Heads are exploding – Senate confirms Pruitt to Lead EPA

Not simply done, but along with the Justice Department they can choose not to fight challenges to the CPP by the states, then Congress needs to get its act together to codify the fact that CO2 is not a pollutant in the context of the Clean Air Act. But for all intents and purposes the CPP is dead.

Mr. Michael: Yes, he does.
For some context, here is part of a memorandum I wrote a couple years ago about the situation. Again, please, dear readers, note: this is for context and general guidance only.

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’ Amicus Brief at 22. {Link: ***}
“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. {emphasis mine}
The D.C. Circuit Court appears to have aided and abetted EPA’s contrived ignorance when it declined to grant leave for filing of the Brief of Amici Curiae Scientists in Support of Petitioners Supporting Reversal, Coalition for Responsible Regulation, Inc. v. Environmental Protection Agency, No 09-1322 (CADC June 8, 2011), ECF No. 1312291. Scientists at 23. [Note: the Amici Curiae Scientists’ brief above would likely be a much better source of CO2 science than the rather crude, though accurate, science in Scientists (amici for Utility Air … v. EPA)]. “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. ***
{A c}ourt will consider reversal of Administrator when her or his:
1) “failure to observe procedural requirements was arbitrary and capricious[;]
[2)] an objection was raised …”of central relevance to the outcome of the rule[;]” and
[3)] “the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made.” Sierra Club at 391 (quoting American Public Gas Ass’n v. FPC, 567 F.2d 1016).
“… the “artificial narrowing of options [] (can be) arbitrary and capricious.” Sierra Club at 335 (quoting Pillai v. CAB, 485 F.2d 1018, 1027 (D.C.Cir.1973) held artificial narrowing of options to one alternative to be arbitrary and capricious).
The “Unalterably Closed Mind” standard for removal of biased Agency official supports holding the EPA Administrator responsible for her gross negligence in creating an accurate and complete science evidence record. An agency head [FTC Commissioner, in this case] “should be disqualified … when there is a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to the disposition of the proceeding. The “clear and convincing” test is necessary to rebut the presumption of administrative regularity. See, e.g., Withrow v. Larkin, 421 U.S. 35, 55 (1975)… . The ‘unalterably closed mind’ test … [will] disqualify[] [rulemakers] unable to consider meaningfully… .” Association of National Advertisers, Inc. v. Federal Trade Commission, 627 F.2d 1151,¬¬¬ 1170 (D.C. Cir. 1979).
Comment: That the D.C. Circuit Court gave the EPA the option to avoid looking at all the best CO2 science evidence does not excuse EPA’s negligence, if not recklessness, in promulgating a rule based on a grossly inadequate and, moreover, inaccurate, record, … The EPA’s rule was, thus, not rationally based.
{Given that} the Administrator contrived to exclude important evidence directly countering the loudly and often announced GHG regulation goals of the Executive who appointed her {and given that the rule was} {u}nsupported by any best CO2 science, the ruling was arbitrary, …

Re: Computer Model Projections

The U.S. Supreme Court in Sierra Club v. Costle while allowing the EPA to use computer models at all, expressed significant skepticism as to their accuracy: “We are more sympathetic to Sierra Club’s complaint about the reliability of EPA’s econometric model. Such models, despite their complex design and aura of scientific validity, are at best imperfect and subject to manipulation as EPA forthrightly recognizes.116 {emphasis mine}
EPA’s Administrator {not the bogus CO2 finding admin.} stated:
The truth of the matter is that the model that we are using is a reasonably good model, but you can alter the outcome from that model dramatically by just simply changing a few key initial assumptions that you crank into the model. I think those assumptions need to be tested, frankly, in a public debate and in a formal rulemaking proceeding, where people comment for the record, set out their alternative assumptions, saying, “We think this is really more realistic.”
Ad.Doc. No. III-C-1, supra note 18, at 15-16, J.A. at 2956-57.
The [computer output is] ultimately [] shaped by the assumptions adopted at the outset, and can change drastically for a given range of input data if key assumptions are adjusted even slightly.117 The accuracy of the model’s predictions also hinges on whether the underlying assumptions reflect reality, which is no small feat in this volatile world.” Sierra Club v. Costle at 332.
The Supreme Court has in the past evaluated the skill of the models the EPA relied on “to ascertain whether the results have been improperly skewed by the modeling format. We conclude that EPA’s reliance on its model did not exceed the bounds of its usefulness … . We are in fact reassured by EPA’s own consciousness of the limits of its model,127 and its invitation and response to public comment on all aspects of the model.128 The safety valves in the use of such sophisticated methodology are the requirement of public exposure of the assumptions and data incorporated into the analysis… .” Sierra Club v. Costle 657 F. 2d 298, 334 (1981). {emphasis mine}
Comment: With regard to the CO2 rule (almost certainly promulgated subject to APA §§556 and 557):
1) the EPA excluded expert science testimony of vital importance to truth; did not respond to highly relevant, “new”-to-agency, data; and it based its rule on terribly flawed “science” (including proven-failed climate models with no “public exposure of the assumptions and data”). Thus, the CO2 ruling was “unsupported by substantial evidence,” to the point that the rulemaking was, as to explicit discretionary authority, “arbitrary,” and, thus, certainly, as to implied discretion, “unreasonable;” and also, thus, the CO2 ruling
2) violated the Fifth Amendment’s requirement of due process (a reasonable opportunity to be heard) as well as being a regulatory taking of the private electric companies’ property, i.e., their ability to produce their product, with no “just compensation.” U.S. Const. amend. V.
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 (in other words, non-negligent) manner.
Although the D.C. Circuit allowed the EPA to make this exclusion, such judicial acquiescence does not excuse the agency’s blatantly negligent (if not reckless) decision making. “There is a substantial likelihood that the [CO2] rule would have been significantly changed” but for the Administrator’s artificially narrowing the scientific expert testimony and evidence considered.
Thus, per APA §706, the court should issue a declaratory injunction stopping the enforcement of the human CO2 “endangerment” rule at least until the incomplete agency record is supplemented after public hearings so that it contains all the best current science on human CO2 and its conjectured effect on the climate of the earth. The EPA’s refusal to even consider evidence from the climate scientists testifying against CO2 “endangerment” rule was a “strong showing of bad faith or improper behavior,” thus, the court should closely scrutinize the CO2 rule making by the EPA here.
“Contemporaneous” Administrative Record – re: trial de novo versus referral of matter back to agency
Where there is a “contemporaneous explanation of the agency decision,” even though very brief, the proper remedy is not trial de novo but requiring additional agency testimony, i.e., disclosure of the full administrative record. Camp v. Pitts, 411 U.S. 138, 142-43 (1973).
Comment: Here, the full record (so far as I know) was disclosed. The problem is its contrived incompleteness. Thus, Camp v. Pitts would not preclude the court from issuing an emergency injunction to stay enforcement of the rule and or to try the Administrator for negligence or recklessness. ***

Memo about EPA ultra vires rulemaking by Janice Moore (2014) at 15-18.

Oh happy day!!!