24 States, 14 Municipalities, and various NGOs are suing the EPA over its rescission of the 2009 endangerment finding for greenhouse gases. Up to this point, we’ve seen multiple Petitions for Review filed with the D.C. court, but those documents have lacked substantive arguments. Recently, Plaintiffs issued “intent to sue” letters to the EPA after their initial petition to the agency went unanswered. This letter gives us a peek into the plaintiffs’ legal strategy:
“EPA’s delay in acting on the Petitions is patently unreasonable. The Petitions raise a straightforward, discrete, and glaring defect introduced in the final Rescission: EPA’s reliance on new methodologies, data, and assumptions to support the Rescission’s ‘futility’ argument and other justifications, which were never made available for public comment. In the proposed rule, EPA relied on a draft report written in secret in less than two months by five handpicked climate skeptics—the Department of Energy’s ‘Climate Working Group’—to argue that regulating U.S. motor vehicle emissions had no meaningful impact on climate change.
But after a court deemed the Climate Working Group unlawful, EPA decided to introduce newly generated results of four models for estimating emissions inventories and changes in global temperatures and sea level rise caused by those emissions. EPA ran those four models using inputs and assumptions newly chosen by the agency and never exposed to public scrutiny… By introducing and relying upon that new methodology for the first time in the final rule, EPA deprived Petitioners and the public of the opportunity to comment on the evidence cited by EPA in support of multiple, purportedly independent justifications for the Rescission.”
Back in February, a week before the EPA released its final rule repealing the finding, I wrote that the plaintiffs might use the “Climate Working Group” ruling as ammunition. This appears to be the plaintiffs’ strategy. The arguments focus on deficiencies in the Climate Working Group’s original formation and function. Since a court voided the underlying “science” supporting the EPA’s proposed rule, the agency rushed to manufacture new evidence. This new evidence only appeared in the final rule at the time of its publication, giving the public no time to review and comment on it.
Currently, the EPA is stalling. The Plaintiffs must exhaust their administrative remedies before the courts can take jurisdiction over the case. This letter indicates that they’ve reached this point and are looking to the courts to intervene.
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