Trump to sign “energy independence” executive order today, killing Obama climate regs

Actually, if the standard of review is, indeed, “arbitrary and capricious,” it is a low standard to meet (the lowest, in fact). That is, only if Pruitt’s review had essentially nothing to support it (and there is MUCH evidence, I have a lot listed in my memorandum about this topic) would it be struck down as “arbitrary and capricious.”

The next level of review is “rational basis” — it would pass that level of review easily, also.

Finally, even under “strict scrutiny,” the highest level of review, I think a review of the HORRIBLY ULTRA VIRES, UNSUPPORTED, EPA “finding” about CO2 would pass “strict scrutiny,” also.

So! Good news! All it takes is the will and we can get it done!

In case what you meant by standard of review was what Pruitt, et al. have to meet in a judicial review of the ultra vires EPA “finding,” here is some background reading (just FYI, not aimed at you, Mr. Middleton — just in case your comment raised more questions than it answered for some people):

II. STANDARD OF REVIEW
[See also III. Clean Air Act at B.]

1. Administrative Procedure Act, 5 U.S.C. §706
“The reviewing court shall – (1) compel agency action … [OR]
(2) … set aside agency action … found to be –
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law …

2. Chevron 2-Prong Review of Agency Rulemaking

The threshold test is whether Congress directly addressed the precise matter; if so, end of inquiry – follow Congress’ specific mandate. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 { } (1984).

{Note: That is why Pruitt wants Congress to act, here.}

If not, then:

– Explicit, statute-required, agency discretion is controlling unless “arbitrary, capricious, or manifestly contrary to the statute.” Chevron at 843-44.
– Implicit agency discretion is controlling unless unreasonable. Id. ***

(2) CAA {Clean Air Act} on Science to Be Fully Considered

“Air quality criteria for an air pollutant shall accurately reflect the latest scientific knowledge… .” 42 U.S.C. 85 §7408(a)(2).

Comment: As a result of the EPA Administrator’s excluding from record much valid, well-respected, widely held, scientific analysis: 1) the record was grossly biased and incomplete; and 2) therefore, the CO2 rule was not promulgated in a rational, careful (i.e., non-negligent) manner. …

***
4) Massachusetts v. EPA “endangerment” standard

 CAA {Clean Air Act} §7521(a)(1) authorizes regulation of vehicle emissions that may “endanger public health or welfare” including a GHG if it creates an “endangerment.” Massachusettsv. EPA, 549 U.S. 497, 498 (2007) –Petitioner Utility Air Reg. Group Brief at 11)
 After Massachusetts, EPA decided that “GHG” emissions of motor vehicles cause or contribute to air pollution which may reasonably {(me) NOT reasonable – HERE IS WHERE FAILS RATIONAL BASIS REVIEW (= , thus, arbitrary and capricious and counter to evidence, too)} be anticipated to endanger public health or welfare” per CAA §7521(a)(1). JA at 793, 821.

EPA never found that motor vehicle “GHG” emissions affect, much less, significantly pollute, ambient air quality. (Utility Air Brief at 11) The EPA merely decided that such emissions affect global climate (Utility brief at 12) based on NO mechanism, just pure speculation…. ***

B. CO2 as a Pollutant Lacks Rational Basis — Best Science

…. 4. CO2 Science ….

3) The EPA declared:

 that “[c]urrent and projected levels of ambient concentrations”of GHG’s (“GHG” defined by EPA in its tailoring rule as being dominated by CO2, JA* 290) do not cause adverse effects locally or regionally. JA at 1145. [Source: Petitioner Utility Air Regulatory Group brief, reported online by American Bar Assoc.] ***

***

TWO MAIN ARGUMENTS against EPA Endangerment v. a v. GHG

1. {No observation-based science} — “… the three “lines of evidence” from the administrative record that EPA relied on do not support the conclusion that manmade greenhouse gas emissions have caused climate warming… each line of evidence is demonstrably invalid.” Scientists Amici Brief at 4-5.
— EPA’s 3 Lines of Evidence – Invalid – Just Plain Wrong – [likely SCOTUS say “that is Congress’ problem to solve”?]
a. “Hot spot” – not observed in earth temperature data. [See Scientists Brief at 9-13]
b. Unusual and dangerously high temperatures over last 50 years — not observed in best earth temperature data available [See Scientists Brief at 13- 16]
c. IPCC Models – failed (CO2 UP. WARMING STOPPED.) — unfit for purpose – worse-than-useless simulations [Scientists Brief at 5 and at 16-20 – omits mentioning models’ failure to HINDcast]; See EPA record at 74 Fed. Reg. 66518 (2009).]
 EPA’S conclusion is, thus, invalid.

2. Arbitrary and Capricious – NO RATIONAL BASIS [See See Scientists Brief at 6-7, and 22- ]

– “EPA refused to examine “relevant data,” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) (quoting Motor Vehicles Mfrs. Assn. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)), and made other procedural errors. Scientists Brief at 6. “Because evidence EPA had available to it contradicts EPA’s ultimate conclusion,” Scientists at 6-7, “EPA’s Endangerment Finding is not “rational,” but arbitrary and capricious. Fox, 556 U.S., at 516.” Scientists Brief at 6.

Clean Air Act 42 USC 85 §7607(d)(9)

– “(9) In the case of review of any action of the Administrator to which this subsection applies, the court may reverse any such action found to be-
– (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

***

— Evidence of Illegal Rulemaking Process

Clean Air Act 42 USC 85 §7607(d)(5)

“(5) In promulgating a rule to which this subsection applies: (i) the Administrator shall allow any person to submit written comments, data, or documentary information;
…

 “EPA’s own Inspector General, in a procedural review issued in September 2011[Procedural Review of EPA’s Greenhouse Gases Endangerment Finding Data Quality Processes, Report No. 11-P-0702, at 36 (Sept. 26, 2011) at: epa.gov/oig/reports/2011/20110926-11-P-07 02.pdf]

faulted EPA for procedural deficiencies including the refusal to use the Scientific Advisory Board process.” Scientists Brief at 22. “In particular, the Inspector General criticized EPA for failing to follow all recommended steps for an external peer review by independent experts. See Inspector General’s Report, at 36.” Scientists at 23.

***

3. Conclusion – “In short, EPA’s process was far less rigorous than it should and could have been. And the [C]ourt of [A]ppeals erred in failing to recognize the deficiencies in it.” Scientists at 24.

************************************************************

Note: The above discussion is largely about judicial review. The EPA can revisit its own policies. We are in a new era, now. Before, we could not look to the EPA to do anything rational about human CO2, given the administration’s bent for pseudo science-based regulation designed to create artificial market share for its enviroprofiteer cronies. NOW, we need not rely on the judiciary to rescue our economy from bogus rule making. That is, much of the above discussion is moot at this time (i.e., just FYI).

Dear Mr. Middleton,

I think I mis-read your comment and want beg your pardon (for the first comment, which was not a response to what you intended to say, if I’m not mistaken (again — blush)).

Hoping my second comment did your comment justice,

Janice