“Freedom is the freedom to say that two plus two make zero,” Winston Smith, the hero of George Orwell’s Nineteen Eight-Four, writes in his secret journal. “If that is granted, all else follows.”
Or to paraphrase for the modern era, “EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.”
The second line is from the per curiam opinion of the Court of Appeals for the D.C. Circuit announced Tuesday in Coalition for Responsible Regulation v. Environmental Protection Agency. This decision is a massive win for science generally, and climate science in particular, against powerful forces that have spent a decade insisting that two plus two equals four.
To understand the background of the case, you must recall that in the 2007 case of Massachusetts v. EPA, the Supreme Court rejected the Bush administration’s argument that the EPA had no jurisdiction over greenhouse gases. Carbon dioxide and other heat-trapping gases, the administration argued, were not “air pollutants” as defined by the Clean Air Act; and even if they were, the EPA had the discretion to refuse to regulate as long as there was “scientific uncertainty” about whether global warming is caused by human activity or indeed is occurring at all. Wrong, said the Court. It ordered the EPA to re-examine the issue and either regulate the gases or come up with a genuine scientific reason for not doing so.
Over the following four years, the EPA came forward with a finding that greenhouse gases “may reasonably be anticipated to endanger public health or welfare.” It set new emission standards for motor vehicles and announced a program designed to require the largest non-automotive sources of greenhouse gases to obtain permits and begin phasing in “control technologies.”
A group of state governments, and a number of industry groups, immediately challenged the new rules in federal court. Their arguments, essentially, were three. First, they said, we don’t really know whether global warming is occurring or if it is caused by humans. Second, even if it is a real phenomenon, the courts should require agencies to pretend it isn’t, because believing in global warming would cost too much. Finally, and remarkably, they argued that the new permit requirements were illegal because they did not regulate greenhouse gases strictly enough.
Addressing the “uncertainty” argument, this week the D.C. Circuit found that the EPA had consulted appropriate scientific sources and interpreted them properly. “EPA had before it substantial record evidence that [human-caused] emissions of greenhouse gases ‘very likely’ caused warming of the climate over the last several decades,” the opinion said. No scientific conclusion is ever 100 per cent certain; “[b]ut the existence of some uncertainty does not, without more, warrant invalidation” of EPA’s conclusion that human emissions are a threat to public health. “Requiring that EPA find ‘certain’ endangerment of public health or welfare before regulating greenhouse gases would effectively prevent EPA from doing the job Congress gave it” in the Clean Air Act.
The challengers had argued that, no matter how strong the evidence, the EPA should be blocked from its global-warming finding until it conducts a full study on how much it would burden industry to decide that global warming exists. This requirement isn’t in the statute; the Coalition wants the court to impose it by interpretation. Requiring this sort of risk-and-benefit calculation before doing science would be a radical, court-imposed change in our system of environmental law—a major victory for industry that it has not been able to win in Congress. The D.C. Circuit noted that the EPA is charged by law with studying facts, not with deciding when those facts might be too upsetting to face.
In their final argument, the challengers turned their original position upside down. The EPA has now concluded that greenhouse gases are air pollutants. If it immediately required every polluting source to obtain a permit, the result would be chaos. Right now, EPA handles about 280 applications a year to emit large amounts of pollution; left untouched, the greenhouse gas finding would boost that number overnight to 81,000. Lower-level permits required would jump from 14,700 to 6.1 million; the cost of the permit program would soar from $62 million to $21 billion a year. To avoid this insanity, the EPA issued a “tailoring rule,” which for the time being requires only the largest sources of greenhouse gases to go through the process, until better procedures can be worked out.
The challengers suddenly took umbrage at the EPA’s refusal to regulate all sources of pollution immediately. Global warming, they solemnly told the court, is injuring them every day, and the EPA should be required to act right away.
The panel reacts to this argument with what I call The Full Christopher Walken (“Are you $#%&ing kidding me?):
"Essentially, State Petitioners’ reply brief contends that, contrary to the position taken in the opening brief, they want more regulation, not less, and that they wanted regulation sooner rather than later. … State Petitioners’ asserted fear of global warming stands in stark contrast to the position they took throughout this litigation."
In the past ten years, industry and its shills have conducted a massive campaign to convince the public that global warming does not exist. The D.C. Circuit opinion harshly rejects that sort of half-crazy doublethink. The three-judge panel included Judge David Sentelle, one of the most conservative judges on the federal bench. But there was no dissent. That makes en banc review less likely, and the vote lineup on the Supreme Court looks to be about the same as it was in 2007, when Massachusetts v. EPA came down.
A court ruling that two plus two equals four is a setback for climate denial. But the battle goes on.