Conservative opponents to climate regulation aren’t ruling out legal action to force EPA Administrator Scott Pruitt’s hand amid silence on whether he’ll target the agency’s greenhouse gas endangerment finding.
Pruitt hasn’t committed to reviewing the Environmental Protection Agency’s 2009 finding that greenhouse gases endanger public health and welfare despite a variety of petitions to do so filed by climate foes. That finding, issued early in the Obama administration, is the basis for nearly all of the agency’s climate regulations.
“We haven’t heard one thing from the EPA on the subject,” said Francis Menton, an attorney representing the Concerned Household Electricity Consumers Council, one of those that filed a petition last year urging the agency to reconsider the endangerment finding.
Menton told Bloomberg Environment his group is “absolutely considering” taking the EPA to court if it denies or continues to delay action on its petition—but he said that’s “just consideration” and the group doesn’t “have any specific plans at the moment.”
Pruitt has suggested the EPA will conduct a review of climate science using a “red-team, blue-team” approach—an effort free market conservative groups cheered as a prelude to challenging the endangerment finding. In that approach, which has military origins, a red team critiques an action’s conclusion, while the opposing blue team defends it, prompting a back-and-forth debate until consensus emerges.
But Pruitt’s push for debate has stalled amid internal disagreement about how the exercise should be administered and whether the EPA should lead it.
As the agency weighs whether it should replace the power plant carbon emissions regulation known as the Clean Power Plan, prominent foes of Obama-era climate policies think there’s still a chance that Pruitt opts to revisit the endangerment finding.
“I’m hopeful that this is a really legitimate process [and] that they haven’t already made up their minds,” Myron Ebell, energy and environment director at the Competitive Enterprise Institute, said.
While he acknowledged an “obvious course of action” for the EPA would be to issue a narrow replacement of the Clean Power Plan, he told Bloomberg Environment he doesn’t think the EPA “has foreclosed other options such as not replacing it with anything.”
The patience of other conservative climate opponents, however, is running much thinner.
The most likely way Pruitt and his team will review the finding is if they’re told by the court to do so, David Schnare, former general counsel for the Energy & Environment Legal Institute, told Bloomberg Environment. Schnare worked on the Trump EPA’s transition team before leaving the agency amid disagreements with Pruitt, and he’s attended several meetings hosted by the Heartland Institute on the finding and the EPA’s climate science review.
He said there are strategies groups could use to bring a lawsuit compelling the EPA to re-examine the finding, but he declined to provide further details on legal tactics.
Schnare described a White House divided on whether to target the EPA’s finding.
“There are folks in the White House on staff who think it needs to be done, and others who think it’s a tar pit and you get stuck in it,” he said.
‘Science Is Strong’
Paul Anastas, former assistant administrator for the EPA’s Office of Research and Development in the Obama administration, is skeptical Pruitt and his team will be able to target the science.
“The strategy, of course, is you try to go after the science because the science is the basis of the policy,” Anastas, now a professor at Yale University, told Bloomberg Environment. “The only problem with that is the science is so strong.”
Instead, Anastas said Trump officials will likely attempt to go after the process.
“There’s a million different procedural hoops they could try to go after. It’s quite a complex thing,” he said.
Since the Trump administration took office, three groups—the Competitive Enterprise Institute, the Texas Public Policy Foundation, and the Concerned Household Electricity Consumers Council—have filed petitions urging the EPA to reconsider the 2009 finding. The EPA hasn’t responded to those petitions.
The Texas Public Policy Foundation could not be reached for comment.
David Doniger, climate and clean energy director for the Natural Resources Defense Council, said it’s possible groups could bring suits claiming the EPA’s action on the petitions has been unreasonably delayed.
“I would think those lawsuits wouldn’t be particularly strong lawsuits,” he told Bloomberg Environment, adding that the “political leverage” those groups have is “limited.”
Framework for Review
Pruitt during a Dec. 7 House Energy and Commerce committee hearing told lawmakers he anticipated an announcement on the climate science review in January.
But it is unclear whether that announcement is still on track. The EPA did not respond to a request for comment.
Ebell, though, downplayed the apparent delay in getting that review off the ground, citing suggestions from his group and others that such an exercise should be held at the White House Office of Science and Technology Policy, not the EPA.
“This is a very important but also very complicated effort to get started. I’m not worried or disappointed that it seems to be taking a long time,” he said. “My guess is the White House sees there are other places where it should be headquartered.”
Ebell also suggested the EPA could take steps to provide an “institutional and legal framework” for the review by invoking peer review processes required by the White House budget office for a highly influential scientific assessment.
The Obama administration had argued the scientific document underpinning its finding didn’t need to undergo the rigorous third-party peer review required for such assessments by the Data Quality Act. Opponents of the finding objected, and a 2011 report by the EPA’s Office of Inspector General found the scientific document should have been treated as a highly influential scientific assessment.
Were Pruitt to direct such a review now, “it might take a number of years,” Ebell said, and while that’s underway, the endangerment finding would be “inoperative.”
But Doniger suggested Pruitt may be hesitant to challenge the finding on technical procedural grounds because a “realistic assessment” shows little chance of success.
“The finding is too robust, and it’s only gotten more robust,” Doniger said.
He compared Pruitt’s options to a football team being on its own one yard line: “What are the chances of scoring a touchdown?”