FOIA Request Aims To Revive Fight On Validity Of EPA Climate Risk Finding

  • Date: 01/07/14
  • InsideDefense.com

A free-market group is pursuing a Freedom of Information Act (FOIA) request with EPA for a slew of documents that it says might show the agency’s greenhouse gas (GHG) endangerment finding is scientifically flawed, the latest bid by EPA’s critics to invalidate the finding that underpins the agency’s climate change regulatory program.

Unless EPA fully grants the Institute for Trade, Standards and Sustainable Development’s (ITSSD) FOIA request filed June 30, “a significant portion of the American public may reasonably conclude it cannot trust that EPA’s climate science-related peer review practices had been in conformance with U.S. law,” the request says. ITSSD claims the documents may show the agency failed to adhere to Information Quality Act (IQA) requirements in crafting the finding.

Attacking the finding — in which the agency concluded that vehicle GHGs endanger human health and welfare — is an ongoing strategy for opponents of of Clean Air Act GHG regulation, because it underpins many climate rules. EPA developed first-time vehicle GHG rules based on the finding, and then other climate rules including its GHG permit program that the Supreme Court recently upheld in large part but narrowed in scope.

If ITSSD or others could show that the endangerment finding failed to adhere to IQA guidelines they could potentially file a fresh lawsuit over it. Should such a challenge succeed and undo the finding, that would feasibly provide significant new grounds for industry and other EPA critics to scrap the climate regulations.

Critics of the finding however have struggled with prior attempts to undermine it, as the U.S. Court of Appeals for the District of Columbia Circuit in 2012 rejected a legal challenge to the document. And the Supreme Court in its ruling on the GHG permit program did not address the validity of the endangerment finding.

EPA’s Inspector General (IG) in a 2011 report requested by GOP lawmakers also said EPA’s development of the finding met statutory requirements and “generally followed” guidance for ensuring quality control of its data, although the IG did note that EPA failed to meet all White House requirements for peer review of the finding.

ITSSD’s Concerns

Nevertheless, ITSSD — which advocates for “scientifically and economically benchmarked and justified, market-driven” regulations — says prior reviews of the finding’s validity were inadequate. They say their FOIA request, if granted, would provide documents allowing for a broader review of the finding’s adequacy.

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