Peabody Energy Co. has petitioned the US Environmental Protection Agency to reconsider its endangerment finding on greenhouse gases because of recent evidence of faulty scientific research and review in the "Climategate" scandal involving the University of East Anglia Climatic Research Unit (CRU). The Texas government, the US Chamber of Commerce, and a coalition of eight trade associations are mounting legal challenges on the same grounds (OGJ Online, Feb. 17, 2010).
New evidence in the wake of that scandal "undermines a number of the central pillars" on which EPA based its finding that an atmospheric mix of carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride constitutes "air pollution" that threatens public health and welfare via climate change.
"Given the seriousness of the flaws that the CRU material reveals in the development of the IPCC [Intergovernmental Panel on Climate Change] reports, and given EPA's extensive reliance on those reports, the agency has no legal option but to reexamine the endangerment finding in light of this new information. Indeed, the analytical process in which EPA engaged in reaching its endangerment finding is so tainted by the flaws now revealed in the IPCC reports that the agency must take the unusual step of convening full evidentiary hearings in order to provide an open and fair reconsideration process," said Peabody.
Skewed data
The company provided EPA with a computer disk of Climategate material indicating CRU scientists skewed their supporting data while effectively shutting out opposing viewpoints. That represents "new material that was not available during the comment period and which is central to the outcome that EPA reached in promulgating its endangerment finding," said company officials.
Peabody further accused EPA of failing "to properly exercise its judgment as required by the Clean Air Act" and acting "in an arbitrary and capricious fashion by relying almost exclusively on flawed reports of the IPCC in attributing climate change to anthropogenic GHG emissions." The IPCC reports have since been shown to be "not the product of a rigorous, transparent, and neutral scientific process," Peabody said.
Peabody claimed that EPA "largely ceded its obligation" to determine GHG risks "to the IPCC, an international body that is not subject to US data quality and transparency standards and whose reports were prepared in direct disregard of those standards."
EPA therefore should reconsider its endangerment finding "in light of the recently discovered defects" in the IPCC's procedures and convene full evidentiary hearings "to provide an open and fair reconsideration process," they said.
In December, EPA published its landmark GHG endangerment finding, claiming "scientific evidence is compelling that elevated concentrations of heat-trapping gases are the root cause of recently observed climate change." EPA also claimed a 90-99% probability that most of the observed increase in global average temperatures since the mid-20th century is due to an increase in anthropogenic GHG concentrations and is already detrimental to US health and safety and is likely to get worse.
Science vs. advocacy
Yet just weeks before EPA issued its finding, someone hacked into the CRU files and flooded the internet with secret e-mails revealing many of the principal scientists who authored key chapters of the IPCC scientific assessments were driven by a policy agenda that caused them to cross the line from neutral science to advocacy. Peabody officials said, "Indeed, they went far beyond even what is acceptable as advocacy, as they actively suppressed information that was contrary to the 'nice, tidy story' that they wished to present."
Officials said, "EPA believes that it has broad discretion in making its endangerment finding. Although the extent of EPA's discretion is debatable, what is not debatable is EPA's obligation to justify the particular choices it made in exercising that discretion." Based on faulty data from the IPCC, they said, "EPA decided that such emissions were almost certainly already causing dangerous climate effects, with the danger almost certainly likely to worsen in the future. This is an important distinction because obviously the degree of endangerment that EPA finds will guide the nature and extent of regulation that EPA will now promulgate."
Given the seriousness of the flaws that the CRU material and other information reveal in the development of the IPCC reports, EPA now "has no choice but to conclude that the endangerment finding itself is now tainted and must be reconsidered," they charged. Since 85% of all US energy comes from fossil fuels, EPA should also consider the economic benefits along with the environmental risks, they said.
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