by reference into this Addendum and Supplementation, reveal that, among other things, CRU manipulated data, destroyed evidence, and colluded to prevent reputable scientists from publishing in peer-reviewed journals. Specifically, the documents show that CRU staff and other well-known scientists involved in authoring the IPCC AR4: Manipulated, adjusted, and cherry-picked data to suppress unwanted results and to arrive at predetermined findings of anthropogenic global wanning; Discarded much of the raw temperature data and computer codes on which predictions of global warming is based; Collaborated to exclude from AR4 scientific articles expressing dissenting viewpoints; Encouraged destruction or tampering of correspondence regarding AR4; Considered how to avoid release of data subject to requests pursuant to freedom of information laws; 1 Likewise, CCSP Synthesis and Assessment products that EPA relied upon most in the TSD draw heavily from both CRU data and IPCC findings. (CCSP 2008: 1.1, Appx B, 107, 1.3, Section 2.3.3). JA03136 USCA Case #09-1322 Document #13390/9 HOLLAND&HARX. THE L A '// O U r W E L~, T Filed: 10/31/2011 Page 45 of 246 U.S. Environmental Protection Agency December 4,2009 Page 4 Coordinated a boycott of submissions to a scientific journal until the editor, who had published dissenting viewpoints, was replaced; Sought to prevent researchers with dissenting views from publishing in leading scientific journals; Interfered with the peer-review process in order to block dissenting viewpoints and to secure favorable review of approved viewpoints; Acknowledged, despite public statements to the contrary, that global temperatures have not risen in any statistically-significant sense for fifteen years and have been falling for nine years. (CRU Disclosures 2009). Such materials make clear that CRU data has been manipulated to yield certain results; that the adjusted CRU data, along with CRU staff involvement in internal IPCC deliberations, skewed the findings of AR4; and that EPA's overwhelming reliance on a compromised AR4 has undermined the legitimacy and integrity of the Endangerment Rulemaking and the TSD. Most troubling, however, is the release of CRU's annotated computer code from programs used to process climate data. This annotated coding, contained in the file HARRY READ ME.txt (CRU Disclosures 2009a), reveals that the supposed "consensus" of anthropogenic global warming is premised on irretrievably flawed data that was artificially adjusted by CRU staffers using, as they themselves called them, "fudge factors." (CRU Disclosures 20Q9d). Among the most disquieting commentary weaved into the code are the following statements made by CRU programmers: "OH F[--] THIS. It's Sunday evening, Eve worked all weekend, and just when I thought it was done I'm hitting yet another problem that's based on the hopeless state of our databases. There is no uniform data integrity, it's just a catalogue of issues that continues to grow as they're found." "It's botch after botch after botch." "As far as I can see, this renders the [weather] station counts totally meaningless." "But what are all those monthly files? DON'T KNOW, UNDOCUMENTED. Wherever I look, there are data files, no info about what they are other than their names. And that's useless ..." "COBAR AIRPORT AWS [data from an Australian weather station] cannot start in 1962, it didn't open until 1993!" JA03137 USCA Case #09-1322 Document #1339079 HOLLAND&HARX PS LAW OUT VV E 5 ' Filed: 10/31/2011 Page 46 of 246 U.S. Environmental Protection Agency December 4,2009 Pane 5 "What the hell is supposed to happen here? Oh yeah - there is no "supposed# I can make it up. So I have : -)" "`You can't imagine what this has cost me - to actually allow the operator to assign false WMO [World Meteorological Organization] codes!! But what else is there in such situations? Especially when dealing with a `Master' database of dubious provenance (which, er, they all are and always will be)." "So with a somewhat cynical shrug, I added the nuclear option - to match every WMO possible, and turn the rest into new stations ... In other words, what CRU usually do. It will allow bad databases to pass unnoticed, and good databases to become bad..." "This whole project is SUCH A MESS ..." (CRU Disclosures 2009a). CRU's computer code confirms unequivocal data corruption: data were manipulated, mislabeled, destroyed, incomplete and, at times, fabricated. This data distortion does not just compromise the CRU/Hadley dataset; it affects every dataset regularly relied upon for global temperature trends, since all four such sets are inextricably interlinked and interdependent. As explained by the Science & Public Policy Institute: ... the whistleblower's data file reveals that there is very close collusion ... between key figures in the Climate Research Unit at the University of East Anglia and in both NASA's Goddard Institute for Space Studies and NOAA's National Climatic Data Center. Members of all of the entities in the scientific establishment are also members of the Team. They co-ordinate their results, and they co-ordinate how they present their results, and they co-ordinate how, between them, they control or seek to control - to a remarkable extent - tire entire process of the UN's climate panel, as well as the process of publication of learned papers in scientific journals, and even the appointment of reviewers and editors. Professor Jones at the Climate Research Unit in the UK, Gavin Schmidt at NASA, and Tom Karl at NOAA are now known via their email correspondence to be closely ... in league with one another, and with the paleoclimate community, such as Mann, Bradley, and Hughes ... (Monckton 2009b). JA03138 USCA Case #09-1322 Document #1339079 HOLLAND&HARI. rH E LA O UT W E 5 T Filed: 10/31/2011 Page 47 of 246 U.S. Environmental Protection Agency December 4,2009 Page 6 The two satellite datasets are also affected by CRU's corrupted data. Because satellites do not record temperatures directly but rather measure very small changes in the behavior of certain oxygen molecules, satellite measurements must be processed and reconstructed to create a temperature record. Id. In order to do so, technicians calibrate the satellite data against the two land-based temperature datasets, including the CRU data. This calibration with the CRU and NASA land-base datasets has very likely compromised the reliability of the satellite-based data relied upon by EPA. A Recent Attempt to Recreate CRU Graph Data Failed The manipulation of underlying historical temperature data is of central importance in assessing the validity of the human-caused global wanning hypothesis, as evidenced by a November 25,2009 publication by The New Zealand Climate Science Coalition. (Treadgold 2009). This article challenges a widely-known graph, as shown in Figure 1. This graph was first prepared by Dr. Jim Salinger in the 1980s while he was at CRU, and it has served as the basis for establishing global warming in New Zealand. Figure 1 shows a steady trend of rising temperatures in New Zealand from early in the twentieth century through the year 2000. Figure 1 NZ average temperature, minus 1971-2000 norma! 1 "2 1860 1880 1900 1920 1940 Year 1960 1980 2000 Mean annual temperature over New Zealand, from 1853 to 2008 inclusive, based on between 2 (from 1853) and 7 (from 1908) long-term station records. The blue and red bars show annual differencesfrom the 1971 - 2000 average, the solid black line is a smoothed time series, and the dotted [straight] line is the linear trend over 1909 to 2008 (0.92C/100years) (Treadgold2009, from NIWA website). JA03139 LJSCA Case #09-1322 Document #1339079 HOLLAND&.hart *JJj ou r Filed: 10/31/2011 Page 48 of 246 U.S. Environmental Protection Agency December 4, 2009 Page 7 Just recently, the New Zealand Climate Science Coalition tested Dr. Salinger's analysis of the official New Zealand NIWA temperature database. It employed the same original temperature data to prepare its own graph, as depicted below in Figure 2. Figure 2 NZ average temperature (unadjusted), minus 1971-2000 normal....................................... 0.5 O o E c wm 0.5 w Q. E -15 - -2 L 1850 1870 1890 1910 1930 1950 1970 1990 As depicted, Dr. Salinger's graph (Figure 1) predictably shows warming, but the graph prepared by the New Zealand Climate Science Coalition (Figure 2) shows none whatsoever. The paper concludes that "We have discovered that the warming in New Zealand over the past 156 years was indeed man-made, but it had nothing to do with emissions of C02--it was created by man made adjustments of the temperature." (Treadgold 2009: 3). The article notes that all of the "adjustments" made by Salinger and the New Zealand government agency (NIWA) served to show inaccurate increases in warming. These graphs illustrate the significance of such data "adjustments," which make the difference between a finding of no statistically significant temperature change and supposed warming. As with the New Zealand dataset, EPA must reassess (as the University of East Anglia has just decided it must do) the actual data without CRU adjustments to determine whether the JA03140 USCA Case #09-1322 Document #1339079 HOLLA ND&HART T H E l- A 'vV O l; T W E: S T Filed: 10/31/2011 Page 49 of 246 U,S. Environmental Protection Agency December 4, 2009 Page 8 historical temperature record shows any wanning at all. EPA must also reconsider its findings, given that the corrupted CRU data has been used to test the General Circulation Models, which the IPCC, CCSP and others rely upon to predict future warming from human-caused GHGs. As a result, the defective data has corrupted the very models on which EPA, through its adoption of IPCC AR4's conclusions based on CRU data, relies upon in its Endangerment Finding to project future widespread warming and other severe weather conditions. The manipulation of the CRU dataset has likely led to inaccurate and baseless findings, and it destroys any reasoned or reliable basis for EPA's conclusion that human-caused GHG emissions will lead to future warming and result in endangerment of public health and welfare. All Temperature Data has Been Corrupted by CRU's Manipulation of Data Because all of the extant historic temperature databases are fundamentally unsound, so too are all of the conclusions based on that data, including the IPCC AR4 and CCSP assessment reports. Because the EPA relies heavily, if not exclusively, on these synthesis reports, its Endangerment Finding likewise is insuperably compromised. In short, since the foundation for EPA's Endangerment Rulemaking is arbitrary and capricious, the Rulemaking itself is arbitrary and capricious. Accordingly, as called, for in tire December 2, 2009, letter from Rep. Darrell Issa, Rep. F. James Sensenbremier, Sen. John Barrasso, M.D., and Sen. David Vitter to EPA Administrator Jackson (Issa 2009: 1), we urge withdrawal of the Endangerment Rulemaking in light of this new information of central relevance. The University of East Anglia itself has recognized the gravity of the situation and has pledged to make an independent investigation into CRU's data and research to determine whether its research outcomes are compromised by staff manipulation or suppression of data. (University of East Anglia 2009). Before EPA commits the nation to expenditures of billions or trillions of dollars in resources to regulate GHGs through the Endangerment Finding, it is incumbent on the Agency to likewise investigate the very suspect scientific foundation upon which the Endangerment Finding has been conceived. In support of our request, we are submitting the newly-released CRU emails and data, which were not publicly available until after the Endangerment Rulemaking's comment period ended. As described above, these documents are material and relevant to the Endangerment Rulemaking, and they address key scientific issues and new data that EPA must consider. As such, these materials constitute evidence of central relevance to the outcome of the Endangerment Rulemaking, which EPA is legally obligated to include in the record of this Rulemaking and related rulemakings, and to consider in its deliberative process. See 42 U.S.C. 7607(d)(4)(B)(i). We have included a CD containing electronic copies of the CRU disclosures and hard copies of the new non-CRU references. We have also included an updated Exhibit 2 to our Comments, which is current through the date of this letter and includes the references submitted JA03141 USCA Case #09-1322 Document #1339079 HOLLAND&HART. PI i. a w o u E S T jflR Filed: 10/31/2011 Page 50 of 246 U.S. Environmental Protection Agency December 4,2000 Page 9 today (#214 - #221), along with the references submitted on June 23, 2009; June 30, 2009; August 31,2009: and November 20, 2009. In the Alternative, this Submission Petitions EPA to Re-Open the Proceeding As we have done in the past, these comments are submitted as an Addendum and Supplementation of the Record in EPA's Endangerment Rulemaking. In addition, and in the alternative, we petition EPA in this submission to re-open its Endangerment Finding proceeding based on the CRU disclosures described above, which are of central importance in this rulemaking. These documents merit EPA's reexamination of all studies and synthesis reports based on corrupted CRU data, and a reopening of the comment period to allow public response to this issue. Submitted December 4, 2009 (JJ TXM^ Paul D. Phillips Robert T. Connery Patrick R. Day James A. Holtkamp Cori S. Peterson Cathryn R. Milkey of Holland & Hart LLP Eric Groten of Vinson & Elkins LLP JA03142 EXHIBIT G USCA Case #09-1322 Document #1339079 g% rm United States vMvaUJk Environmental Protection JF m Agency Filed: 10/31/2011 Page 286 of 403 EPA's Response to the Petitions to Reconsider the Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act Volume 3: Process Issues Raised by Petitioners U.S. Environmental Protection Agency Office of Atmospheric Programs Climate Change Division Washington, D.C. 1 JA04826 USCA Case #09-1322 Document #1339079 Filed: 10/31/2011 Page 302 of 403 The public was able to review all documents used by EPA in developing the TSD, including copyrighted material, by requesting a copy or visiting EPA's Air Docket. There was a full opportunity to review and comment on every piece of data relied on by EPA. EPA's Review Processfor the TSD Was Appropriate Comment (3-7): Several petitioners (the Coalition for Responsible Regulation, the Pacific Legal Foundation, and Peabody Energy) make the overarching argument that EPA's TSD did not go through a truly independent peer-review process. The petitioners argue that past EPA peer review of the science is now insufficient in light of new information in the CRU e-mails, and that the SAB must be given an opportunity to conduct an independent review of the Findings. They argue that the "SAB has not been able to perform its statutory function as an independent scientific review panel." More specifically, one petitioner states that review by the SAB is required under 42 U.S.C. 4365(c)(1), because the substantial uncertainty surrounding EPA's scientific determination warrants reopening of the comment period. The Pacific Legal Foundation states that Section 4365(c) requires EPA to submit relevant technical information and data to the SAB for their review whenever the public comment period is open. Response (3-7): The general issue raised by petitioners regarding review of the TSD is not new and, in fact, was raised and responded to through the public comment process (see Volume 1 of the RTC document). Thus, it was not impracticable to raise the objection during the public comment period and the reasons for the objection did not arise between June 24, 2009, and February 16, 2010. To the extent petitioners argue that new information in the CRU e-mails calls into question the reasoning behind EPA's position on this issue in the final Findings, the petitioners do not demonstrate that additional information has become available that merits reconsideration of the Findings. We have carefully reviewed the issue raised regarding the implications of the CRU e-mails, and considered whether information in the CRU e-mails calls for EPA to reconsider the procedural steps with respect to the scientific and technical information used as basis for the endangerment determination. We find nothing in the CRU e-mails that relates to EPA's decision regarding peer review of the TSD. Also, and as explained in detail elsewhere in this document and the Denial, the e-mails and other "new" information provided by petitioners do not call into question the underlying science of climate change, nor the validity of the assessment reports. As stated in Volume 1 of the RTC document, the purpose of the federal expert review was to ensure that the TSD accurately summarized the conclusions and associated uncertainties from the assessment reports. This is reasonable given our approach to the scientific literature (described in Section III.A of the Findings and Volume 1 of the RTC document). We also note that the federal expert review was only one part of a much larger process of developing the TSD from 2007 until the present. In addition to the three rounds of technical review by the 12 federal experts, the TSD has also gone through two rounds of public comment. The scope and depth of the record on the Endangerment Finding--including an 11-volume RTC document responding to comments on all aspects of the science, law, and procedure--demonstrate both the volume of information the Administrator considered in developing the Findings and the seriousness with 17 JA04842 USCA Case #09-1322 Document #1339079 Filed: 10/31/2011 Page 303 of 403 which the task of assessing the science was approached. Based on this, EPA rejects the Pacific Legal Foundation's allegation that the peer-review process EPA employed was insufficient in light of new information in the CRU e-mails. See other sections of this RTP document for our response to petitioner arguments regarding the implications of the CRU e-mails. The petitioner's argument regarding the SAB is somewhat unclear. To the extent the petitioner is claiming that EPA was required to submit the proposed Endangerment Finding to the SAB when it was proposed, the petitioner clearly could have raised this objection during the comment period, and thus this objection is not a basis for reconsideration of the Endangerment Finding. To the extent that the petitioner is claiming that EPA is required to submit the Endangerment Finding to the SAB for review at this time, because the various other grounds raised in the petitions to reconsider warrant reopening of the public comment period, EPA interprets this as a claim that SAB review will be required under this provision if EPA grants the petition to reconsider and reopens the comment period. For all of the reasons discussed elsewhere in the Decision and the RTP document, EPA is not granting the petitions to reconsider and is not reopening the comment period. Thus, there is no reopening of the comment period to trigger the SAB review claimed by the petitioner. In addition, this statutory provision did not require EPA to submit the proposed Endangerment Finding to SAB for review. Under its terms, the provision calls for EPA to make a "proposed criteria document, standard, limitation, or regulation" available to the SAB for review. The proposed Endangerment Finding is not a criteria document, standard, limitation, or regulation, and is thus not in the scope of this provision. In addition, the requirement to submit the proposed document to the SAB applies when "any proposed criteria document, standard, limitation, or regulation ... is provided to any other Federal agency for formal review and comment." It is not clear whether this includes the kind of informal interagency review conducted pursuant to Executive Order (E.O.) 12866, as compared to the more formal agency review envisioned in statutory provisions such as 49 U.S.C. 32902Q. Finally, the objection does not provide substantial support for the argument that the Endangerment Finding should be revised. In the Endangerment Finding the Administrator determined that the body of scientific evidence compellingly supports a positive endangerment finding. The major assessments by the USGCRP, the IPCC, and the NRC (published before 2010) served as the primary scientific basis supporting the Administrator's Endangerment Finding. The objections raised by the various petitioners have not changed EPA's view of the science. In May 2010, the NRC of the U.S. National Academies published its comprehensive assessment, "Advancing the Science of Climate Change." It concluded that "climate change is occurring, is caused largely by human activities, and poses significant risks for--and in many cases is already affecting--a broad range of human and natural systems." Furthermore, the NRC stated that this conclusion is based on findings that are "consistent with the conclusions of recent assessments by the U.S. Global Change Research Program, the Intergovernmental Panel on Climate Change's Fourth Assessment Report, and other assessments of the state of scientific knowledge on climate change." These are the same assessments that served as the primary scientific references underlying the Administrator's Endangerment Finding. Importantly, this recent NRC assessment represents another independent and critical scientific inquiry into the state of climate change science, separate and apart from the previous IPCC and USGCRP 18 JA04843 EXHIBIT H USCA Case #09-1322 Document #1388587 Filed: 08/10/2012 Page 21 of 119 No. 10-1310 (Consolidated with 09-1322 (Lead), et al.) (COMPLEX) IN THE UNITED STATES COURT OF APPEALS FOR T1IE DISTRICT OF COLUMBIA CIRCUIT PACIFIC LEGAL FOUNDATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. On Petitions for Review' of 74 Fed. Reg. 66,496 (Dec. 15, 2009) and 75 Fed. Reg. 49,556 (Aug. 13, 2010) (Consolidated) DECLARATION OF ROGER O. McCLELLAN IN SUPPORT OF PACIFIC LEGAL FOUNDATION'S MOTION FOR RECONSIDERATION THEODORE HADZI-ANTICH, No. 53056 Pacific Legal Foundation 930 G Street Sacramento, California 95814 Telephone: (916)419-7111 Facsimile: (916)419-7747 Counsel for Petitioner Pacific Legal Foundation USCA Case #09-1322 Document #1388587 Filed: 08/10/2012 Page 22 of 119 I, Roger O. McClellan, do hereby declare as follows: 1. 1 have personal knowledge of the following facts and, if called upon to do so, could competently testify thereto under oath. As to matters which reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I am a former member of EPA's Science Advisory Board ("SAB"), having served as a member from its creation without legislative authorization in 1974 to 1978 when it was authorized by specific legislation. I served on the SAB as authorized by statute from 1978 to 2006. This sendee involved participating as an active member of numerous Committees and Panels organized as part of the SAB. This included serving as Chair or Co-Chair of seven major committees, including the Env ironmental Radiation Exposure Advisory Committee Review Committee, ReviewCommittee on Scientific Criteria for Environmental Lead, Committee for Annual Review of 5-Year Research Plan, Committee on Review of Health Effects Program, Environmental Health Committee, Radionuclide Emissions Review Committee, Clean Air Scientific Advisory Committee and Research Strategies Advisory Committee. My chairmanship of the Review Committee on Scientific Criteria for Environmental Lead (1977-1978) is noteworthy because, in my opinion, the peer review activities of that Committee served as a positive example as part of the motivation for the legislative authorization in 1978 of both the Science Advisory' Board and related Clean Air Scientific Advisory Committee in 1978. - 1 - USCA Case #09-1322 Document #1388587 Filed: 08/10/2012 Page 23 of 119 3. from creation of the SAB by EPA leadership in 1974 to 1978,1 served as a member of its Executive Committee. 1 continued to serve as a member of the Executive Committee of the SAB from the time it was formally mandated by statute in 1978 to 1994 W'ith a brief hiatus during 1980-1981. 4. In my capacity as a member of SAB and its Executive Committee, I w'as involved in a wide variety of issues addressed by SAB, including, among other things, numerous scientific and technical issues arising under the Clean Air Act. 5. SAB w-as created in order to provide scientific and technical credibility to EPA regulations by bringing together experts in various scientific and technical disciplines to provide scientific advice to the senior leadership ofthe EPA, including the Administrator, on all manner of scientific issues. The scope of the advisory activities was, and continues to be, very broad ranging from programs at their conceptual stage to review of regulatory proposals of EPA, including the underlying scientific studies and analyses upon which the regulatory proposals are based. 6. The main function and purpose of SAB is to provide EPA w ith expert advice and peer review regarding EPA's scientific and technical determinations and judgments. The motivation is to ensure that regulatory decisions are based on good underlying science and sound technical judgments. This is especially important where the scientific or technical issues being addressed by EPA are new or cutting -2 - USCA Case #09-1322 Document #1388587 Filed: 08/10/2012 Page 24 of 119 edge, leading to the promulgation of new regulatory programs that could have substantial impacts on society. 7. 1 have always understood that EPA's proposed regulations under the Clean Air Act would be made available to the SAB for review at the earliest possible time and no later than the date the regulations arc first published in the Federal Register for comment by other federal agencies and the general public. Indeed, for activities with major impact, the Agency regularly asks the SAB to review' the plan for key activities, including the planned schedule for development and subsequent SAB review of key documents. 8. I am familiar w ith CPA's finding made in December of 2009 that greenhouse gases pose a threat to human health and welfare (the "Endangerment Finding"). The Endangerment Finding is certainly the type of regulatory action that SAB was created to review. It deals with novel, cutting edge scientific and technical issues that can have a profound impact on society. Those issues require the type of detailed expert scrutiny that SAB review was intended to provide. 9. If I w'crc a member of SAB at the time the Endangerment Finding was proposed by EPA, I certainly would have wanted and expected the SAB to have had the opportunity to review that important regulatory proposal, as well as the scientific and technical data underlying it. if EPA failed to submit the Endangerment Finding to SAB for review before it was promulgated, I would have felt that EPA was -3 - USCA Case #09-1322 Document #1388587 Filed: 08/10/2012 Page 25 of 119 interfering with the purposes for which SAB had been created, namely, to provide scientific and technical credibility to P.PA regulatory decisions. I would be surprised if any then-current member of SAB would not have wanted the opportunity to review the Endangerment Finding before it was promulgated. 10. On many occasions during the long history of SAB, EPA changed its regulatory proposals and schedules based on review and comment by SAB. This has been the rule rather than the exception, which stands to reason, as SAB was created to provide an expert reality check for EPA scientific and technical determinations that inform policy judgments. 11. SAB essentially serves a critical gatekeeper role whose mission is to ensure that EPA's regulatory proposals arc based upon sound scientific and technical principles. When they are not, SAB sounds the gatekeeper's alarm, informing EPA that its proposal is unwarranted, unsupported by the underlying science, otherwise scientifically or technically improper or indefensible, or in need of modification so as to be consistent with sound scientific and technical principles. It has been my experience that the members of SAB take their gatekeeper responsibilities very seriously. 12. Based upon my more than two decades of experience as a member of the SAB, after it was established legislatively, my more than 15 years of sendee as a member of the SAB Executive Committee and my knowledge of how SAB interacts -4- USCA Case #09-1322 Document #1388587 Filed: 08/10/2012 Page 26 of 119 with F.PA, l believe there is a substantial likelihood that the Endangermcnt Finding would have been substantially changed in response to advice from the SAB had the Hndangerment Finding document been made available to SAB for review prior to its promulgation. I declare under penalty of perjury that the foregoing is true and correct, to the best of my knowledge, and that this declaration was executed this 17th day of July, 2012, at Albuquerque, New Mexico. /T A/*f -5- ORIGIN ID.AUSA (512) 770-4670 TED HADZI-ANTICH TEXAS 901 CONGRESS AVENUE AUSTIN, TX 78701 UNITED STATES US SHIP DATE: 01 MAY 17 ACTWGT: 100 LB CAD: 107341640/1NET3850 BILL SENDER to SCOTT PRUITT US ENVIRONMENTAL PROTECTION AGENCY MAIL CODE 1101A 1200 PENNSYLVANIA AVE., N.W. WASHINGTON DC 20460 (888) 890-1995 PE- oaf INV FecOss, E'piess FedEx Ship Manager - Print Your Label(s) TRK# j 0201 I 7790 3007 7062 XC RDVA TUE - 02 MAY 3:00P STANDARD OVERNIGHT 20460 DC-US IAD A fte r printing this label: 5/1/2017