[Congressional Record (Bound Edition), Volume 155 (2009), Part 9]
[Extensions of Remarks]
[Pages 12439-12441]
[From the U.S. Government Publishing Office, www.gpo.gov]




                DELIBERATIVE--ATTORNEY CLIENT PRIVILEGE

                                 ______
                                 

                         HON. MARSHA BLACKBURN

                              of tennessee

                    in the house of representatives

                        Wednesday, May 13, 2009

  Mrs. BLACKBURN. Madam Speaker, I would like to submit the following 
memorandum:


             DISCUSSION OF SCIENTIFIC SUPPORT AND ANALYSIS

       The NPRM fails to articulate the process by which the 
     Administrator came to the conclusion on p. 30, line 41-46: 
     ``The Administrator believes that the scientific findings in 
     totality point to compelling evidence of human-induced 
     climate change, and that serious risks and potential impacts 
     to public health and welfare have been clearly identified, 
     even if they cannot always be quantified with confidence. The 
     Administrator's proposed endangerment finding is based on 
     weighing the scientific evidence, considering the 
     uncertainties, and balancing any benefits to human health, 
     society, or the environment that may also occur.''
       The finding document remains very separate from the TSD, 
     with only occasional references to the IPCC or particular 
     CCSP report findings, and it is up to the reader's 
     interpretation of the TSD to determine how the evidence has 
     been weighed to arrive at the conclusions above. The finding 
     rests heavily on the precautionary principle, but the amount 
     of acknowledged lack of understanding about basic facts 
     surrounding GHGs seem to stretch the precautionary principle 
     to providing for regulation in the face of unprecedented 
     uncertainty. (The TSD notes several areas where essential 
     behaviors of GHGs are ``not well determined'' and ``not well 
     understood'' (e.g., why have U.S. methane levels decreased 
     recently?).) This could be remedied by expanding the 
     discussion on pp. 25-31 to articulate more clearly how the 
     Administrator weighed the scientific evidence related to each 
     impact or how/whether she gave more or less weight to 
     particular impacts for either the public health or the 
     welfare finding and how she weighed uncertainty in her 
     deliberations.
       For example, the NPRM and TSD outline the following 5 human 
     health effects from climate change: temperature effects, air 
     quality changes, extreme events, climate sensitive diseases 
     and aeroallergens. It is unclear whether temperature effects 
     will result in net mortality increases or decreases and the 
     scientific literature does not provide definitive data or 
     conclusions about aeroallergen impacts. Further, the impact 
     of climate sensitive diseases may be minimal in a rich 
     country like the US. Hence, it seems that the Administrator's 
     public health endangerment conclusion is based on the other 
     two impacts, with the most significant health risks being 
     posed by air quality changes. If so, the discussion here 
     should state this explicitly. Further, the argument for why 
     the increases in ozone from climate change pose a health 
     impact could be fleshed out more thoroughly (p. 27, line 34-
     39). Since tropospheric ozone is already regulated under the 
     Clean Air Act, EPA should explain why those regulations are 
     inadequate to protect public health from the ozone impacts of 
     climate change.
       In addition, the finding could be strengthened by including 
     additional information on benefits, costs, and risks (where 
     this information exists); meeting appropriate standards for 
     peer review; and accepted research protocols. Some issues to 
     cover that would address costs, benefits, and risks include 
     the following:
       Methodology or methodologies used for weighing risks and 
     various outcomes and the risks associated with each;
       Confidence intervals related to model results at the 
     regional and local scales;
       Underlying assumptions of findings, publications on which 
     the findings are based, and ``business-as-usual'' scenarios;
       Quality and homogeneity of temperature data from surface 
     networks that may affect estimates of past temperature 
     trends, and calibration and verification of models;
       Impacts of climate change on the value of net economic 
     benefits.
       The Finding should also acknowledge that EPA has not 
     undertaken a systematic risk analysis or cost-benefit 
     analysis. In the absence of a strong statement of the 
     standards being applied in this decision, there is a concern 
     that EPA is making a finding based on (1) ``harm'' from 
     substances that have no demonstrated direct health effects, 
     such as respiratory or toxic effects, (2) available 
     scientific data that purports to conclusively establish the 
     nature and extent of the adverse public health and welfare 
     impacts are almost exclusively from non-EPA sources, and (3) 
     applying a dramatically expanded precautionary principle. If 
     EPA goes forward with a finding of endangerment for all 6 
     GHGs, it could be establishing a relaxed and expansive new 
     standard for endangerment. Subsequently, EPA would be 
     petitioned to find endangerment and regulate many other 
     ``pollutants'' for the sake of the precautionary principle 
     (e.g., electromagnetic fields, perchlorates, endocrine 
     disruptors, and noise).


     Endangerment without consideration of regulatory consequences

       EPA should explain whether it considered a finding that 
     methane and the other four non-CO2 GHGs do in fact 
     contribute to climate change, based on their higher warming 
     potential, but that overriding policy concerns make such a 
     finding infeasible concerning CO2. Because methane 
     and the other four non-CO2 GHGs are either already 
     regulated under the CAA or are functionally equivalent to 
     pollutants typically regulated under the CAA, an endangerment 
     finding for these GHGs would be relatively routine. Because 
     GHGs are understood to be long-lived, well-mixed in the 
     atmosphere, and generated by many nations around the globe, 
     the most analogous regulatory approach for controlling GHGs 
     would seem to be Title VI of the CAA. EPA's relevant 
     experience with controlling ozone-depleting substances should 
     inform its decisions on an approach to regulating GHGs.
       In contrast, an endangerment finding under section 202 may 
     not be the most appropriate approach for regulating GHGs. 
     Making the decision to regulate CO2 under the CAA 
     for the first time is likely to have serious economic 
     consequences for regulated entities throughout the U.S. 
     economy, including small businesses and small communities. 
     Should EPA later extend this finding to stationary sources, 
     small businesses and institutions would be subject to costly 
     regulatory programs such as New Source Review.


 The role of mitigation, adaptation, and/or benefits of climate change

       To the extent that climate change alters our environment, 
     it will create incentives for innovation and adaptation that 
     mitigate the damages from climate change. The document should 
     note this possibility and how it affects the likely impacts 
     of climate change. For example, climate change is likely to 
     unfold slowly and people may migrate from hot regions (e.g., 
     Arizona) to more temperate regions (e.g., Minnesota) and this 
     would mitigate the adverse impacts on health (although people 
     would incur migration costs). Further, climate change is 
     likely to lead to innovation that mitigates the ozone related 
     health impacts; it seems reasonable to assume that in the 
     absence of regulation of GHS, new medicines that lessen the 
     health impacts of ozone will be developed. Moreover, advances 
     in technology and the development of public health programs 
     (e.g., cooling centers) are likely to lessen the negative 
     welfare impacts of heat waves.
       Similarly, the document would appear more balanced if it 
     also highlighted whether particular regions of the US would 
     benefit, and to what extent these positive impacts would 
     mitigate negative impacts elsewhere in the United States. For 
     example, it might be reasonable to conclude that Alaska will 
     benefit from warmer winters for both health and economic 
     reasons. Deschenes and Moretti (2007 Review of Economics and 
     Statistics) demonstrate that extremely cold days are more 
     dangerous to human health than extremely hot days. Please add 
     this paper to the literature review in Section 7(a) of the 
     TSD. Further, there should be a consideration of the 
     fertilizing effect of CO2, which may overwhelm the 
     negative impact of additional hot days on agricultural yields 
     in some regions of the US. In other regions, the net effect 
     is likely to be negative.


          Agency compliance with other environmental mandates

       There is some concern that an endangerment finding, and 
     some of the language used to support the finding, will make 
     it more difficult to comply with NEPA and other environmental 
     planning statutes.
       This finding and the associated emission standards for 
     these six greenhouse gases may make it much more expensive 
     and difficult to develop other air quality standards (NAAQS 
     in particular). For example, EPA has recently asked BLM to 
     use models that sometimes exceed current budgets in 
     developing resource management plans and environmental impact 
     statements. Also, there are currently no models available 
     that forecast the potential impacts of greenhouse gases on 
     climate change at the regional or local level, which are the 
     levels at which our decisions are made. This rule also could 
     make findings that would leave agencies vulnerable to 
     litigation alleging ``inadequate NEPA'' due to new 
     information (i.e., the endangerment finding) that was not 
     considered when the EIS was developed. Without a model 
     available, an agency would be left with little ability to 
     respond because (i) there are no standards to serve as 
     thresholds, (ii) there are no tools to analyze impacts, and 
     (iii) the cost of analyzing impacts could be exorbitant.
       Unnecessarily broad or expansive language with respect to 
     the effects of GHGs or the

[[Page 12440]]

     certainty with which effects will occur could create a basis 
     for finding all GHG emissions significant for purposes of 
     NEPA analysis, thus requiring an EIS for all direct and 
     indirect effects that change GHG emissions in any amount. 
     Similarly, EPA should be very careful to state which effects 
     are significant and their scale to avoid unintentionally 
     trigger NEPA for Federal actions not otherwise considered to 
     have environmental impacts.


                    Four chemicals v. six chemicals

       EPA proposes to make an endangerment finding on six 
     directly emitted and long-lived GHGs--carbon dioxide, 
     methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons 
     and sulfur hexafluoride, treated as a group as an air 
     pollutant. The proposal, however, defines the terms ``air 
     pollution'' and ``air pollutant'' for purposes of section 
     202(a) as the six GHGs, two of which are not addressed in the 
     underlying petition and which EPA recognizes are not emitted 
     by new motor vehicles or motor vehicle engines, and on page 
     two, this action is characterized as a ``response'' to the 
     Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 
     497 (2007), which arose from a petition with respect to the 
     four GHGs. Although the latter two GHGs have similar 
     characteristics and are addressed in UN documents, it is not 
     clear why they are included in the endangerment and ``cause 
     or contribute'' findings. While it appears that section 
     202(a) provides sufficiently broad authority for EPA to do so 
     and the draft explains this decision as based on the uniform, 
     global nature of GHG ambient concentrations, a seemingly 
     simpler regulatory action might be to base the definition of 
     ``air pollution'' or ``air pollutant'' on the four GHGs 
     emitted by new motor vehicles or motor vehicle engines.
       This raises the question of the extent to which EPA intends 
     or does not intend this finding to extend beyond section 202 
     to the same terms used in other key parts of the CAA, e.g., 
     section 101(a) (general findings and purpose), section 108 
     (National Ambient Air Quality Standards), and section 111(b) 
     (New Source Performance Standards). EPA would benefit from 
     making its position explicit in this proposal. Commenters are 
     sure to take this important issue on in some fashion so EPA 
     may as well do what it can to shape the debate and the 
     comments being invited. For example, it could note that the 
     same terms are important parts of other key CAA provisions, 
     but then state that EPA at this time is only addressing and 
     seeking comment on issues directly associated with section 
     202. Alternatively, it could state that it views these 
     findings as to GHGs to be broadly applicable to the Act as a 
     whole, but nonetheless make clear that EPA is not in this 
     rulemaking attempting to consider or address any of the other 
     regulatory findings that would be necessary to trigger GHG 
     regulation under other CAA programs. A third option would be 
     to invite comment on whether interested parties believed 
     there was any basis for distinguishing the understanding of 
     the terms in the section 202 context from the understanding 
     of the terms in other parts of the Act.
       EPA fails to make a case of why the six GHGs should be 
     treated as a single pollutant and why all six should be 
     treated as a group. Treating the gases as a group yields the 
     indefensible result that emissions of PFCs, SF6 and HFCs 
     other than HFC-134a from motor vehicles are asserted to 
     ``cause or contribute: to air pollution, when there are no 
     such emissions from motor vehicles. Further, EPA states that: 
     ``Depending on the circumstances . . . it may be appropriate 
     to set standards for individual gases [of the 6], or some 
     combination of group and individual standards.'' EPA asserts 
     that these regulatory flexibilities would exist whether or 
     not greenhouse gases are treated as multiple pollutants or as 
     individual pollutants. [See discussion on page 32-33.]
       These greenhouse gases differ significantly in terms of 
     physical properties, formation mechanisms, and possible 
     mitigation techniques.
       Mobile source CO2 is formed by burning fossil 
     fuels. Virtually all of the carbon in the fuel is converted 
     to CO2. The more efficient the combustion process, 
     the more complete the conversion to CO2. Unlike 
     for traditional criteria pollutants (e.g., NMHC, CO, 
     NOX), which can be converted to other substances 
     through emissions aftertreatment (i.e., catalytic 
     converters), no mobile aftertreatment device can convert 
     CO2 to something that does not contribute to 
     global warming. Therefore, mobile source CO2 
     emissions can only be reduced by burning less fossil fuel, 
     either by improving fuel economy or converting to less 
     carbon-intensive fuels.
       Mobile source CH4 and N2O emissions 
     are by-products of fossil fuel combustion. However, burning 
     less fossil fuel does not necessarily mean reducing 
     CH4 and N2O emissions. For example, 
     using methane (CH4) rather than petroleum could 
     increase CH4 emissions
       Mobile source HFC emissions arise from releases of HFC 
     refrigerants from mobile air conditioners. Therefore, mobile 
     source HFC emissions can only be reduced by using different 
     refrigerants and/or ``hardening'' mobile air conditioners to 
     reduce the potential for refrigerant leaks.
       Mobile source CO2, CH4, 
     N2O, and HFC emissions not only have different 
     global warning potentials, they remain in the atmosphere for 
     different amounts of time and are removed from the atmosphere 
     by different mechanisms.
       In contrast to EPA's citation of Class I and Class II 
     substances under Title VI, under Title II, EPA treats mobile 
     source NHMC and NOX as separate pollutants, even 
     though both are precursors to the formation of tropospheric 
     ozone (i.e., urban smog), and both are mitigated through a 
     combination of fuel improvements. In fact, current catalytic 
     converters operate by converting HC, CO, and NOX 
     into CH4, N2O, and CO2 (and 
     water)--combustion process changes, and emissions 
     aftertreatment. Considering that mobile source 
     CO2, CH4, N2O, and HFC 
     emissions are even more distinct from one another than are 
     mobile source NHMC and NOX emissions, and that EPA 
     classifies NMHC and NOX as separate pollutants, 
     EPA should classify these as separate pollutants or, 
     alternatively, classify CO2 as one pollutant, 
     classify CH4 and N2O as another 
     pollutant (class), and classify HFCs as a third pollutant 
     (class).


  Accounting for the Global Nature of Greenhouse Gas Pollution in the 
                                Findings

       In this draft proposal, EPA finds under Clean Air Act (CAA) 
     section 202(a) that (1) ``air pollution'' in the form of the 
     global mix of six greenhouse gases (or the GHGs) may be 
     reasonably anticipated to endanger public health and welfare 
     (the endangerment finding); and (2) emissions of an ``air 
     pollutant'' in the form of the global mix of the GHGs from 
     new motor vehicles or motor vehicle engines cause or 
     contribute to that air pollution (the contribution finding). 
     The agency characterizes the ``global'' nature of the GHG 
     emissions and concentrations (page 16), notes the effects of 
     GHG emissions globally in making the endangerment finding 
     (page 29), and assesses the contribution of the GHGs emitted 
     by section 202(a) sources as a percentage of global emissions 
     (page 36).
       The proposal appears to assume, but does not explicitly 
     discuss why (or solicit comment on whether) these are 
     relevant legal inquiries under section 202(a) the Clean Air 
     Act. This is virtually certain to be a subject of public 
     comment; and we recommend that EPA directly address this 
     matter in the proposal. EPA also factors international 
     considerations into the endangerment and contribution 
     findings differently. On page 29, the agency states: ``The 
     Administrator judges that impacts to public health and 
     welfare occurring within the U.S. alone warrant her proposed 
     endangerment finding.'' On page 36, however, EPA bases its 
     finding on the ``significance'' of the GHG emissions from 
     section 202(a) sources for purposes of the contribution 
     finding in part on their global contribution: It is the 
     Administrator's judgment that the collective GHG emissions 
     from section 202(a) source categories are significant, 
     whether the comparison is global (over 4 percent of total GHG 
     emissions) or domestic (24 percent of total GHG emissions). 
     The Administrator believes that consideration of the global 
     context is important for the cause or contribute test but 
     that the analysis should not solely consider the global 
     context.
       It is unclear from the proposal why a difference in 
     treatment of the two findings is necessary or appropriate. 
     Because the Administrator regards the domestic contribution 
     comparison in itself to be significant, it may be simpler 
     (and less open to challenge) to base the contribution finding 
     solely on domestic considerations. (This would not foreclose 
     a discussion of global contribution, provided, as requested 
     above, it is made clear how relevant this is under section 
     202(a)).


         Group Versus Individual Approach to ``Air Pollutant''

       On page 32, EPA proposes to designate the six GHGs, 
     collectively, as the ``air pollutant'' for which the 
     endangerment finding is being made. The proposal, however, 
     then goes on at pages 33-40 to analyze the contribution issue 
     both as to the six GHGs collectively, and as to each 
     individually. Although EPA hints that it believes either a 
     collective or individual approach could be valid and would 
     reach similar results, see page 34, the agency never really 
     says expressly whether or not it is soliciting comment on 
     these issues and whether it would be open to considering a 
     pollutant-by-pollutant-based approach for the final rule. We 
     recommend that this be made explicit.


                          Comment Solicitation

       EPA limits solicitation of comment on the proposal to the 
     simple statements on page six to the effect that it seeks 
     comment on all aspects of this action (data, methodology, and 
     major legal and policy considerations). While this is 
     efficient and legally sufficient, the agency may want to 
     highlight a few key areas in which comment would be most 
     useful. The first two issues that we've identified above 
     might be worthy of an express request for comment. EPA may 
     also need to clarify the relationship between comment on this 
     proposal and the July 30, 2008 Advance Notice of Proposed 
     Rulemaking on Greenhouse Gas Emissions (ANPR). In footnote 
     11, EPA indicates that it is responding to a few key comments 
     from the ANPRM in this proposal related to the endangerment 
     and contribution findings and asks commenters to ``submit to 
     the docket for today's action any

[[Page 12441]]

     comments they want EPA to consider as it makes a decision on 
     this proposed determination.'' We recommend that EPA move the 
     footnote 11 discussion up to the main body of the proposal at 
     page 6 and explicitly state that commenters may not rely on 
     prior submission of comments to the ANPR and that if parties 
     wish EPA to consider comments made in response to the ANPR or 
     other rulemakings, they should re-submit those comments here 
     with an appropriate explanation as to how the commenter 
     believes those comments relate to issues raised in this 
     proposal. We can imagine a party trying to make out a 
     challenge to this endangerment finding based on arguments 
     that were raised entirely or primarily in comments submitted 
     in response to the ANPR, not this proposal (a prospect that 
     is somewhat more likely due to the fact that EPA in various 
     places discusses comments made in response to the ANPR).


                        Agricultural Production

       The proposed Finding erroneously suggests that 
     Intergovernmental Panel on Climate Change (IPCC) predicts an 
     increase in both crop and forest production in the U.S. 
     (e.g., pg. 28 lines 21 and 34 of the Proposed Finding, pg. 80 
     line 26, page 87 line 9). The IPCC findings refer to North 
     America, not the U.S. The Synthesis and Assessment Product 
     4.3 (SAP 4.3) ``The Effects of Climate Change on Agriculture, 
     Land Resources, Water Resources, and Biodiversity in the 
     United States'' (U.S. Climate Change Science Program/Backlund 
     et al. 2008), which includes more recent and more 
     geographically-specific publications, tempered IPCC's 
     findings substantially, citing water limitations, northward 
     progression of production zones, diminished grain set period, 
     pest infestations, nutrient limitations, air pollution, and 
     wildfire, among other dampening factors to production in 
     agriculture and forestry in the U.S. Significant increases in 
     production may be possible within North America as a whole, 
     but are unlikely within the U.S. itself.
       The Findings document should be corrected to reflect that 
     IPCC is referring to North America rather than the U.S. More 
     importantly, the Findings document should be revised to 
     accurately reflect the discussion in the Technical Support 
     Document (TSD). In addition, the placement of the IPCC 
     prediction near the beginning of each section in the absence 
     of any summarization gives the impression that large 
     production increases are conclusive. This overrides the very 
     salient and far more equivocal discussion which follows, 
     leaving readers with the mistaken impression that climate 
     change is a boon to U.S. agriculture and forestry. A summary 
     statement which more accurately reflects the content of the 
     technical discussions should be composed to lead each 
     section.


  Emissions from the combustion of different fuels vs. emissions from 
                   different mobile source categories

       Mobile source CO2 is formed by burning fossil 
     fuels. Virtually all of the carbon in the fuel is converted 
     to CO2. Therefore, and considering that 
     CO2 remains in the atmosphere for a long time, 
     national aggregate consumption of different types of fuels 
     provides the most accurate basis for estimating 
     CO2 emissions. IPCC guidelines for national 
     reporting of GHG emissions account for this fact, and EIA and 
     EPA both use fuel consumption--not vehicle sales and fuel 
     economy--as a basis for estimating and reporting 
     CO2 emissions. According to the IPCC (emphasis 
     added), ``Emissions of CO2 are best calculated on 
     the basis of the amount and type of fuel combusted (taken to 
     be equal to the fuel sold, see section 3.2.1.3) and its 
     carbon content.''2
       Such reporting addresses petroleum consumption in the 
     aggregate and for different petroleum-based fuels, such as 
     shown below from EIA (http://www.eia.doe.gov/oiaf/1605/ggrpt/
carbon.html): 2 http://www.ipcc-ggip.iges.or.jp/public/
     2006gl/pdf/2_Volume2/V2_3_Ch3_Mobile_Combustion.pdf, p. 3-10.


                        General Editorial issues

       ``New Motor Vehicle or Motor Engine'' Reference. The draft 
     sometimes simply refers to emissions from ``motor vehicles'' 
     rather than emissions from ``new motor vehicles or motor 
     vehicle engines.'' (The draft could indicate initially that 
     the term ``motor vehicle'' is intended to refer to both of 
     these.) Statements regarding consideration of current and 
     near-term emissions [page 35], and cumulative emissions [page 
     17] appear to be inconsistent, and should be clarified. EPA 
     clearly intends that the definition of the ``air pollutant'' 
     emitted by new motor vehicle or motor engine sources to be 
     the six GHGs. In several places, however, the proposal 
     appears to describe the four GHGs emitted by new motor 
     vehicles or motor vehicle engines as the ``air pollutant.'' 
     See, e.g., pages 1 (lines 36-37), 2 (lines 24-27), and 36 
     (lines 34-37).

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