Posted on 01/09/2015 8:49:13 AM PST by Kaslin
When the U.S. Environmental Protection Agency violates a clear statute designed to ensure its regulations and environmental standards receive independent scientific review, someone should sue to force the agency to follow the law. That’s exactly what Pacific Legal Foundation did when the EPA and the Department of Transportation issued regulations in 2011 to establish greenhouse gas emission and fuel efficiency standards for cars (the Car Rule) and medium- and heavy-duty vehicles (the Truck Rule) without submitting either proposed rule to the federal Science Advisory Board for peer review.
Both cases will be debated in federal court for the first time Friday when a panel of the U.S. Court of Appeals for the D.C. Circuit hears oral argument in the consolidated cases. On behalf of a construction contractor, a trucking firm, and their respective trade associations in California, my colleague, Ted Hadzi-Antich, will argue that the EPA’s failure to submit the vehicle emissions standards to the Science Advisory Board for comment requires the standards to be vacated.
The EPA has regularly complied with the Science Advisory Board statute. Yet it didn’t seek Board review when it issued the Car and Truck Rules that involve greenhouse gas emissions and new corporate average fuel efficiency standards. Thereare especially important reasons why EPA should have done so for these two rules.
For one thing, it’s the first time EPA has attempted to regulate vehicle greenhouse gas emissions as such, and carbon dioxide in particular. Carbon dioxide is non-toxic, ubiquitous, and essential to life on Earth, but it is also a greenhouse gas—for good and for ill, depending on its concentration in the atmosphere. It constitutes roughly 14 percent of gasoline vehicle emissions and about 95 percent of the greenhouse gases therein. Changing that mix and its likely effect is where the complications begin.
Questions over the adequacy, integrity, and interpretation of scientific data are endemic to the evaluation of almost all environmental standards or regulations, but they are especially complex and uncertain with regard to greenhouse gas interactions. Various cost, benefit, and other environmental impacts of the emissions and fuel efficiency standards are at play in the Car and Truck Rules, and all of them may be confounded by underlying data errors, faulty analysis, and unjustified conclusions. The blue-ribbon Science Advisory Board has the expertise and ability to review the underlying agency data and its analyses thereof. That’s why Congress created that panel of experts to begin with.
Second, even the EPA has admitted that each of the two rules will cost at minimum over one hundred million dollars per year to implement (at least ten times that figure is likely, according to EPA), although it also claims that fuel savings will eventually provide net benefits after the more expensive vehicles are purchased. One hundred million (or even a few billion) dollars may not seem like an unusually large figure compared to some congressional mandates, but proposed agency regulations over that figure trigger federal agency review coordinated by the Office of Management and Budget (OMB) under Executive Order 12866.
The Car and Truck Rules were submitted to OMB, and OMB sent the draft rules to other executive branch agencies for comment. But they were not submitted to the Science Advisory Board. The interagency review pursuant to the presidential executive order is not mandated by statute, is not remotely independent, and does not examine the science underlying the rules, but it belies the notion that the review mandated by the Science Advisory Board statute was not feasible or worth seeking.
The Science Advisory Board statute sets forth a nondiscretionary mandate: “[for] any proposed criteria document, standard, limitation, or regulation, [EPA] shall make available to the Board such proposed criteria document, standard, limitation, or regulation, together with relevant scientific and technical information in the possession of the Environmental Protection Agency on which the proposed action is based.” The Car and Truck Rules are both “standards” and “regulations” pursuant to that statute.
Apart from its crabbed argument that owners who must pay significantly more for vehicles if the rules go into effect have no standing to challenge them, the EPA’s only excuse as to why it didn’t submit the two rules to the Science Advisory Board for review is that it published them in the Federal Register. According to EPA, the Science Advisory Board could have scanned the Federal Register each day looking for proposed rules that might contain scientific foundations that it should review.
Fortunately, the D.C. Circuit Court rejected the “Federal Register” dodge to the Science Advisory Board submission requirement as far back as 1981. In American Petroleum Institute v. Castle,the court held that, in the context of the SAB statute, “making available” required that EPA submit the material to the Board. This is reinforced by the statutory requirement in the same sentence that the “relevant scientific and technical information in the possession” of EPA also be submitted with the rule or standard. Publication of the draft rule is not sufficient.
It is also unreasonable to put the onus on the Scientific Advisory Board to scan any number of government publications and postings, and then try to determine which criteria documents, standards, limitations or regulations should have been submitted to it. According to EPA’s logic, no individual or entity needs to file any information in conjunction with a request for an EPA permit if the agency can find that information in a public record. That is not the standard that EPA applies to documents and information it is supposed to review.
The only serious issue is what the courts should do about EPA’s violation of law. EPA’s statutory violation cannot be dismissed as a harmless error. Congress enacted the requirement for Science Advisory Board review because it believed it would make a difference in the standards and regulations EPA issued, and that has proven true time and time again. EPA’s violation relating to these rules is especially consequential, as the two affidavits of the former chairman of the Science Advisory Board explain: these are precisely the type of rules that Congress intended the Board to evaluate, and EPA’s failure to obtain the required peer review is inexcusable.
This year marks the 800th anniversary of Magna Carta, which established that even the King of England had to abide by “the law of the land.” That principle evolved in England to prevent various abuses by the executive and is even more firmly rooted in our constitutional republic. For EPA to follow “the law of the land” in these cases, it must submit the rules and underlying scientific information to the Board and consider its comments thereon before issuing final standards and regulations.
Yeah it is. They write the law. They execute the law. They adjudicate the law.
And you don’t vote for any of it. Sucks to be you.
LOL! I was gonna say, Shhhh. Don’t tell them that cause they have other ideas. Unless you got a berkshire-hathaway sized back account, good luck fighting them.
Had a liberal the other day complaining about breathing all the terrible CO2 pollution from all the cars.
I had a fleeting moment of thought about trying to explain that CO2 isn’t a “pollutant” but when looking into those empty eyes of hers, I thought better of it.
I was witnessing the face of total indoctrination and stupidity.
Sucks to be us.
Should have strangled him to death, shrieking "CO2 KILLS THE WORLD! STOP BREATHING!!!!"
One of the most unconstitutional things Congress has ever done was to create agencies and give them the power to make rules withe the weight of law.
The EPA was called a “rogue regulatory agency” by a federal judge. They routinely ignore the law. the Constitution, and the courts.
And the Gelded Old Party jellyfish we send to DC every 4 years in midterm elections do nothing about it, because they're scared to death of the commie media accusing them of wanting to 'shut down the government'.
” Should have strangled him to death,”
read my mind
Kneel! Kneel before your government employee masters! Bring them offerings of bribes lest they strike you down!
You could have suggested that, if he were truly that concerned about CO2 emissions, he should do his part by no longer exhaling when he breathes. You could assure him that inhaling is fine so long as he refrains from exhaling. (Side benefit: He’d have to stop talking. )
In the 70’s they began making mfr’s put catalytic converters on cars.
These converters transform car exhaust hydrocarbons into water vapor (H2O) and carbon dioxide (CO2)
Now they tell us CO2 is bad.
They can’t have it both ways.
Article. I.
Section. 1.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
No, the EPA is outside the law. It has no right to exist. It is therefore against the law, and has been since its inception in 1970.
The EPA is a criminal "protection racket" that should simply be disbanded immediately, and all the moneys taxed to maintain it over the decades refunded to the individual taxpayers who paid the bill (or their estates). That refund should not come from the Treasury, which belongs to the People. It should be drawn from the private holdings of the government officials (or their estates) who approved its operations over the years, in proportion to their responsibility for those decisions or operations.
I'm not prejudiced in any way, and would insist on collecting from everyone responsible, regardless of position, in proportion to his actions in support of this criminal organization: Presidents, legislators, Supreme Court justices, agency administrators, and 501c-3 foundations. (Where 501c-3s are concerned, as private citizens, individual Board members and donors would be exempt from penalty.) All who officially supported or abetted the EPA took an oath to uphold the Constitution, and all violated it. An outfit like the CATO Institute or the Club for Growth would do an excellent job apportioning responsibility appropriately. When explaining it to liberals, we could informally term this a "redistribution of wealth." But in reality it is just returning people's property—inflation-adjusted and with interest, of course.
Since all operations of the EPA have constituted a taking under cover of law and a deprivation of Americans' Constitutional rights (with literally world-changing consequences), any immunities ordinarily granted to office-holders doing their jobs are void. It will be very merciful of us if we do not pursue criminal prosecution as well.
The Clean Air Act is unconstitutionally vague and should be repealed. And the process of "peer review" of proposed regulations cannot work when the reviewers are all clones of Jonathan Gruber.
A common misconception.
They enforce the laws as written. It's the fault of Congress, which could stop all of it today.
PATRICK HENRY, Virginia Ratifying Convention: This, sir, is my great objection to the Constitution, that there is no true responsibility — and that the preservation of our liberty depends on the single chance of men being virtuous enough to make laws to punish themselves.
I can sympathize with Henry here.
On the other hand, a Constitution that had some kind of Ombudsman built into it, would it end up being any better than our current situation?
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